McDonald v. Thompson

• Decision Date: 19 March 2018
• Docket Number: No. 116,680,116,680
• Citation: 414 P.3d 367
• Parties: Mike MCDONALD, Valerie Mitchell, and Oklahoma Independent Petroleum Association, Petitioners, v. Michael O. THOMPSON, Ray H. Potts, and Mary Lynn Peacher, Respondents.
• Court: Oklahoma Supreme Court

414 P.3d 367

Mike MCDONALD, Valerie Mitchell, and Oklahoma Independent Petroleum Association, Petitioners,

v.Michael O. THOMPSON, Ray H. Potts, and Mary Lynn Peacher, Respondents.

No. 116,680

Supreme Court of Oklahoma.

FILED March 19, 2018

Robert G. McCampbell, Adam C. Doverspike, and Jake M. Krattiger, GableGotwals, Oklahoma City, Oklahoma, for Petitioners.

Anthony J. Ferate, Edmond, Oklahoma, for Petitioner Oklahoma Independent Petroleum Association.

Joel L. Wohlgemuth, Ryan A. Ray, Alix R. Newman, Norman Wohlgemuth Chandler Jeter Barnett & Ray, P.C., Tulsa, Oklahoma, for Respondents.

COMBS, C.J.

¶ 1 On December 20, 2017, Respondents Michael O. Thompson, Ray H. Potts, and Mary Lynn Peacher (collectively, Proponents) filed Initiative Petition No. 416, State Question No. 795 (IP 416) with the Oklahoma Secretary of State. IP 416 would create a new Article XIII–C in the Oklahoma Constitution. IP 416 contains 8 sections, which Proponents assert will levy a new 5% gross production tax on oil and gas production from certain wells, and provide for the deposit of the proceeds primarily in a new fund entitled the "Oklahoma Quality Instruction Fund" (the Fund). Monies from the Fund will be distributed: 1) 90% to common school districts of the State of Oklahoma to increase compensation and benefits for certified personnel, and the hiring, recruitment and retention thereof; and 2) 10% to the State Department of Education to promote school readiness, and to support compensation for instructors and other instructional expenses in "high-quality early learning centers" for at-risk children prior to entry into the common education system.

¶ 2 Section 1 of IP 416 creates the Fund. Section 2 creates the Oklahoma Quality Instruction Reserve Fund to ensure the Fund always has sufficient resources, and provides mechanisms for the transfer of monies. Section 3 levies the 5% gross production tax. Section 4 provides for a $4,000 increase in compensation for certified personnel, including teachers, but excluding superintendents and assistant superintendents. Section 5 provides for the distribution of funds according to the percentage scheme noted in the previous paragraph above. Section 6 attempts to ensure that the new funds will be used to supplement existing funding rather than supplant it, and grants the Board of Equalization the power to specify the amount that was supplanted or replaced, preventing the Legislature from making appropriations until it makes an appropriation to replace the supplanted amount. Sections 7 and 8 provide an effective date and severability provision, respectively.

¶ 3 On January 10, 2018, Petitioners Mike McDonald, Valerie Mitchell, and Oklahoma Independent Petroleum Association (collectively, Protestants), timely filed an Application to Assume Original Jurisdiction in this Court protesting the sufficiency of the gist of IP 416.

I.STANDARD OF REVIEW

¶ 4 "The first power reserved by the people is the initiative...." Okla. Const. art. 5, § 2 ; In re Initiative Petition No. 409, State Question No. 785 , 2016 OK 51, ¶ 2, 376 P.3d 250 ; In re Initiative Petition No. 403, State Question No. 779 , 2016 OK 1, ¶ 3, 367 P.3d 472. With that reservation comes "the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature." Okla. Cost. art. 5, § 1; In re Initiative Petition No. 409 , 2016 OK 51 at ¶ 2, 376 P.3d 250 ; In re Initiative Petition No. 403 , 2016 OK 1 at ¶ 3, 367 P.3d 472. "The right of the initiative is precious, and it is one which this Court is zealous to preserve to the fullest measure of the spirit and the letter of the law." In re Initiative Petition No. 382, State Question No. 729 , 2006 OK 45, ¶ 3, 142 P.3d 400. See In re Initiative Petition No. 349, State Question No. 642 , 1992 OK 122, ¶ 35, 838 P.2d 1.

¶ 5 However, while the fundamental and precious right of initiative petition is zealously protected by this Court, it is not absolute. Any citizen can protest the sufficiency and legality of an initiative petition. In re Initiative Petition No. 409 , 2016 OK 51 at ¶ 2, 376 P.3d 250 ; In re Initiative Petition No. 384, State Question No. 731 , 2007 OK 48, ¶ 2, 164 P.3d 125. "Upon such protest, this Court must review the petition to ensure that it complies with the ‘parameters of the rights and restrictions [as] established by the Oklahoma Constitution, legislative enactments and this Court's jurisprudence.’ " In re Initiative Petition No. 384 , 2007 OK 48 at ¶ 2, 164 P.3d 125 (quoting In re Initiative Petition No. 379, State Question No. 726 , 2006 OK 89, ¶ 16, 155 P.3d 32 ).

¶ 6 The gist of an initiative petition is required by 34 O.S. 2011 § 3, which provides in pertinent part: "A simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet." This Court described the importance of the gist and ballot title, as well as the requirements, in In re Initiative Petition No. 344, State Question No. 630 , where we explained:

[T]he statement on the petition [the gist] and the ballot title must be brief, descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition. The limitations ... are necessary to prevent deception in the initiative process.... The voters, after reading the statement on the petition and the ballot title, should be able to cast an informed vote.

1990 OK 75, ¶ 14, 797 P.2d 326.

This Court further explained in detail how the gist of an initiative petition should be evaluated in In re Initiative Petition No. 409 , where we stated:

This Court has long held that the purpose of the gist, along with the ballot title, is to "prevent fraud, deceit, or corruption in the initiative process." The gist " ‘should be sufficient that the signatories are at least put on notice of the changes being made,’ " and the gist must explain the proposal's effect. The explanation of the effect on existing law "does not extend to describing policy arguments for or against the proposal." The gist "need only convey the practical, not the theoretical, effect of the proposed legislation," and it is " ‘not required to contain every regulatory detail so long as its outline is not incorrect.’ " "We will approve the text of a challenged gist if it is ‘free from the taint of misleading terms or deceitful language.’ "

2016 OK 51 at ¶ 3, 376 P.3d 250 (footnotes omitted) (quoting primarily In re Initiative Petition No. 384 , State Question No. 731 , 2007 OK 48, 164 P.3d 125 ).

II.ANALYSIS

¶ 7 The gist of IP 416 as submitted is as follows:

This measure adds a new Article to the Oklahoma Constitution. The new Article creates two limited purpose funds to support quality instruction. It increases compensation for all certified personnel, including teachers, and supports early learning. It levies a five percent tax on gross production of oil and gas wells during the first thirty-six months of production to provide revenue for the Oklahoma Quality Instruction Fund (the "Fund"), and to provide revenue for a Reserve Fund ensuring the Fund can fulfill its obligations. The tax does not supplant or replace existing gross production taxes on such wells during such periods. The Article mandates a $4,000 increase in salaries for all common education certified personel, including teachers and others. It allocates 90% of the available proceeds in the Fund for that purpose. It also allocates 10% of the available proceeds to support compensation for instructors and other instructional expenses in high-quality early learning centers for at-risk children prior to entry into the common education system. It requires annual audits of the use of monies from the Funds, which shall be made publicly available. It prohibits the use of such funds for superintendent or assistant superintendent salaries. It requires that monies from the Funds not supplant or replace other educational funding, and requires the State Board of Equalization to prohibit further appropriations by the Legislature if such supplanting or replacement has occurred, until remedied.

Petitioners' Appendix to Application to Assume Original Jurisdiction and Petition to Review the Gist of Initiative Petition 416, Ex. B.

Protestants challenge the legal sufficiency of the gist, and assert that the insufficiency of the gist is fatal to IP 416.

¶ 8 Protestants make several arguments that the gist of IP 416 is insufficient, including that the gist: 1) is misleading because it mentions only teachers as the recipients of the salary increase; 2) engages in advocacy by using terms such as "to support quality instruction" and "in high quality early learning centers;" 3) fails to mention the State Department of Education will receive 10% of the proceeds; 4) fails to mention that the new tax will be applied to wells drilled after July 1, 2015; 5) fails to mention the salary increase for certified personnel will be set within the Constitution itself; 6) fails to mention the pay raise will be given without regard to merit; and 7) fails to mention the tax will be imposed by the Constitution. This Court finds Protestants' arguments to be unpersuasive.

¶ 9 Protestants first assert that the gist of IP 416 is misleading because it mentions only teachers specifically as recipients of the salary increase that would be put in place by the new article. However, neither the gist, nor the petition itself mentions only teachers. In fact the gist properly mirrors the petition by stating that the new article "increases compensation for all certified personnel, including teachers." The gist further notes, in keeping with the petition, that superintendents and assistant superintendents are excluded. This language is not deceiving or misleading, but informative of the purpose behind IP 416 itself and properly describes the effect the new arti...