Newberry v. Moore (In re Initiative Petition No. 420, State Question No. 804)
| Decision Date | 04 February 2020 |
| Docket Number | Case No. 118,406 |
| Citation | 458 P.3d 1080 |
| Parties | IN RE: INITIATIVE PETITION NO. 420, STATE QUESTION NO. 804 Laura Newberry and Eldon Merklin, Petitioners, v. Andrew Moore, Janet Ann Largent and Lynda Johnson, Respondents. |
| Court | Oklahoma Supreme Court |
¶1 On October 28, 2019, the Respondents/Proponents, Andrew Moore, Janet Ann Largent, and Lynda Johnson (Respondents), filed Initiative Petition No. 420, State Question No. 804 (IP 420), with the Secretary of State of Oklahoma. The initiative measure proposes for submission to the voters the creation of a new constitutional article, Article V-A, which would create the Citizens' Independent Redistricting Commission (Commission). IP 420 would vest the power to redistrict the State's House of Representatives and Senatorial districts, as well as Federal Congressional Districts, in this newly created Commission. IP 420 would also repeal current constitutional provisions concerning state legislative apportionment. Notice of the filing was published on October 31, 2019. Title 34 O.S. Supp. 2015, § 8(b). The Petitioners, Laura Newberry and Eldon Merklin (Petitioners), timely brought this original proceeding to protest the sufficiency of IP 420's gist statement. This matter was assigned to this office on December 17, 2019.
¶2 "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, ¶2, 376 P.3d 250 ; In re Initiative Petition No. 403 , 2016 OK 1, ¶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. We have repeatedly emphasized both how vital the right of initiative is to the people of Oklahoma, as well as the degree to which we must protect it:
Because the right of the initiative is so precious, all doubt as to the construction of pertinent provisions is resolved in favor of the initiative. The initiative power should not be crippled, avoided, or denied by technical construction by the courts.
In re Initiative Petition No. 403 , 2016 OK 1, ¶3, 367 P.3d 472 (quoting In re Initiative Petition No. 382 , 2006 OK 45, ¶3, 142 P.3d 400 ).
¶3 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, ¶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, ¶2, 164 P.3d 125 (quoting In re Initiative Petition No. 379, State Question No. 726 , 2006 OK 89, ¶16, 155 P.3d 32 ).
¶4 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." The gist is required to be in "simple language" and should inform "a signer of what the measure is generally intended to do." In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶20, 927 P.2d 558. Each signature sheet is attached to a copy of the initiative petition and is therefore available for review by any potential signatory. Id. The two combined form what is called the "pamphlet." Id. The gist must be short and because it will appear at the beginning of every page of the petition it can contain "no more than a shorthand explanation of a proposition's terms." In re Initiative Petition No. 362, State Question No. 669, 1995 OK 77, ¶10, 899 P.2d 1145. It need not contain the more extensive requirements for ballot titles contained in 34 O.S. Supp. 2018, § 9. Id. 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, ¶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 ). Because the purpose of the gist is to prevent fraud, deceit or corruption in the initiative process, any alleged flaw created by an omission of details in the gist must be reviewed to determine whether such omission is critical to protecting the initiative process. In re Initiative Petition No. 363, 1996 OK 122, ¶¶18-20, 927 P.2d 558. "The sole question ... is whether the absence of a more detailed gist statement ... without more, perpetuates a fraud on the signatories." Id. ¶19.
¶5 The gist statement of IP 420 is as follows:
This measure adds a new Article V-A to the Oklahoma Constitution. This new Article creates the Citizens' Independent Redistricting Commission and vests the power to redistrict the State's House of Representative and Senatorial districts, as well as its Federal Congressional Districts, in the Commission (rather than the Legislature). The Article sets forth qualifications and a process for the selection of Commissioners, a Special Master and a Secretary. It also sets forth a process for the creation and approval of redistricting plans after each Federal Decennial Census. In creating the redistricting plans, the Commission must comply with certain criteria, including federal law, population equality, and contiguity, and must seek to maximize compliance with other criteria, including respect for communities of interest, racial and ethnic fairness, respect for political subdivision boundaries, political fairness, and compactness. The Article creates a fallback mechanism in the event that the Commission cannot reach consensus on a plan within a set timeframe. It also sets forth procedures for funding and judicial review, repeals existing constitutional provisions involving legislative districts, codifies the number of state House of Representative and Senatorial districts, and reserves powers to the Commission rather than the Legislature.
Petitioners' Appendix to Application and Petition to Assume Original Jurisdiction and Review the Gist of Initiative Petition No. 420, Ex. B.
¶6 The Petitioners challenge the legal sufficiency of the gist statement. Their arguments focus mainly on its omissions, some more conspicuous than others, and to an alleged flaw in the actual petition itself concerning selection of the Panel that will select the commissioners. They claim these omissions prevent a potential signatory from being informed of the true nature1 of the petition. The Petitioners' assert the petition's purpose is about more than just redistricting. Although the Petitioners' briefs have expressed the supposed purpose of the petition in several ways, they appear to believe the true nature of the petition concerns the elimination of partisanship in the redistricting process. The Respondents assert the purpose is to "safeguard against and combat improper partisan gerrymandering." Respondents' Response Brief at 11. Both interpretations are essentially the same, but we agree the gist does not adequately reflect this intent.
¶7 Certain alleged omissions need to be addressed in the gist to sufficiently inform a potential signatory that this measure is intended to curtail partisan gerrymandering. First, a shorthand explanation in simple language should convey the selection process and composition of the commissioners.2 The petition requires a Panel to be designated by the Chief Justice consisting of retired Justices and appellate judges. Sections 4(A) (7) and 4(B)(4)(b) of IP 420. The Panel will review the applications for the Commission and select some of the commissioners. Section 4(B)(4)(b) of IP...
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