OCPA Impact, Inc. v. Sheehan

• Decision Date: 18 July 2016
• Docket Number: No. 115,108,115,108
• Citation: 377 P.3d 138,2016 OK 84
• Parties: OCPA Impact, Inc., and David Bond, Petitioners, v. Shawn Sheehan, Linda Reid, and Melvin Moran, Respondents.
• Court: Oklahoma Supreme Court

377 P.3d 138

2016 OK 84

OCPA Impact, Inc., and David Bond, Petitioners,

v.Shawn Sheehan, Linda Reid, and Melvin Moran, Respondents.

No. 115,108

Supreme Court of Oklahoma.

FILED JULY 18, 2016

Robert G. McCampbell, and Travis V. Jett, Fellers Snider, P.C., Oklahoma City, Oklahoma, for Petitioners.

D. Kent Meyers, Melanie Wilson Rughani, Paige A. Masters, Crowe & Dunlevy, Oklahoma City, Oklahoma, for Respondents.

Patrick R. Wyrick, Solicitor General, and Mithun S. Mansinghani, Deputy Solicitor General, Office of the Attorney General, Oklahoma City, Oklahoma, for Attorney General.

COMBS, V.C.J.:

FACTS AND PROCEDURAL HISTORY

¶ 1 On October 21, 2015, Respondents/Proponents Shawn Sheehan, Linda Reid, and Melvin Moran (Respondents) filed Initiative Petition No. 403 (State Question No. 779), with the Oklahoma Secretary of State. The petition seeks to amend the Oklahoma Constitution by adding a new Article 13–C. The proposed article creates the Oklahoma Education Improvement Fund, designed to provide for the improvement of public education in Oklahoma through an additional one-cent sales and use tax. Funds generated by the one-cent tax would be distributed to public school districts, higher education institutions, career and technology centers, and early childhood education providers for certain educational purposes outlined in the proposed article. Additionally, a percentage of the funds would be used to provide a $5,000.00 pay raise to all public school teachers. The proposed article delegates oversight and auditing responsibilities to the State Board of Equalization and requires monies allocated from the Fund to be used by the Legislature to enhance and not supplant current public education appropriations. The Respondents' proposed ballot title reads as follows:

This measure adds a new Article to the Oklahoma Constitution. The new article creates a limited purpose fund to improve public education. It levies a one cent sales and use tax to provide revenue for the fund. It allocates funds for specific institutions and purposes related to the improvement of public education, such as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, to increase high school graduation rates, college and career readiness, and college affordability, improving higher education and career technology education, and increasing access to voluntary early learning opportunities for low-income and at-risk children. It requires an annual audit of school districts' use of monies from the fund. It prohibits school districts' use of these funds for administrative salaries. It provides for an increase in teacher salaries. It requires that monies from the fund not supplant or replace other education funding. The Article takes effects [sic] on the July 1 after its passage.

Initiative Petition No. 403, Proposed Ballot Title.

¶ 2 On November 12, 2015, Petitioners OCPA, Inc. and David Bond (Petitioners) filed an Application to Assume Original Jurisdiction in this Court. They raised a single constitutional challenge to the initiative measure, arguing the petition is unconstitutional because it violates the one general subject rule of Art. 24, § 1 of the Oklahoma Constitution. After hearing arguments from the parties and upon consideration, this Court assumed original jurisdiction and held on January 12, 2016, the Initiative Petition No. 403 embraces one general subject and did not violate Art. 24, § 1 of the Oklahoma Constitution. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1, 367 P.3d 472

. We determined Initiative Petition No. 403 is legally sufficient to submit to the voters of this state, and the proponents of the petition may proceed with the remaining statutory requirements. We also noted, the Petitioners did not challenge the gist of the measure in that proceeding. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1 at ¶ 2, n. 2, 367 P.3d 472.

¶ 3 Pursuant to 34 O.S. Supp. 2015, § 8

, the Secretary of State thereafter set the signature gathering period to begin February 16, 2016, and end at 5:00 p.m. May 16, 2016. The signature requirement at that time was 123,725. The Respondents completed the signature process timely and on April 21, 2016, the Secretary of State notified the Respondents it had received the boxes of pamphlets¹ and set the counting process to begin on April 25, 2016. On April 22, 2016, the Secretary of State, pursuant to 34 O.S. Supp. 2015, § 9 (D), submitted the Respondents' proposed ballot title to the Attorney General. On April 29, 2016, the Attorney General, pursuant to 34 O.S. Supp. 2015, § 9 (D) (1) concluded the proposed ballot title did not comply with applicable laws for the following reasons:

1. It fails to explain that the one cent sales and use tax contemplated by the measure will be in addition to the state sales and use tax already levied by the Oklahoma Sales and Use Tax Codes.

2. It suggests that allocated funds will, in part, be used to improve college affordability, when the measure indicates that the funds may be used for college affordability or for otherwise improving higher education. That is, funds may be allocated in whole, in part, or not at all for college affordability.

3. It fails to explain that the increase in teacher salaries as funded by Section 3(A) (l) (b), and as requited by Section 4 of the new Article, requires that teacher salaries be raised by at least $5,000 more than the salaries paid in the year prior to adoption.

4. And, finally, it inaccurately states that it prohibits school districts' use of funds for increasing administrative salaries, when the measure is more limited in that it only prohibits an increase in superintendents' salaries and the addition of superintendent positions.

The Attorney General also submitted his own preliminary ballot title which reads as follows:

This measure adds a new Article to the Oklahoma Constitution. The new Article creates a limited purpose fund to improve public education. To provide revenue for the fund, the state sales and use tax are increased by one cent. It allocates funds for purposes related to the improvement of public education, such as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, increasing high school graduation rates, and college and career readiness. It also allocates funds for improving higher education, improving career and technology education, and increasing access to voluntary early learning opportunities for low-income and at-risk children. It requires that the teacher salary increases funded by this measure raise teacher salaries by at least $5,000 over the salaries paid in the year prior to adoption of this measure. It requires an annual audit of school districts' use of monies from the fund. It prohibits school districts' use of these funds for increasing superintendents' salaries or adding superintendent positions. It requires that monies from the fund not supplant or replace other educational funding. The Article takes effect on the July 1 after its passage.

¶ 4 On May 10, 2016, the Secretary of State, pursuant to 34 O.S. Supp. 2015, § 8 (H)

, certified the signature count and votes cast for the state office receiving the highest number of votes at the last general election to this Court.² On June 1, 2016, this Court determined the signatures on the petition appeared to be numerically sufficient. In re Initiative Petition No. 403, State Question No. 779 , 2016 OK 59, ¶ 2, ––– P.3d ––––. It was further ordered that pursuant to 34 O.S. Supp. 2015, § 8 (I), the Secretary of State was to publish notification of the filing of Initiative Petition No. 403, State Question No. 779, and the apparent numerical sufficiency of the signatures. In re Initiative Petition No. 403, State Question No. 779 , 2016 OK 59 at ¶ 3, ––– P.3d ––––. In addition, the Secretary of State was ordered to publish the Attorney General's rewritten ballot title. Id. The notice by publication also informed the public that any citizen or citizens may file an objection only relating to the signature count made by the Secretary of State or the preliminary ballot title as rewritten by the Attorney General.³ On June 23, 2016, Petitioners filed an Application to Assume Original Jurisdiction with this Court to object to both the gist of the measure and the rewritten ballot title.

ANALYSISI. Post–Circulation Challenge To The Gist Of The Measure.

¶ 5 Petitioners first challenge the sufficiency of the gist of the measure found in the pamphlets already circulated for signatures. They argue it is appropriate for this Court to review the gist post-circulation. We hold that under current law, a post-circulation challenge to the gist of a measure is untimely.

¶ 6 Petitioners first cite our recent opinion wherein we found that a pre-circulation challenge to the gist of a measure is appropriate. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶ 4, n. 10, 376 P.3d 250

. We noted that although the ballot title review process and challenge must now statutorily come after the circulation period pursuant to 34 O.S. Supp. 2015, § 8, the statute remains silent as to a challenge to the gist of the petition. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51 at ¶ 4, n. 10, ––– P.3d ––––. However, we determined we need not decide in that opinion whether a post-circulation challenge to the gist of the petition was appropriate. Id. That is the question we are presented with today.

¶ 7 It first should be noted that in all the Initiative and Referendum statutes (34 O.S. 1

–27 ) the word “gist” only appears in one place, 34 O.S. 2011, § 3. It only provides that the gist of the measure shall be on the signature sheets which are then attached to copies of the petition for “the securing of signatures.” It specifically identifies the signature sheets as being separate from the petition. It refers to the combination of the petition and...