OCPA Impact, Inc. v. Sheehan (In re Initiative Petition No. 403), 114,425.

• Decision Date: 12 January 2016
• Docket Number: No. 114,425.,114,425.
• Parties: In re INITIATIVE PETITION NO. 403, State Question No. 779, OCPA Impact, Inc., and David Bond, Petitioners, v. Shawn Sheehan, Linda Reid, and Melvin Moran, Respondents.
• Court: Oklahoma Supreme Court

367 P.3d 472

In re INITIATIVE PETITION NO. 403, State Question No. 779,OCPA Impact, Inc., and David Bond, Petitioners,

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

No. 114,425.

Supreme Court of Oklahoma.

Jan. 12, 2016.

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

D. Kent Meyers, Harvey D. Ellis, Melanie Wilson Rughani, and Paige Masters, Crowe & Dunlevy, P.C., Oklahoma City, OK, for Respondents.

Patrice Douglas and Kathryn Evans Boren, Latham, Wagner, Steele & Lehman, P.C., Oklahoma City, OK, for Amici Curiae Oklahoma Municipal League and Dewey Bartlett.

Ryan C. Owens and Hayley B. Jones, Oklahoma City, OK, for Amicus Curiae the Cooperative Council for Oklahoma School Administration, Inc.

Julie L. Miller, Oklahoma City, OK, for Amicus Curiae the Oklahoma State School Boards Association.

Richard B. Wilkinson, Oklahoma City, OK, for Amicus Curiae the Oklahoma Education Association.

PER CURIAM

Facts & Procedural History

¶ 1 On October 21, 2015, Respondents Shawn Sheehan, Linda Reid, and Melvin Moran (Proponents) filed Initiative Petition No. 403 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.¹ 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.

¶ 2 On November 12, 2015, Petitioners OCPA, Inc. and David Bond (Opponents) filed an Application to Assume Original Jurisdiction in this Court. Opponents 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, we assume original jurisdiction and hold that Initiative Petition No. 403 embraces one general subject and does not violate Art. 24, § 1 of the Oklahoma Constitution. 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.²

Standard of Review

¶ 3 "The first power reserved by the people is the initiative...." Okla. Const. Art. 5, § 2

. With that, 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. Const. Art. 5, § 1. This Court is vested with original jurisdiction to evaluate and determine the sufficiency of proposed initiative petitions pursuant to 34 O.S. Supp. 2015 § 8.³ However, we have generally refused to declare a ballot initiative invalid in advance of a vote of the people except where there is a "clear or manifest" showing of unconstitutionality. In re Initiative Petition No. 358, 1994 OK 27, ¶ 7, 870 P.2d 782, 785 (emphasis added). The power of the people "to institute change through the initiative process is a fundamental characteristic of Oklahoma government." In re Initiative Petition No. 360, 1994 OK 97, ¶ 9, 879 P.2d 810, 814. We have emphasized how vital the right of initiative is to the people of Oklahoma and how diligently we must protect this entitlement:

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. 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. 382, 2006 OK 45, ¶ 3, 142 P.3d 400, 403

(internal citations omitted) (emphasis added). Opponents bear the burden of demonstrating the proposed initiative petition presented in this case clearly and manifestly violates the Oklahoma Constitution. In re Initiative Petition No. 362, 1995 OK 77, ¶ 12, 899 P.2d 1145, 1151.

One General Subject

¶ 4 The sole challenge to the petition in this case is under Art. 24, § 1

, which provides:

No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition.

Okla. Const. Art. 24, § 1

(emphasis added). The above-emphasized language was added to Art. 24, § 1 in 1952. In In re Initiative Petition No. 314, 1980 OK 174, ¶ 38, 625 P.2d 595, 600, this Court held that the one general subject rule of Art. 24, § 1 applies to an initiative petition.

Germaneness Test

¶ 5 In the case before us, proponents of the petition seek to amend the Oklahoma Constitution by adding a new article—Article 13–C—to create the Oklahoma Education Improvement Fund. In In re Initiative Petition No. 314, 1980 OK 174, 625 P.2d 595

, proponents of an initiative petition sought to change the alcohol laws of this state by amending the existing Article 27 of the Oklahoma Constitution to allow for unrestricted franchising arrangements for brewers, on-premises consumption, unlimited advertising, and the sale of liquor by the drink by privately owned licensed on-premises outlets. In finding the petition violated the one general subject rule of Art. 24, § 1, this Court advised that "[t]he changes sought by the multifarious proposal could have been effected either by submission of three separate proposals or a submission amending, under Art. 24, [§ ] 1

, the entirety of Art. 27, as an amendment by article, as was done in 1959 when prohibition was repealed and Art. 27 was submitted and adopted by a vote of the people." In re Initiative Petition No. 314, 1980 OK 174, ¶ 81, 625 P.2d at 608 (emphasis added).

¶ 6 Taking the Court's advice, proponents, in their second attempt at changing the liquor laws of this state, again tendered an initiative petition seeking to amend the Oklahoma Constitution. This time, however, the proponents submitted the proposal as an amendment to the Oklahoma Constitution by article. Notably, the initiative petition proposed many of the same substantive changes as the previously stricken petition, including the sale of alcoholic beverages for on-premises consumption and the sale of liquor by the drink by privately owned licensed on-premises outlets. In addition, the proposal abolished the Alcoholic Beverage Control Board and replaced it with a new Alcoholic Beverage Laws Enforcement Commission to enforce the alcoholic beverage laws of the state. Opponents of the petition again argued the portion of the petition authorizing the Legislature to permit the sale of liquor by the drink embraced a different and additional subject matter. In re Initiative Petition No. 319, 1984 OK 23, ¶ 8, 682 P.2d 222, 223–224

.

¶ 7 The Court rejected the argument and stated: "In Re Initiative Petition No. 314, recognized that our constitution may be amended by article under Article 24, Section 1

, and that such an amendment may cover changes which would violate the single subject rule if not proposed in that format. Proponents have complied with that procedure. While the amendment is still required to relate to a single general subject, our previous ruling indicates clearly that the various changes need not meet the test which was applied in Initiative Petition No. 314, and which resulted in the invalidity of that proposal. " Id. ¶ 9, 682 P.2d at 224 (internal citations omitted) (emphasis added).

¶ 8 The Court then applied the following test:

‘[G]enerally provisions governing projects so related as to constitute a single scheme may be properly included within the same amendment; and that matters germane to the same general subject indicated in the amendment's title, or within the field of legislation suggested thereby, may be included therein....’⁴

The Court held the provisions of the petition contributed to the overall scheme of control of the sale of alcoholic beverages embodied in the proposed article. The petition was found legally sufficient to submit to a vote of the people.

¶ 9 This Court affirmed the amendment by article approach in 1996 in an opinion authored by Justice Opala. In In re Initiative Petition No. 363, 1996 OK 122, 927 P.2d 558

, proponents of an initiative petition sought to amend the Oklahoma Constitution by adding a new article which provided for the creation of four locations immediately eligible for authorized gaming, prohibited casino gaming in counties not specifically authorized for a period of five years, created a seven-member state gaming commission with authority to provide regulation and enforcement of casino gambling, provided criminal penalties for violation of gaming laws, legalized obligations incurred in the course of authorized gaming, authorized the commission to collect gaming fees from each licensed gaming facility operator, retaining the legislatively approved amount of its budget and initial operations cost, earmarked the remaining receipts for specific computer-related...