Oklahoma's Children, Our Future, Inc. v. Coburn

• Decision Date: 22 June 2018
• Docket Number: Case Number: 117020
• Citation: 421 P.3d 867
• Parties: OKLAHOMA'S CHILDREN, OUR FUTURE, INC.; the Oklahoma Education Association ; the Oklahoma State School Boards Association ; the Cooperative Council for Oklahoma School Administration; the Organization of Rural Oklahoma Schools; the Oklahoma Association of Career and Technology Education; the United Suburban Schools Association; Oklahoma PTA ; the Tulsa Classroom Teachers Association ; Dr. Keith Ballard; Joely Flegler; and Teranne Williams, Petitioners/Protestants, v. Dr. Tom COBURN, Brooke McGowan, and Ronda Vuillemont-Smith, Respondents/Proponents.
• Court: Oklahoma Supreme Court

421 P.3d 867

OKLAHOMA'S CHILDREN, OUR FUTURE, INC.; the Oklahoma Education Association ; the Oklahoma State School Boards Association ; the Cooperative Council for Oklahoma School Administration; the Organization of Rural Oklahoma Schools; the Oklahoma Association of Career and Technology Education; the United Suburban Schools Association; Oklahoma PTA ; the Tulsa Classroom Teachers Association ; Dr. Keith Ballard; Joely Flegler; and Teranne Williams, Petitioners/Protestants,

v.Dr. Tom COBURN, Brooke McGowan, and Ronda Vuillemont-Smith, Respondents/Proponents.

Case Number: 117020

Supreme Court of Oklahoma.

Decided: June 22, 2018

D. Kent Meyers and Melanie Wilson Rughani, Crowe & Dunlevy, Oklahoma City, Oklahoma, for Petitioners/Protestants.

Stanley M. Ward, Barrett T. Bowers, and Tanner B. France, Ward & Glass, L.L.P., Norman, Oklahoma, for Respondents/Proponents.

Mithun Mansinghani, Solicitor General, Randall J. Yates, Assistant Solicitor General, and Michael K. Velchick, Assistant Solicitor General, Oklahoma Attorney General's Office, for the State of Oklahoma.

COMBS, C.J.:

¶1 On May 1, 2018, Respondents/Proponents Dr. Tom Coburn, Brooke McGowan, and Ronda Vuillemont-Smith (collectively, Proponents) timely filed Referendum Petition No. 25, State Question No. 799 (the petition) with the Oklahoma Secretary of State. The petition seeks to refer HB 1010xx, passed by the 56th Legislature of the State of Oklahoma during its second special session, to the people of Oklahoma for their approval or rejection at the regular election to be held on November 6, 2018.

¶2 On May 17, 2018, several educators and organizations purporting to represent Oklahoma educational interests (collectively, Protestants) timely filed an original action protesting the legal sufficiency of the petition.¹ Protestants assert the gist of the petition is legally insufficient for several reasons, and further assert the petition is legally insufficient for failure to include an exact copy of the text of the measure as required by 34 O.S. Supp. 2015 § 1.

¶3 There appears to be no dispute that HB 1010xx, the bill the petition seeks to refer to the people for approval or rejection, is a revenue bill. The primary effect of HB 1010xx is to raise revenue through tax changes imposed by five different mechanisms. Section 2 of HB 1010xx imposes an additional tax on cigarettes of 50 mills per cigarette. Sections 3-5 of HB 1010xx alter the taxes on little cigars to match those on cigarettes, a change from the lower rate at which they are currently taxed. Section 6 of HB 1010xx increases the motor fuel tax on gasoline and diesel fuel. Sections 7-8 of HB 1010xx raise the gross production tax incentive rate from 2% to 5% in the first 36 months of a well's production. Finally, Sections 9-15 of HB 1010xx impose an additional $5 per night occupancy tax on certain hotel and motel stays.²

¶4 There further appears to be no dispute that HB 1010xx was adopted in accordance with the requirements of Okla. Const. art. 5, § 33.³ It received the requisite three-fourths majority of both houses and was acted upon by the Governor. HB 1010xx has no emergency clause, and so cannot become effective until 90 days after its approval by the Legislature and it being acted upon by the Governor. Okla. Const. art. 5, § 33.

¶5 Some of the revenue raised by HB 1010xx was evidently intended to provide the funding source for increases to teacher compensation found in another bill passed during the second special session, HB 1023xx. HB 1023xx, often referred to as the "teacher pay raise" bill, was made explicitly contingent on the "enactment" of HB 1010xx. The parties to this protest have raised questions concerning what effect a referendum petition against HB 1010xx might have on the effectiveness of HB 1023xx. The answer is none. Okla. Const. art. 5, § 3 provides that any measure referred to the people shall not take effect until approved by a majority. HB 1023xx was not made contingent on HB 1010xx's effectiveness, however, but rather on its enactment. A bill is enacted (and becomes an enactment) when it is passed by the Legislature and all of the formalities required to make it a law have been performed. Norris v. Cross , 1909 OK 316, ¶ 23, 25 Okla. 287, 105 P. 1000. As this Court implied in Norris , the process of enactment is completed prior to any referendum on the subject enactment. See 1909 OK 316 at ¶¶ 20-25, 105 P. 1000. HB 1010xx has been enacted. The contingency requirement of HB 1023xx has been met, and it will become effective on its specified date.

¶6 This Court set a briefing schedule and invited the Attorney General to file a brief on the issues raised. Oral argument in this matter was held before the Court en banc on June 11, 2018. On the same date, the matter was assigned to this office for disposition.

I.STANDARD OF REVIEW

¶7 The right to a referendum on legislation is the second of two specific and important powers explicitly reserved to the people by the Oklahoma Constitution in Article 5, Sections 1 & 2.⁴ See In re Referendum Petition No. 1, 1938 OK 131, ¶ 4, 182 Okla. 419, 77 P.2d 1152. This Court has called the right to petition for a vote of the people by initiative and referendum "a sacred right, to be carefully preserved." In re Initiative Petition No. 348, State Question No. 640 , 1991 OK 110, ¶ 5, 820 P.2d 772 (quoting In re Referendum Petition No. 18, State Question No. 437 , 1966 OK 152, ¶ 11, 417 P.2d 295 ). The Court has a duty to protect this right as a function of the people of Oklahoma's right to govern themselves:

"It is the duty of the courts to construe and preserve this right as intended by the people in adopting the Constitution, and thereby reserve unto the people this power. Ours is a government which rests upon the will of the governed. The initiative and referendum is the machinery whereby self-governing people may express their opinion in concrete form upon matters of public concern. If the people are to be self-governed, it is essential that they shall have a right to vote upon questions of public interest and register the public will."

In re Referendum Petition No. 348 , 1991 OK 110 at ¶ 6, 820 P.2d 772 (quoting Ruth v. Peshek, City Clerk , 1931 OK 674, ¶ 25, 153 Okla. 147, 5 P.2d 108.)

¶8 However, much like the right of initiative, the right of referendum is not absolute. See In re Initiative Petition No. 409, State Question No. 785, 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. There are limits-constitutional and statutory-that guide the proper exercise of both rights. In re Initiative Petition No. 344 , 1990 OK 75, ¶ 14, 797 P.2d 326. See Comty. Gas and Service Co. v. Walbaum , 1965 OK 118, ¶¶ 7-9, 404 P.2d 1014.

¶9 In order to assure these limits are observed and the right to Referendum is properly executed, 34 O.S. Supp. 2015 § 8⁵ provides that any citizen may protest the legal sufficiency of an initiative or referendum petition. McDonald v. Thompson , 2018 OK 25, ¶ 5, 414 P.3d 367 ; In re Initiative Petition No. 409 , 2016 OK 51 at ¶ 2, 376 P.3d 250 ; In re Initiative Petition No. 384, 2007 OK 48 at ¶ 2, 164 P.3d 125. Upon such a protest, this Court will review a petition to ensure that it complies with the rights and restrictions established by: the Oklahoma Constitution; legislative enactments; and this Court's own jurisprudence. McDonald , 2018 OK 25 at ¶ 5, 414 P.3d 367 ; In re Initiative Petition No. 384 , 2007 OK 48 at ¶ 2, 164 P.3d 125 ; In re Initiative Petition No. 379, State Question No. 726 , 2006 OK 89, ¶ 16, 155 P.3d 32.

II.THE LEGAL REQUIREMENTS OF THE REFERENDUM PETITION PROCESS

¶10 The basic requirements for a referendum petition are set out in the text of the Oklahoma Constitution itself. Okla. Const. art 5, § 1 notes that the people "reserve power at their own option to approve or reject at the polls any act of the Legislature." Okla. Const. art 5, § 2 provides restrictions on how this power is to be exercised: "The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by petition signed by five per centum of the legal voters or by the Legislature as other bills are enacted." Finally, Okla. Const. art. 5, § 3 expands on the procedural requirements and provides in pertinent part:

Referendum petitions shall be filed with the Secretary of State not more than ninety (90) days after the final adjournment of the session of the Legislature which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures voted on by the people. All elections on measures referred to the people of the state shall be had at the next election held throughout the state, except when the Legislature or the Governor shall order a special election for the express purpose of making such reference. Any measure referred to the people by the initiative or referendum shall take effect and be in force when it shall have been approved by a majority of the votes cast thereon and not otherwise.

...

Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State and addressed to the Governor of the state, who shall submit the same to the people. The Legislature shall make suitable provisions for carrying into effect the provisions of this article.

¶11 Other requirements of the referendum petition process are statutory in nature. In addition to providing for protests, 34 O.S. Supp. 2015 § 8 contains the procedural framework guiding how referendum petitions are filed, publicized, signed, and submitted. Of particular note is 34 O.S. Supp. 2015 § 8(F), which sets the deadline for signature gathering and provides: "Signature-gathering Deadline for Referendum Petitions. All signed signatures supporting a referendum petition shall be filed with the Secretary of State not later than ninety (90) days...