*1 PETITION NO. re INITIATIVE QUESTION NO. 642. STATE
No. 76437. of Oklahoma. 4, 1992.
Aug. Aug. 5 and
As Corrected *2 Abel, Caldwell, M. A.
Kevin William Mi- Pierce, Tulsa, proponents, chael W. for Okl. Abortion, Inc. Coalition Restrict Sellers, Fred W. Jr. Gen., Henry, Atty. H. Susan
Robert Lov- Leader, Gen., ing,1 Atty. Neal Rachel Law- rence-Mor, Gen., Attys. Asst. Oklahoma City, for State. Frasier, Emily
Thomas Laura Dee Fros- sard, Tulsa, Allison, protes- Gary for Dean tants, Nancy Feldman & Kim Little. Watts, Mildren, Gary Richard L. Okla- A. Patten, Norman, City, homa Ka- Rebecca J. Heller, Kolbert, thryn Simon Andrew Dwyer, City, protestants, York New Taliaferro, Tevington, Andrew Janet & Pam Fleischaker. Chervin, Evans,
Roger K. Carole New curiae, City, York for amici U.S. Senator Boren, Representatives David Dave McCurdy Synar, The and Mike Former Speaker Representa- of the U.S. House Ackerman, Albert, tives Carl Bruce Paul Brest, Calabresi, Dellinger, Guido Walter Stone, Geoffrey Tribe. & Lawrence KAUGER, Justice.
Although proceeding, filed refer (peti ence to Petition No. 349 Initiative initially presented petition), tion/abortion issues, Supreme multiple the United States Court’s decision in Planned Parenthood v. — U.S. -, -, 2815, 120 (1992)has L.Ed.2d 674 rendered a single dispositive issue Initiative —whether Petition No. is constitutional. We find: 1) constitutionality that the issue of the governed pronounce United States Court’s ment and that we are bound to Casey; of the United States follow mandate con-, on matters of federal 2) law; stitutional that when un the initiative constitutionality of manifest, pre-election judicial determina dency Attorney during pen- appeal. General Successor ers, (collectively, proponents/Seilers) appropriate is both Jr. tion of the issue filed costly petition pamphlets Secretary useless necessary avoid of State on June 1990. On December election. protestants, Nancy Feldman 1) that: a woman’s Casey court held *3 Feldman) (collectively, and Kim Little filed liberty is to obtain abortion protest legal sufficiency to the of the by protected the Due Process interest January 8, petition. On the Secre- Amendment;2 2) of the Fourteenth Clause tary filed the of State ballot title point earliest at which viability marks the by prepared Attorney the General. The constitutionally is ade- the State’s interest proponents appeal a timely filed to the bal- legislative justify a ban on non- quate to January 17, Although lot title on 1991. abortions; 3) before viabili- therapeutic title, appealed Feldman also the ballot the may an abor- ty, woman choose have challenge by was dismissed order of this tion undue interference the without April untimely. being Court on Because Oklahoma women who do State. However, challenge title valid ballot narrowly cate- not fall within four defined proponents. before us—the one filed prohibited gories absolutely would be briefing period concerning The initial exercising liberty pre-viability interest legal sufficiency of Initiative Petition No. expressly recognized Casey, are we re- commenced this or- was when Court quired petition uncon- find the initiative 3,1992. briefing dered a schedule on March also find that an examina- stitutional. We The filings parties final of the were submit- constitutionality of tion of the the initiative ted Court June 1992. petition necessary, mislead- both avoid ing legal constitutionality effect of the issue of citizens about The of the vote, they proposition upon may petition fairly which was within initiative raised costly to avoid a election which would ulti- raised certain other issues Feld- futility. mately challenge legal an exercise in man in the to the sufficien- [Never- theless, ruling prohibit 14,1992, cy petition.3 July this does On fairness, proper parties circulation of a we interest ordered legislation passes constitutional Attorney and the General to submit simul- addressing Casey and its taneous briefs muster.] impact constitutionality on the RELEVANT PROCEDURAL HISTORY posed of Ini- ballot title the substance proponents, Those briefs Oklahoma Coalition to tiative Petition 349.4 Abortion, Inc., July W. Sell- filed on Restrict and Fred were Const, XIV, protest support to the United States amend. filed the brief in petition, challenges except provides: all constitutional relating law were those constitutional persons "All born or naturalized in the United issues were States, thereof, waived. federal constitutional subject jurisdiction to the if even the Initiative raised to demonstrate that citizens of the United States and people, approved it could Petition were they wherein reside. No State shall State challenge and constitutional not survive a any abridge which shall make or enforce regulate first and second would be ineffective to privileges or immunities of citizens responded to the Sellers States; trimester abortions. deprive any United nor shall challenges. life, property, liberty, person of without law; deny any person process of nor due Const, United States under the 4.We are bound jurisdiction equal protection its within Const, VI, art. the Okla. art. cl. the laws.” as the States Constitution su- the United follow preme Fourteenth Amendment enforceable required land. We are under law the against the states. When the United States Su- 2201(A) judicial to take notice of 12 O.S.1991 preme speaks on matters of federal con- Constitution and the Constitu- States United law, are bound under stitutional state courts if of Oklahoma. Even the State tion of follow its Fourteenth Amendment to mandate. so, juris, publici in matters were Ohio, Mapp U.S. and determine the on its own raise 6 L.Ed.2d Opala wrote for the As Chief Justice issue. McNeely, myriad Initially, majority of of constitu- the Court Matter Feldman raised However, (Okla.1987): challenges. when Feldman tional I. July- order response to this Court’s Sellers, and the proponents, THE THE OF CONSTITUTIONALITY Little, Feldman, Kim Nancy protestants, PETITION IS GOV- INITIATIVE Tevington, Taliaferro, Andrew Janet M. ERNED BY THE UNITED STATES protes- COURT’S PRONOUNCE- (collectively, SUPREME Fleischaker and Pam IN PLANNED PARENT- MENT filed tants) Attorney General briefs and the v. CASEY. BECAUSE WOM- HOOD constitutionality addressing the specifically DO NOT FALL EN WHO WITHIN in relation of the initiative DEFINED FOUR NARROWLY CAT- Supreme Court’s decision United States MAY NOT EXERCISE EGORIES — Planned Parenthood LIBERTY IN- THE PRE-VIABILITY *4 2791, 2815, -, 120 -, 112 S.Ct. CASEY, BY TEREST RECOGNIZED (1992). granted the We also L.Ed.2d 674 REQUIRED FIND THE ARE TO WE prot- the issue. amici’s motion to brief PETITION UNCONSTI- INITIATIVE curiae, estants, Attorney amici and TUTIONAL. that Initiative Petition No. General assert filed, it petition When the initiative was United under the 349 is unconstitutional appeared major that a re-examination ruling Casey. in Supreme States Court’s right to in relation to a woman’s submission, proponents read the As we nontherapeutic was in obtain a abortion progress. Legal anticipated commentators petition was they that the initiative concede overruling un either the or the substantial drafted, unconstitutional when was Wade, dercutting principles of of the Roe v. circu- when it was it was unconstitutional 705, 731-32, 113, 163-64, 410 93 S.Ct. U.S. lated, now. that it is unconstitutional and 147, (1973).5 In 35 L.Ed.2d 182-83 Webster However, proponents insist that we Serv., Reproductive Health 492 U.S. v. go forward as petition allow the should 3052, 3040, 109 106 L.Ed.2d S.Ct. advocacy. find political in We an exercise 410, (1989), the United States Su 435-36 petition is unconstitution- that the initiative preme rejected the strict trimester Court precedent controlling federal al based on approach of Roe v. Wade. Webster by Supreme enunciated the United States interest in Court also found that a State’s 29, recently as June Court as protecting human life did not come into viability previously ex
play only at
as
pressed in
Additional evidence of the
Roe.6
481,
Services,"
public
Reproductive
Okla.L.R.
dispositive
Health
43
issue here—one
"...
(1990);
Dellinger
Sperling,
by
& G.
"Collo-
513
W.
neither raised nor briefed
law—was
present
quy
Reproductive Health Services:
public-law
parties.
issues are
When
—Webster
review,
Supreme Court: The Retreat
may,
by
Abortion & the
resolve them
this court
83,
Wade,"
89
U.Pa.L.Rev.
from Roe v.
138
application
legal
theories that were
Prieto,
(1989);
“City
Center
Akron v. Akron
P.
tendered below....”
Health,
1102,
Stare Decisis Pre-
also,
Davis,
Reproductive
Inc.:
1104
See
Davis v.
vails,
Long?,”
L.Rev.
U. Miami
but for How
38
(Overruled
(Okla.1985)
grounds.),
on other
also
921,
(1984).
938
Opala
majority
by
authored
Chief Justice
for the
of the Court.
Thereafter,
Ohio v.
Supreme Court decided
provides
pertinent
in
Title 12 O.S.1991
502, -,
Center,
110 S.Ct.
Akron
497 U.S.
part:
(1990) and Rust v.
111 L.Ed.2d
by
be taken
"A. Judicial notice shall
-,
-,
Sullivan,
500 U.S.
law, constitutions and
court of the common
The Su
114 L.Ed.2d
state,
every
territory
public
in
statutes in force
provi
parent
preme
upheld a
notification
Court
jurisdiction
United
States....”
and
by-pass provision
Akron
containing
sion
See, Hewett,
Rust,
upheld
Supreme
“Hodgson
Chip-
Court
v. Minnesota:
S.
Center.
In
Department
Away
íegulations promulgated
ping
at Roe v. Wade in the Aftermath of
Webster,"
prohibiting grant
(1991);
Pepperdine
Services
L.Rev.
Health and Human
engaging
abortion
Legal Strategy
X from
Forsythe,
to Overturn
ees under Title
C.
"A
Roe
referral,
advocacy.
cases
counseling,
These
Lessons
v. Wade After Webster: Some
coln,"
from Lin-
Webster's,
foreshadowing
(1991);
apparent
along with
B.Y.U.L.Rev.
E.
Brueschke,
subject
holding in Roe was
to reexami
& J.
"Constitutional Law:
that
nation,
Brueschke
presented
Controversy
issues
left the constitutional
the Abortion
& the
The Future of
questionable.
initiative
Supreme
After Webster v.
Court
Role
which found that “Roe’s
opinion
under-
Roe’s continuance
surrounding
uncertainty
way
pinnings
were unweakened
af-
can
the vote in
rule of law
be seen
aas
and that Roe
fecting
principle”
its central
Justice
Five
Justices —Chief
Webster.
Scalia,
was not “unworkable.”9
who
Rehnquist,
Justices White
Roe, consistently
to overrule
voted
have
the constitutionality
The issue of
Kennedy—
as Justices O’Conner
well
governed
the United
opinion
part
majority
IID of the
joined
Supreme
pronouncement
Court’s
States
criticizing Roe.7
instance,
Casey.
In this
course
the United
when
After June
to this Court is to follow what the
available
its
promulgated
Court,
final ar-
States
United
States
Parenthood
Planned
opinion
Constitution,
biter of the United States
—
-,
-,
U.S.
S.Ct.
decreed.
(1992),
L.Ed.2d 674
co-authored
Jus-
—
v. Casey,
Parenthood
Planned
Souter,8
O’Conner,
Kennedy,
tices
,
-
reiterates,
strengthens,
perhaps
(1992), the United
Su
L.Ed.2d 674
States
women,
premise of
the central
Roe —that
preme
framed
period,
indepen-
make
may for some time
*5
question as:
nontherapeutic
decisions
to obtain
dent
the
can
these
“...
State
resolve
whether
go
could not
for-
submission
abortions —the
questions in such
philosophic
a definitive
prem-
Casey reaffirmed
the central
ward.
way
a
lacks all choice in the
that woman
Wade, 113, 153-54,
ise of Roe v.
U.S.
matter, except perhaps in those rare cir-
35 L.Ed.2d
93 S.Ct.
in
is
pregnancy
the
cumstances
which
denied,
(1973), reh’g
U.S.
S.Ct.
health,
danger to
life
itself a
her own
or
(1973),
right
that
the
knowledge of Oklahoma that “State years within three thereaf- Union, inseparable part of the Federal twenty-five per ter than less centum of the United States and the Constitution legal voters.”20 very supreme law of the land.” The Although always initiative voters must Rights of the Bill first section posed by three-year the dilemma face right 1 limits the art. Okla.Const. rule, unnecessarily this sharp- dilemma provides: It the initiative. proponent’s insistence ened political power is inherent “All patently of a unconstitutional submission government is instituted people; and impair defeat will measure where the initia- benefit, protection, security, and their rights supporters of those who also tive welfare; promote general their government. support constitutional While re- right have the to alter or they every aspect this Court cannot monitor public the same whenever form campaign, express every initiative it can its Provided, it; require such good may post-circulation concern about concession change repugnant to the Consti- unconstitutionality impact and its on this (Empha- the United tution States.” component political of our democra- vital supplied.) sis cy.21 hour revelation proponents eleventh proponents appear assert this that they apparently knew that Initiative that right” to vote is derived from “absolute No. 349 was unconstitutional when Petition First to the United States Con- Amendment drafted, circulated, and submitted it was time, they same stitution. At the concede raise questions serves to additional right of initiative does not arise that prospective its legitimacy. Were about In- from the United States Constitution. its proposition informed of signers deed, only twenty-three sister of our states unconstitutionality, strategic role and of its right. provide this constitutional It seems long-range strategy political advoca- in a that the exercise non-fed- self-evident i.e., its case” Or converse- cy “test status? the same eral can be conditioned signers they ly, were the led to believe that that and confers state constitution creates instance, proposition 1 of Okla. supporting would In this art. were it. Const, legal validity adopted by statutory the vot- enactments which vi- enjoy if bars the land. olate the law of ers? arguendo, the Assuming relevance nothing in the ballot title or There is speech” argument “core proponents’
anywhere the record before us else context, rights it is obvious these discern that the ballot title we can Judicial intervention are not absolute. law,” harmony or that it is “in with the was hypothetical state constitutional interdict argument that the “legally correct.” The free exercise of prohibiting the amendment placed before the vot- proposition should proponents “limit” the “core religion would ers, notwithstanding the law violates activities; however, no one would *9 speech” expressed Casey, in raises of the land as legitimacy of such a limitation. the issue the treatment of additional the proponent’s the charac- may support state-im- understand citizens who We those petition “core abortions, political of their as are limitations on but who terization posed im- emphasis as for the speech” additional to vote for an unconstitutional not inclined 5, 5, art. 8 states that: Initially, pursuant art. 21. The Okla.Const. to the Okla.Const. 2, only legal required to provided prevent corruption the are voters be 8% "Laws shall measures, pro- submitting legislative making, procuring, initia- propose 15% in petitions.” tive and referendum pose constitutional amendments. io any for should read to limit of the initiative the content
portance However, the proposition petition the November circulated. if uncon- placing an attempt to raise a garners as an enough signa- ballot—and stitutional measure effect, is, It Amendment claim. First presented tures to and is speech” rights to argument that “free their challenged grounds, pre- on constitutional outweigh law an unconstitutional advocate judicial appropriate.23 submission review is rights of all other Oklaho- constitutional This action not based on the Court’s Constitution mans that the Oklahoma proponents’ “speech”; content of the rath- the repugnant not be Constitu- should er, it responds to the of that lawfulness we all as Americans. The tion which share speech in the context our fundamental careful to frame a drafters were Oklahoma Nothing law on initiative referendum. harmony constitution which was precludes in this action propo- Court's founding fa- constitution written legal nents of limitations on abortion from Our for initiative thers. reverence proposal bringing on that exact forward rights guaranteed by the Oklahoma Consti- subject long proposal matter so as con- It is tution cannot be overstated. our applicable legal requirements forms to the rejection found belief that our context, proposals. for In this initiative Cross, 403, Threadgill v. 26 Okla. 109 P. requirement most basic Okla- 558, held rule which that change homa Constitution is that the in law constitutionality petition initiative of an petitioned compatible for be with the Unit- subject prior review its enactment ed States Constitution construed voters, by the and our reaffirmation of United States Court. It should lawmaking principles constitutional enhanc- proponents also that be noted rights than es those rather diminishes change in federal law them. entirely exercise Amend- free to their First surprisingly, proponents Not have rights ment arenas where single provision not cited us to a of federal shaped. law is or Oklahoma law which trammels their under rights First Amendment the federal noted In re No. We Petition constitution, review and our own discloses Question rely upon The proponents Myer none. (Okla.1967) purpose the real of an Grant, 486 U.S. initiative is to secure vote (1988)22 100 L.Ed.2d people upon proposed or constitution proposition pre-submission judi- that a expressed al amendment. We also constitutionality of Inita- cial review repeal pro conflicting view political Petition No. 349 “core tive violates visions of the law effect at the time the speech” protected by the First Amendment. proposed law is to become effective as be misplaced. The reliance on In Myer ing merely purpose incidental to the Myer, United States petition. This is not what is before us pay- not prohibit held that Colorado could here. proponents apparently take the persons circulate ment of hired to position they Here, attempting are not procedural petitions. issue of goal clearly amend law. presented. Oklahoma paying circulators is not implicit strategy was in their “test is a manner which the circulated case” Nothing change in this opinion is not at issue. in federal constitutional law. presented by garner majority could 22. The other material either of vote of respective proponents support political of the "core courts. argument dissenting speech" Scalia's are Justice opinion in Planned Parenthood see re Initiative Petition No. —8, at -, (Okla.1991); supra; note 112 S.Ct. at Petition No. In re Initiative concurring opinion supra; authored Chief see Petition No. note In re Initiative *10 Opala supra; Supreme in In Court Justice In re Initiative Petition No. see re note Norman, Oklahoma, Adjudication supra. see 813 Neither of in note positions Petitions of expressed (Okla.1975). special writings in these 8
H Liberty our citizens tent with the Clause of the Four- process guaranteed to initiative (Subject pro- Amendment. to some was never teenth by the Oklahoma Constitution restrictions, Pennsylvania stat- amending for cedural to be a vehicle intended in Casey it reviewed did not ban first Constitution—nor can ute United States abortions.) gove in system our trimester serve that function rnment.24 though proponents continue to Even Cross, cling Threadgill 26 Okla. proponents complain that also (1910), implicitly P. this Court Legisla pending bills before the because recognized the Threadgill that doc- subject pre-enactment judi ture are nothing frequently trine was more than a flaws, scrutiny cial for constitutional we deferring for rationalization obvious issues defer consideration of this similarly should constitutionality. The effect of this doc- proposition until such time as trine, transpar- especially when it involves argument quite simply have acted. This subject ently proposals, is unconstitutional oranges, apples ignores and it mixes perception to the the citizens our many longstanding well-recognized solicited, votes, eagerly that their so state differences these two modes between acts in an ultimately meaningless elabo- Few, any, pre-enact lawmaking. if of the danger of Threadgill rate charade. is requirements governing the initiative ment that, effect, be led to be- citizens applicable to process are and referendum that votes on matters of intense as, lieve their legislative for exam process, such count, public concern when this Court is signature ple: circulating petitions, veri already fully aware that the mea- fications, eighth-grade reading level of the being title, subject sure is struck down as mandatory challenge periods, ballot within months should the Attorney of unconstitutional General submission approve Conversely, on “legal it. the vote title review for correct voters ballot Likewise, many indisputably measure of the hurdles built unconstitutional ness.” certainly legislative apply do almost be distorted wide- into our structure will invalidity namely, pas spread referenda: citizen awareness to initiatives and houses, any event, legislative truly sage by committee of the measure. both consideration, meaningful availability gu vote the initiative becomes and the very impossible. dif These are two bernatorial veto. processes proponents’ ef
ferent
dating
our
underlying
sense of
cases
misplaced.
to confuse them are
forts
trumpets
Threadgill
is that
back
over
calls
proponents
triumph
also
that the
of form
substance which
claim
very legitimacy
re-
posal
Casey
here is different from the
into
postpon-
Yes,
different,
by merely
It
most
it is.
itself
strictions.
years,
significantly,
ing
For seventeen
that Initiative Petition
inevitable.
it
has
majority
so much more restrictive that
of this
understood
349 is
Court
Threadgill
enforced
a manner consis-
modi-
could not be
doctrine
been
change
provisions
proponents
idea that
“Referendum
Constitutions
24.The
means
applied
constitution can select their own
cannot
ratifica-
statutes
Although
dealt
doing
new one.
it
so
not a
rejection
tion
amendments to the federal
issue,
recog-
important
procedural
it
with a
violating
require-
Constitution without
Supreme Court and
States
nize that
United
Constitution,
ment
article 5
such
acknowledge
Court
the Oklahoma
Legislatures
such
ratification shall
cannot be amended oth-
constitution
the federal
states,
of the several
in,
conventions there-
provided in the federal constitution.
er
as
than
Congress
shall decide.”
in State v. Mor-
The Oklahoma
(1926)
ris,
P.
cited with
Okla.
See,
34 O.S.1991 9.
Smith,
approval
495,
253 U.S.
Hawke v.
when
refused
fied to the law, guar- may rights review of federal it not curtail pre-submission to the as a bar propos- in initiative defects anteed federal law or the United States constitutional als. Constitution.29 Here, al- makes no the initiative people If of Oklahoma want vote pre-viability deci- for woman’s lowance abortion, concerning aon valid enactment If to obtain abortion. sion on whether they right to have the constitutional circu- enacted, Casey- withstand it could not However, petition. late it another would and, best, challenge; it would based proponents, to the to the disservice expensive, non-binding public as an serve protestants, of this citizens poll. Were we to allow the initia- opinion election could not with- hold an which people, costly, submitted to the tive to be challenge stand immediate which Casey fruitless, and useless election would take time, At that would be bound follow. pragmatic approach The to the con- place. this Court would be forced to declare the begun in of constitutional issues sideration proposition enacted unconstitutional. strengthens impairs rather than Norman legal parties, resources process voters are the initiative because Oklahoma, judiciary and the would be bet- that their on a state assured vote considering spent ter which is meaningful. pre-sub- utilization of not void on its face. scrutiny guarantees mission neither “cut off at the that Oklahomans are INVALID; INITIATIVE PETITION engaged game “Kings-X” pass” nor in a FROM ORDERED STRICKEN they pre- have exercised their most after THE BALLOT. right right to cious vote. —the SUMMERS, LAVENDER, SIMMS and JJ., concur. CONCLUSION precious J., I, and WATT, the initiative in part concurs concurs to preserve is one which are zealous part it we reason decisis in II. of stare spirit to the fullest measure V.C.J., HARGRAVE, HODGES, J., All doubt as to the letter law. part. part concur in and dissent in provisions is re- pertinent construction in favor of the initiative.27 Howev- solved WILSON, OPALA, C.J., J., and ALMA er, right of the initiative not abso- dissent. There are constitutional and statuto- lute. Justice, LAVENDER, concurring process.28 limits on the After ry specially: incontrovertibly peti- clear that the became a constitutional Once a determination is made the tion could withstand challenge. Although posed statutory state law here is afford scheme involved 1, Tulsa, 607, Voinovich, (Ohio City 654 P.2d 5 Oliver v. 613 Cleveland v. 1992 LEXIS (Okla.1982). Maher, Com.Pl.,1992); Conn.Supp. v. 40 Doe 394, 134, (1986); Right to Choose A.2d 152 515 VI, 2; art. cl. The United States Const. Okla. 6; 287, 925, (1982); Byrne, 450 932 v. N.J. A.2d 91 1, 2, 5, Const., 1, 1 and art. § art. art. 629, Admin., Secretary Moe Mass. 417 v. 382 344, 326, 797 P.2d 330 re Initiative Petition 387, (1981); 400 Committee to N.E.2d Defend See, (Okla.1990). Community Gas & Serv. Co. v. 252, Rights Myers, Reproductive v. 29 Cal.3d 172 1014, Walbaum, (Okla.1965). 779, (1981); Cal.Rptr. Doe v. Michigan Long, Serv., Dept. Mich.App. Director Social (1983); 77 L.Ed.2d (1991); S.Ct. Hope v. 468 N.W.2d Pe Robbins, Shopping Pruneyard 447 U.S. Center rales, 150 Misc.2d 571 N.Y.S.2d 2040-41, 64 L.Ed.2d so, (1991). We here to do called following jurisdictions speculate concerning scope nor we will the issue of abortion have considered liberty under Okla.Const. art. individual greater rights individual to their have afforded clause, under the due Okla.Const. than those rec- under state constitutions citizens art. 7.§ ognized under the constitution. Preterm *12 petition sought as idate an to patently unconstitutional violative initiative be people to interpreted as submitted the based on a consti- States Constitution United Court, infirmity. tutional by the the United States decide is question further we must Furthermore, squarely held we have people the of Oklahoma have a whether question on a decision constitutional as to right the under either Oklahoma Constitu- legality proposed the of a to measure be to tion the First Amendment the United through pro enacted into law initiative on the States Constitution vote enact- may by cess be reached this Court at the ment of a law which is violative In re Initiative Peti pre-election stage. country. law of our I do not fundamental tion No. (Okla.1991) P.2d people right under believe have such (whether proposed raising provi revenue either the State or Federal Constitutions. republican sions form of violate here What must be remembered is that the In re Initiative government guarantee); right is inuring people of initiative in the Petition No. and the
creature
our State Constitution
(Okla.1990)(constitutional challenges under
Oklahoma,
State of
like
to the
Con
First Amendment
United States
citizens,
larger
part
are its
are a
IV,
stitution and OKLA. CONST. art.
whole, the
of America. As
In re Initiative Pe
separation
United States
powers);
and her citi-
tition No.
such the State of Oklahoma
649 P.2d
subject
supreme
(Okla.1982)(State
challenges
zens are
law this
constitutional
concerning
country,
petition
of the United to
Constitution
horse rac
ing). Although
people may
final
of that docu-
States
arbiter
reasonable
dis
agree as to whether we should exercise our
ment is the United States
Court.
recognition
guided
authority to review
This
us well
facial
challenges
pre-election stage
my
at the
it is
history
of our
as a
through most
nation
is
infirmity
view there
no inherent
our
guide
us
and I believe it will continue
essence,
doing
may
easier for us
recogni-
so. While it
In
well in the future.
simply
the facial chal
decline to review
country
tion is that our
was founded
lenge
may
now because we
then never be
In
guided by the rule of law.
and is
having
faced with
to decide the constitu
is
decisions of the
this Court
bound
tionality
proposed statutory
scheme
Supreme Court matters of
United States
fact,
may,
either
it
not be enact
because
interpretation and if
federal constitutional
or,
is,
any
ed
the voters
if it
into
enactment were voted into
proposed
challenge
post-election
brought
duty
to strike
law would be
down
we
bound
in the
court
federal court rather than
State
primary provisions
its
as viola-
central
system,
responsibility
judges
our
States Constitution in
tive of
United
Accord
simply to take the easiest course.
challenge, I
facial
concur
post-election
authority
ingly,
because we have
opinion invalidating the ini-
in the Court’s
type
decide the
of constitutional
ordering
us and
tiative
before
legis
proposed
presently
us
before
question stricken from the ballot.
proposed
into
sought
law the
lation
to be enacted
to do so
not a new or
Our determination
facially uncon
involved initiative
re
In
Initiative Petition
See
one.
novel
United
States
stitutional
violation
(Okla.1990); 344,
law of the
When such
order;
by
people through
enacted
laws
the
upon proposed
measure and
has acted
subject
the initiative
are not
to the
same,
adopted
thereby
clothed
becomes
Governor,
power
veto
of the
presumption
the
that it is
valid
nor are the effective
of
enacted
dates
laws
validity
and
exec-
enactment
with its
the
subject
by
people
the
to the constitutional
have noth-
judicial departments
utive and
do,
duty
placed
of
limitations
on
of the
ing to
until
the
enactments
it becomes
respective
partici- Legislature.7
recog-
to
departments
these
Our state constitution
Const.,
V,
majority opinion
modify
provides:
Thread-
6. Okla.
art.
§
2. The
does
interpretation
gill
as an erroneous or obsolete
Legislative authority
the State shall
powers
separation of
doctrine.
Legislature, consisting
be vested in a
of a Sen-
Representatives,
a House of
ate and
but
responsibility
The ultimate
for construction
3.
people
power
pro-
reserve to
to
themselves
interpretation of
Court.
our law is with this
and
pose
laws
amendments to the Constitution
Corporation
v. State ex rel. Oklahoma
Monson
reject
polls
or
and to enact
the same at the
Commission,
(Okla. 1983)
and York
independent
Legislature,
and also re-
And,
Turpen, 681 P.2d
when asked to
v.
at 767.
power
option
approve
their
serve
at
to
own
constitution,
provision
construe
of our
polls
reject
any
Legislature.
at the
act of the
facially apparent meaning
accepted
must be
added.)
(Emphasis
Grumbine,
Shaw
Okla.
this Court.
(Okla. 1929).
P. 311
Const.,
V,
provides
part:
art.
Okla.
7.
Const.,
II,
provides:
art.
Okla.
1§
4.
power
The veto
of the Governor shall not
political power
people;
is inherent in the
All
peo-
extend to measures voted on
government
protec-
for their
and
tion,
instituted
Any
ple.
people
...
measure referred to the
benefit,
security,
promote
and to
take effect and
shall
be in force when it shall
welfare;
right
general
they have the
their
approved by majority
votes
have been
of the
whenever the
alter or
the same
to
reform
otherwise_
cast thereon and not
Petitions
good may
public
require
Provided such
it:
and orders for the
refer-
initiative and for the
change
repugnant
to the Constitu-
shall
Secretary
endum shall be filed
of the
with the
added.)
(Emphasis
of the United States.
tion
addressed
the Governor
Const.,
IV,
state,
peo-
art.
who shall
Okla.
1.
submit the same
5.
governed
power
inherent
United States
political
nizes that all
Ca-
pronouncement
Supreme Court’s
use of
people8
prohibits
11 However,
sey.”
question pres-
the real
power to interfere with
governmental
ently
this
is one
fundamen-
before
right
to the franchise.9 With
people’s
tal state law: Will
this Court wield its
provisions,
these constitutional
legislative process
power
supervise
pow-
political
this Court
withheld
people?
invoked
petition,
the initiative
er
scrutinize
agree
majority’s
I do not
with the
conclu-
ini-
proposing
opposing the
assist
those
only
case
sion
in this
“the
course avail-
the initiative
petition, or to direct
tiative
to this Court
is to
able
follow what
process.10
Court,
final
United States
ar-
“(t)he
Constitution,
agree
majority
is-
with the
biter
the United States
constitutionality
only
of the initiative
decreed.”12
course available to
sue
(4)
Legislature
pie.
Great harm Is caused
unrestricted
shall make suitable
abortions;
provisions
carrying into
visions for
effect
(5)
pregnancy
article.
terms
"trimesters" and
"viability” of
children
not found
unborn
Okla.Const.,
II,
art.
in the text of
United States Constitution:
Okla.Const.,
II,
(6)
provides:
compelling
The State Oklahoma’s
in-
art.
4§
protecting
human
does
terest in
unborn
military,
power,
shall
inter-
No
civil or
ever
life
point
not come into existence
at
right
prevent
the free exercise
fere
distinguish-
viability,
rigid
and there is no
line
suffrage by
right.
entitled to such
those
ing
restrict
Oklahoma’s
abortion either
—
-,
10. Planned Parenthood
viability;
before
after
(1992)
petition and
OPALA,
Justice, dissenting.
Chief
sufficient, val-
people
If the
have secured
This case is signatures
registered
electorate
the status of the
id
about
supreme
highest
order of
to invoke their
United States Constitution as the
this state
law land;1
invalidity
power,
people
have
about
legislative
then
of law legis-
repugnant
their
is
complete
to the United
nor even about
Constitution;2
Peti-
process by voting on Initiative
States
lative
constitutionally
Question
power
No. 642.14 court’s
to invalidate
tion No.
law. is not
Submitting
nonconformable
before
course”,
“easy
constitu-
is rather whether
should free
us
this court
hand of Thread-
restraining
itself from the
tional course.
13. thereby violating
economically
tion because
preserve our
two
outside
opment Co. v. Meurer
(Okla.1985) (declared
ty purchased ry
§
Commerce
legislative
ers of
does not warrant
v. Oklahoma
(Okla.1978)
ty
would create
ly”
determines
clare the
enactment
this state
a
1984]
election
fore this Court
proceedings
what is
seq.
fall within four
4)
criminalizes
except
courts in such
would be
nized
tional
single allegation
Further,
1402a
of the
Trustees
manifest; 2)
fee schedule
Relying
"Our limited
election. Assured of the
pre-viability
percent use tax on
extraordinary powers
become.”
(Okla.1986)
This
unconstitutional because
this state. The cost of
by Casey;
law,
in four
protest to the court of electors
fair and
unconstitutional as a violation of
proposed
statute
absolutely prohibited
statutory proceeding
process.
it is the
Clause of
question
conflicts with its
that
not make it nor to
November,
established in 34
constitution
any appreciable
Tax
Police Pension v.
popular
(declared
cases,
unreasonable
narrow
pursuant
resolution of the
for
Oklahoma women
unconstitutional.
liberty
role,
economic
3)
(declared
just.
absolutely prohibits
judicial interference with the
statute
narrowly
measure will
nor
Commission,
unique
abstractors
"Initiative
on the
Oklahoma);
and the ballot title
like the role of all
tangible personal proper-
information,
circumstances
I
interest
O.S.1981,
Abstract,
United States Constitu-
and,
doubt that
apply
placed
due
duty
evidence,
government
defined
upcoming
cost to
provisions,
when a
November ballot
O.S.1992,
this Court to do
O.S.1971,
it set a mandato-
Petition No. 349
special
process);
federal constitu-
and was
does not
expressly recog-
prevent
Weed,
constitutionali-
that would pronouncement. I would stand the full A. Threadgill precedent force of as viable impermissible judi- protect AND THREADGILL7 ITS PROGENY political speech; I cial restraint on free Threadgill, which and un- enjoyed full Casey trump this measure’s not let would limited 1975,8 sway from 1910 until teach- Casey protestants’ submission because petition only pass es that an initiative need challenge their lack of stand- barred procedural qualify threshold test for rule; prudential ing would people. to a vote of the It submission must scrutinize the initiative before us (a) compliance in substantial be qua but with the sine compliance for procedural qua sine non requirements for non procedural requirements for submis- requisite and bear the submission number sion; today if this mea- I would hold (b) signatures, single of valid address but will, challenged on adopted, sure is when (c) subject9 a subject be Casey undergo grounds, constitutional explicitly people’s excluded from the law- some other test then jurispruden- making power.10 test or procedural Unless a fatal found, vogue. impediment tial must be My Threadgill, general Supra commitment to on note 3. state or federal constitutional reported prior grounds permitted only supra note in several deci- should be the elec- after 348, Okl., added) (emphasis In re Initiative Petition No. sions. See tion on the initiative at issue!’ 17; C.J., (1991) (Opala, page n. 4 820 P.2d and then comments at result); concurring in In re Initiative Petition “Judicial review should not be available at this 639, Okl., however, Question No. P.2d stage, challenges No. on the basis for C.J., (1991) concurring); (Opala, issues, general state or Okl., 76,437, (No. instance, re Initiative Petition No. February challenge proposal, that the for if C.J., 1991) (Opala, concurring enacted, deny persons would certain due dissenting part); part and In re Initiative 267, challenges, may cess law. These Okl., No. P.2d Petition desirability proposal, but are affect not V.C.J., result); concurring (Opala, In re Ini- specific qualifications directed Okl., etc., tiative Petition No. 648 P.2d issue, may appropriately ballot more J., (1982) (Opala, concurring judg- brought when and the electorate enacts the if 315, etc., Okl., ment); In re Initiative Petition early proposal. While determination of these J., (1982) (Opala, concur- judi- result in issues certain economies of result). ring joined challenges, cial time if with other expenditure would avoid the of funds for the Adjudication Supreme Court Initiative 8. In re proposition election ulti- Norman, Oklahoma, Okl., Petitions in invalidated, mately the Task Force believed Norman, (1975) [Norman], As I view its teach- outweighed by that these considerations were Threadgill language ing is consistent with but its delay a desire to avoid in the initiative cam- me, holding. a bit broader than the To Norman paign. Limiting litigation on these issues to trumped an initiative measure that dealt with a post-election challenges is also consistent with subject power excluded from the of initiative general principle ques- that constitutional lawmaking. My analysis places own Norman necessary tions are to be avoided unless it is Threadgill’s pronouncement well within ra- confronting Even resolve them. where appear cases to assume tionale. Post-Norman *19 inevitable, constitutional questions issues seems these teaching departure our total Thread- usually from of should not be determined gill. permit only under conditions that a limited mine.) (Emphasis time for reflection.” Threadgill approbation continues to meet with legal community. See the tenta- of the Nation’s 344, Okl., In re 9. Initiative Petition No. 797 P.2d report on Initiatives tive of the TIPS Task Force 326, 342, (1990); 330 In re Initiative Petition No. (Tort Practice and Referenda and Insurance Okl., 331, (1990). P.2d 797 333 Association), American Bar sub- Section of the 11, 1992, August where under subsection mitted 8; Norman, Proposal supra of and Ballot Title” note see also in this con- "B. Judicial Review 347, supra page recommends that nection In re Initiative Petition No. at "Challenges 14 the Task Force C.J., (Opala, concurring). of the initiative note 7 to the substance
21 chal- C. All constitutional for a vote. cleared the mea- lenges to content must await PROTESTANTS LACK STANDING law and adoption sure’s enforceable CASEY FOR A CHALLENGE lively the context presented in of foren- depart I my firm Were now ad- antagonistic between controversy sic Threadgill, commitment could not still standing press legal versaries today’s to a join judg- rush challenges.11 do meet ment. Protestants not either Threadgill kept in full force should he standing or the state federal standards necessary raises a barrier because it of Casey challenge. No person press their judicature initia- insulation between adversely by, can have affected is lawmaking. The tive in, litigable a measure that interest func- former people. judges, latter tion against anyone as law. of of enforceable showing injury actual or No threatened be made vis-a-vis can a measure that is not B. law. RULE” THE “PRUDENTIAL D. necessity, rule prudential adhered OKLAHOMA’S STANDING com- courts, all REQUIREMENTS mands issues not be that constitutional person Standing, legal right of a necessity.12 strict resolved in advance of challenge judi- the conduct of another in a testing legisla- Pre-enactment forum,13 cial be raised level prudential rule. clearly offends tion judicial process the court on its lawmaking are Measures predicated on motion.14 It must be own subject court-enforced constitutional “direct, immediate and sub- interest orthodoxy. 15 concept standing focus- stantial.” today prudential invoking
I would not
relax
party
on whether
es
protestants’ Casey
jurisdiction
legally cognizable
rule to consider
court’s
to an unenacted
outcome of the controver-
challenge
measure.
interest
C.J.,
587,
Grodin,
(1992)
(Univ.
(Opala,
concur
at 106
P.2d
593-594
11. See
In Pursuit
Justice
348, supra
1989);
ring);
Magleby,
In
Initiative Petition
Pre-
re
of Cal. Press
Gordon
C.J.,
781,
concurring
(Opala,
4
7 at
n.
and Ref-
note
782
Judicial Review of Initiatives
Election
Okl.,
Walters,
298,
result);
erendums,
(1989);
v.
819 P.2d
Johnson
Notre Dame L.R.
302
64
694, 708,
C.J.,
Grossman,
(1991) (Opala,
26
concur
712 n.
The Initiative
see
this connection
ring
part
dissenting
part);
Michigan Experi-
State ex rel.
Process: The
and Referendum
ence,
Okl.,
806,
Note,
77,
Lobaugh,
(1981);
Bar
781 P.2d
Wayne
111
Okl.
Ass’n v.
28
L.Rev.
J.,
(1988)
dissenting);
Popular Democracy:
(Opala,
In re Initiative
Judiciary
Should
813
341, supra
(Opala,
7 at
Elec-
Petition No.
note
275
Ballot Measures Prior to
Courts Review
tions?,
V.C.J.,
919,
result).
(1985).
concurring in
Fordham L.Rev.
53
Com’n,
634, 642-643,
Cartwright
Okl.
S.Ct.
State ex rel.
v.
Tax
Snyder, 472
105
In re
U.S.
1230,
Okl.,
(1982);
2874, 2880,
(1985);
653
1232
Matter
Brockett v.
P.2d
L.Ed.2d 504
86
Okl.,
1059,
501-502,
D,
Inc.,
491,
Arcades,
Adoption
Baby Boy
U.S.
Spokane
(1986);
(1987).
standing
question of
[T]he
"...
sy.16
party
A
injury of some kind.17
injury resulting
ened or actual
from the
actual or threatened
action_”21
inquiry
party
has in
illegal
The
is whether
putatively
pru-
protected
injury
legally
to a
standing inquiry,
aspect
dential
like
fact suffered
contemplation
stat-
interest within the
aspect,
the constitutional
derives funda-
of
provisions,18
Un-
utory
or constitutional
mentally
proper—
from “concern about the
protestants
of our law
der these standards
properly limited—role of the courts in
challenge
standing
Casey
to assert a
lack
society.”22 Generally,
democratic
measure.
an
unenacted
plaintiff can
assert “his or her own
interests,
legal
and cannot rest his claim to
E.
legal rights
relief on the
or interests of
parties.”23
third
These limitations assure
FEDERAL STANDING
“unnecessary
does not issue
that a court
REQUIREMENTS
pronouncement[s]” on constitutional
is-
types
standing
imposes two
doctrine
24
sues
and that the issues
the court
before
litigants seeking
on
access
of restrictions
sharply presented.”25
“will
concrete and
limita-
to federal courts: “constitutional
standing requirements
aptly
Federal
jurisdiction and
on federal courts’
tions
illustrated
Poe v. Ullman26
Tileston
exercise.”19
prudential
limitations on its
v.
There the Court dismissed
Ullman.27
dimension, standing
“In its constitutional
appeals
nonjusticiability
and lack-of-
plaintiff
imports justiciability: whether the
grounds.
threatened-prosecution
The Poe
controversy’
‘case or
be-
has made out a
plaintiffs sought
enjoin
the enforcement
himself and the defendant
tween
within
prohibiting
of a criminal statute
the sale of
meaning
is the
of Art. III. This
threshold
case,
contraceptives.
litigant
teaches that a
determining
Poe
question
every
prosecution that is
the must show a threat of
power
of the court to entertain
requirement
is met where the
both real and immediate
a federal
suit.”20
before
150, 151-154,
Camp,
16.
Application
Dept.
Transp.,
of State ex rel.
Service v.
827, 829-830,
397 U.S.
90 S.Ct.
Okl.,
605,
(1970).
(1982);
supra
Estep,
note
L.Ed.2d
609
25
184
con-
15;
1232;
least,
Cartwright,
Indepen
prong requires,
very
supra
at the
note 13 at
stitutional
an
Glass, Okl.,
Director,
injury
dent School Dist. No. 9 v.
639
actual
redressable
the court.
1233,
(1982); Doan, supra
Comp. Programs
note 14 at 576.
Workers'
v. Perini
1237
Office of
305,
Assocs.,
297,
standing
placed
in issue in a
North River
459 U.S.
103 S.Ct.
"...
case,
[WJhen
634,
641,
(1983).
person
whose
74 L.Ed.2d
is whether
465
challenged,
party
standing
proper
re
is a
quest
adjudication
particular
issue and
498,
Warth,
13,
22.
supra
note
Poe and Tileston standing illustrate that TIONAL VALIDITY OF THIS PRO- plaintiff” i.e., one POSED PENAL requires a “Hohfeldian ANTI-ABORTION — MEASURE IS REPOSED BY IN personal interest threatened LAW with THE AP- protestants the state.34 These are non- COURT OF CRIMINAL plaintiffs they have no PEALS Hohfeldian because endangered by the personal interest une- They nacted measure.35 are not women A. pregnancy is whose intended termination of THE PROPOSED ANTI-ABORTION immediately impaired by or threatened MEASURE A PENAL IS STATUTE enforcing constitutionally state action FIT- WHOSE CONSTITUTIONAL I infirm criminal statute. would not relax EXCLU- LIES THE NESS WITHIN standing requirements, our identical SIVE JURISDICTION THE OF courts, entertain
those COURT OF CRIMINAL APPEALS protestants’ Casey challenge.
There is another reason to defer II measure’s consideration for constitutional testing adoption until its as The mea- law. I DEPART MY WERE NOW TO FROM today passage sure tested in advance its UNSWERVING COMMITMENT TO penal is at best a statute36 whose constitu- I THREADGILL AND WERE ALSO juris- tional fitness lies within the exclusive TO IGNORE OUR STANDING DOC- Appeals.37 diction of the Criminal THAT THE TRINE AND OF UNITED COURT, gives Extant case STATES SUPREME STILL Oklahoma a clear exposition dichotomy THE governs COULD NOT JOIN COURT’S OPINION BECAUSE PRIMARY JUR- appellate cogniz our civil and criminal ISDICTION Appeals OVER THE CONSTITU- ance.38 The Court of Criminal (2) put person intentionally knowingly these the statute is into Such deficiencies before effect, performing rarely appropriate aids or abets the of an abortion ever an task if Id., 52-53, upon person. judiciary.’’ another 401 U.S. at (B) added). Every person guilty natural (emphasis crime at 754 punishable imprisonment abortion is of the (4) [against penitentiary 34. “In a suit for account- for not less than four Governor] years. ing expenditures legislative from his man- [of (C) reporters] Any person, person, petitioners other than a natural sion allowances] [news guilty punishable by occupy of the crime abortion is the status of so-called 'non-Hoh- would not less than plaintiffs, persons Ten Thousand Dollars feldian’ i.e. whose interest fine ($10,000.00) exceeding but judicial per- One Hundred vindication is neither tendered for ($100,000.00).” (Emphasis Thousand mine.) City Dollars proprietary." sonal nor Oklahoma News Okl., Nigh, Ass’n v. P.2d Broadcasters 683 78 J., result); (1984) concurring (Opala, n. 2 see Mahler, Okl., Henry 37. See State ex rel. Cohen, supra U.S. at Flast v. note (1990); P.2d Carder v. Court Crimi- (Harlan, J., dissenting). at n. 5 Okl., (1979); Appeals, nal 595 P.2d Okl., Trimble, Anderson v. 519 P.2d very exception re- 35. There is a narrow to the (1974); Kenny, P.2d Hinkle v. 178 Okl. quirement plaintiff taxpay- for a Hohfeldian (1936). See also Walters v. Oklahoma —a complains Com'n, Okl., (1987) er who of an unconstitutional tax Ethics 180 n. 8 Cohen, levy. supra J., note 16. The See Flast (Opala, concurring). of Criminal The Court bring protestants in this abortion do not stranger appellate Appeals is not an utter exception validity themselves within the narrow judicature addressing of a criminal See, plaintiff. requirement e.g., dealing for Hohfeldian Jobe v. statute abortion. State, Okl.Cr., 36. Section 4 of the initiative measure judicial jurisprudence is based on 38. Oklahoma provides: 4, Okl.Const., as well as construction of Art. pre-1967 counterpart “Section 4. Crime Abortion and Punish- language of its similar ments The earlier in Art. Okl. Const. version 5, person (A)Except provided repealed by in Section amendment of 2 was the 1967 (State Question commits the crime abortion if: Article No. Okl.Const. person performs Legislative adopted an abortion Such Referendum 11, 1967). July person; another election held has the exclusive inci LIES WITHIN ANOTHER power over matters WHICH complete exercise dent essential COURT’S JURISDICTION IS jurisdiction criminal appellate its RAISED, BE IT MUST REFERRED *23 Ethics Com’n.40 we cases.39 Walters v. THAT THE PRI- TO COURT UNDER taking jurisdiction over a from abstained MARY JURISDICTION DOCTRINE relating substantially to criminal matter If this court should continue to test for Final decisions procedure. may not be meaning penal enactment conformity penal unenacted any other than appellate tribunal made lawmaking process, measures in initiative Appeals.41 ap of This Court Criminal question at hand it should defer the force a criminal-law plies equal with Appeals. Court of Criminal Two constitu- adoption by the progress of measure power allow a tional sources would crimi- process. properly us to be de- nal-law issue before Appeals— ferred the Court Criminal B. 4, 7, 6,42 7, Art. Art. OkLConst.43 § § AN APPEAL OR IN ORIGI- WHEN ON AN ISSUE NAL PROCEEDING 7, 4, Okl.Const., by using provide was mind the term that this their The terms Art. § jurisdiction appellate pertinent part: in criminal ‘exclusive jurisdiction Supreme appellate they prescribed jurisdiction cases’ 'The when given Appeals.” the State and Court shall be coextensive with be to the Criminal Court equity; to all cases at law and in Appeals Corley shall extend v. The Court Criminal 836, Appeals Court, shall except that the Court Criminal supra County 134 P. at Adair note 38 appellate juridiction doctrine, in criminal have exclusive relying upon acknowledged this provided statute and cases until otherwise equal density principle can- that two bodies jurisdic- conflict the event there space occupy the same at the same time. tion, Supreme shall determine jurisdiction, and such deter- court has Supra ab- note 37. In Walters the court (Emphasis shall be final...." mination mine.) deciding non-bank whether certain stained Ethics Commission loans violated the Oklahoma 622; Kenny, supra at v. note 37 See Hinkle grant declaratory re- Our refusal to there Act. 37; Trimble, Corley supra v. v. note Anderson principles of was well-established lief rested on 835, Court, County Okl.Cr. 134 P. Adair 10 orderly always control which must deference (1913). criminal of civil remedies with interaction cess. supra Kenny, note at v.
39. See Hinkle
policy
settled
court reiterated its
where this
Anderson,
parte
124 P.
Ex
33 Okl.
of Criminal
decisions of
follow the
Meek,
39;
(1912);
supra
parte
note
Hin
Ex
Appeals
law and the
in matters of criminal
37;
parte
see
Kenny, supra note
Ex
Bar
v.
kle
stated
statutes. The
construction
criminal
(1937);
nett,
69 P.2d
180 Okl.
policy
"a
purpose
is to avoid
conflict
of this
38;
Court,
County
supra
Corley Adair
note
v.
courts."
opinions and decisions between
two
Pitman,
213 P.2d
v.
90 Okl.Cr.
Hurst
Mahler,
Henry
supra
note
State ex rel.
See also
(1950).
Russell,
85-86;
State ex rel. Ikard
37 at
(1912);
parte Buchan
P. 1092
Ex
Okl.
an,
Okl.Const.,
pertinent
Art.
terms of
42. The
(1925);
parte
P. 699
Ex
Okl.
are:
Meek,
In Ex
P.2d 54
165 Okl.
Meek,
we
supra
said:
parte
sitting as
"Except
Senate
reference to the
Impeachment
the Court on the
a Court
trial of criminal cases
"Separate courts for the
authority
Judiciary, general administrative
common,
appellate
separate
courts
as are
hereby
...is
vested
over all courts in
falling
appeals
within
in cases
to entertain
be exercised
Court and shall
respective
The settled and
divisions.
these
its
accordance with
Chief Justice in
policy
the law is that
there
reasonable
rules_”
mine.)
(Emphasis
jurisdictions or
conflicts in their
no
should
decisions,
such conflicts
where
acts
their
4, Okl.Const.,
see
Art.
text of
43. For the
Constitu-
makers of our
are avoidable.
supra note 38.
policy
and so indicated
in mind
had this
tion
analysis.
the Court of Crimi-
the other court’s
Section which makes
criminal-law
Its
Appeals subject to the administrative
nal
binding
answer should
us here.
Court,
control of the Oklahoma
today
The court invalidates
gives
authority
transfer
us the
either
criminal statute.
It could with no less
part
case or a
of one. Under
4’s
whole
show of reason also claim for itself the
constitutionally
appel-
division of
mandated
authority
penal
validate
enactment.
cognizance,
there is a dis-
late
whenever
doing might
In so
run into conflict with a
issue,
jurisdictional
this court
pute over a
contrary pronouncement
later
of the Court
shall
decides which of the two tribunals
Appeals.
of Criminal
Wisdom counsels a
jurisdiction
take
the case.44
over
*24
course that would defer the criminal-law
certify
authority to
an issue to an
Our
aspect
trump
Casey
to the Court of
primary
other court
be likened to the
Appeals.
Criminal
governs
the al
jurisdiction doctrine
cognizance
location of
between a federal
Ill
government’s
court and one of the
adminis
agencies.45 Primary jurisdiction
trative
CONSTITUTIONAL ORTHODOXY MAY
original
doctrine is used where a claim is
BE
THE
NOT
IMPRESSED ON
PO-
It comes
ly cognizable in
courts.
LITICAL PROCESS OF INITIATIVE
play
into
enforcement of the
whenever
LAWMAKING
requires
claim
issues to be resolved which
process
changing statutory
placed
special
within the
com
have been
by
the state’s constitution
petence
specialized knowledge
an
lawmaking. Lawmaking
is a form of
is a
body.46 A district court’s
administrative
process.
political
Judges
police
cannot
suspended
judicial process
pending
will be
process
conformity
censor
for
disposition of the deferred issues
raising
impermissi-
constitution
an
without
body.47
appears
administrative
This court
political
ble restraint on free exercise of
primary jurisdiction
to have invoked the
speech.49
process
Initiative
is not misused
adopting
doctrine without
it
name.48
changes in
when it is invoked to advocate
Here,
primary jurisdiction
the doctrine of
jurisprudence
the federal constitutional
jurisdic-
crafted to facilitate our
should be
congressional
press
to influence and
for
appellate
the other
tional co-existence with
amendments to the United States Constitu-
applica-
of last resort. The doctrine’s
court
prove
tion.
if Casey
Even
were to
itself
necessary for this court to
tion would be
immutable, popular
immortal and
assault
which,
dealing
disputes
al-
continue
with
Casey
on the
citadel is well within the
cognizance,
though generally within its
call
protection
1-8,
of Art.
Const.—
Okl.
§§
analysis.
for a criminal-law
An initiative
provisions
for initia-
state constitutional
contest is noncriminal.
It cannot
impermis-
lawmaking. Today’s opinion
tive
transferred to the Court
Criminal
sibly imposes
current
aspect
rigidity
Appeals. But the criminal-law
undergo
measure must
on
use of ini-
orthodoxy
this anti-abortion
Carder,
supra
supra,
note 37
420.
436 U.S. at
S.Ct. at 1758 n.
44.
at
Davis,
Davis,
quoting Professor
3 K.
Administra-
Co.,
45. United States v. Western
Railroad
Pacific
19.01,
p.
(emphasis
tive
Law Treatise
161, 164,
standing, federal, pruden- state and and the
tial rule as well as all other barriers to
(Em-
suffrage by
right.”
those entitled to
dissenting
such
61. As Justice Blackmun states in his
added.)
phasis
opinion
supra
Planned Parenthood v.
—6,
at -,
note
U.S.