In Re Initiative Petition No. 341, State Question No. 627

PETITION NO. In re INITIATIVE QUESTION NO. 627.

STATE

No. 74409. of Oklahoma.

Supreme Court 19, 1990.

June 21 and

As June Corrected by

Frasier & Frasier Thomas Dee Frasi- er, Tulsa, protestants. for Bixler, Legg Andrews Davis Milsten & Andrews, Fischer, Price F. John C. John McBee, Douglas Henry, Atty. C. Robert H. Leader, Gen., Atty. Neal Asst. Gen. City, proponents. Oklahoma for HODGES, Justice. challenges protest

This Initiative Petition (Petition). Question No. State No. 627 Protestants, brief, in their make three ob- (1) jections: its The Petition is invalid on face for the reason that it violates the first amendment of the Constitution of the Unit- (2) States; ed The Petition is invalid on its face for the reason that it violates article IV, of the Oklahoma Constitu- tion; (3) Ques- The ballot title of State comply tion Number 627 does not with In the Application, they Amended also raise the publication. issue of the Also, brief, reply in the validity raise for the first time the signatures petition. on the Because this application, preserved issue was not reviewing do not it. After we novo,1 protest reject protestants de ar- guments. Petition No. 341 would create a

Initiative (Commis- five member Ethics Commission sion). The Commission would have power, subject legislative approval, “promulgate rules of ethical conduct for campaigns elective state and for offices referenda, including pen- initiative and civil rules,” these and to alties for violation of investigate prosecute violations of the Legislature rules. The would have veto, repeal, modify rules power to promulgated by the Commission. I. pro protestants argue that this

posed amendment violates States the first amendment United unconstitutional, they It is Constitution. argue, gives the Commission the because rules; this unfettered discretion to make Petition No. No. 1. See In re Referendum overly exception litigant to two A discretion causes Petition to be an rules: prior restraint rights broad and also constitutes a parties;9 cannot assert the of third speech. freedom of Okla. Under litigant A can only attack statutes (1981), pass court will Stat. title this applied.10 developed This from doctrine constitutionality peti- on the of an initiative recognition very “that existence of costly unnecessary a prevent tion to and broadly may some written statutes have a election.2 Because determination of the expression a deterrent such effect on free constitutionality pre- could Petition subject challenge should be to election, costly unnecessary vent a party may by even a whose own conduct 11 protestants’ challenges. unprotected” very and “that the statute’s may cause existence others not before political Freedom to as a associate constitutionally pro- court to refrain from party3 protected activities 12 speech expression.” prereq- A tected all limits the first amendment.4 But not challenge is that the uisite to an overbreath on these activities are unconstitutional.5 danger” create law itself will a “realistic governmental To action determine whether will protections that first amendment constitutionally impermissible, is we first ' compromised.13 The itself does Petition rights must determine “whether it burdens danger. create this The creation of the protected by the First Fourteenth authority delegation and the Commission If Amendments.”6 the action burdens not, more, first does without violate the rights, then must those amendment. Until rules or statutes which compelling [gov it advances show “that a effective, the doc- restrict conduct become narrowly ... interest and' is ernmental] applicable. simply trine is not It has no to serve that interest.”7 tailored present application context. or, A statute this a consti rejected argument a prohib We similar Wal provision is if it tutional overbroad protected v. constitutionally its conduct as ters Oklahoma Ethics Comm’n.14 There, 74, 4207(H) (Supp. title well constitution Okla.Stat. as conduct states can 1986),15 being attacked unconstitu ally restrict.8 overbreadth doctrine as 615-16, Broadrick, 606-07, 315, (1984); Petition 413 U.S. at In re Initiative No. 2. 2912-13, 545, 553, (Okla.1982); In re S.Ct. at 2917-18. No. 649 548 93 Adjudication Peti Supreme Court Initiative Norman, Oklahoma, 9. 2124; Numbered 74-1 Vincent, 796, tions in 466 U.S. at S.Ct. at 104 3, 74-2, (Okla. 1975). 8 610, 534 P.2d Broadrick, U.S. S.Ct. at 2914. 413 at 93 Conn., Tashjian Republican Party 479 v. 3. 2125; Vincent, 798, U.S. S.Ct. at 466 at 104 10. 208, 214, 544, 548, S.Ct. L.Ed.2d 514 107 93 U.S. 610, Broadrick, U.S. 413 at (1986). Elections also Illinois State Board See 173, 184, Party, Workers U.S. 99 v. Socialist 440 798, Vincent, U.S. at 2125. 466 at 104 S.Ct. 11. 983, 990, (1979); 59 L.Ed.2d Williams S.Ct. 230 10, 23, 5, Rhodes, 30, 21 U.S. 89 S.Ct. v. 393 799, S.Ct. 104 at 2125. 12. (1968). 24 L.Ed.2d 780, 789, Celebrezze, v. U.S. 13. See Anderson 460 County Cen- Democratic Eu v. San Francisco 4. 1570, 1564, (1983). 547 103 S.Ct. 75 L.Ed.2d 214, 1013, Comm., U.S. S.Ct. 1019- 489 109 tral 20, (1989). L.Ed.2d 271 103 14. 746 P.2d 172 612, Valeo, 1, Buckley U.S. 96 S.Ct. v. 424 See 5. Oklahoma, (1976); v. Broadrick 46 L.Ed.2d 659 1986), 4207(H) (Supp. 15. 830 S.Ct. L.Ed.2d U.S. 37 states: making a dismiss a com- determination to proceed investigation plaint or to with an 613-15, Broadrick, at 2916- U.S. at 93 S.Ct. authority, appropriate make a referral such discretion the Commission exercise necessary provide it deems fairness Eu, S.Ct. at 1019-20. and to confidence in the the accused maintain employees Angeles public who are sub- Los officials Members Council See Vincent, 789, 798, provisions ject Oklahoma Ethics Taxpayers U.S. Act. Commission 80 L.Ed.2d tionally vague give standards. the Commission unfettered discretion for lack of Sec violation Constitution. gave the discretion tion 4207 complaint, proceed with an dismiss rely Secretary State v. investigation, or refer the matter to the Co., Inc.,19 in- Joseph H. Munson which appropriate authority. appellee ar limiting fund-raising ex- volved a statute that, gued because there were no articu penses of the funds raised. 25% standards, here, “[wjhere, lated the statute was unconsti stated that a stat- Court imposes protect- a direct restriction on ute tutional. We held that the Commission did activity, ed Amendment and where First not have unfettered discretion because the the defect in the statute is that the means was restricted the Constitu accomplish objectives chosen to State's tion; decisions, as admin the Commission’s applica- imprecise, are too so that all its actions, had to have “a reasonable istrative unnecessary an tions the statute creates basis;” or rational and the Commission’s chilling speech, risk of free the statute is authority could “not used in an arbi In the properly subject to facial attack.”20 discriminatory trary manner.”16 present there is no direct restriction Therefore, 4207(H) held to was activity. protected on first amendment constitutional. Further, the mere creation of the Commis- Likewise, proposed constitutionally require any application sion does not of a statute, regulation created would not have com- or let alone an Commission application that would create an unneces- im- plete discretion because restrictions are sary chilling speech. risk of free Until the posed the federal and state constitutions rule-making exercises its au- Commission imposed on administra- and restrictions thority, there can be no limitations on first Further, provision agencies.17 tive re- activities; and, then, amendment even rule-making authority of the stricts the each rule after it will have to evaluate constitutionally created Commission. The becomes effective to determine whether it may make rules after a imposes any unconstitutional restrictions public hearing. promul- After the rule is rights. first amendment on Legislature may, by joint resolu- gated, the apparently argue tion, reject rule. The Governor prior Petition’s constitutes a overbreadth joint then resolution which would veto rights. amendment restraint first being in the resolution treated as result analysis, result in our overbreadth inher- joint After a other or resolutions. bills ently rejects protestants’ contention. How- repeal adopted, Legislature can rule is ever, specifically we will address whether promulgated modify Any the rule. rule or prior restraint. the Petition constitutes ef- by the Commission would become legislative ratification.18 fective without prior reg restraints The doctrine of advance, op the restrictions on Commission’s Given ulates certain activities posed retrospectively punishing activi- that the Petition does not power, we hold Act, 75, (Supp.1987), de- 17. Okla.Stat. title 250.3 In the Oklahoma Ethics constitutionally "agency" “any or statu- (Supp.1986), fines 4200-4248.1 §§ board, bureau, commission, Commission, torily created state which created an Ethics authority, public department, trust in which the Campaign and renamed the Oklahoma amended beneficiary, or interstate commission." state is a Compliance Act. and Ethical Standards See (Supp.1989). Like the Okla.Stat. title rule-making procedures 18. The outlined act, provided for an the 1989 amendments in The Petition are similar to those contained investigate Commission which would Ethics Act, Procedures Okla.Stat. title Administrative acts, activity Under both refer violations. 302-03 §§ political parties and or- candidates ganizations by required are restricted actions or L.Ed.2d 786 19. 467 U.S. by prohibited actions. 16.Walters, 746 P.2d 176. license; designed prevent deny grant The doctrine is

ties.21 restraining rules do not become effective self-censorship.22 A law con- Commission’s and, Legislature, until ratified enough nexus to “must have a close duct Lakewood, there was not a second commonly associ- or to conduct expression, level of review before the decisions became expression, pose a real and ated with Therefore, protestants’ reliance effective. censor- threat of the identified substantial misplaced. earlier, the Peti- As stated ship risks.” activities, regulate any tion does not protestants apparently also pow- merely creates a Commission with argue that the Petition is unconstitutional Legislature, rules to the er to recommend does not have a because investigate, power and the power constitutionally legitimate interest in creat prosecute. There is an insufficient nexus support, ing an Ethics Commission.26 the creation of the Commission between cite Eu v. Francisco San censorship risk to create and the Comm.,27in County Democratic Central Peti- threat.” The a “real substantial challenged “If which the Court stated: prohibit, prospectively either tion does not rights political parties law burdens the any “chill” first retrospectively, or members, it can survive constitu and their activities and is not unconstitu- amendment scrutiny only if the shows that tional State tional. compelling a state inter- it advances est_”28 Before state must demon rely City Protestants on Lakewood interest, compelling strate a state Co.,24 in Publishing which Plain Dealer that the Petition protestants must show prohibiting placing an ordinance volved right. Protestants a constitutional burdens property public without of newsracks Protestants have not met this burden. prior approval. The ordinance mayor’s activity given any examples of an have not any for the not establish standards did re political participants would from which application. The approval of an denial mere under the Petition itself. The frain plac licensing statute stated that “a Court does not creation of an ethics commission in of a ing discretion the hands unbridled rights, any first amendment burden agency constitutes a government official or any not restrict the Petition itself does in censor prior restraint and result activity activity.29 25 some is political Until City present The case and ship.” restricted, im right constitutional is not a re dissimilar in several are Lakewood pinged. present protestants spects: In the rule-making authority rath action must further a challenging governmental All interest;30 the Petition licensing authority; legitimate Unlike er than legitimate in do have a Commission, government official does. Not states fostering and educat- interest “in informed had total discretion to Lakewood City of Blasi, scrutiny level of to be constitu- Theory meet the same a Prior Restraint: 21. Toward (1981); Linkage, 11 tional. 66 Minn.L.Rev. The Central Restraint, Emerson, Doctrine Prior The (1955). Contemp.Probs. 648 &Law at 1013. 27. 109 S.Ct. Publishing Dealer Lakewood v. Plain 22. 28. Id. at 1019. 750, 757-58, Co., S.Ct. 2143- U.S. (1988). 100 L.Ed.2d activity urge The might the Commission restricted because 23. Id. at promulgate rules which would unconstitutional- 750, 108 S.Ct. at 2140. They ly infringe then on the first amendment. might examples give which several of rules 757, 108 S.Ct. at 2143. 25. Id. at premature us to ad- It is unconstitutional. constitutionally of rules which have dress the argue that the State of Oklahoma yet become effective. not legitimate creating have a interest does not constitution. It is an Ethics Co., Lindsley v. Natural Carbonic Gas is constitu- whether the Commission irrelevant however, created; statutorily L.Ed. 369 tionally it must U.S. Therefore, expressions popular protestants’ ed will in a est. first amend- election,”31 compelling objections have a ment fail. “[m]aintaining state interest a stable

political system.”32 II. brief, Attorney In his the Oklahoma Gen- object to Protestants next the Peti establishing the eral states one basis for grounds tion on the it violates the Commission: separation powers as defined Okla Water, Dome, Teapot Iran-Contra and constitution, homa’s which states: County all re- Commissioner scandals powers government public mind us that not all officials live into State of Oklahoma shall be divided up duty public to their trustee. In- separate departments: Legis- three nearly goes by deed a month without lative, Executive, and Judicial: and ex- prominent public being a official news of Constitution, cept provided in this charged, guard indicted or convicted. To Executive, Legislative, and Judicial scandals, against such avoid conflict of departments sep- shall interest, reaching, prob- over similar distinct, neither shall exer- arate lems, looking many Oklahomans are powers properly belonging cise the solution, an administrative such as the either of others.35 proposal Ethics Commission provision excepts This constitutional other Question 627. provisions. constitutional Because the Pe- Campaign Compliance “Oklahoma provision, tition is a Act”33 also out the Ethical Standards sets under the does fall limits article establishing legitimate state’s interest in IV, IV, 1. Article section 1 does regulation Commission and the of cam- delegation prohibit a constitutional of paigns. Those are: legislative authority agency. an to operation government That the of 1. be Department In City Springs v. Sand of public properly conducted so that offi- Welfare,36 rejected the same Public of argument. independent impartial cials are In that we held that a public pri- office is not used for provision providing that the gain than the remuneration vate other Department carry of Public Welfare was to provided by law.... prescribed by legislature the out duties as 2. That the attract those by passing was valid. We reasoned that qualified to serve.... citizens best XXV, prohibi- article sections the campaign process in this 3. That the against delegation legislative tion au- operate people to ensure that the thority exception under the was removed representatives elect their this state IV, clause of article section 1. Likewise if equitable an informed and manner and Question passed by State 627 is a vote of qualified persons become candidates people, separation it remove the will full public office with confidence powers prohibition from actions of the protect ability process to them Commission. wrongful allegations of unlawful from practices.... election III. Initiative Petition Number object protestants Next the is not and is not a overbroad attorney gen rights. ballot title submitted prior restraint on first amendment rationally legitimate grounds to a inter- eral on the that it does not contain It is related Anderson, U.S. at 103 S.Ct. at 1574. 4201. 1023; Eu, Tashjian, See also 109 S.Ct. at Const, U.S. at IV, added). (emphasis art. 1§ 35. Okla. Eu, at 36.608 P.2d 1139 33. Okla.Stat. gist proposition,37 deceptive posed ballot the effect of is title contains misleading, proposition, misleading. and is not written on an it is not reading comprehension eighth-grade level. argue that other details Secretary of The records of the State show should be included ballot title. that December Oklahoma State explain necessary These details are not Department pro- Education certified the effect of proposition. In Arthur v. posed title to be “within the 8th ballot Stillwater,38 this Court stated: readability.” range Grade We question specific, The must but need objection to other the ballot begin- not include proposition, from title, it that is whether contains the effect ning enough if end. It is sufficient is deceptive proposition and is mis- printed pur- the character and reflect leading. proposed The ballot title states: pose Generally, of the proposition. add a This measure would new Article requirement concerning submission of It XXIX to the State Constitution. propositions question ballot is that a five member would create Ethics Com- misleading, deceptive not be and that Justice the Su- mission. Chief uncertainty it free from and ambi- preme appoint Court would one member. guity. The the voters test is whether appoint The Governor would one mem- opportunity fairly express afforded an Attorney ap- ber. The General would will, question their and whether point Pro one member. President sufficiently apprise definite to the voters Tempore appoint would one Senate accuracy with substantial as to what Also, speaker of the House member. they approve. are asked to appoint would one member. No member substantially title is ballot congressional the same could be from apprise accurate and sufficient vot- persons No more than three district. approve. ers of what are asked to party mem- from one could be Although the substantially ballot title is time. bers at the same The members accurate, precise. more can be made campaign make rules for ethics. could disapproved by The rules could be Protestants reason that the ballot title The could House and Senate. Governor “gist proposi- does not the of the contain The disapproval. the House and veto tion,” part, it because states that “[t]he enact ethics The Senate could laws. investigate also Commission could viola- investigate could also viola- Commission They prosecute tions. could District prosecute They could in District tions. the Petition Court.” Section of states Court. that shall investi- Ethics Commission “[t]he and, appropriate, prose- attorney general’s proposed gate when it deems ballot sufficiently the the cute in the Court....” Because states effect of District title appropriate” (1) phrase the it deems proposition; the constitutional creation “when Commission,(2) commission, powers, the those prosecutorial of the Ethics modifies However, discretionary. powers the the make-up the of the Commission and investigate required to viola- appointments to the Commissionis method of the Commis- promulgates. the sion, (3) of tions of rules that it responsibilities powers the Therefore, Commission, (4) legislature’s title should state that power the the ballot the investigate viola- promulgated by the the would disapprove the rules investigate Commission, (5) governor’s rather could viola- power the tions than pro- the tions. disapproval. the Because veto explain in 2. The title shall basic title ballot Okla.Stat. explain require proposition; that the title ballot ... effect of the amended words the proposition,” con- of the rather than "the effect on shall be written the ballot title gist proposition.” title of the tain "the 34, eighth-grade reading comprehension level- 9(B) requires (Supp.1983) that: title shall not exceed one hun- 38. 611 1.The ballot words; fifty dred 10, may title “ac- It from Under we was insufficient. does not follow or “correct cept suggested” the substitute for the the amendment the ballot title clarity.39 the Be- or amend ballot title” for purposes of the Petition is clarification that suggested by the Further, cause ballot title determining for invalid.41 test grade eighth is well above title does not the ballot level,40 reading approve reject it. We required peti- apply to the statement adopt the ballot following amended tion. Section 9 title 3442 addresses title: sec- requirements for title while ballot requirements tion 3 sets out the for the Title “Ballot 9(B) specially Petition. Section states that

Initiative Petition No. 341 title; applies it it does ballot No. 627 if section 9 Petition. Even Petition, conceivably sec- could include the measure a new article This would add particular addressing XXIX to the It tion 3 is the statute State Constitution. controlling.44 create a subject would five member Ethics Com- matter thus and is appoint mission. The would Governor requires title Section the ballot one member. The Chief Justice of proposition.” “the effect explain of the Supreme appoint mem- Court would one requires contain Section 3 that the Petition ap- Attorney would ber. General simple gist prop- “a statement Pro point one member. The President terms, By the use different osition.” Tempore appoint one Senate would presumed Legislature intended Also, Speaker member. apply different tests to the ballot appoint would one member. No House simple the Petition’s “A statement. same two members could from the be gist proposition” statement congressional No more than district. detail requires explanation less than an persons party three from one The list of proposition.” “the effect of members the same time. The could be at requirements out in section 9 detailed set campaign members could make rules for title, as opposed for the ballot to section 3’s disapproved rules ethics. The could requirement the Petition’s by the House and The Governor Senate. statement, Legis- is further that the proof disapproval. could veto the The House lature did not intend for the Petition’s could ethics laws. The and Senate enact particular to be as as the ballot statement investi- required would title. gate prosecute It violations. could

District Court. have that the We determined BE AP- SHALL THIS AMENDMENT substantially title was accurate. Be- ballot BY THE PROVED PEOPLE? simple “gist cause the statement of the Yes, ( ) the amendment proposition” materially the the same ( ) No, against the amendment.” attorney proposed by as the ballot title general, statement on the Petition was argue the Peti

Protestants also substantially also. The Petition is the same accurate tion should be invalidated for title alleged reasons that the ballot not invalid. 315, may court or amend the ballot 41. In re Initiative 649 P.2d at correct Petition No. "[T]he court, (supplemental opinion rehearing). accept substitute 559 title before the or suggested, which will or draft a new one (Supp.1983). 42. Okla.Stat. title 9§ provisions of this conform to the of Section 9 title 10 § title.” Okla.Stat. gist proposi- simple "A statement of the of the margin printed top tion shall be of each on the Secretary a letter from the of State filed In (Supp. signature sheet." Okla.Stat. tit. 3 20, 1989, Depart- the Oklahoma State December 1985). average readabili- of Education found the ment 14.05, Evans, suggested ty level of the ballot title to be P.2d 1118-19 44. Williamson 319 college level.

275 qualifies for to a vote of IV. eration submission electorate and title. modifies the ballot briefed, Although protes teachings My commitment publica tants contest Cross, 403, 109 Threadgill v. P. 558 Okl. required tion of the notice under [1910], remains undiminished. In re See purpose 8.45 The of this section is section etc., Okl., Petition No. Initiative give objections to a sufficient notice that J., (Opala, concurring in P.2d 554-555 requires filed. petition can be Section result), I call where for the court’s aban published notice to “in at least one be present-day practice, first intro donment newspaper general circulation jurisprudence by into our re duced Su concede that the state.” Adjudication etc., preme Court published in notice was both The Tulsa [Okl.1975], which allows the constitu Daily and The There World Oklahoman. fore, validity tional of a measure’s contents to be the issue is either of these whether newspapers general challenged peti is one circulation in advance of the initiative “of adoption by people. in the state.” tion’s Coldron,46 listed In Hesler v. this Court some of the factors to considered WILSON, Justice, concurring in ALMA determining newspaper was one whether a result: (1) general interest as: the size proposed gist circulation, coverage, geographic proposed is that Ethics amendment subject its content. and matter of legislative power will have Austin, Stephen

The affidavit of Circula rules; police power adopt to enforce World, Director of The estab tion Tulsa rules; adjudicatory power and to determine items lishes that The Tulsa carries World impose penalties for violation of the and general public, that it is of interest legislative, ju- These rules. executive state, throughout and that distributed powers persons will to all dicial extend 135,- average daily it has an circulation of campaigns in state involved election publication in The Tulsa World petition cam- initiative referendum requirements to meet the is sufficient persons serving all paigns and to publication one 8. Because employees. ap- The ballot title re officers newspaper circulation is fully proved by explain this Court does not both quired, necessary it is not to address proposition required by gist of this publications. O.S.Supp.1989, 9. TITLE IS RE- AMENDED BALLOT SECRETARY OF STATE MANDED TO conceptualize hypothe- It is difficult to ELEC- FOR SUBMISSION TO STATE the manner which this size BOARD. TION part-time, non-compen- of five sated members will able to exercise C.J., LAVENDER, HARGRAVE, all three of our state powers of branches SIMMS, DOOLIN, KAUGER sep- of our government within confines JJ., SUMMERS, concur. Const., IV, art. powers, Okla. aration WILSON, OPALA, V.C.J. and ALMA However, because this measure is 1.§ J., in result. concur issues on only proposal, consideration of premature. Threadgill v. the merits is Justice, OPALA, concurring Vice Chief (1910). Cross, P. 558 26 Okla. in result. majority Accordingly, de I concur in the only insofar as the court I concur approves insofar as it opinion under consid today that measure clares thereof_” sufficiency Supreme Okla.Stat. title "Upon Court it shall be order duty Secretary (1981). forthwith of State to newspaper published, least one to be in at cause State, a notice of circulation in the 46. 29 Okla. 116 P. 787-88 filing apparent or in- and the such proposition being submitted to the vote of people. PROCESSES, S.A.,

PANAMA

Plaintiff-Appellant, COMPANY,

CITIES SERVICE

Defendant-Appellee.

No. 71598.

Supreme Court of Oklahoma.

July

Case Details

Case Name: In Re Initiative Petition No. 341, State Question No. 627

Court Name: Supreme Court of Oklahoma

Date Published: Jun 19, 1990

Citation: 796 P.2d 267

Docket Number: 74409

Court Abbreviation: Okla.