*1 grandparents, maternal but of its custody,
application change court then consider whether either of
could parents were fit for the
child’s custodians (Quoted approval in
child.” with
Lohah, 931). 434 P.2d at
During minority the child’s doors of the parent open
courthouse will remain underly-
who would show that the conditions
ing the declaration of unfitness have been Logan To
corrected. the extent adjudication grandpa-
Smith disallows the custody proceeding
rental a divorce it is
disapproved. jurisdiction original
We assume writ, require hearing
issue the but
conforming opinion issue of grandmother’s motion mother custody
unfit of the child should be
changed pending appeal.
HODGES, C.J., LAVENDER, V.C.J., and
OPALA, WILSON, ALMA KAUGER and JJ.,
WATT, concur.
SIMMS, J., dissents.
HARGRAVE, J., participating.
In re INITIATIVE NO. PETITION QUESTION
STATE NO.
No. 82041.
Supreme Court of Oklahoma.
Feb.
Rehearing Denied March
July Secretary 1993.1 The of State made and, on physical signatures count of the 30, 1993, July certified that the total number signatures registered of valid Oklahoma 197,798, and total number of voters is signatures required for an initiative 111,229.2 signatures appearing The is sufficient,3 filing numerically notice of the August protest published on and time allowed, Dwayne Within the time Sallisaw, Oklahoma, Larry Ket- Burrows of Guthrie, Oklahoma, David tles of Vance Edmond, Oklahoma, Murphy, David and Gary Simpson, Jeff True and Charles Wood- City, Oklahoma, (protes- en of Oklahoma Hoehner, Chubbuek, Bullard & Daniel J. tants) protest their Petition filed to Initiative Bartmess, Hoehner, City, Duchess Oklahoma Question August on No. State No. 658 protestants. order, рrot- Pursuant to this 1993.4 Court’s support filed their brief in of the estants Slater, L. Spencer, Thomas York & Lee 15,1993; protest proponents filed on October Slater, City, proponents. Oklahoma 15, 1993; on response their brief November protestants reply filed brief on and their WILSON, ALMA Justice: 29,1993. Additionally, on Decem- November presented is Initiative The issue whether 2, 1993, proponents application ber filed an is Petition No. 358 insufficient because requesting disregard this Court the new proposed legislative measure violates the and, De- reply issues raised brief on Oklahoma Constitution. We find and hold protestants filed their re- cember that Initiative Petition No. 358 is sufficient application. sponse to the and submitted vote of the should be to a рeople of the State of as State Oklahoma Question Initiative Petition No. State Question No. 658. proposes enactment of the “Okla- No. 658 thirty- Lottery Act” homa which consists 19, 1993, Best, Inc., April On Oklahoma title, including sever- one sections the short (pro- Douglas A. Branch and Hall Melvin C. ability repealer conflicting clause and ponents) Initiative No. caused statutory visions. Review of the Question No. 658 to be filed with the State general- that its are scheme reveals contents Secretary signed copies The of the of State. Title and ly explained suggested Ballot pamphlets were to the returned proposition forth on the Secretary ninety days, gist within on the set of State accepted §§ O.S.Supp.1993, for the Presidential 1. 34 and 8. tofore votes cast as the bases for this calculation. Elector Question Initiative Petition O.S.Supp.1993, §§ 6.1 and 8. According Secretary the State Elec- 11, 1993, August § O.S.Supp.1993, 8. On 4.34 Board, receiving highest tion the State office Coalition, Ami Inc. and the Oklahoma Christian general last held of votes at the election number voter, Shaffer, registered individual filed 1992, was Presidential on November that of constitutionality challenging protest form were for which the total votes cast Elector objecting 111,229. 1,390,359 the Initiative Petition and eight percent thereof count, protest objection Constitution, V, 2, but the and the provides The Oklahoma 26, 1993, August were withdrawn on count eight percent legal voters shall regis- other has been revived. Sixtеen any legislative neither right propose protest tered voters filed notices of intent eight percent shall be based 11, 1993, filings. August but no other general submitted of votes cast at the last total number protestants the suffi- receiving highest herein do not office election for the State signatures. ciency have here- votes at such election. We number of signature provide:5 which tants of their pages contend resolution consti- tutional will a needless avoid elec- would create a
This measure
State Lot-
spare
of the futile effort
tery.
operated by
It would be
the Okla-
voting
on measure which could not
Authority.
Authority
homa
applied
run
or enforced because its
would be
board
directors.
*3
constitutionally
appoint
unacceptable.
Proponents
Governor would
the directors.
Authority
independent
an
respond
proposed Lottery
The
would be
that the
Act is not
body
public
Authority
of the
The
face,
state.
any provi-
on its
but if
unconstitutional
Lottery.
would
run with funds from the
invalid,
be
facially
to
part
sion is found
be
It would not receive tax dollars. Around
should
stricken
the severability
under
lottery
go
money
prizes.
of
for
50%
would
amended,
petition,
clause and the
Authority
pay
start-up
The
its own
to a vote
submitted
of the
While
that,
give
costs. After
it would
around
agreeing
protestants
with
this Court
money
lottery
of
to
35% the
the State. may
the
challenges
review
to
One-half
the
of
State’s share would be used
proposed legislatiоn,
the
proponents argue
by
for the
the Oklahoma Center
Advance-
may
pro-
this Court
not withhold the
Technology.
ment of
and
At
Science
least
posed
from
except upon
the voters
35% of the State’s share would be used for
finding
the
constitutional violation
capital
the
needs of educational entities.
very
proposed
strikes at the
of the
heart
The rest
the State’s share would be
of
used measure.
capital
the
the
needs of
State. The
Authority
would select
to sell lot-
jurisdiction
This Court has
to enter
tery
Authority
tickets. The
would choose
protests
tain
petitions pursuant
initiative
type
lottery games
played.
the
of
of
Section 8
Title 34
of
Oklahoma
Authority
permit
The
could not
other
1973, protests
Statutes.6 Prior to
were filed
gambling.
Lottery
forms of
The’ State
Secretary
with the
of the
and
reviewed
lottery.
legal
would be the
This mea-
original
seeking
Court
actions
ex
many
sure contains
other laws. Those
traordinary relief. With strict adherence to
regulate
laws would
and
doctrine,7
separation
powers
judicial
of
penalties.
vide criminal
review of
proposed
the contents of a measure
protest
support
opinion upon
and
an initiative
briefs
assert
and
proposed
constitutionality
that the
measure is unconstitution-
thereof were withheld from
extraordinary
al on
and
implementation
its face
that its
will
relief available. Thread
Cross,
(1910).8
protes-
gill
violate our
state constitution.
26 Okla.
P.
gist
proposition
5.
may
The ballot title and the
of the
Court
reasoned
court
not restrain
protestants
are identical. The
do not
of an
enactment
unconstitutional law under
gist
proposi-
either
title
the ballot
or the
of the
separation
powers
the fundamental doctrine of
of
tion.
equal
independent departments
of our three
government.
of
The Court found that the 1909
deleting
6.
was
Section 8
amended in 1973
governing
process imposed
statutes
upon
the initiative
provisions
protest
Secretary
to the
of State
Secretary
of State the ministerial and
provisions
adding
protest
before this
duty
mandatory
petitions,
to file initiative
Okla.Sess.Laws,
Court. 1973
eh.
vein,
writ of mandamus issued.
In this
Threadgill Court said:
IV, §
7. Okla.
placing
uрon
If
such
duties
such ministerial
Cross,
Threadgill
gives
right
In
a writ of mandamus was
officers
in turn
to them
sought ordering
Secretary
question
validity
any
of State to file an
or all the
petition proposing
proposed,
a constitutional
amendments
and to refuse to act
Secretary
they
amendment.
of State Cross had deter-
proposed
when
decide that such
invalid,
proposed repeal
mined that the
of the constitu-
will be
then the most subordinate min-
prohibited
having any
tional
the sale of li-
isterial
officer
state
duties to
quors
contrary
Enabling
perform
to the state's
Act
in connection
election
Congress
required
indirectly
which
the state Oklahoma
himself
have,
he
do
that which
could not
prohibit
liquors
period
the sale of
for a
of 21
nor
other citizen of the state have
years
formerly
by proceeding
in that
do
state
Indian
the courts
instituted for that
wit,
Territory.
rejecting
Secretary
purpose,
pass
In
validity
of State’s
request,
Threadgill
proposed
defense to
stay
the mandamus
measure and
election
man,
rule,
Oklahoma under its
statutory change, exception
federal
the 1973
With
Threadgill
pre-
withholding
challenges
rule of
contents
constitutionality
proposed
determination of the
proposed
election
constitu-
statutes10
legislative mea-
contents of a
amendments11 and state constitutional
tional
Supreme
re
sure was carved out in Court
consti-
contents
in Nor-
Adjudication
Initiative Petitions
reviewed
tutional аmendments12
been
man, Oklahoma,
present nothing
questions
into
state
and the
more than abstract
may
appropriated by
which the revenues
through
and will not be reviewed
this Court’s
Legislature.16
language
grant
costly
relief
inherent
from
posed
authorizing
Lottery
measure
Au-
expenditure
public
revenues on needless
thority to determine “net revenues” does not
elections.15
IV,
clearly
V,
1§
contravene Art.
or Art.
Previously this
con-
Court reviewed the
Although
Okla. Const.
it is conceivable
proposing
tents of an initiative
implementation
proposed
statutory
lottery
scheme for a state
and de-
result
an unconstitutional
termined the initiative
to be invalid.
usurpation
legislative power
appro-
Initiative Petition
priation, we refrain from further consider-
case,
argument
implementa-
ation
because
statutes would have allowed the
tion cannot be discerned from the face of the
lottery proceeds
Commission
distribute
proposed measure.
any guidelines
purposes
as to
without
argue
Protestants
also
object
agеncy
or state
benefitted
measure,
whole,
legalize
taken as
the amounts to be
disbursed. We held
*5
lottery gaming
profit
special
for the
aof
class
measure,
face,
proposed
on its
of the five
of the
members
board
directors
delegate
purely legislative power
ap-
Lottery
Authority
and
will be vested
IV,
propriation contrary
§
to Art.
1 and Art.
powers
govern-
with
of all three
branches
V,
55,
§
Const.
Okla.
ment to be exercised free from state control
protestants rely
on In re Initia
contrary
provisions.
to several constitutional
tive
No. 332
their
Petition
for
contention that They assert that the benefits to the state are
proposed
the instant
measure would uncon
speculative
too
rеlationship
to establish a
stitutionally delegate
policy making be
fiscal
Lottery
Authority
between
and the state
Lottery Authority
cause the
has unbridled
proposed
therefore
and
measure creates
authority to create the
formula
determin
private corporation
V,
contrary to Art.
ing gross
59,
Const.,
§
revenues and net revenues.
Okla.
special privileges
with
.Unlike
infirmity
contrary
V,
clear facial constitutional
found
§
§
to Art.
Art.
and
IX,
§
In re Initiative Petition No.
Proponents
Art.
Okla. Const.17
(Okla.1991);
costly
potentially unnecessary
P.2d 772
In re Initiative Petition No.
and
election ex
(Okla.
Question
pressly
State
No.
firmities. we However, separately I to majority. an write interpret not contents of will Court opinion emphasize majority should speculate implementa- proposal, nor Further, teaching tion, signal a return stage. if not be read pre-election this Cross, 403, 109 P. infirmity Threadgill 26 Okla. a be- of adopted and (1910). Threadgill the consid- prohibited implementation of 558 apparent comes patently unconstitutional eration of even a challenged provisions, the measure Hence, it was to the vote severability. measure before submitted providеs for expressly re Peti- people. After In Initiative of refrain from further consideration we arguments. these gist unchallenged of Lottery Ballot Title and 18. The specifically a or Act and the in statute Lottery proposition that the grant advise the voters Au-
provisions that would oper- a meetings, create State thority determine measure would to close Lottery Authority budget, and that open, ated the Oklahoma create its own which records are body independent public Authority abe adopt regulatory provisions admin- free from the statutes, appointed a board of directors procedure employees free run hire istrative any Lottery It except is conceivable statutory thе ethics stat- Governor. from control utes, will, Authority mea- fees could administer fix costs and void contracts entity indepen- private as to function a charged, deposit money in other sure so accounts scrutiny governmental budget, public con- treasury, dent of trols, create own than in the state specula- is mere but such administration proceeds its own its net and establish determine stage. tion at this year. fiscal 788 (Okla.1992), P.2d underlying dating of sense our cases Threadgill trumpets Initiative back Court is that triumph
Petition in Oklahoma No. & form over substance which calls 74-1 (Okla.1975) 74-2, question very into legitimacy Oklaho Beverage by merely postpon- Modern Alcoholic Con itself mans Shelton, (Okla.1972), ing P.2d years, trol v. the inevitable. For seventeen Threadgill majority is viable еxtent that: a of this Court has understood severable; proposed provision not Threadgill is the con doctrine has been mod- “nothing longer oper- stitutional is more than an ified to the extent that it no ques opinion hypothetical pre-submission abstract on ates as a bar to the review tion”; apparent properly pre there is no constitutional defects in initiative posals.” served constitutional issue. advised that parties dangers rely We advised addressing will not refrain from viable ing teachings Threadgill the narrow in challenges in to a measure or- re Initiative Petition No. costly meaningless der to elec- said: We Likewise, tion. con- the inclusion abstract though proponents “Even continue to possible stitutional defects will Cross, cling Threadgill 26 Okla. in result activism intended to (1910), implicitly 109 P. this Court right circumvent to cast recognized Threadgill their process. votes the initiative nothing frequently doctrine was than more deferring a rationalization for obvious is- OPALA, Justice, concurring in result. constitutionality. sues of The effect of this today The court declares that the initiative doctrine, especially when it involves trans- measure under consideration —which would parently proposals, unconstitutional is sub- establish lottery qualifies a state-run — ject perception by the citizens of our to a submission vote IWhile votes, solicited, eagerly state that their so clearing concur in the measure elec- an ultimately meaningless acts an elab- tion, separately I my write to reiterate views danger Threadgill orate charade. The permissible on the scrutiny outer limit that, effect, is citizens be led to may undergo initiative measure it when in- believe their votes on matters *7 upon protest alleged legal before us a for count,
tense
concern
when this
deficiency.
fully
already
pro-
Court is
that
aware
subject
posed
being
I
is
struck
not
validity
undertake to test the
down as unconstitutional within
a
adoption by
months
of measure’s content
its
before
approve
Conversely,
people. My
should
voters
it.
a vote of the
commitment to the
indisputably
vote on an
Threadgill
unconstitution-
undiluted
v. Cross1 con-
force
certainly
al measure will almost
be
tinues
fervor.2,
distort-
with undiminished
Thread-
by wide-spread
ed
citizen
gill
conformity
awareness of the
teaches
of a measure’s
event,
invalidity
of the measure.
In
a
content to the
our
commands of
constitu-
truly meaningful vote on
be-
judicial-
the initiative
tion —state and
not be
federal —
impossible.
ly
comes
peti-
in
examined
advance
the initiative
247,
1019,
(1991)
C.J.,
In
1.
re
(Opala,
concurring);
Question
Initiative Petition No.
1037
P.2d
639,
1019,
341, Okl.,
No.
813 P.2d
1031
In re Initiative Petition No.
P.2d
796
267,
V.C.J.,
(1990)
concurring
(Opala,
275
in
(1910).
1. 26 Okl.
109
558
P.
result);
Okl.,
In re Initiative Petition No.
648
J.,
(1982) (Opala,
concurring
P.2d
1222
in
My unswerving
Threadgill,
2.
commitment to
su
judgment);
In re Initiative Petition No.
pra
reported
note
is documented in several
Okl.,
J.,
(1982) (Opala,
649 P.2d
554-555
See
decisions.
Okl.,
In re Initiative Petition No.
result);
concurring
C.J.,
in
In
(1992)
re Initiative
No.
(Opala,
18
dissent
349, (No. 76,437,
20, 1991)
ing);
Okl.,
February
(Opala,
In re Initiative Petition
No.
C.J.,
C.J.,
(1991)
concurring
(Opala,
concurring
dissenting
part)
P.2d
in
rеsult);
347, Okl.,
(unpublished opinion).
In re Initiative Petition
adoption by
people.
democracy
tutional
Presubmis-
authorizes
tion’s
fundamental-law
legislate directly.4
sion review of a measure’s
electorate
fatally
viti-
conformity
be
confined
ating
in the initiative
infirmities
I
legislating
The electorate’s effort
itself.
by pre-election
directly must not be hindered
AND
THREADGILL
ITS PROGENY
target
which
attacks other than those
Threadgill,
enjoyed
petition’s compliance
qua
non
which
and unlim-
some sine
full
1975,5
requirement
sway
ited
from
until
submission.
teaches that
for
pass
petition
proce-
an
a
need
journey
to the ballot box a
While on
qualify
dural
for
threshold test
submission
petition
is
(a)
to a
It
be in
vote
must
to the same
deference
is
entitled
complianсe
qua
substantial
with the sine
non
legislative
progress.
a
bill
accorded
procedural requirements for submission and
police
Judges
lawmaking process
cannot
requisite
signa-
bear the
number
valid
conformity
for
without
constitution
tures,6 (b)
single subject7
address but a
raising
impermissible restraint
the free
(c)
subject
explicitly
a
deal with
excluded
political
as the
exercise of
activities.3 Just
power.8
people’s lawmaking
from
Unless
passage
seemingly
progress
a
infirm bill in
impediment
procedural
a
found in
fatal
be
enjoined
will not be
save
cost
categories,
petition
one of
a
must
these
through
act
cessing the
the Houses
a vote. All constitutional chal-
so, too,
cleared
passes
Legislature,
an initiative that
lenges
post-
to an initiative’s content will be
con-
muster
submission should not be
poned
adoption
the measure’s
to await
adoption
in advance of the
demned
measure’s
They may
pressed
law.
later be
just
costly
avoid
election. The burden
enforceable
lively
controversy
context
or loss borne
when an election
forensic
antagonistic
parties
adversaries
fails because the law is later held invalid is
between
price
paid
system
legal standing
for our
consti- with
to sue.9
Advocacy
against
signing
twice would
a felo-
or
law the
constitute
3.
purest
political speech.
ny.
warning
held
Restraint
clause was
sine
form
prohibited by
speech is
of Art.
qua
requirement
petition's validity.
frеe
terms
non
part:
provide
which
Okl.
write,
pub-
“Every person may freely speak,
344, Okl.,
In
re Initiative Petition No.
subjects, being re-
lish his sentiments on all
(1990); In re Initiative Petition No.
sponsible
right....”
for the abuse
Okl.,
(1990).
P.2d
govern
4. For constitutional
5;
referendum,
supra
people’s right
note
also in this connec-
to the initiative
see
supra
note
note
see
re Initiative Petition
In
infra
C.J.,
(Opala,
concurring).
mer is a function of latter MAY CONSTITUTIONAL ORTHODOXY Any departure from the basic teach- BE NOT THE PO- IMPRESSED ON ings impermissible Threadgill creates an LITICAL OF INITIATIVE PROCESS people’s pow- burden on the fundamental-law LAWMAKING pass er to initiate and measures that change the state’s constitution well her as as process statutory changing law or statutes. the state’s constitution lawmaking. Lawmaking politi- a form of is a Prudential-Rule-of-Necessity process. scrutiny cal pre-enactment Judicial Deciding Purely Barrier To legislation for constitutional Questions Academic impermissible flaws raises an restraint on the
Moreover,
“prudential
political activity.11
free
rule
necessi-
exercise of
Unlike
law,
ty”,
adhered to
all state and
lawmaking
progress
federal
enacted
in
need not
courts,
orthodoxy. Judges
commands that constitutional issues meet constitutional
serve
law,
not be
in advance of
resolved
strict necessi-
as
purity
stewards
constitutional
in
ty.10
testing
proposed leg-
Pre-enactment
government
do nоt
but
also
function
clearly
prudential
agents
islation
offends the
rule.
enforcing
conformity
in
process
political
of lawmaking, popu-
Measures
lawmaking.
No
legislative,
subject
lar or
are
imprimatur12
not
to court-
censor’s
or nihil obs-
official
orthodoxy.
required
enforced constitutional
I would
tat13 is
of a
content
today
prudential
relax the
rule to
people.14
consid-
to reach the
634, 642-643,
Snyder,
formerly necessary
England
10. In re
472 U.S.
105 S.Ct.
in
book
before
2880,
2874,
(1985);
printed;
791 infirmity ever un- tutional court on an unenacted measure Public debate —should adoption is trump petition claim to its an and the electorate’s to initiative dertake 22, § by Art. Okl. every protected bit as journey its to the ballot box. on Const.,15 bill either of proposed is a before funda- legislative two chambers. Our SUMMARY judicial explicitly proscribes tink- mental law 5,16 § process. Art. ering with the election my unswerving Because of continued and 4,§ These consti- Okl. Const.17 and teachings, Threadgill’s I to commitment the election provisions protect tutional both orthodoxy not would test right of franchise from unauthorized of an in ad- the content initiative power.18 judicial There is or excessive use adoption.19 The vance its submission why cost of a futile election no reason directly legislating effort electorate’s in favor of should be a factor that militates undergo scrutiny judicial unless should not testing presubmission noncompliance petition is attacked for people’s That cost is never consid- measure. qua requirement some non with sine deciding legislative in in whether bill ered again enjoined I would once counsel the or condemned submission. progress should chancery. imposition of constitutional or- court its thodoxy lawmaking process an im- on raises firmly Only in the clearest case of settled bring- permissible barrier to lawful efforts jurisprudence and stable constitutional Judges have ing government about reforms. measure as absolutely condemns power to or to chill no either censor enforcement, facially applica- impossible of political marketplace competing debate about only prot- then tion or execution —and if standing complain of to consti- ideas. estante have during equal privileged applies to bar as well as from arrest their attendance force process. going legislative with initiative on elections and while to and from the interference impose judicial re- Courts be loath to samе.” power to make law. straint on the electorate’s Const., aptly remarked As Arizona § of Art. Okl. are: 17. terms Osborn, 247, 248, 143 State 16 Ariz. P. power, military, civil ever "No shall (1914), interfere place court-imposed to restrictions right prevent exercise suf- free claiming power “would be tantamount to frage right." (Empha- entitled to such those every over initiated measure life death added.) sis right people It would limit laws, propose only valid the other law- whereas qualified right of a elector to vote and making go body, Legislature, untram- is basic and fundamental. vote counted legal soundness of its measures.” meled as to Slater, Okl., McCarthy pertinent For terms of Art. Okl. Board, Okl., (1976); Sparks v. Election Const., supra note 3. see (1964). syllabus 1 See v. Ma P.2d Jаckson only Our constitution's Okl., (1991) (Opala, ley, P.2d 623-624 guarantee sure, right vote mea- C.J., dissenting). oppor- they a valued also afford i.e., tunity issues a free air ventilate — options remedy available as political a constitutional- debate. court has This (a) power against to curb— invasive initiative duty safeguard ly uphold free mandated suggests people’s as Justice Mosk —the political pre-election views. In See ventilation defin constitutional amendment create chaos 314, Okl., re Initiative Petition No. ing regulation lie outside the re areas of J., (1981) concurring), (Opala, where I ob- (b) judicially power of initiative or to act served an submission too close to serve that a measure's adopted aсtually measure when and invalidate deprive proponents as well as election would operations crippling damage to the it visits right to of a fundamental inform the contestants paralysis. by causing government institutional and demerits of the about the merits supra note Petition No. re Initiative issue before electorate. result). C.J., (Opala, concurring in at 787 P.2d 3, § Okl. are: 16. The terms of Art. the limits Justice Mosk’s observations about For legislate by power to of the electorate's equal. No "Ail shall be free elections Kennedy Equali Bd. petition, Wholesale v. see power, military, civil or shall ever interfere 325, 332, zation, Cal.Rptr. right 53 Cal.3d suf- the free exercise of the (Mosk, J., (1991) cases, shall, concur except P.2d frage, all and electors *10 treason, ring). peace, felony, breach of the The measure under consideration is fit
submission; I hence concur court’s
disposition protest but not in its
nouncement.
Sherry JOHNSON, Appellant, A. Murdock
ALLSTATE INSURANCE COMPANY
and Union National Bank of
Arkansas, Appellees, MURDOCK,
Jack D. Defendant.
No. 80778. Oklahoma, Appeals
Court of
Division No. 3.
Dec.
Rehearing Denied Feb. Hickman, Tulsa,
Frank R. appellant.