In re INITIATIVE PETITION NO. 348, STATE QUESTION NO. 640.
No. 76277.
Supreme Court of Oklahoma.
Oct. 29, 1991.
Rehearing Denied Dec. 3, 1991.
As Corrected Feb. 20, 1992.
LAVENDER, Justice.
GREETINGS.
An initiative petition has been circulated in the State of Oklahoma, No. 348, the purpose of which is to submit to the electorate of the State for approval or rejection of State Question No. 640, proposing an amendment to Section 33 of Article V of the Oklahoma Constitution, which would require any bill passed by the legislature intended to raise revenue for support of state government to be submitted to a vote of the people at the next general election before it can become effective; authorizing enactment of revenue-raising bills without a vote of the people if 3/4 of the members of each House approve the bill and it is sent to the Governor for appropriate action and requiring that such bill not become effective for ninety (90) days; and removing the authority of the legislature to prevent a referendum vote through enactment of an emergency clause.
In accordance with
You are hereby ordered and directed to forthwith cause to be published in at least one newspaper of general circulation in the State of Oklahoma, a public notice of the filing of the subject initiative petition, and of the determination of the apparent sufficiency thereof. Such notice shall incorporate information to the effect that any citizen of the State of Oklahoma may file a protest to the petition or an objection to the signature count by this Court by written notice to the Supreme Court of Oklahoma, and to the person or persons filing the said petition in your office whose names and addresses shall be set out in the nоtice, such written notice of protest or objection to be filed within ten (10) days after the date of publication of the notice hereby directed. Such filing may be effected by filing any such protest or objection with the Clerk of the Supreme Court of the State of Oklahoma. In the case of filing of an objection to the count, notice shall be given to any party filing a protest, if one was filed. All of the above is to be accomplished pursuant to the provisions of the statute codified as
Proceedings in the Supreme Court to determine any protests or objections to the subject initiative petition shall be commenced and proceed in accordance with
You are further directed to obtain verified proof of publication and notice herein directed and to submit the proof of publication to this Court as an exhibit to a pleading, or response to this order, to be filed in this cause with the Clerk of this Court upon completion of compliance with this order.
All Justices concur.
Dec. 17, 1990.
Lee Slater, Carol Dennis and Thomas E. Prince, York & Slater, Oklahoma City, for protestant Rosie Brown.
Thomas Dee Frasier and Steven R. Hickman, Tulsa, for protestant James C. Thomas.
This is an original action brought pursuant to
We begin by emphasizing that our inquiry is limited to those challenges fundamental to the validity of the Petition as a whole. We will not attempt to resolve uncertainties ensuing from the interpretation or application of the Petition. Such issues are better reserved for a day when they can be directly challenged. Likewise, we will not deliberate the wisdom of the proposed amendment, as that question will be answered by the voters of Oklahoma, rather than this court.2 With those qualifications in mind, we conclude, the Petition survives alleged infirmities and is therefore legally sufficient for submission to the people of Oklahoma.
FACTS
Oklahoma‘s Constitution,
All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills. No revenue bill shall be passed during the five last days of the session.
The Petition, if adopted, would require all revenue raising bills3 be approved by a majority of the people at the next general election unless such revenue bill was approved by a three-fourths vote of both houses. If approved by three-fourths of both houses, the bill would not be subject to an emergency measure provision and would not go into effect until ninety (90) days after the bill‘s approval by the Legislature and appropriate action by the Governor. Such a bill could still be defeated or its effective date delayed by a referendum of the people during the ninety day period.4
Multiple protests have been alleged on behalf of two Protestants, Thomas and Brown, however, given the similarity of the arguments, we address them concurrently. Specifically, Protestants assert the Petition violаtes
The people‘s right to institute change through the initiative process is a fundamental characteristic of Oklahoma government. Oklahoma‘s constitution
The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.
(emphasis added).
The right of the initiative is not absolute in that there are both constitutional and statutory limitations,5 however, this power, reserved by the people, grants them the constitutional right to amend even these limitations. Whether right or wrong, this reserved power, authorizes the people of the state of Oklahoma to amend6 the constitution they created.
In other words, . . . it is universally conceded that the people are sovereign and that they have power to adopt a constitution and to change their own work at will. . . .7
Understandably, given this constitutional foundation, we have repeatedly maintained our defense of the initiative process. In Oliver v. Tulsa, we quoted with approval the following persuasive language from another state court:
The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. . . . All doubt as to the construction of pertinent provisions is to be resolved in favor of the initiative and such legislation is to be given the same liberal construction as that afforded election statutes generally.8
In In re Referendum Petition No. 18, 417 P.2d 295, 297 (Okla.1966), we articulated, “[t]he right to petition for a vote of the people by Initiative and Referendum provided by Art. 5, § 2, of the Constitution of Oklahoma is a sacred right to be carefully preserved.”9
In Ruth v. Peshek, 153 Okla. 147, 150, 5 P.2d 108, 111 (1931), we declared:
The people reserved to themselves the power to propose laws and amendments to the Constitution. . . . This power so reserved to the people should not be crippled, avoided, or denied by technical construction by the courts. It is the duty of the courts to construe and preserve this right as intended by the people in adopting the Constitution, and thereby reserve untо the people this power.10
Ours is a government which rests upon the will of the governed. The initiative and referendum is the machinery whereby self-governing people may express their opinion in concrete form upon matters of public concern. If the people are to be self-governed, it is essential that they shall have a right to vote upon questions of public interest and register the public will.
Under these constitutional mandates and precedential principles of law, we consider the proposed Petition.
No proposal for the amendment or alteration of the Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each proposal submitted; provided, however, that in the submission of proposals for the amendment of the Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition.
In In re Initiative Petition No. 31411 we held this section was applicable to initiative petitions.
Protestant Thomas concedes the petition on its face does not encompass more than one subject, that subject being taxation. Rather, Protestant charges the petition violates the one subject rule because it would affect more than one subject. Further, Protestant contends the Petition is misleading in that the voter is not given notice of the affected articles. Protestant Brown makes in essence the same argument.
While appreciating Protestant Thomas‘s approach in conceding what is apparent on its face, we nevertheless disagree with both Protestants’ contention that an amendment, having an affect on other articles of the constitution, violates the one subject rule or is misleading. Moreover, assuming for the sake of argument such articles would be so affected, those issues are not yet ripe for review and therefore have no bearing on the sufficiency of this Petition.
In In re Initiative Petition No. 342,12 we held:
The purpose of the one general subject criteria is to prevent deceit or the presentation of a misleading proposal and to prevent logrolling, the combining of unrelated proposals. In In re Initiative Petition No. 314, this court adopted the following test: If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment fаlls within the constitutional prohibition.
Protestants cite us two cases in which this court has recently struck down the proposed initiatives based on this single subject test, purporting that those cases are factually controlling. However, these cases offer no support for Protestants’ contention. Each of those proposed initiatives clearly contained more than one subject as evidenced by the following quoted language from In re Initiative Petition No. 344.13 There we found the Petition contained:
numerous subjects from the method of the election of the LT. Governor, to changing the term of board and commission members including non-attorney members of the Judicial Nominating Commission, to giving the Governor the sole authority ‘to grant reprieves, commutations, and pardons‘, to changing the Executive Branch to a cabinet form of government, to repealing the constitutional authority for certain boards. Some of the sections in the amendment are, at best, tenuously related to other sections. The sections are not so intertwined as to require that they be аdopted at the same time in order to preserve the integrity of each section. . . . A voter supporting any one of these provisions could not reasonably be expected to support the principle of the others.
Further, in In re Initiative Petition No. 342,14 we determined there were:
numerous subjects covered by the Petition ranging from financial institutions holding stock in another financial institution to the power of eminent domain of foreign corporations to the fellow-servant doctrine rule. The only connection that these topics have to each other is that they all tangentially relate to the general subject of corporations. Otherwise, they are unrelated.
These cases are unlike the present proposed amendment. The only subject matter addressed in the petition is a procedural requirement allowing for direct participation by the people in the enactment of revenue measures. While the amendment, if adopted, may indeed affect other articles of the constitution, such as the emеrgency clause, the balanced budget act, the Governor‘s veto, etc., that is insufficient reason for this court today to deny the people of Oklahoma the right to vote on this Petition, though indeed, the Petition‘s effect may result in subsequent challenges.
Again, the dispositive test is that the proposed amendment itself not contain more than one subject, so as to enable the voter to make a choice and not be misled, or forced to choose between two different proposals presented in one amendment. While that choice may result in repealing other constitutional guarantees, that is a consequence of the voting process, rather than any fault of the proposed amendment. Moreover, were we to adopt Protestants’ test, the occasion may never arise in which an initiative could satisfy one that is so narrowly restrictive since, by their very nature, articles of the constitution interrelate. In Cowart v. Piper Aircraft Corp.,15 we held the constitution must be read in its entirety, and all artiсles construed together.
Our analysis persuades us the proposed amendment does not violate the single subject requirement. The Petition contains only one subject, a procedural requirement for raising revenue, albeit, an inordinately restrictive one. Likewise, we do not find the Petition misleading for failing to state what effect it will have on the entire constitutional scheme if the Petition is adopted.16 Finally, Protestants’ argument lacks authoritative support and does not substantiate invalidating the Petition.
B. DESTROYS STATE FINANCING/EXCEEDS RESERVED POWER
Protestants assert, however, the amendment not only impacts or conflicts with numerous articles of the constitution, but destroys the entire design for financing state government as organized in the Oklahoma Constitution. For example, Protestants assert this amendment would destroy the Legislature‘s ability to balance the budget as provided for by the constitutional amendment of 1941. Furthermore, Protestants allege the Petition exceeds the power reserved under the initiative process as set forth in the Constitution.
The reservation of the powers of the initiative and referendum in this article shall not deprive the Legislature of the right to repeal any law, propose or pass any measure, which may be consistent with the Constitution of the State and the Constitution of the United States.
Section 36 reads:
The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.
Protestants’ argument is without merit as these specific legislative grants of power will always be subject to the reserved power of the people under Artiсle V, § 1.
While this Petition, if adopted, may prevail over other sections of the constitution on the same subject matter,17 this in and of itself is not fatal. In In re Initiative Petition No. 281,18 we held, “that the real purpose of an initiative petition is to secure a vote of the people upon a proposed law or constitutional amendment. The repeal of any conflicting provisions of law in effect at the time the proposed law is to become effective is merely incidental to the purpose of such a petition.”
Finally, it is mere conjecture as to whether this Petition will destroy the state financing scheme. While it is true, the Constitution grants the Legislature the right to raise additional revenues so as to balance the budget, if such revenues are not available, the Legislature could curtail or shut down government services in order to maintain the constitutionally required balanced budget. Moreover, though these things may occur, we cannot invalidate this Petition on such speculation. Thus, this challenge is insupportable and again, Protestаnts have failed to provide legal justification for declaring the Petition invalid.
C. SUFFICIENCY OF GIST AND BALLOT TITLE
Protestants assert the Petition is invalid because it violates
Section 3 states, “a simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet. . . .” The gist on this Petition reads:
This measure will amend the Constitution to require any revenue raising bill passed by the legislature and sent to the Governor for action shall not become effective until it has been approved by a majority vote of the public, it allows a revenue raising measure to become effective without a vote by the public if it is approved by 3/4 vote of each house of the legislature and acted on by the Governor but allows time for referendum by prohibiting enacting of emergency clause.
The pertinent part of Section 9 states, “The ballot title shall explain in basiс words, which can be easily found in dictionaries of general usage, the effect of the proposition. . . .” The ballot title prepared by the Attorney General reads as follows:
This measure amends the State Constitution. It adds new provisions to Section 33 of Article 5. These would change the method by which state government makes laws that raise revenue. The measure requires that a bill to raise revenue be voted upon by the people at the next general election. A bill would not be effective until it was approved by a
majority of the voters. The measure also provides a way that a revenue bill could become law without a vote of the people. A bill would have to be approved by a 3/4 vote of each house of the legislature and go to the Governor for proper action. A revenue bill approved by a 3/4 vote of each house of the legislature would not become effective until ninety days after the approval date. Such a bill would not be subject to the emergency measure provision.
Shall the proposed Constitutional amendment be approved?
( ) Yes, for the Constitutional Amendment?
( ) No, against the Constitutional Amendment?
Protestants’ cite us to In re Initiative Petition No. 344,19 as providing the standard for testing whether the gist and ballot title are legally correct. In that case, we pronounced, that they “must be brief, descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition.” This case is factually distinguishable, however, in that the petition contained more than one subject and was therefore facially void.
The proposed Petition though does not contain more than one subject and satisfies the enumerated test. The gist and ballot title sufficiently appraises the voters what the measure is intended to do, i.e., “change the method by which state government makes laws that raise revenue.” We therefore approve the ballot title presented by the Attorney General of this state20 and find it sufficient for submission to the people.
D. GUARANTEE CLAUSE
Protestants argue the proposed amendment violates the United States Constitution, Article IV, § 4 holding “[t]he United States shall guarantee to every State in this Union а Republican form of Government. . . .”21 They assert the pro-
In keeping with our directive in In re Supreme Court Adjudication of Initiative Petitions,22 we will review the constitutionality of questions presented by the people of this state not only as to procedure and form, but also subject matter. Accordingly, we consider whether the Petition violates Article IV, § 4 of the federal constitution.
In Kadderly v. City of Portland,23 the Oregon Supreme Court explained that the purpose of Article IV, § 4 of the U.S. constitution was:
to protect the people of the several states against aristocratic and monarchial invasions, and against insurrections and domestic violence, and to prevent them from abolishing a republic form of government. But it does not forbid them from amending or changing their Constitution in any way they may see fit, so long as none of these results is accomplished.
Our own Bill of Rights,
All political power is inherent in the people; and government is instituted for their protection, security, and benefit and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it: Provided, such change be not repugnant to the Constitution of the United States.
(emphasis added).
Article 24, § 3 states that though the Legislature may also present proposals for amendments, this shall not impair the people‘s right to amend the Constitution by initiative petition.
As evidenced by these various constitutional articles, and more specifically, Article V, § 1, which reserves the power for the initiative process, we conclude the people have the right under this reserved power to amend the constitution, provided, it remains a republican form of government as guaranteed by the United States Constitution. Thus the dispositive question presented is whether the Petition would so alter the existing system of government that it would constitute a loss of representative government. We have determined that while the Petition undoubtedly restricts, it dоes not abolish government by representation and thus does not breach the federal guaranty of Article IV, § 4.
What the court in Kadderly had to say concerning the Oregon petition is instructive in the case at bar:
The initiative and referendum amendment does not abolish or destroy the republican form of government, or substitute another in its place. The representative character of the government still remains. The people have simply reserved to themselves a larger share of legislative power, but they have not overthrown the republican form of the government, or substituted another in its place. The government is still divided into the legislative, executive, and judicial departments, the duties of which are discharged by representatives selected by the people. Under this amendment, it is true, the people may exercise a legislative power, and may, in effect, veto or defeat bills passed and approved by the Legislature and the Governor; but the legislative and executive departments are not destroyed, nor are their powers or authority materially curtailed.24
We acknowledge Petitioner‘s contention that the continued existence of any government is dependent on the right to tax. “[T]he power of taxation for revenue purposes is probably the most vital and essen-
Undeniably, however, a basic right of the people is the liberty to direct how much or how little government may spend. Indeed, this Petition represents the quintessential subject for the initiative process in that the issue of taxation has from the very beginning of this country been a topic of paramount concern.26
After an extensive analysis, we conclude, the Petition, if adopted, would not result in the destruction of our representative form of government. Certainly, the Petition will impact significantly the governmental framework of this state and perhaps, not without difficulty and frustration given limited resources. However, the question presented is not whether this is a “good” or “bad” amendment, rather, if it is legal; we answer affirmatively.
CONCLUSION
Given the reasoning herein expressed, we find Initiative Petition No. 348 is declared LEGALLY SUFFICIENT. The Ballot Title presented by the Attorney General is thereby APPROVED.
HODGES, V.C.J., and HARGRAVE, ALMA WILSON and SUMMERS, JJ., concur.
OPALA, C.J., and SIMMS and KAUGER, JJ., concur in result.
DOOLIN, J., dissents.
OPALA, Chief Justice, concurring in result.
The court declares today that the petition under consideration—which would impose limitations upon the legislature‘s power to raise new taxes—qualifies for submission to a vote of the electorate. I concur in the court‘s judgment only insofar as the court declares that the measure is not vulnerable to protestants’ presubmission procedural challenges. But I recede from the court‘s review of the measure for conformity to the “Republican Form of Government” guaranteed by Art. 4, § 4, U.S. Const.1 Remaining bound by my continued and unswerving commitment to the teachings of Threadgill v. Cross,2 I would not undertake to review the measure‘s provisions for conformity to constitutional norms. Threadgill teaches that conformity of a measure‘s content to constitutional norms may not be judicially examined in advance of the initiative petition‘s adoption. Permissible preadoption constitutional challenges are only those which address fatally vitiating infirmities in the initiative process itself.3 The electorate‘s effort at legislating directly should not be scrutinized by attacks other than those which affect the petition‘s compliance with some sine qua non sub-
I
A
TODAY‘S PRESUBMISSION REVIEW OFFENDS THE “PRUDENTIAL” RULE OF NECESSITY
I consider today‘s presubmission review of the measure‘s conformity to the constitution—i.e., whether the measure imposes limitations upon the legislature‘s taxing power that would either destroy the state financing scheme or violate the federal-law guarantee of a republican form of government—to offend the time-honored prudential rule. This is so because constitutional challenges to legislation before it becomes law are to be disallowed.4 No necessity exists for presubmission resolution of the constitutional validity of these content-based challenges to the petition; they do not impair the initiative petition‘s legal fitness for submission to a vote by the people.
In presubmission stages (a) we cannot be sure that when the petition is submitted for a vote the electorate will adopt the measure as law and (b) there is not then a lively controversy in which antagonistic adversaries press for testing a legal norm‘s validity against the backdrop of facts unfolded when the measure came to be applied as law.5 Where there is no forensic scenario in the context of which challenged law is to be enforced, courts will not assess the attacked norm‘s constitutional soundness in vacuo.6 Any departure from these basic teachings of Threadgill creates an impermissible burden on the people‘s fundamental-law power to initiate and pass measures that may change the state‘s constitution as well as her statutes.7
NO ONE HAS STANDING TO CHALLENGE THE CONSTITUTIONALITY OF AN INITIATIVE PETITION‘S SUBSTANTIVE PROVISIONS UNTIL THEY ARE APPLIED AS EFFECTIVE LAW
Standing, the legal right of a person to challenge the conduct of another in a judicial forum,8 may be raised at any level of the judicial process or by the court on its own motion.9 Standing must be predicated on interest that is “direct, immediate and substantial.”10 The concept of standing focuses on whether the party invoking the court‘s jurisdiction has a legally cognizable interest in the outcome of the controversy.11 A party seeking relief must show actual or threatened injury of some kind.12 The inquiry is whether the party has in fact suffered injury to a legally protected interest within the contemplation of statutory or constitutional provisions.13
In pre-adoption stages no one has standing to assert a content-bаsed challenge to an initiative or referendum petition, which is unrelated to any sine qua non requirement for submission.14 No one can be adversely affected by a measure until it has been applied or enforced as effective law. No showing of actual or threatened injury can be made before the measure becomes effective law. Only a person against whom effective law has been applied would have standing to challenge its constitutionality. A petition may be declared ineligible for a vote of the electorate only when it is fraught with a fatal impediment to its submission.15 A defect in the form of the petition that would operate to render it unfit for submission is the kind of fatal flaw a citizen may assert and have standing to press. This is so because, in such instances, we know in advance of submission that, if adopted, the petition would have no legal effect as law.
In short, once an initiative petition passes muster under the threshold test for submission16 to a vote of the people no constitutional attacks addressed to the measure‘s substantive provisiоns may be judicially entertained in preelection stages. All such attacks must await the measure‘s adoption and its application in the context of a lively postadoption controversy between antagonistic adversaries with legal standing to press challenges.
GUARANTEE-CLAUSE ISSUES HAVE NEVER BEEN HELD JUSTICIABLE BY THE U.S. SUPREME COURT—THE HIGHEST COURT WITH THE POWER TO PRONOUNCE FEDERAL CONSTITUTIONAL JURISPRUDENCE
The U.S. Constitution provides that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”17 The guarantee clause is the only constitutional clause which the U.S. Supreme Court has held to be judicially unenforceable.18
The most significant case in the clause‘s development is Luther v. Borden, 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1849),19 where the Court first announced in 1849 the principle that federal courts will not enforce guarantee-clause claims. In this seminal case the Court refused to decide which of two factions in a Rhode Island political upheaval was the proper government. The Court found that the guarantee clause treats the issue of a state government‘s legitimacy as a political question entrusted to Congress. In turn, Congress affirms a state‘s republican form of government by admitting the state‘s senators and representatives “into the councils of the Union.”20
Sixty years later in Pacific States Tel. & Tel. Co. v. Oregon,21 the Court laid to rest all challenges to the constitutional validity of initiative and referendum under the guarantee clause. There, the Court re-
In Colegrove v. Green22 the Court once again refused to take jurisdiction of a case involving an attack on the malapportionment of congressional districts. The Court rested its judgment23 on the principle that “[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts.”24
The Court reaffirmed in Baker v. Carr25 its Luther and Pacific States jurisprudence that the republican-form guarantee is nonjusticiable.26 Baker involved a challenge to the apportionment of the Tennessee state legislature.27 The decision premised nonjusticiability on the lack of “judicially manageable standards” by which to judge congressional or state action. Legislative reapportionment, the Court held, must be meаsured by equal protection standards instead.
In City of Rome v. United States28 the Court once again reaffirmed its commitment to the nonjusticiability notion. Relying on Baker, the Court refused to address the merits of a guarantee-clause claim because the “issue is not justiciable.” Our own jurisprudence recognizes the guarantee clause‘s nonjusticiability.29
III
A
THERE ARE NO JUDICIALLY ENFORCEABLE STANDARDS OF REPUBLICANISM
Assuming that guarantee-clause claims are justiciable, I would not attempt to review them without any authoritative federal judicial parameters for gauging institutional norms of state government for their conformity to the strictures of the guarantee clause. The task of measuring the limit of permissible nonrepublicanism is difficult because the Court has neither enforced the clause nor acted decisively in this matter.32 The phrase “republican form of government” does not have a fixed content either in law or in political science. There is no federally enshrined ideal to serve as a yardstick. Absent any guideposts, I would be loath to tell the people what encroachments may or may not be permitted on the constitutional guarantee of republicanism in form.33
B
U.S. SUPREME COURT GUARANTEE-CLAUSE JURISPRUDENCE PROVIDES NO CLEAR MANDATE TO STATE COURTS
By force of the Supremacy Clause34 state courts are bound by the U.S. Supreme Court‘s jurisprudential exposition of federal law.35 We cannot give the federal constitution a different sweep of meaning from that which the highest federal tribunal accords it.36 On matters of federal constitutional validity, we follow U.S. Supreme Court standards. If justiciability is questionable and no parameters for measuring it exist, it is our duty to decline review until the U.S. Supreme Court has given us sufficient guidance. In short, on federal constitutional law matters we must relinquish our own notions of propriety and follow the U.S. Supreme Court jurisprudence.
Because of my undiminished commitment to Threadgill‘s teachings and because judicial review of guarantee-clause claims is without any federal jurisprudential warrant, I would not today examine the measure for conformity to constitutional norms or to the republican form of government. The only options available as a remedy against invasive initiative power are (a) to curb—as Justice Mosk suggests37—the people‘s power to create chaos by constitutional amendment defining areas of regulation that lie outside the reserved power of initiative or (b) to act judicially and invalidate an actually adopted measure when it visits crippling damage to the operations of government by causing institutional paralysis.
This measure is fit for submission and I concur in the result of today‘s decision.
Notes
“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.” (Emphasis added.)
Courts do not concern themselves with the expediency or wisdom of laws, but only with their legality. The social and economic policies affecting the general welfare of the people are committed exclusively to the legislative branch of government, and by our fundamental concept of government, the judiciary is not permitted to interfere therewith except in so far as the legislation may transgress fundamental legal restrictions. The chief executive may recommend, and the Legislature may enact, or the people exercising their reserved power, may initiate and approve at the polls, any legislation they may deem advisable. Threadgill v. Cross, 26 Okl. 403, 109 P. 558 (1910).
A. All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills.
B. No revenue bill shall be passed during the five last days of the session.
C. Any revenue bill originating in the House of Representatives shall not become effective until it has been referred to the people of the state at the next general election held throughout the state and shall become effective and be in force when it has been approved by a majority of the votes cast on the measure at such election and not otherwise except as otherwise provided in subsection D of this section.
D. Any revenue bill originating in the House of Representatives may become law without being submitted to a vote of the people of the state if such bill receives the approval of three-fourths (3/4) of the membership of the House of Representatives and three-fourths (3/4) of the membership of the Senate and is submitted to the Governor for apprоpriate action. Any such revenue bill shall not be subject to the emergency measure provisions authorized in Section 58 of this Article and shall not become effective and be in force until ninety days after it has been approved by the Legislature and acted on by the Governor. The prudential rule of necessity, adhered to today by all state and federal courts, holds that constitutional issues must not be resolved in advance of strict necessity. In re Initiative Petition No. 347 State Question No. 639, supra note 3 at 1027; Smith v. Westinghouse Elec. Corp., Okl., 732 P.2d 466, 467 n. 3 (1987); I.N.S. v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 2776, 77 L.Ed.2d 317 (1983); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); see also Schwartz v. Diehl, Okl., 568 P.2d 280, 283 (1977); Dablemont v. State, Department of Public Safety, Okl., 543 P.2d 563, 564-565 (1975).
“The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature.” (Emphasis added.)
In Oklahoma Tax Commission v. Smith, Okl., 610 P.2d 794, 807 (1980), we stated that Art. 5, §§ 1, 2 and 7, together “comprise an initiative system whereby both the people and the Legislature may propose legislation independently, and neither can block the effort of the other during the process. . . . Our teaching in Smith applies with equal force to bar judicial as well as legislative interference with initiative process. Courts should be loath to impose judicial restraint on the electorate‘s power to make law. As the Arizona Supreme Court aptly remarked in State v. Osborn, 16 Ariz. 247, 143 P. 117, 118 (1914), to place court-imposed restrictions “would be tantamount to claiming the power of life and death over every initiated measure by the рeople. It would limit the right of the people to propose only valid laws, whereas the other lawmaking body, the Legislature, would go untrammeled as to the legal soundness of its measures.”
In several post-Luther opinions the Court has held guarantee-clause claims nonjusticiable political questions. Baker v. Carr, supra note 11; Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 57 S.Ct. 549, 81 L.Ed. 835 (1937); Cochran v. Louisiana State Bd. of Educ., 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1930); Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685 (1917); Ohio ex rel. Davis v. Hildebrandt, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (1916); O‘Neill v. Leamer, 239 U.S. 244, 36 S.Ct. 54, 60 L.Ed. 249 (1915); Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912); Kiernan v. Portland, 223 U.S. 151, 32 S.Ct. 231, 56 L.Ed. 386 (1912).
Even in the few early cases in which the Court considered guarantee-clause cases on the merits, there is not a single precedent in which an act or statute was invalidated. See e.g. Michigan ex rel. Kies v. Lowrey, 199 U.S. 233, 26 S.Ct. 27, 50 L.Ed. 167 (1905); Forsyth v. Hammond, 166 U.S. 506, 17 S.Ct. 665, 41 L.Ed. 1095 (1897); In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219 (1891); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627 (1875).
These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials. It is an authority that lies at ‘the heart of representative government.’ It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States ‘guarantee[s] to every State in this Union a Republican Form of Government.’ (citations omitted).
For a sister state court‘s analysis concluding the Guaranty Clause is justiciable see Vansickle v. Shanahan, 212 Kan. 426, 437-38, 511 P.2d 223, 234 (1973).
[T]he contention all cases arising under the guaranty clause are nonjusticiable has no historical precedent. Instead, as in other cases wherein the “political” controversy bar to judicial enforcement has been raised, we must look to the facts and circumstances surrounding the litigation, as well as the theory upon which the constitutional challenge is premised, to ascertain whether the issue may be resolved by the judicial process.
For further discussion on the guaranty clause see Merritt, The Guarantee Clause and State Autonomy: Federalism for A Third Century, 88 Colum.Rev., 1, 50-55 (1988); Linde, When Is Initiative Lawmaking Not “Republican Government“?, 17 Hastings Constitutional Law Quarterly, 159, 172 (1989). Supra note 20. Pacific States involved a challenge to the practice of enacting legislation by citizen initiative. In Oregon the people had used thе initiative to enact a license tax on telephone company gross receipts within the state. In Pacific States the Court never reached the merits of the claim, concluding as it had in Luther, supra note 11, that guarantee-clause questions are “political in character” and thus “solely committed by the Constitution to the judgment of Congress.” Pacific States, supra note 20, 223 U.S. at 133, 32 S.Ct. at 224. This matter, the Court said, was “absolutely foreclosed.” 223 U.S. at 143, 32 S.Ct. at 228.
Shortly after Baker, in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court held on equal protection grounds that certain apportionment plans in Alabama were unconstitutional. Reynolds reaffirmed two fundamental points in Baker, supra note 11, i.e., that reapportionment issues are fundamentally equal protection issues and that the guarantee clause is irrelevant to the problems of reapportionment.
In Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), the Court referred to the guarantee of a republican form of government in discussing “the States’ constitutional power to establish the qualifications” “of their most important government officials.” Id., 501 U.S. at 463 and 464, 111 S.Ct. at 2401 and 2402. There, the Court was dealing with a preemption problem: whether Congress’ 1974 amendment of the Age Discrimination in Employment Act of 1967—which extended the Act‘s substantive provisions to include the states as employers—took states out of the arena of legislating mandatory retirement age for its state judges. The Court held that judges were not included within the Act‘s definition of an employee. Unless Congress clearly removes states from that arena, the Court announced, there is no federal preemption under the Supremacy Clause, Art. 6, U.S. Const. Preemption deals with congressional power to legislate to the exclusion of the states on subjects upon which Congress has the power to make law—i.e., bankruptcy, interstate commerce and Indian commerce power. Congress draws its power from the federal constitution which limits its authority to properly reserved subjects. Id., 501 U.S. at 460, 111 S.Ct. at 2400. No preemption problem is presented by the initiative measure under consideration here. Ashcroft lends no support to the notion of guarantee-clause claims’ justiciability.