In Re Initiative Petition No. 366, State Question No. 689, 46 P.3d 123

In Re Initiative Petition No. 366, State Question No. 689

46 P.3d 123

Okla.

2002

Check Treatment

*1 provisions under of the Administrative govern Act Procedures review of final

agency orders.7

2002 OK 21 In re INITIATIVE PETITION NO.

366, State No. 689. 95,070. Supreme Court of Oklahoma.

April 318(2). Supp.1992§ 7. O.S. seq. §§ 75 O.S.1991 250.1 et *2 Stowe, Boggs, Wash- Patton F. Matthew DC, Proponent Martin.

ington, Carol OK, Lawton, Propo- Pro Se Kirby, Ron nent. OK, Thomas, Tulsa, for Protes- C.

James tant, Gentges. Delilah Christine Norman, Bates, Parris, E. Fannie John OK, Fannie Bates. Protestant Attorney Leader, Assistant Senior Neal OK, General, Amicus Cu- City, Oklahoma W.A. Drew Attorney General ria Edmondson. Presson, Presson, & Jackson M.

Steven OK, Norman, for American Civil Liberties Foundation, American of Oklahoma Union North- Union Foundation Civil Liberties Legal California, Inc., American Mexican ern Fund, Ameri- Asian and Education Defense Fund, Educational Legal Defense and can Legal Aid Law Center of Employment Society Francisco. of San Jr., Mullon, Fite, Rich- David A. K. Julian Nation, Tahlequah, Osburn, Cherokee ard D. OK, Nation. curiae Cherokee for amicus HODGES, J.

I. HISTORY

{1 10, 2000, State Senator May Represen- Martin and Oklahoma Carol Kirby (proponents) peti tative Ron started a on the merits. The have for Initiative drive Petition No. 366 to declined to submit briefs to this Court. proposed enact a new statute. The statute

designates English as Oklahoma's official II ISSUES language; requires documents, all official

transactions, proceedings, meetings pub (1) and 13 The issues in this case are: po lications of the State of Oklahomaand its whether this Court pre- should conduct a English only, litical subdivisions to be re election review of Petition No. and quires general the return to the revenue whether Petition constitutionally No. 366 is money appropriated designated fund of all or flawed. appropriate We hold that it is for printing translation or materials a lan this Court to constitutionally address the guage in English, other than and prohibits petition petition and that the is constitu expenditure all future of funds for translation tionally flawed. printing services and English petition

than provides The for ex III. PROPRIETY OF REVIEW ceptions for conflicts with the federal consti tution, laws, regulations and and with the right 1 4 petition The of initiative and ref Oklahoma petition Constitution. The makes right erendum a protected by is the Okla exception for educational institutions sub homaConstitutionand Statutes.4 Oklahoma ject adopted by to rules the Board of Edu This is not without limitations.5 This cation Regents. and State Board of pre-election Court has entertained attacks on unneec-essary Attorney General, deeming petitions Oklahoma's costly to avoid and below, proposed by tions.6 As discussed the ballot title Initia elec legally inadequate, submitted a substitute tive fraught Petition No. 366 is with infirmi protest signatures ballot title.2 was ties. It would be a disservice to the citizens lodged and then abandoned. Numerous to submit a Oklahoma could tests and letters were submitted and have not withstand a constitutional attack to a been considered propo this Court.3 The state-wide vote.7 attempted nents to withdraw Petition No.

366 after it Secretary was submitted to the IV. BACKGROUND State. The motion to withdraw was denied. The matter is Twenty-two states,8 now before this as a num- well 1. The full text of the Initiative Petition No. Title 34 of the Oklahoma addresses Statutes numbered State Appendix is A. initiatives and referendums 5. In re Initiative Petition No. 9(D)(a) (1991). § Okla. Stat. tit. The ballot No. Appendix title is attached as B. Id. Attorney 3. The Oklahoma General's motion to granted. file a brief as amicus curiae was brief of the American Civil Liberties Union of Foundation, American Civil Liberties 8. Ala. Const. amend. Alaska Stat. California, Inc., Union Foundation of Northern (1998); §§ § 44.12.300-.380 Ark.Code. Ann. 1- Legal Mexican American Defense and Education (1987); III, 6;§ 4-117 Cal. Const. art. Colo. Fund, Legal Asian American Defense and Edu- II, 30(a); II, § § Const. art. Fla. Const. art. Fund, Employment cational Law Center of the (1996); § Ga.Code Ann. 50-3-100 Haw. Const. Legal Society Aid of San and the brief Francisco XV, § ("'English art. and Hawaiian shall be accepted of the Cherokee Nation are as amici Hawaii...."); languages the official Ill.Rev. curiae briefs. (1991); para. § Stat. ch. Ind.Code 1-2- 460/20 (1995); (Baldwin § 10-1 Ann. 2.013 Ky.Rev.Stat. § 4. Okla. V, Const. art. 1, provides: 1984); (1987); § Miss.Rev.Stat. 3-3-31 Mont. people (1995); power [The reserve § to themselves the Code. Ann. 1-1-510 Neb. Const. Art. propose laws and amendments to the Con (1995); § § N.H.Rev.Stat. Ann. 3-C:1 reject (1987); and stitution to enact or § same at the N.C. Gen.Stat. 145-12 N.D. Cent.Code polls independent legislature, (1987); also § 54-02-13 S.C.Code Ann. 1-1-696 power option reserve approve at their own (1987); 1-27-20, §§ S.D. Codified Laws Ann. 1- reject polls any (1995); Legislature. (1984); at the act of the 27-22 Tenn.Code Ann. 4-1-404 specific 366 makes Petition No. provision, municipalities,9 have ber of the United States Initiative Petition conflictswith exception laws. contrast English the make the laws federal most of constitutions and and Oklahoma entity governmental language of the official Petition No. regulations.15 statutes brief, symbolic.10 non-prohibitive, are to limit construed it should not be states that provision adopted a constitutional Arizona citizen, "any rights state Arizona No. 366.11 to Petition similar corpora employee, private business most one of the labeled as provision was mere sur- provisions are ," . . . These two tion measures.12 state restrictive statutory plusage provision because than Arizona's restrictive more even Con the United States with either conflicts provision, Peti Arizona Like the provision. une Constitution or the Oklahoma stitution exceptions conflicts No. 366 makes *4 First assessing the nforceable.16 In However, pro Arizona law. federal with the the Arizona infringements of Amendment pub- protection of exceptions for made vision Supreme Court the Arizona provision, of safety protection the and for lie health and not did of Ninth Cireuit Court the Appeals rights defendants. the of criminal with fed exceptionfor conflicts the consider exceptions. not make 366 does these abridge-m curing the constitutional eral law as unconsti declared provision Arizona was ents.17 Appeals of the Court tutional both Supreme the Arizona Ninth Circuit13

Court.14 Speech Right of Petition A. Free that the OklahomaCon note IMPLICATIONS 17 Wefirst v. CONSTITUTIONAL is protective speech than more stitution is attempt to avoid apparent T6 In an Article Constitution.18 the United States infirmaries the Arizona constitutional Ruiz, 1996); (Michie Wyo. P.2dat 984. 14. 957 § 7.1-42 Va.CodeAnn. (1996). §Stat. 8-6-101 Supreme Court and appears the Arizona It Appeals construe did not Circuit Court of Ninth Hull, P.2d 994 Ariz. 957 v. 191 9. Ruiz exception laws the conflict with federal provision a conflict with the to include Arizona Ruiz, P.2d at Constitution. 957 United States (1987) ("(a) The § 1-4-117 10. Ark.Code. Ann. 984; Yniguez, Because Petition 69 F.3d 920. language language be the official shall statutory proposed amendment rath No. 366 is a (b) This section shall State of Arkansas. amendment, proposed constitutional er than prohibit schools from performing subject on the Oklahoma to invalidation based equal opportunities duty provide educational States Consti as well as the United Constitution II, 30(a) children."); § art. Colo. Const. to all I, 1; § v. Const. Reherman tution: Okla. art. (''The language English language official is the 12, ¶ Bd., Resources 1984 Oklahoma Water execut- This section is self the State of Colorado. however, may Assembly ing; enact the General section."); implement N.D. Cen. laws to 12 at Reherman, (1987) (''The English language Code 54-02-13 North of the state of the official Dakota."). Yniguez, 69 F.3d 920. P.2d at Ruiz, 957 28 was Art. XXVIII Article 11. Ariz. Const. Entertain art. 2, 18. Okla. Const. Gaylord Hull, 191 v. declared unconstitutional Ruiz ¶ 13 n. ment Co. v. Thompson, (1998), and in P.2d 994 Ariz. Compare Oklahoma's 138 n. 23. English, Yniguez 69 F.3d v. Arizonans for Official Amendment protections with the First Cir.1995) banc), (9th (en vacated on states: "Con States Constitution United S.Ct. Arizona, grounds AOE v. abridging the free ... gress make no law shall remand, (1997), Yni L.Ed.2d 170 on analysis speech." of Oklahoma's In our dom of Constitution, 667 (9th Cir.1997). guez AOE, 118 F.3d solely authority is used federal validity guidance. determination of Our Ruiz, P.2d at 994. upon premised exclusively No. 366 is upon federal and not Oklahoma's Constitution Yniguez, 69F.3dat920. Michigan Long, considerations. constitutional pro- 22 of the ducting section Oklahoma Constltutmn state business. This construction of keeping vides: section B is in encompass with the ing petition. words write, Every person freely speak, publish subjects, his sentiments on all By restricting T governmental all being responsible for the abuse of that Enghsh communications to the language, see right: passed and no law shall be to re- prevent tion B seeks to citizens of limited abrldge hberty strain or speech or of English proficiency effectively commu press nicating government officials and from Article section 3 of the Oklahoma Constitu- receiving, available, when vital information provides: government. about This restriction is people peaceably have hibited both sections 3 and article good, of the OklahomaConstitution. assemble for their apply own and to power gov- invested with those 111 Gaylord, In this Court discussed ernment for by peti- redress of grievances importance speech of freedom of tion, address, or remonstrance. political context.22 speech The freedom of order to determine whether protected by 22 and the freedom to section provisions these have been government griev redress of *5 abridged, necessary to ascertain the protected ances by closely section 3 are related impact exact B of section of Petition No. 366. .23 Protection of these freedoms is an B requires Section of the "[alll offi part right essential participate of the to documents, transactions, cial proceedings, self-government.24 Information and mean meetings, issued, publications which are self-governing ingful necessary discussion are for a regulated by, of, conducted or on behalf y.25 "There should be 'no societ representing the state and of its political all potential meaningful with a dia interference' English subdivisions shall be in the lan logue of concerning self-government; ideas " guage. nor should there liability be a threat self-censorship." protections causes These statutory T9 Rules of construction afforded, only speaker are but also require given plain meaning words be rights apply the listener.27 equally These to considering the means context."19 ."Official" proficient English those office; "[plertaining an to invested with the those who are not.28 officer; from, proceeding character of an by sanctioned or done by, officer."20 An 112 It is difficult to envision a situation by "official act" is done protections "[olne an officer in where these necessary are more capacity his official under color and virtue than in government communications between of his office." the rules of statu officials, Applying employees, whether eléctees or construction, tory B prohibit would Restricting governmental citizens. all com section governmental communications, all both writ English prevents munications citizens who oral, by are English proficiency of limited ten government from effec employees, officials, citizens, words, elected tively of all communicating government. with their usage, even those which are of common in Even exceptions with the for constitutional any language conflicts, other than when con Petition No. 366 would disenfran- at ¶ 103 S.Ct. 77 L.Ed .2d 1201 23. Id. 24 n. at 142 n. 52. (1983). ¶ 24. Id. at 14 n. at 138 n. 4. City 19. Employees Tulsa v. State ex rel. Public Bd., 92, ¶ 14, Relations Id. at at 138. Id. (5th ed.1979). Dictionary p.

20. Black's Law Id. ¶ 13 Entertainment, n. 28. See v. State Gaylord Nebraska, U.S. Meyer 958 P.2d at 138 n. 23. L.Ed. (I Petition No. 866 is Very similar to by in- citizens segments of Oklahoma chise unconstitutionally example of an classic ability vital to access terfering with their say "It be a crime vague statute: shall necessary self-governing information pro speech is anything unless the self-censorship inhibit- society and cause fourteenth amendm by the first and tected government offi- ing communications vague patently a statute is ents.3 Such cials. of the this in contravention All of conduc constitutionally protected and will deter OklahomaConstitution. prohibitions be vague statute's t.38 proceed [have] after "courts come clear Vagueness B. out case-by-case separate basis ed on {13 due clause areas of from unconstitutional statutory requires Constitution vagueness, Peti coverage."39 Because of clearly defined.29 Statuto prohibitions to be to refrain would force citizens tion No. 366 clearly defined ry which are not prohibitions exercising their to freedom must vagueness.30 Laws will void for Thus, adopted, if speech. ordinary intelligence a person of afford "[a] unconstitutionally abridge article know what is opportunity to reasonable the Oklahoma Constitution. section 7 of hibited, may act accordi person] that [the so ngly."3 Non-delegation Doctrine C. dangers of are several inherent T 14 There {16 No. 366 Section C of Petition Vague "may trap the inno vague laws laws. En languages other than the use of allows warning.32 failing provide fair cent" state-supported public under glish in schools standards, provide explicit By failing to by the Board of promulgated rules delegate policy matters to vague basic laws Regents Board of and the State Education juries re judges and for ad hoe resolution promote the follow Higher "to Education discriminatory enforcement.33 A sulting in *6 However, Petition No. 366 ing principles." vague restraining speech causes citizens law any provide principles. fails to entering of lawful conduct for fear to avoid §17 Articles 4 and 5 of the Okla inter law which "[A] the forbidden zone.34 for provide the basis homa Constitution speech" is of free with éubjecfc feres heightened serutiny35 "[the Oklahoma's non-delegation doctrine. Article because separation of the three 4 speech's] addresses [free threat of sanctions deter 5, section government.40 of Article the actual branches potently almost as as exercise 41 36 policymak- charges Legislature 1 application sanctions." of II, provides: 38. Id. 29. Okla. art. Const. life, liberty, deprived person of No shall be State, Secretary 84 Aptheker v. 39. property, due of law. without of (1964). 1659, 12 L.Ed.2d 992 S.Ct. Rockford, Grayned City U.S. of 33 L.Ed.2d (1972). the Oklahoma Constitu- 40. Article section of provides: tion Id. government powers of the State of The separate three shall be divided into Oklahoma Id. Executive, Legislative, and departments: 'The Judicial; except provided in this Consti- Id. and as Executive, tution, Legislative, and Judicial separate departments government shall be distinct, neither shall exercise and Flipside, Village Estates Hoff of Hoffman powers properly belonging of the oth- to either 489, 499, 102 S.Ct. Estates, Inc., 455 U.S. man ers. L.Ed.2d 362 1 of the Oklahoma Constitu- 41. Article section 415, 432-33, Button, U.S. 36. NAACP v. provides: (1963) S.Ct. 9 L.Ed.2d 405 authority Legislative of the State shall be The consisting Legislature, of a Senate vested ina § 12- Tribe, 37. L. American Law Constitutional Representatives.... and a House (2d ed.1988). 29, at 1031 entity to governmental ing any Oklahoma doe- non-delegation The ing the state.42 En languages provide services than abdicat Legislature prevents trine required presently is beyond what glish its delegating role policy-making ing its not do this Court issues before law. Legislature The ageney.43 authority The ac must out defi that set the extent include government "must establish policies citizens any agen non-English proficient exercise commodate for the nite standards Further, express do not we residents. non-delega power."4 rulemaking cy's English as promoting of laws propriety to enactments applies tion doctrine duty of not the That is an official applies language. manner same people the restric holdWe this Court. Legislature. by the enactments places on: constitution Petition tions {18 of any omission No. 366's Petition afoul of rights runs protected ally fundamental policy- leaves principles Cons titution.49 discretion unbridled function to making DE 366 IS NO. PETITION and the of Education INITIATIVE Board the State INSUFFICIENT CLARED LEGALLY Higher Regents Board Education.45 THE OF A VOTE TO FOR SUBMISSION authority would legislative delegation This OF OKLAHOMA. PEOPLE the Oklahoma 4 and 5 of articles contravene {21 WATT,V.C.J., HARCRAVE,C.J., uncon making Constitution BOUDREAU, LAVENDER,KAUGER, adopted. if it were to stitutional - JJ., WINCHESTER,concur. VI. CONCLUSION J., OPALA, dissents. properly No. 366 InitiativePetition T19 SUMMERS, J. participating. review. substantive this Court before the Oklahoma contravenes No. 366 unconstitutionally Constitution. APPENDIX upon speech,46 freedom infringes upon the THE PEOPLE OF BY for BE IT-ENACTED government the freedom OKLAHOMA: policy-makingTHE OF Legislature's STATE redress,47 upon the Thus, Initiative Peti ion.48 funct section LAW. A new NEW Section for submis legally insufficient 366 is tion No. Statutes in the Oklahoma law to be codified of Oklahoma. people a vote 24 unless there 40 of title sion.to Section *7 numbering to read in created duplication a [20 No. 366 finding Initiative : follows as infirm, requir- not constitutionally we are (2) (2001), L.Ed.2d Estep, Party v. Okla. 42. Democratic NO. ¶ 16 OP. 25. Utah, v. 277 n. Slip Anderson n. Sandoval, 2001). (D.Utah v. In Alexander administering Supreme held Court States United County Deputy Tulsa 43. Sheriff's Order Fraternal the En examination County driver's license Police, Board Lodge 188 v. Number in regulations 2, ¶ 9, violate federal language did not glish County, Tulsa Comm's of using discrimi recipients from fund prohibiting 1128. support not does natory Alexander methods. is a state Utah position. Anderson v. P.2d at 277- Estep, OK 106 case, up by slip opinion, reported court district against a English" act "Official holding Viah's Supreme challenge. Utah constitutional See id. purpose of the previously held had lan official to be the II, English "to declare act was § 22. Const. art. 46. Okla. in government business conduct of guage for the Legislative Research at § 3. Utah." Stavros 47. Id. Office of (Utah Counsel, General title, ballot 2000). was the V, in Stavros At issue IV, id. art. at art. ap constitutionality We are the act. not the jurisprudence, plying Oklahoma two cases proponents have submitted 49. The inappli Court in Anderson analysis posi support of jurisdictions in action. cable in this U.S. Sandoval, Alexander tion: A. In encourage order to every citizen of E. At beginning of the Second Ses- sion of the 47th this state to proficient become more Legislature Oklahoma English language, thereby facilitating par- specifying the total amount of these mon- ticipation economic, political, eys returned and available reappropria- cultural activities of this state and of the redesignation. or moneys All received States, English United language is pursuant provisions to the of subsection D hereby declared to be the language official this section be used to English fund of the State of Oklahoma. As A Language Second programs. F. Except provisions B. provided otherwise this Section shall not sub- section, section C of construed ability to limit English any lan- citizen, guage language employee, shall be the govern- private business, state or documents, corporation ment. All transactions, official rights exercise their pursu- proceedings, meetings. ant to: publications or is- sued, which are regulated conducted or by, 1. The Constitution of the United States of, on behalf or representing the state and America, political all of its subdivisions shall be 2. The Constitution of the State of Okla- English language. homa. C. Languages English other than may be APPENDIX B used required by: when This measure adds a new law to Oklahoma Constitution, The United States statutes. Under the measure the State could Constitution, laws, federal spend funds to: regulations. or federal 8. Print or Any reading translate supported state material into commonschool or language English. other than higher

institution of education of this subject state governing rules 4. Provide services in a language other foreign use of languages in such than English systems education adopted by the 5. Provide information in oth- (sic) State Board of Education of Okla- English. er than homa State Regents Board of The State would any have to return monies Higher pursuant Education pro- provided for purposes these to the State visions of the Administrative Proce- General Revenue Fund. promote dures Act the following The measure makes the official principles. language of the State govern- and State D. On 1, 2001, and after January any ment. The requires measure all official moneys state appropriated or designated State documents English. to be in It re- print use to reading translate mate- quires the State to conduct all its business *8 rials, providing of services or information in English. The requirements same would a English other than shall not apply counties, to municipalities, expended for purposes. such The di- school districts. The State and these sub- rector, agency, board, or commission which divisions languages could use other than has moneys state appropriated for such required by: when purposes shall: 1. The United States or State Constitu- 1. Notify the Office of State Finance of tion, or the total amount of all moneys such 2. Federal regulation. law or control; under their Schools could also use languages un- procedures Follow established der approved by rules Legislature. Director of State Finance to immedi- SHALL THE PROPOSAL BE APPROVED: ately return all moneys such FOR THE PROPOSAL-YES General Revenue Fund. AGAINSTTHE PROPOSAL-NO pro- the court counsel to I would T3 court's OPALA, J., dissenting from the applied pro- law to be a rule of nounce-as pronouncement. pend- proponents in a spectively-that when ini- today that declares The court T1 (and prosecute to further ing cause refuse consideration-which under tiative an initiative that protest) a against defend non-English (a) use of prohibit challenge, under a stands constitutional meetings, government languages in state due persons give all interested should court proceedings documents, afford, transactions opportunity to them the notice and (b) expenditure well as as publications quest sought be withdrawn. to pursue the into, print- as translating as well funds for flaw is another basic T4 There not languages-does in, non-English ing if were a today. Even this process invoked a vote of submission qualify for must not controversy, appellate courts lively state several it offends because electorate in ad pronouncements make constitutional norms. constitutional no necessity. There is here of strict vance upon this judgment necessity for the rush disposing in so join the court I cannot long- my Lastly, dispute. lifeless because this I would declare controversy. of the departure the court's opposition to pressed for submis unfit unchampioned measure allowingpre- teachings by Threadgill's2 from for clearance prosecution its because sion measures for testing of initiative submission ceased to This case abandoned. stands orthodoxy, I would refrain constitutional controversy lively when present a kind seruti- giving that to withdraw" requested "leave ponents earthly need simply no ny. There to a vote submission initiative's quest for the pat in a pronouncement making ponderous for want in default and found themselves A declaration context. ently nonadversarial Today's pronouncement briefing. timely abandonment, coupled with of mootness enor aberrational heights the to new raises briefing, timely should for want of a default jurispru mity of this State's suffice. seru- subjects to fundamental-law It dence. the law change in tiny people-proposed I champion and a live longer has no PUBLIC-LAW PROPONENTS' CLAIM controversy justiciable present a does AN INITIA- OF FOR SUBMISSION words, judicial In other judicial resolution. CAN- TO VOTE MEASURE TIVE hopelessly ini lifeless applied review THE AFTER BE WITHDRAWN NOT never reach sub petition that could tiative PRE- BEEN HAVE PETITIONS nobody advocates stage because mission OF THE SECRETARY TO SENTED potential processing for further passage STATE today has judicial testing accorded law. my vote espouse earlier I continue T5 for viable reserved stood earlier to with to a leave granting proponents submission actively pressed against petitions judicial process initiative from draw vote, measure.1 not for a dead-end 109 P. 558. OK Threadgill Cross, No. State e.g., Petition In re Initiative See, 186; No. No. State Petition re Initiative In perti- April states 2001 order This court's OK part: nent Question No. State re Initiative ORDER Question No. failure Upon the unexcused *9 772; No. State Initiative Petition In re P.2d by this as directed brief to file an answer 1019; 55, 639, 813 P.2d OK No. 1991 is 2000, 5, matter October Court's order of State 341, No. Petition In re Initiative adjudication on standing submitted ordered 267; 53, 627, In re Initia P.2d 1990 OK. 796 No. The motion alone. protestants' the briefs 556; 93, 332, P.2d 776 1989 OK Petition No. tive peti Martin proponent Carol withdraw 315, Questio No. 364, Initiative 545; tion is denied. 15, In re 553, re Su 649 P.2d 1982 OK n J., 129, [Opala, .... 186 930 P.2d 1996 OK 534 Adjudication, 36, 1975 OK Etc., preme result]. in concurs P.2d 182 pending upon II

is protest. adversaries' petition Before a Secretary is filed with the proponents of State complete have control THE ABANDONED INITIATIVE They may over the measure. withdraw it at MEASURE LOST ITS JUS- any time.4 In post-filing stage, propo QUALITY TICIABLE Hohfeldian plaintiff5

nents cannot be treated as a

(dominus 6). cognizance 16 point litis At that Judicial cannot be invoked they participants public-law by become in pressing nonjusticiable for resolution a cognizable legal controversy-one no interest in presents nothing more petition's prosecution.7 academic, abstract, This measure than an hypothetical or clearly propo cannot be withdrawn on the moot issue.9 Mootness is a state or condi attempt nents' withdrawal alone.8 prevents tion which appellate court from pertinent (1968); The O.S.Supp.1992 § terms of 34 Morton, 8 see also Sierra Club v. 405 U.S. : (A) are 3, n. 92 S.Ct. 1361, 1364-1365, 31 * * * (1972); L.Ed.2d 636 Clark v. Valeo, F.2d proponents A. aof referendum 559 or 642, (D.C.Cir.1977); 675 in a petition, stockholder's any an initiative time before the final plaintiff derivative suit very stands signatures, in the submission of withdraw category gui plaintiff. same as a tam petition Warren v. upon referendum or initiative written Secretary notification to the of State. Inc., OK Century 14, 1987 741 Bankcorporation, 846, 847, 853; (3) P.2d by in actions bailee for plaintiff 5. A legal entity Hohfeldian a seeking a recovery damage personalty, to bailed the bail- judicial party litigant determination that as a may press of, ee a claim for injury conversion right, privilege, has "a immunity a pow or a to,; chattel, though ownership damaged er" opposite party vis-a-vis the litigation. in bailor; or lost chattel remains in the Hare v. Macy Com'rs, 53, County v. Board 1999 OK Fuller, (1845); 7 Montgomery Ala. 717 Gas-Light P.2d 1130, 986 1137-38; Toxic Waste Im Montgomery Co. v. E. Co., 86 Ala. 372, 5 So. Ry. Leavitt, pact Group, 148, Inc. v. 1994 OK (1889); Corp. Associates Discount v. Gilli 906, J., (Opala, P.2d concurring); Fowler v. neau, 490, 192, (1948); 322 Mass. 78 N.E.2d 160, Bailey, 141, 1992 OK (Opala, Atkinson, Party The Real In Interest Rule: A Plea C.J., Jaffe, concurring); Louis L. The Citizen As Abolition, 926, Its 32 N.Y.U.L.Rev. Litigant In Public Actions: The non- Hobfeldian (1957); (4) recovery actions for in behalf of an Plaintiff, Ideological 116 U.Pa.L.Rev. 1033 child, underage Tripledee Drilling Knowles v. (1968). Co., Inc., 1989 40, 771 P.2d 208. translated, Literally dominus litis means mas 8.MyApril result, (concurring 16 vote supra in suit, i.e., ter of the by one who law is entitled to 3) entirely note position consistent with the I manage litigation and control to the exclu today. take While I denying still concur in Dictionary (5t sion of others. Black's Law h proponents' ed.1979); Davis, 85, petition motion to withdraw the Davisv. 1985OK 708P.2d disposition final effecting this cause (one "placed charge who is adjudication, I do not favor a dismissal upon prosecuting" litis"); the case is "dominus Ex proponents' quest petition. to withdraw their Lewis, 85 Okl. Cr. parte 322, 188 P.2d 367, 380 adjudication press The form of I for is that of (1947); Virginia Bowers, Electric & Power Co. v. declaring the initiative abandoned and its Va. 25 S.E.2d 361, 363 proponents in timely want default for brief (see infra). "adjudication" Part II An is distin petition's stand in guishable judicial disposition that would this court as from plaintiffs. non-Hohfeldian One who proceeding's termination dismissal stands in effect upon proponents' judicial that status sues to secure relief motion to withdraw the that would persons benefit other or the commu submission ato vote. nity Waste, supra as a whole. Toxic note 5 at 914 J., (Opala, concurring). many There are exam ples plaintiffs prosecu non-Hohfeldian dispute whose 9. A present lively ceases to "case or behalf of others is controversy" authorized when the tendered issues are ab (l) gui plaintiff-one common law: tam who stract, academic, or have become hypothetical primarily sues entity-is to benefit a typi Hughey moot. Authority, Grand River Dam 1138, 1143; 1995 OK non-Hohfeldian; State ex 897 P.2d cally rel. Trimble v. Northeast City Moore, 889, 894; 1991 OK 818 P.2d see Elec. v. Okl. Comm'n, 1991 OK Corporation Cohen, 83, 120, Flast v. 808 P.2d Westinghouse Co-op., Elec. (1968) (Harlan, J., 20 L.Ed.2d 947 dissent ¶ Inc. v. Grand River Auth., Dam 1986 OK Scott, ing); Kenneth Standing 713, 718; E. Supreme Rogers 720 P.2d v. Excise Bd. Greer Court-A Analysis, 95, ¶ 15, Functional County, 754, 761; 86 Harv.L.Rev. (1973); Davis, 660-662 Standing: n.1 Auth., Tax County Lawrence v. Cleveland Home Loan payers Others, U.Chi.L.Rev. 604-607 Edwards v.

133 III may This court relief.10 rendering effective Foist viable, lively disputes.11 address FAILURE PROPONENTS' OF NOTICE nullity upon a lifeless ing of a sentence AN INITIATIVE TO PROSECUTE judicial in futili exercise but measure is THE SIGNATORIES IS MEASURE ty supererogation. and DUE 2 petition's of a voluntary gua trustees Proponents, abandonment1 8 After its T7 duty prosecute to under a signatures, the are request, withdrawal proponents' the ini (and protests) initiative against the defend an long as no be treated must in contest tiative Their signatories' behalf. the 'on measure claim proponents" the justiciable. While er of a class to that process is akin in the role with cannot be submission for the measure's a fi voluntarily assumes representative who legal no is here request, there drawn at The lat the class. duciary obligation toward (a) declaring initiative mooted to barrier prejudice if at will may abandoned not be ter because, during the twelve abandoned and The court likely follow.13 would to the class re proponents' period between month the class members charged with protecting today's and withdraw quest to absence, are un who, through their forensic proponents' from the no one pronouncement, pursuit In the protect themselves.14 able controversy come forth has side measure signatories' 15 (b) declaring the clearly and the measure prosecute legislators) rights (qua for want (a) in default to stand abandonment proponents' prejudiced signatories notice to quest sans briefing. of their timely 42, Plans, 46 Litig, F.R.D. Sec. Inc. 182 980, 20, 415 P.2d OK Co., Lumber 1966 Hanna Co., vol (S.D.N.Y.1998). not be class action Westgate Production Oil Co. v. Refiners plaintiffs with untarily the named Jones, v. dismissed 993, 994; 44 P.2d 548, Payne OK 1935 of the v. approval and notice Wallace 113, 116; out the court's 86, 146 P.2d 1944 OK See class in 289 P. 354. of the 305, ¶ 3, all members McClendon, posed dismissal 106, Goodwin, 597 Application also 12 O.S.2001 the court directs. whatever manner 23(e); 765 n. 8. 762, P.2d (D) (E); Blanch Fed.R.Civ.P. § 2023 Corp., 175 F.R.D. EdgeMmark Financial ard v. OK Pargo, Bd., Excise 1989 (N.D.Ill.1997); v. Adair v. County 10. Morton Shelton 293, 298-99 Rogers, note 9 at Cir.1978). (4th 707, supra 1298, 1305 Inc., 582 F.2d guardian of carry out its role as In order to 171, 172, Mattis, 431 U.S. v. interests, has the court Ashcroft class members' the absent (1977); v. DeFunis 219 52 L.Ed.2d 12 O.S. duty, forth in power as set and the S.Ct. 94 Odegaard, 316-317, (E), (D) class that the to ensure 2001 2023 (1974); 1705-1706, View Park 40 L.Ed.2d nothing to counsel do and class representative ex rel. Hospital Auth. v. State Trust prejudice the interests compromise or otherwise Labor, P.2d Dept. OK repre they undertaken to have. those whom concurring judgment). (Opala, J., (e); 23(d) and Fed.R.Civ.P. See also sent. 298-99, citing Blanchard, Manual supra note 13 Lambert, connection Shelton in this 12. See Litigation (Third) Compex § 30 f or ('The with 28, ¶ 6, OK protest to an initiative of a dismissal drawal or an initiative proponents of measure within the abandonment in effect its measure is capacity of signatories petition's act Upon with such meaning O.S.1961 of 34 23, State legislators. sub protest as abandoned is treated drawal P. OK Question No. 'any to revive other citizen' ject "[pleople interested court observes abandonment."). Like days five within wise, [initiative] ... ini attempt withdraw an petitions, the circulators proponent's them, acting sign are others who as an aban be treated measure should tiative They of the legislators. are capacity of members petition. donment and, state, body where largest legislative quasi at least a acting, so in a do so Loan Indus. Corp., 13. Cohen Beneficial Hon Brock v. The also public capacity. ..." See 1227, 93 L.Ed. 549, 69 S.Ct. U.S. Thompson, D. orable Donald (a fiduciary representative is a class 279, 286. members); Health In re class absent Oxford *11 opportunity pursue without IV fur (b) ther their in the measure and interest IF EVEN THIS CAUSE WERE A LIVE- judicial of the initiative condemnation court's as CONTROVERSY, LY CONSTITU- impermissible TIONAL ARE ISSUES NOT BE TO DECIDED IN ADVANCE OF STRICT T9 I would in counsel that all in future NECESSITY of a stances measure's withdraw mid-stream Today's pronouncement clearly vio by (a) proponents give al the court notice prudential lates the bar of restraint which by (and publication mandatory commands that constitutional issues not be means) persons to all known to be interested resolved in necessity.18 advance of strict No measure, (b) necessity which exists here for would advise resolution of the challenges them that content-based to an proponents have withdrawn abandoned and lifeless nitiative measure. (or from the prosecution defense), initiative's lively controversy 1 11 present No (c) here give persons the interested in antagonistic press adversaries adequate opportunity pursue pending testing legal validity against norm's completion.16 cause to its If someone with a backdrop of facts that are forensicallyunfold viable forth, interest should come ed after offending measure has come to ceeding could then be reinstated active applied as law.19 Where there is no foren cause.17 sic scenario in the context of which chal lenged law is to be courts enforced, should not in vacuo assess the attacked norm's I do not counsel for notice-giving additional novo, de 281, State in this case but 441, rather wish to foreshadow a Okl.,[1967 Ques. No. OK 230] 434 P.2d procedural needed change processing in initia- raised, If factual issues are the Court petitions proponents' tive after the withdrawal or may assign the matter to a referee. Harry abandonment. R. Carlile Trust v. Cotton may The Court pro- issue directions when the Petroleum, 16, 438, 1986 OK 732 P.2d 447-448 8, cedure is O.S.Supp.1992 not set out in 34 § (notice n. 46 can pronounce- 'be mandated Rule, this in Part VI of these Rules. given effect). prospective ment that is prudential 18. The necessity, rule adhered to adoption my The proposed procedure courts, all state and federal holds that constitu would be consistent statutory require with those tional issues must not be resolved in advance of ments that adopt call for this court rules necessity. 363, strict In re Initiative Petition No. governing challenges (or during the initiative ref State No. 672, 1996 122, erendum) process. (E). O.S.Supp.1992 § 558, 565; In re Initiative Petition 347, supra applicable If procedure is not set forth in (Opala, note 1 at 1037 concurring); C.J., Smith § either 8 or Rule 1.194, Oklahoma Supreme Westinghouse Elec. 1987 OK 3, 732 P.2d Rules, Corp., Court O.S.Supp.1997, App. 467 n. I.N.S. v. Chadha, 462 U.S. 919, any "procedure court utilize that conforms (1983); 2764, 77 S.Ct. L.Ed.2d 317 to federal and Ashwan state constitutional due Valley der v. Authority, Tennessee requirements." In re Initiative Petition No. 85, ¶ State S.Ct. 2000 OK L.Ed. 688 (Brandeis, J., concurring). See also Schwartz Diehl, 568 P.2d 280, 283; Dablem (E) O.S.Supp.1992 The terms of 34 are: Dept. ont v. Safety, Public Upon filing objection E. count, of an to the Supreme Court shall resolve the objection dispatch. Supreme The Court pertinent govern provisions shall 19. The proceedings rules to ap- adopt of Art. Okl. ply challenge of a : measure on the Const., are grounds gather failed to * * * Petitions orders for the initiative and signatures. sufficient for the referendum shall be filed with the Sec- The terms of Rule 1.194 are: retary of State and addressed to the Governor Proceedings Supreme to deter state, who shall submit the same to the protests objections mine to initiative and people. Legislature shall make petitions suitable shall be commenced and referendum provisions proceed carrying provi- into effect procedures accordance with the set O.S.Supp.1992§ out in 34 sions of this article. proceeding original shall be treated as an parties action and the shall be afforded a trial Smith, note 18, at 467. supra *12 (a) court's here to this present impediment not, as I would soundness. constitutional volun- declaring mooted the measure and today, for settlement court the reach does because, during period the tarily abandoned premature protestants' content-based request to withdraw proponents' between mea- challenges a lifeless to constitutional gure. today's and from submission measure forth to has come no one pronouncement, (and protest) against defend prosecute V (b) declaring and v.CROSS21 THREADGILL timely brief- for want of in default to stand test [12 to today I undertake Nor ing. before content measure's validity of this pre-enact- to court's commitment T 14 The people. law a vote its enactment serutiny initiative constitutional ment force of the undiluted to My commitment of aberra- new level reaches measures undiminished continues v. Cross22 Threadgill im- Today's pronouncement excess. tional that Threadgill teaches r.23 fervo lifeless, un- vitality into a injects permissibly to content conformity a measure's initiative utterly abandoned championed and the Constitution-state commands roving aof zeal reminiscent with a in judicially examined federal-may be judgment on abstract rushing to commission as law. adoption initiative's advance grievances. funda a measure's review of Pre-enactment in the my press counsel I also confined to conformity should mental-law prosecute to future, proponents refuse when in the vitiating infirmities fatally in- initiative, give all the court challenged leg effort The electorate's itself. oppor- adequate notice persons terested by pre- hindered directly not be must islating completion. quest to tunity pursue the those than attacks other submission which {16 un my continued Because compliance with. petition's lack target teachings of swerving commitment judicial prerequisite non gua some sine oppose sub vigorously Threadgill, I must the measure's to achieve in order clearance testing to constitutional any measure jecting people.24 a vote of submission into law. Aside of its enactment in advance flaws, today's pronouncement from other VI of self- prudential bar clearly violates entertaining restraint SUMMARY necessity. in of strict challenges advance judicial pro- { in measure The initiative propo- on be withdrawn cess here cannot public-law is a This cause request. nents' no proponents have

controversy over filing. legal No petition's after control concurring 1991) (Opala, C.J., 20, Supra 437, February note opin- (unpublished dissenting part) in part and ion). test pass the threshold an initiative 24. For Threadgill, su unswerving My commitment (a) compliance with the be in substantial must 2, reported several documented in pra note requirements for sub procedural qua non sine No. Petition See In re Initiative decisions. (In mission, subject (b) single re address but C.J., dissenting); (Opala, In re supra 1 at 18 note No Question 344, State Petition No. Initiative 1 at 781 note No. Petition supra Initiative In re 75, 797 P.2d OK 630, 1990 result); Initia concurring In re (Opala, C.J., State No. Petition Initiative (Opa at 1037 note No. Petition tive supra (c) 331, 333) embrace OK Petition No. concurring); In re Initiative C.J., la, lawmaking by people appropriate for content (Opala, concur V.C.J., 1 at 275 note supra Adjudication, Etc., (In supra re Supreme result); No. Petition ring in re Initia 1); In this connection see also in note No. C.J., (Opala, supra note tive Petition J., concurring judg (Opala, concurring). ment); Initiative supra In re concurring re (Opala, J., at 554-555 note 1 (No. note 2. 76,- sult); Supra No. 349 re Initiative