Oklahomans for Modern Alcoholic Beverage Controls, Inc. v. Shelton

MODERN ALCOHOL- OKLAHOMANS FOR CONTROLS, IC BEVERAGE INC., Proponent,

v. al., et Contestants.

John B. SHELTON 45410.

Supreme Court of Oklahoma. 5, 1972.

Oct. Opinion

Dissenting 1972. Oct. adduced, upon

Based evidence the Ref- eree found stated facts established fair preponderance evidence, from which conclusions of law hereafter set forth were stipulated determined. gross total of petition requires affixed valid for submission of proposition the to the electorate. A total 698,790 of votes were cast for office of the 8, in Governor the general November 1970 Computed election. percent as fifteen of total, 104,818 valid are re- quired place to proposal this before the 39,807 electorate. challenge Successful to signatures would render petitition the in- valid. parties

Exhibits introduced the 33,709 signatures disclose persons of either registered not during voters in circulation terval, or registered during who the inter signing petition. val but after the The Miller, Wilson, Spencer, Adams & Mel- fact of non-registry signa rendered these Spencer, Miller, vin George Oklahoma J. tures invalid. In re Initiative Petition No. City, for contestants. 142, 155, Ques. 205, State 55 Tulsa, Jarboe, Keefer, B. & John Jarboe P.2d 455. Jopling, Blankenship, R. C. Jr., Jopling, admittedly petition The bears 135 Russell, Herrold & City, Oklahoma for illegible signatures, identity of from which proponent. Only the cannot be ascertained. BERRY, registered sign peti voter can Chief an initiative Justice. 3, 6, tion. 34 23. Initiative O.S.1971 §§ principal question The determi- for our 142, 205, Ques. supra. Illeg Petition State novo, in appeal, nation triable de from ibility precludes signa determination of a Secretary deny- the order of the of State tory’s eligibility by proponents as asserted ing sufficiency of the involved initiative agreed by contestants. petition, described, hereinafter as to is pamphlets persons registered circulated whether sufficient number of On challenge sign petition. registered voters in fact did the voters contestants the signatures. urge Contestants sufficiency the Secretary denied of voter”, “legal appearing words in 34 O.S. ground alleged on its uncon- of signers, concerning same bear the § stitutionality referring num- without to the in meaning “qualified as the elector” words signatures. ber valid of relating Section 3.1 to circulators. order, hearing com- Pursuant to was Proponents assert a not be circulator need April 5, menced to determine factual registered qualified voter to be a elector. 288, Petition relating issues to Initiative In of these related Hearing was conclud- 480. proof limited non- to circulator’s 22, 1972, August proceed- ed and record of registration as a voter. ings filed As the Secre- October 1972. III, 1 de- tary Constitution Article of State’s final order made no deter- qualified qualifications mination number on clares electors. of total peti- “Qualified shall be stipulated electors of this state petition, parties States, 144,624signatures. citizens the United citizens of tion bears making improperly de- his Indian affidavit was state, including persons of signa- A these performed. who total of 829 of States), United (native scent invalid for these reasons. Com- years and tures are eighteen age over plete six review of the at least evidence unneces- in the state resided who have months, sary. challenges On some contestants in- county two months, in the circulator, affidavit, pre- having made his days next sist precinct twenty the election responded ques- to contestant’s elector thereafter ceding election at which ” * * * impeach such manner as to Registration tionnaire offers to vote. sig- These testified prescribed qualification. circulators is not a .affidavit. vote pres- either in their natures were affixed O.S.1971 to 1969 enactment of 34 Prior particular able pre- identify ence or were statutory qualifications were 3.1, no not, were, signatures which were af- For this petition circulators. scribed presence. in their sig- fixed Absent other the court refused to invalidate reason falsity destroys pro- proof, admission as circulated natures affixed 138, requires the 114 bative value of affidavit and Question In re State No. minors. 285, pamphlet. of the exclusion entire How- (1926). 244 P. 801 Okl. ever, testimony a which circulator’s re- ac of 3.1 Legislative enactment § properly signatures deems affixed from problems complished knowledge of challenge is prove sufficient to affirma- theretofore, attempted differen existing no tively signatures properly those were af- identity qualifica change in and tiation or fixed the within rule in In re Initiative Pe- legal voters. electors and tion between 145, 215, Ques. tition No. No. State to relates see 34 O.S.1971 6 which Also 284, 189; 102 P.2d Milburn State v. signatures by the circulator. of verification Ass’n, 285, 801; Taxpayers 244 P. 114 Okl. verifies verification the circulator In this 142, In re Initiative Petition No. State elector”, “qualified and is that he 205, supra. legal This court signer is a “each voter.” intent, challenges category or Further in this speculate legislative as to cannot enact were because a witness unable to particular was re question propriety of positively appeared im call whether should be she before ments. restrictions Whether notary acknowledge petition public taking the posed, qualifications of future ment, of after purely months the fact. The affidavit defined are matters circulators impeached testimony, Legislature by is not since legislative concern. Had the this reg obviously given in only consequence of the wit intended circulators to be testimony, this ness’s istered voters could have been accom meticulousness rather language slight than from real or well doubt. plished by change in the founded this was are of used. Since not done we challenges sig Other assert certain Legislature no opinion intended place sufficiently natures were affixed at a qualification. our stat hold that We far removed as to be out of circulator’s requirement petition cir- make no utes presence. pamphlet challenged One was registered being culators be There voters. by bartender, circulated who observed proof qualified no not circulators were subscription signatures of several feet electors, signatures challenged this on hyper- across a room. challenges Such are of ground challenge are valid. Contestants technical and do effectively challenge signatures under their Exhibit 140 and signatures other than those declared inval supported to by any 140-A is not evidence id. not a show the circulator involved 1,015 Further challenge signa qualified elector. tures is made reason the name of the 2,199 signer appears category Another same involves on the more signatures challenged than once. properly invalid be No as either voter can af signature cause subscribed out fix his of the circulator’s to a more than presence, acknowledgement by one time. a signature duplicated circulator When is disregard- challenge Further is signature is to be directed duplicated 35, signatures give post which failed to Petition No. ed. In re Referendum 101, address, Bill No. office and to 171 Question No. on House where 47, Disregarding signer “City” post gave 485. as a office ad 78 Okl. 186 P. dress, duplicated signature impose patently with a address each would but street contemplated by City. Challenges proper Oklahoma burden not the law. One as signers to 102 duplicated signatures not otherwise involved who omitted each post Although practice successfully challenged is In this office address. valid. “City” category giving inval- as an address is are declared not strict ly statutes, supra, id. accordance with this is a generally usage understood con and witness, testifying One as a testants disadvantaged by were not this ab handwriting expert stipulation, sought breviation, ground on this is prove that 951 were affixed intrinsically technical. than two someone who subscribed more proof signa names. The adduced was the In this same context opinion, witness’s challenged no effort was made because used tures are signatures, distinguish “OC”, “OKC”, “MWC”, “B’ville”, or establish lack like authenticity by presentation of an exem under generally abbreviations. Where plar. Under this state evidence stood such abbreviations are technical vio actually support lations, contesting party contest expert testimony fails unless a invalidity. thereby. deci no prejudiced total Our Contestants showed ants’ claim of 71, resulting Petition No. burden these chal prejudicial sion in In re Referendum 206, 381, P.2d Ques. lenges Okl. 65 not well taken. No. 179 are State 985, testimony, states concerning similar challenges are asserted Other court testimony alone the upon such grounds by Exhibit on various contestant’s signers, cannot strike the names of is un pamphlet signatures 257. of One 37 corrupt motives to circulators nor attribute by signature by verified of the omission signatures they ob so as to invalidate person taking acknowledge the circulator’s to is insufficient Related evidence tained. signatures ment. are invalid in view The validity as to presumption the of overcome pamphlets of contain 34 6. On O.S.1971 § signatures. find invalid challenged all We ing attempt signatures 119 the circulators ground. this signatures challenged 460 on acknowledgement, ed to his own take 145, In re Initiative Petition No. State these are rendered invalid. In re Initiative 215, 284, Ques. 189. 187 102 P.2d No. 224, 314, Question No. Petition No. State 432, challenged 324. Also 197Okl. 172P.2d signatures are (167) Other pamphlets whereon signatures on are 47 persons signing, challenged because the was before circulator’s verification the City or Tul residents either of Oklahoma had ex notary public whose commission sa, give each failed to a street address. chal of 203 a total pired. determine We rule challenges proper These are under Remaining chal lenged signatures invalid. announced in Matter of Referen In The under Exhibit 257 lenges by contestants 119, 381, Ques. dum Petition No. No. State only, within are deemed to be technical Okl., However, total Petition P.2d of this Initiative 339 530. law announced In re 432, 314, 224, 197 Okl. Question No. State unregister challenged there are 34 also as 324, 172 P.2d 327. renders moot challenge ed. Success of one signature. challenge another Of to Challenges (Exh. made are signatures validly chal the 167 133 are relat pamphlets bear defects 260) which lenged. remaining challenges are circulators, signatures where as 449 ing to ineffective, challenged having on oth been give a sufficient circulator failed defect post address, the asserted grounds. office er testimony signatures were being varying opinion abbreviation of Oklahoma these post by petitions ad- of City. In instance the office subscribed each circulator although pamphlets ab- were detached. dress is determinable these readily from which predominantly signatures Challenged hold this to be substantial are breviated. We residents, proof compliance chal- local but no the statutes. Also those of pamphlets relating inquiry of the lenged signatures on offered to the least are 176 signers. signatures Tulsa These are valid on ba- gave whereon the circulator validity legal presumption hold of as an address. sis of City Oklahoma We ruling quantum challenge specifically which was not within our overcome 272, proof Petition adduced. In re Initiative No. 290, 409, Okl., P.2d Another concerns Chal- signatures and find invalid. these 176 appears Ballyeat name Mrs. on which lenge six the circu- is because pamphlet circulated and on an Sturm signed lator which he circulat- Sturm testified other circulated Clark. signature. ed and certified his No ba- own Ballyeat signed petition, but Bal- Mrs. her challenge. sis exists in the law lyeat signed only the testified she Clark 1,963 sig- challenged Contestants also have petition. Ballyeat properly sign could Mrs. natures pamphlets on where the circulator’s duplicate signature is not but once. The name in the affidavit varies Affiant’s from signature challenged elsewhere. This one signature. subscribed This is a technical showing guilty invalid. Absent objection, the affidavit suf- is deemed knowledge wrongdoing, re intentional cient under 34 6. O.S.1971 § maining signatures on circulated the Sturm Challenge pamphlet of 231 is on are impeached. ground persons multiple some inscribed gave Eighteen signers addresses pamphlet names. On one may be assumed outside Oklahoma. It spaces were provided subscribed for veri non-residents, those and there persons signatures, fication names ineligible sign lawfully fore this initia printed then signature were on the side. petition. tive 2. O.S.1971 § No doubt on genuineness is cast these counterparts bearing pur- 315 Petition signatures, challenge being entire based ported signatures by one circulated were ly upon this reversed use of of the two sides challenged invalid as Kraker. These were petition. signature Other pamphlets (Ex. by propo- invalidity and was confessed 267-272) challenged by are testimony of containing pamphlets Four other nents. expert multiple witness that signatures purported signatures challenged 133 were by were person. opin subscribed one This by proponents. invalidity and the confessed ion evidence, considered in conjunction finding signa- Under this 448 total physical with examination pamphlets tures are invalid. containing challenged signatures, is insuf challenged signatures A are total ficient to the presumption overcome of va improperly certi- ground on the some were lidity, and these are valid. signature fied on reverse sides of One pamphlet signa containing 40 upon pamphlet. Challenge is based often tures inadvertently by verified one op- respective as of the circulators versions Kune, although in fact by circulated anoth posed staff versions of contestant’s Signatures er. pamphlet on this therefore challenges are based members. Numerous are invalid. Contestants challenge to other the total chal- upon minor variations. Of

pamphlets by circulated Kune without is lenged, are instances where there basis. Inadvertent verification of one is so manner of certification circulator’s pamphlet destroy does not validity of oth sustaining improperly require done as to ers properly which are verified. signatures. As to challenges to the related challenges remaining under this signa

Contestants contestants we conclude (Exh. 209-209-A), tures on expert’s category of the basis handwriting

1Q95 taken, these are not well since there is this court arguments sub- heard oral on the compliance stantial with 34 O.S.1971 6. constitutional issue objection without from proponent. The initiative bears a total of 107,478 By necessity any proposed valid after deduction of included 37,146 successfully challenged signatures. people amendment to a vote of the involves challenged Contestants have people, a total of the labor many and efforts of to- 53,165signatures. gether The hereto- expense facts found with considerable to both fore adjudicated challenges. proponents have and contestants and to the Challenges to 1400 conducting have State of Oklahoma in such an been specifically. seeming dealt with proposed peti- This election. initiative Where discrepancy dupli- upon results from tandem or tion is unconstitutional its face then I challenges. cate assuming vastly important Even these believe it is for this court challenges tandem, duplicate are not or and to make it determination before is sustained, validity peti- that all were people. of the submitted to a vote of the tion still would be established. my opinion In the initiative clearly upon by unconstitutional its face We decline consideration of the XXIV, reason of of the Article issue advanced contestants relative to provides Oklahoma Constitution which invalidity asserted constitutional of the subject may present- not more than one be petition. Threadgill current initiative et proposed ed in a amendment to the Consti- Cross, al. v. (1919). 109 P. 558 proposed tution. initiative From examination of the entire evidence separate provi- contains three and distinct petitions we conclude the are in the valid sions, liquor (1) (2) to wit the drink statutes, required by signed form and franchising, (3) advertising. sufficient number of voters of this proposed A constitutional amendment state, proposed and the amendment should provisions can include those which people be submitted to the for determina- supplemental necessary carry out a tion. single accomplishment scheme for the DAVISON, J., WILLIAMS, V. C. purpose proposal. the basic of the The ba- IRWIN, JACKSON, LAVENDER and purpose proposed petition sic of the is to SIMMS, JJ., concur. approval “liquor by obtain drink.” Nei- franchising advertising ther nor is neces- HODGES, J., part, concurs in dissents drink, sary supplemental liquor by in part. anything to do the details or have BARNES, J., dissents. carrying it out are otherwise so related single as to constitute a scheme. HODGES, part (concurring in Justice dissenting and part). in approve “liquor the Those who of drink”, part franchising and opinion object I concur in that of that but to the the petition petition advertising portions of the are un- holds the initiative has a sufficient right by signatures. express number of able their constitutional provisions inclusion of the three within the part opinion I dissent to of that the provisions of fran- one amendment. The where the court to determine the refuses chising advertising obscure and thwart and question presented by constitutional the a proposal to submit to the intent of the contestants. liquor by question of people vote of the the question present- The constitutional was the drink. Secretary he deter- ed to the of State and clearly separate provisions are in The three petition not mined the initiative was statutes, included within and distinct and cannot be proper required by form the as respectfully I therefore one amendment. appeal this court. and an was taken to dissent. parties and Briefs were submitted both

1096 BARNES, (dissenting): ed (Section 3.1, the 1969 supra), Statute Justice might then there reason be more for think- Majority Opinion in I cannot concur the ing that the use the “legal of two terms for the hereinafter set forth. reasons “qualified voter” and elector” evidenced First, of disagree I with its conclusion legislative recognize intent to a distinction law that do not have circulators meaning in between these two terms. But registered be When the Oklahoma voters. not this was (with the case. Section 3 Legislature 34, and enacted Title O.S.1971 slight 1961) immaterial amendment in was 3.1, making for Supp., it unlawful 1910, years enacted in or 59 before Section any person “qualified elector” than a other 3.1, supra. During 59-year period, this any initiative referendum to circulate many different Legislature of the sessions petition, contemplated that the it must have convened and adjourned changing registered circulator be a voter. personnel. Also during period, this in 1936 opinion promulgated Court its in In re In recognize in the I that 1926 case 142, Initiative Petition No. 138, 285, Question No. re State 205, 155, 455, 176 Okl. 55 P.2d in Majority), in the the (cited 244 P. 801 which this signer Court held that a Court, body opinion, in the noted the voter, registered citing had to be a as its cited, it authority had and that no been principal authority (p. 460) therefor the none, support protestants’ conten- found 337, Kerby, case of Ahrens v. Ariz. signa- petitions containing tion that case, Court, In P.2d 375. the Arizona that they tures be eliminated because should decision, reaching its in concluded that was a were obtained minors. There elector”, “qualified way in the had term it paragraph syllabus under written in been used that Constitution and State’s prepared by publish- sixth headnote statutes, was to mean intended an elector our opinion er of that that referred to registered who was a voter. IAnd submit defining Constitution statutes and as question person that the has of whether qualifications of a circulator. qualifications of an “elector” differ- Though syllabus seems lack affirm- that question (al- ent from the of whether he is support opinion, concede ative in the I will ready “qualified or in elector”. praesenti) arguendo previous to the enactment that opinion In view of cited fol- Oklahoma 3.1, statute supra, this State had no Section decision, lowing the Arizona it would seem pe- qualifications of which referred to the reasonable that after that decision had way. tition in circulators years, Legisla- stood for 33 our Oklahoma says Leg- Opinion Majority ture, 3.1, enacting supra, islature this statute knowl- enacted “with necessity would have seen no us- theretofore”, edge problems existing ing any “qualified other term than elector” opines Body at- that since that therein making an circulation of initiative tempted change qualifica- no in circulators’ else, petition, by anyone felony. I dare- “regis- “qualified tions from elector” to say many members of the various ses- voter”, requirement quali- tered no Legislature, lawyers sions of the both intended; opinion fication was laymen, 455, supra, pub- since 55 P.2d thereupon so holds. lished, have never considered the two “qualified “registered terms elector” and 34, requiring (also If Title Section 3 of anything synonymous. voter” as but That obliquely) petitions be lawyers laymen who drafted the and/or by specifying the outer voters sheet “INSTRUCTIONS” attached page pamphlet have each petition pamphlets front of the this case printed felony any- it is a warning that interpreted it so that term as is used sign one to he is not such a “when supra, is rendered doubtless legal voter”, been had enacted replica of Legislature said sheet which same Session that enact- follows: ing petition thereby cir- that he committing felony, it is remembered that is When a important play very culators role in set- should have his own name counted. To do ting machinery by process so in motion the law makes the initiative a farce. 1961, 23, Title brought provides, which before the and measures O.S.1971 public, passing strange part, in be as follows: I think it would “* just incongruous and as for them not to be * * person Any signing any registered as the Arizona Court voters any petition, name other than his own to thought petition it was for not to knowingly signing his name more when, registered Ahrens, in be su- voters than once for the same measure at one p. 379): pra, (37 it said P.2d election, or who is not at the time of “ * * * signing legal the same a of this voter presume it is reasonable to * * * signs or who or files foreign purpose that it was to the any petition knowing the certificate or gave those who form to the constitution any part falsely same or thereof to be empower unregistered to electors to set * * * made, any or who shall violate machinery by in law motion the of the statute, provision of this or who shall upon which they measures which them- any person doing aid or abet other might brought selves could not be vote acts; any person of said and violat- They those who could. were evi- before ing any provision Chapter, of this shall since, dently of the view that upon punished by thereof be conviction process securing judgment of the exceeding fine of not five hundred dol- proposed voters or referred mea- on imprisonment by peniten- lars or in the sure, just peti- it is as necessary tiary exceeding years, by both not two it place tion to it on the be as ballot filed n imprisonment in the dis- such fine and had, is that a vote on it no thereafter be cretion such of the court before which permitted one should be to aid in accom- conviction shall had.” be plishing placed who had not former position part in in a to take 3, supra, As directed each of Section himself latter, problem.” of the the final solution petition pamphlets in this case had (Emphasis added) printed page, immediately on its second be- pe- low the State number and the There, that demon- proceeded Court also to number, following, tition’s in bold quite clearly only practical strate that the type: blackfaced way qualifications to substantiate voters’ registration checking And the records. “‘WARNING’ applies qualifications same truth to sign felony anyone “It is a an qualified circulators as electors. petition initiative or referendum lengthening alternative to this is contests own, any name other than his or know- present immeasurably by like the one sub- ingly sign name than his more once circulators, poenaing putting them un- measure, sign for the or to oath, taking der their sworn state- legal when he is not a voter.” ments. my foregoing, adjudge

In accord with the it is Should this Court opinion recognized “qualified elector” as than it requirements that the term lesser 3.1, supra, proposed governed by? I do used was intended to be meaning “registered appar- have the same as vot- not think If the so. ently er” intentional felons were eliminated the Contestants’ case, would petition pamphlets cir- in this there on from the registered by persons voters on it than are culated be 344 less valid Majority upheld by Opinion. should have been sustained. indulge presumption of signer Nor think “the do I that a who also Nor would I Opinion ap- signs names, validity” Majority others’ in the face of a which the warn- plies signatures to 491 of the 951 affixed persons who subscribed more than two expert

names. I think the Contestants’ tes-

timony sufficient to overcome such

presumption place upon Propo- and to establishing

nent the burden of the authen-

ticity signatures. of such As this burden discharged,

was not I would not count in this category. the 951

This would add 491 to those by Majority.

found invalid

When this number is added to the 344

forgeries I have mentioned and to the

2,355 signatures by unqualified obtained

circulators, that, it will be seen instead of 107,478

having signatures (other valid than Majority Opin-

those not dealt with in the less, 3,190

ion), subject has 104,288 signatures. valid This falls

short of the valid re- and,

quired, opinion, my pe- renders the wholly

tition ineffective. foregoing, respect-

In accord with I Majority Opinion.

fully dissent to ROBERTSON, Appellant,

Oren H.

v. Oklahoma, ex R.

The STATE Robert rel. Department Commissioner, LESTER, Appellee. Safety, Public

No. 45468.

Supreme Court of Oklahoma.

Sept. 26, 1972.

Case Details

Case Name: Oklahomans for Modern Alcoholic Beverage Controls, Inc. v. Shelton

Court Name: Supreme Court of Oklahoma

Date Published: Oct 11, 1972

Citation: 501 P.2d 1089

Docket Number: 45410

Court Abbreviation: Okla.