Bellmon v. Albert

OP ALA, Justice,

concurring in the judgment:

At issue here is the legal efficacy of Initiative Petition No. 317. Sponsored by the Republican Party and challenged by prominent leaders of the state’s Democratic Party, the measure before us proposes a change in the legislatively defined boundaries for Oklahoma’s six congressional districts. 14 O.S.1981 § 5. The court declares the petition valid for submission to a vote. I join the court’s judgment but recede from its pronouncement on two points. With these two I would deal differently. In my view, (1) the statutory ninety-day circulation period within which signatures on an initiative petition may be procured cannot be arrested or suspended either by the institution or by the pendency of ballot title approval or appeal process but begins to *1221run, by force of law, the day a blank (pre-circulation) copy of the petition is filed with the Secretary of State, 34 O.S.1981 §§ 2 and 8 and (2) the clear and unequivocal command of 34 O.S.1981 § 2, requiring urban signers of a petition to identify their in-city residence by street name and house number, should be applied — prospectively— to all persons residing within the corporate limits of a city — not just to signers from the “congested centers” of Oklahoma City and Tulsa. In Re Initiative Petition No. 142, State Question No. 205, 176 Okl. 155, 55 P.2d 455, 458 [1936].

I.

THE CIRCULATION OF AN INITIATIVE PETITION MUST BEGIN WHEN THE BLANK (PRE-CIRCULATION) COPY IS FILED

“Circulation period” of an initiative petition is a term of art. It means the time during which signatures upon it may legally be garnered. The law will not tolerate an indefinite point for the beginning of that interval. The statute unequivocally requires the filed blank (pre-circulation) copy to state the date “when petition is to be opened for signatures”. § 2.1 If that “opening date” may be postponed indefinitely and thus be left uncertain during the pendency of a § 9 ballot title approval or of a § 10 appeal process, the proponents of a petition — who wish an early approval of their ballot title — would never be able to comply with that mandatory requirement of § 2 which calls on them to insert in the filed pre-circulation copy the date that marks the commencement of a signature-gathering period. The provisions of § 8 clearly refer to the ninety-day circulation time span as being that which follows the filing of a “true and exact [pre-circulation] copy” of the petition.

The correctness of this conclusion — that the statutory circulation period inexorably runs from the day of the first (pre-circulation) filing — finds eloquent support in the 1977 adaptation of the state initiative-and-referendum procedures to municipalities. Laws 1977, ch. 256, Art. XV, § 15-101 et seq. Subsequent legislation is always a fit source to consider as an aid in construing prior enactments upon the same subject. Letteer v. Conservancy District No. 30, Okl., 385 P.2d 796, 801 [1963], Article XV of the Municipal Code unequivocally provides in 11 O.S.1981 § 15-103 C that the signed copies of an initiative petition must be filed “within ninety (90) days after the initial filing of the measure ... ”, even though ballot title approval process for a municipal initiative petition may begin — as it is the case under state procedure in § 9 D — “prior to circulating the petition”. 11 O.S.1981 § 15-105 A. Once a blank (pre-circulation) copy of the petition has been filed, the ninety-day period is triggered ex lege. Nothing can stop it. There is no authority in § 9 D for suspending any part of the period in progress.

Aside from principles of statutory interpretation, there are some serious considerations of public policy that militate against allowing a § 9 ballot title approval proceeding to arrest or suspend the commencement of the circulation period. Once the filing has occurred, proponents may not always be able to restrain zealous circulators from beginning to solicit signers. A great number of challenges might be generated in this court upon a claim of surreptitious or clandestine circulation efforts. Many such complaints are apt to raise most complicated issues of fact which will be difficult of resolution. I cannot give countenance to a rule of law so likely to generate the spectre of corruption, deception, fraud and undue advantage. Were I convinced that the Legislature did in fact intend to authorize the suspension that is sanctioned by today’s opinion, I would seriously question the constitutional validity of § 9 D. Fundamental law will not give sanction to legislation that impairs or burdens the integrity of our initiative or referendum process or is plainly inconsistent with the legislative responsibility to prevent corruption. State ex rel. Caldwell v. Hooker, 22 Okl. 712, 98 P. 964, *1222965 [1908] and Associated Industries v. Oklahoma Tax Commission, 176 Okl. 120, 55 P.2d 79 [1936]. The lawmaking body stands commanded by Art. 5 § 8, Okl.Const., to guard against all forms of corrupt practice by the enactment of appropriate measures.

The statutory scheme of procedure will not permit the ninety-day circulation period to be deferred by ballot title approval or appeal proceedings. Any suspension of this period is potentially harmful to, and destructive of, the essential integrity in the initiative process. In Re Initiative Petition No. 315, State Question No. 553, 649 P.2d 545 (Opala, J., concurring in result). My counsel now is the same as that given in the case last cited. I would overrule all the aberrational holdings that began with In the Matter of the Proposed Title of State Question No. 541, Okl., 601 P.2d 103 [1979].

II.

THE COMMAND OF § 2 THAT URBAN SIGNERS IDENTIFY THEIR RESIDENCE BY STREET NAME AND HOUSE NUMBER SHOULD BE GIVEN FULL EFFECT

Section 2 provides that signers who live “in the city ... [give their address by] street [name] and [house] number.” Our case law recognizes the § 2 requirement as applicable only to residents of Oklahoma City and Tulsa. In Re State Question No. 138, 114 Okl. 285, 244 P. 801, 805 [1926] and In Re Initiative Petition No. 142, State Question No. 205, supra, 55 P.2d at 458.

Because there are now many “congested centers” in the State, I would give full effect to the command of § 2 by requiring — prospectively—that henceforth all signers of an initiative or referendum petition who reside within the corporate limits of a city identify their residence by street name and house number. Nothing less should,-under § 24, be deemed to constitute substantial compliance with the terms of § 2.

III.

THE COURT SHOULD NOT FORECAST ITS DECISION UPON AN ISSUE NOT YET IN ACTUAL CONTROVERSY BEFORE IT

In another opinion herein the court decides today that if the petition were adopted by a vote at the next (1982) general election or at an earlier special election, its passage would not affect this year’s (1982) congressional races.

I agree with the view of Lavender, J. that the court should not now render its opinion as to the legal effect the passage of the measure would have either upon congressional races to be held this year or upon the 1982 general election results. That issue cannot become justiciable until the measure now approved for submission has been adopted by the people. Threadgill v. Cross, 26 Okl. 403, 109 P. 558 [1910], Today’s forecast of the court’s decision upon a controversy not yet in legal existence may have a chilling effect on the Governor’s willingness to submit the petition to a vote at a special election and on the voters’ enthusiasm for the measure as a legal vehicle for gaining immediate relief from an unwanted legislative redistricting plan. Because our constitution has cast this state’s judicial service in a neutral, non-partisan posture, court pronouncements should desist — short of absolute legal necessity— from influencing purely political decision-making choices. “The guiding consideration is that the administration of .. . [adjudicative process] should reasonably appear to be disinterested as well as be so in fact.” Public Utilities Commission v. Pollak, 343 U.S. 451, 466, 72 S.Ct. 813, 822-823, 96 L.Ed. 1068, 1079-1080 [1951] [Frankfurter, J., disqualifying].

Because I fail to apprehend danger from following the traditional path of judicial restraint, I would decline to entertain, at this time, the prematurely tendered dispute over the legal effect the adoption of the petition would have either upon congressional races this year or on the 1982 general election results.

*1223I am authorized to state that BARNES, Y. C. J., and LAVENDER and HAR-GRAVE, JJ., concur in the views expressed by me in Part II and that LAVENDER, J., concurs in the views expressed in Part III.

ORDER

Protestants’ Motion for Order Requiring Supplemental Referee’s Report is denied.

Petitions for Rehearing, if any, and briefs in support thereof shall be filed on or before July 6, 1982.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 25th day of June, 1982.

. Unless otherwise indicated, section referenees in the text are to 34 O.S.1981.