In Re Initiative Petition No. 349, State Question No. 642

ALMA WILSON,

dissenting in part:

The course taken by the majority while claiming to adhere to the federal constitution actually violates our state constitution.1 Today’s exercise of judicial power interferes with the exercise of the political power of the people, acting as our legislative branch of state government. I refuse to join in this flagrant encroachment upon the people’s legislative powers.

Oklahoma’s constitution requires that the powers of the three branches of our state government be separate and independent. Article IV, § 1 provides:

The powers of government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others. (Emphasis added.)

The doctrine of separation of powers was recently considered by this Court in State ex rel. York v. Turpen, 681 P.2d 763, 767 (Okla.1984). In York, presented with the issue of the effect of an opinion of the Attorney General [an act of the executive branch of government] declaring a statute unconstitutional, we said:

The true import of the doctrine of separation of powers is that the whole power of one department shall not be exercised by the same hands which possess the whole power of either of the other departments; and that no one department ought to possess directly or indirectly an overruling influence over the others. Bailey v. State Board of Public Affairs, 194 Okl. 495, 153 P.2d 235 (1944).

*16Recognizing the overruling effect of the A.G.’s opinion upon the legislative branch of government, this Court quoted Threadgill v. Cross, 26 Okla. 403, 109 P. 558, 562 (1910):

In the legislative department of the government is vested the power of enacting all laws. To that department is intrusted the determination of what laws shall be enacted, and what laws shall not be enacted. It must in the first instance determine whether a proposed measure is valid or invalid, and in doing so it will not be presumed that the members of that department, whether they be the electors at the polls, or the members of the Legislature, will enact or attempt to enact legislative measures that they know are violative of the state Constitution or of the federal Constitution, but that they will act from patriotic motives and endeavor to adopt such laws only as will best serve the public good, keeping in mind the limitation upon their powers fixed by the Constitution of the state and the federal Constitution as the supreme law of the land. When such department has acted upon a proposed measure and adopted same, it thereby becomes clothed with the presumption that it is a valid enactment and with its validity the executive and judicial departments have nothing to do, until it becomes the duty of these respective departments to participate in the construction or enforcement of such statute. The duty of determining what law shall be enacted and what law shall not be enacted rests neither upon the executive nor the judicial department.

York, 681 P.2d at 766.2

The majority opinion does not speak to the doctrine of separation of governmental powers. Notwithstanding this silence, the plain words of our state constitution forbid the use of judicial power to prevent or interfere with the legislative process invoked by the initiative petition.3 The people created our state government for their protection, security, and benefit.4 The people divided the powers of our state government into three separate, distinct and independent departments.5 Legislative power is vested in the Legislature, but the people reserved to themselves the right to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature.6 In our state constitution, the people reserved to themselves legislative power of the highest order; laws enacted by the people through the initiative process are not subject to the constitutional veto power of the Governor, nor are the effective dates of laws enacted by the people subject to the constitutional limitations placed on enactments of the Legislature.7 Our state constitution recog*17nizes that all political power is inherent in the people8 and prohibits the use of any governmental power to interfere with the people’s right to the franchise.9 With these constitutional provisions, the people withheld from this Court the political power to scrutinize the initiative petition, to assist those proposing or opposing the initiative petition, or to direct the initiative process.10

I agree with the majority that “(t)he issue of the constitutionality of the initiative petition is governed by the United States Supreme Court’s pronouncement in Casey.” 11 However, the real question presently before this Court is one of fundamental state law: Will this Court wield its power to supervise the legislative process invoked by initiative petition of the people? I do not agree with the majority’s conclusion that in this case “the only course available to this Court is to follow what the United States Supreme Court, the final arbiter of the United States Constitution, has decreed.”12 The only course available to *18this Court is to determine the validity of the count of electors signing the initiative petition and the legality of the ballot title.13

If the people have secured sufficient, valid signatures of the registered electorate of this state to invoke their highest order of legislative power, then the people have a constitutional right to complete their legislative process by voting on Initiative Petition No. 349, State Question No. 642.14 Submitting the petition to the people is not the “easy course”, it is the only constitutional course.

I am authorized to state that OPALA, C.J., joins in this view.

. This initiative petition protest proceeding does not present an issue of irreconcilable conflict between federal constitutional jurisprudence and the state constitutional provisions. Federal constitutional law does not impose a duty upon this Court to review proposed legislation for possible violations of the federal constitution.

. The majority opinion does not modify Thread-gill as an erroneous or obsolete interpretation of the separation of powers doctrine.

. The ultimate responsibility for construction and interpretation of our law is with this Court. Monson v. State ex rel. Oklahoma Corporation Commission, 673 P.2d 839 (Okla.1983) and York v. Turpen, 681 P.2d at 767. And, when asked to construe a provision of our state constitution, the facially apparent meaning must be accepted by this Court. Shaw v. Grumbine, 137 Okla. 95, 278 P. 311 (Okla.1929).

. Okla. Const., art. II, § 1 provides:

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 shall not be repugnant to the Constitution of the United States. (Emphasis added.)

. Okla. Const., art. IV, § 1.

. Okla. Const., art. V, § 1 provides:

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.)

. Okla. Const., art. V, § 3 provides in part:

The veto power of the Governor shall not extend to measures voted on by the people. ... Any measure referred to the people shall take effect and be in force when it shall have been approved by a majority of the votes cast thereon and not otherwise_ Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of the State and addressed to the Governor of the state, who shall submit the same to the peo-*17pie. The Legislature shall make suitable provisions for carrying into effect the provisions of this article.

. Okla.Const., art. II, § 1.

. Okla.Const., art. II, § 4 provides:

No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage by those entitled to such right.

. Planned Parenthood v. Casey, — U.S. -, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) went to the United States Supreme Court on a record made in several days of trial to the bench. Although complaining abortion clinicians challenged the facial validity of Pennsylvania law, the Supreme Court grounded its holdings in the evidentiary record presented. The pronounced “undue burden without due process of law” [14th Amendment violation] was expressly supported by the evidentiary record.

I refuse to speculate regarding the evidence that might be presented were the proposed measure in Initiative Petition No. 349, State Question No. 642 enacted into law and challenged in our courts.

. Opinion, p. 5.

If enacted, the statutes proposed by the Initiative Petition No. 349, State Question No. 642 explicitly provide for interpretation and construction consistent with federal decisional law. The first two sections of the proposed measure state:

Section 1. Statement of Intent
It is the intention of the People of the State of Oklahoma to grant the right to life to all unborn humans and to restrict abortion to the full extent permitted by the Constitution of the United States, the decisions of the United States Supreme Court, and federal statutes. Section 2. Findings and Principles of State Law
(A) The people of the State of Oklahoma find by popular vote that:
(1) They desire to balance the rights of a pregnant female with the rights of her unborn child;
(2) The State of Oklahoma has a compelling interest in the sanctity of unborn human life;
(3) Childbirth is favored over abortion;
(4) Great harm Is caused by unrestricted abortions;
(5) The terms pregnancy "trimesters" and "viability” of unborn children are not found in the text of the United States Constitution:
(6) The State of Oklahoma’s compelling interest in protecting unborn human life does not come into existence only at the point of viability, and there is no rigid line distinguishing Oklahoma’s right to restrict abortion either before or after viability;
(7) The life of each human begins at fertilization;
(8) The presence of a fertilized ovum in a female’s body is the point at which Oklahoma’s compelling interest in protecting un-bom human life comes into existence;
(9) Unborn children have protectable interests in life, health, and well-being; and
(10) The abortion issue should be resolved by a vote of the People of the State of Oklahoma.
(B) From the effective date of this Act, the laws of the state of Oklahoma should be interpreted and construed to acknowledge on behalf of an unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this State, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court. (Emphasis added.) Perusal of these two sections, in light of Roe

v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Planned Parenthood v. Casey, indicates a likelihood that paragraphs numbered 6 and 8 of Section 2 would be stricken as unduly restrictive of a woman’s constitutionally protected liberty interests. The majority opinion does not deal with the provisions set out above. Rather, the majority finds the provisions of the proposed measure which define crimes and impose criminal penalties to be contrary to Casey.

.Opinion, p. 5.

The majority’s conclusion is supported by erroneous and sensational legal findings that: 1) the unconstitutionality of the initiative petition *18is manifest; 2) Oklahoma women who do not fall within four narrowly defined categories would be absolutely prohibited from exercising the pre-viability liberty interest expressly recognized by Casey; 3) "Initiative Petition No. 349 criminalizes and absolutely prohibits abortions except in four narrow circumstances ...”; and, 4) "Our limited role, like the role of all state courts in such cases, is to apply federal constitutional law, not to make it nor to guess what it may become.”

. The protest to the court of electors signing the initiative petition and the ballot title is before this Court pursuant to the special statutory proceedings established in 34 O.S.1992, §§ 1, et seq. This statutory proceeding does not invoke the extraordinary powers of this Court to do what is fair and just.

. Relying on popular information, but without a single allegation nor any evidence, this Court determines that resolution of the constitutionality of the proposed measure will prevent a "costly” election. Assured of the upcoming general election in November, I doubt that printing of this state question on the November ballot would create any appreciable cost to the taxpayers of this state. The cost of government simply does not warrant judicial interference with the legislative process.

Further, it is the unique duty of judiciary to preserve our constitution and, when a legislative enactment conflicts with its provisions, to declare the statute unconstitutional. See: Phillips v. Oklahoma Tax Commission, 577 P.2d 1278 (Okla.1978) (declared 68 O.S.Supp.1977, § 1402a unconstitutional as a violation of the Commerce Clause of the United States Constitution because the statute placed an additional two percent use tax on tangible personal property purchased outside Oklahoma); Woods Development Co. v. Meurer Abstract, 712 P.2d 30 (Okla.1985) (declared 1 O.S.1981, § 7 [repealed 1984] unconstitutional because it set a mandatory fee schedule for abstractors and was vague, economically unreasonable and confiscatory thereby violating economic due process); Board of Trustees of Police Pension v. Weed, 719 P.2d 1276 (Okla.1986) (declared 11 O.S.1971, § 541p and Oklahoma City Code § 2-342 [1970] unconstitutional because they required forfeiture of a retired police officer’s pension benefits when the officer was convicted of a felony and thereby violated Okla.Const. art. 2, § 15, which prohibited forfeitures of estates upon conviction of a crime); and, Reynolds v. Porter, 760 P.2d 816 (Okla.1988) (declared 76 O.S.1981, § 18 unconstitutional because the statute, which gave a three year limitation on certain damages in malpractice cases, violated Art. 5, §§ 6 and 59 of the Oklahoma Constitution). See also, Jobe v. State, 509 P.2d 481 (Okla.Crim.App.1973) (declared the Oklahoma anti-abortion statute, 21 O.S.1971, § 861, unconstitutional because it failed to recognize the pregnancy stage of the mother and other interests involved thereby violating the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States, citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 [1973]).

Allowing the legislative branch of government, whether acting through the Legislature or the populace, the presumption that it seeks to adopt such laws only as will best serve the public good, keeping in mind the limitation upon their powers fixed by the Constitution of the state and the federal Constitution as the supreme law of the land, prevents unwarranted judicial encroachment upon the power of the legislative branch of government.