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

OPALA, Chief Justice,

dissenting.

This case is not about the status of the United States Constitution as the supreme law of the land;1 not about the invalidity of law that is repugnant to the United States Constitution;2 nor even about this court’s power to invalidate constitutionally nonconformable law. The question before us is rather whether this court should free itself from the restraining hand of Thread-*19gill3 to now impose constitutional orthodoxy not only on law that is in force but also on an as-yet-unenacted measure in the political process of initiative lawmaking. To this question I would give a categorically negative answer. The extratextual power of federal and state courts to invalidate law at variance with the constitution’s command — now about 190 years old — may not be used to create a form of court-impressed censorship purging from open and public debate and excising from the marketplace of available ideas novel policy solutions that might meet with current judicial disfavor. Debates on constitutional issues are not judicially bannable from public fora nor are they outside the protection accorded political speech. Judicial pre-enactment scrutiny of proposed legislation for constitutional flaws raises an impermissible restraint on the free exercise of political speech.4 The Basic Charter of this Nation’s government, on which our legal order is rested, must not be misperceived as an infallible and hence unmentionable holy icon. Judges serve as stewards of constitutional purity in law, but do not also function as government agents enforcing constitutional orthodoxy upon the political process of lawmaking. Unlike enacted law, lawmaking in progress need not meet constitutional orthodoxy. The people of this State require no official censor to give his imprimatur for the content of a measure to be proposed by initiative petition.5 The judiciary’s self-imposed restraint from invading the arena of political decisionmak-ing should not be abandoned for the sake of preventing elections upon policy issues that courts may ultimately trump. Only in the clearest case of firmly settled and stable federal constitutional jurisprudence that absolutely condemns the proposed measure as facially impossible of enforcement, application or execution — and then only if the protestants have standing to complain of constitutional infirmity — would this court ever be justified in not clearing an initiative petition for submission to a vote of the people. This case falls far short of that category.

The court declares that the initiative measure under consideration — which would prohibit abortions except in four instances and would impose criminal penalties for the proposed law’s violation — does not qualify for submission to a vote of the electorate because it affords pregnant women less rights than those guaranteed them by the United States Constitution in Planned Parenthood v. Casey.6 The court waters down Threadgill, a vintage Oklahoma authority, which teaches that in advance of a measure’s adoption as law an initiative petition’s content may not be test*20ed in a judicial forum for constitutional conformity.

Because the court’s answer is contrary to that I would give today, I recede from its pronouncement. I would stand by the full force of Threadgill as viable precedent to protect the people from impermissible judicial restraint on free political speech; I would not let Casey trump this measure’s submission because protestants’ Casey challenge is barred by their lack of standing and by the prudential rule; I would scrutinize the initiative petition before us but only for compliance with the sine qua non procedural requirements for submission; I would hold today that if this measure is adopted, it will, when challenged on constitutional grounds, undergo the Casey test or some other test then in jurisprudential vogue.

I

LEGAL BARRIERS TO THE COURT’S USE OF THE CASEY TRUMP

A.

THREADGILL7 AND ITS PROGENY

Threadgill, which enjoyed full and unlimited sway from 1910 until 1975,8 teaches that an initiative petition need only pass a procedural threshold test to qualify for submission to a vote of the people. It must (a) be in substantial compliance with the sine qua non procedural requirements for submission and bear the requisite number of valid signatures, (b) address but a single subject9 and (c) be upon a subject not explicitly excluded from the people’s lawmaking power.10 Unless a fatal procedural impediment be found, the petition must be *21cleared for a vote. All constitutional challenges to the content must await the measure’s adoption as enforceable law and be presented in the context of a lively forensic controversy between antagonistic adversaries with legal standing to press challenges.11

Threadgill should he kept in full force because it raises a necessary barrier of insulation between judicature and initiative lawmaking. The former is a function of judges, the latter of the people.

B.

THE “PRUDENTIAL RULE”

The prudential rule of necessity, adhered to by all state and federal courts, commands that constitutional issues not be resolved in advance of strict necessity.12 Pre-enactment testing of proposed legislation clearly offends the prudential rule. Measures in the process of lawmaking are not subject to court-enforced constitutional orthodoxy.

I would not today relax the prudential rule to consider the protestants’ Casey challenge to an unenacted measure.

C.

PROTESTANTS LACK STANDING FOR A CASEY CHALLENGE

Were I now to depart from my firm commitment to Threadgill, I still could not join today’s rush to a constitutional judgment. Protestants do not meet either the federal or the state standards for standing to press their Casey challenge. No person can be adversely affected by, or have a litigable interest in, a measure that is not enforceable against anyone as law. No showing of actual or threatened injury can be made vis-a-vis a measure that is not law.

D.

OKLAHOMA’S STANDING REQUIREMENTS

Standing, the legal right of a person to challenge the conduct of another in a judicial forum,13 may be raised at any level of the judicial process or by the court on its own motion.14 It must be predicated on interest that is “direct, immediate and substantial.” 15 The concept of standing focuses on whether the party invoking the court’s jurisdiction has a legally cognizable interest in the outcome of the controver*22sy.16 A party seeking relief must show actual or threatened injury of some kind.17 The inquiry is whether the party has in fact suffered injury to a legally protected interest within the contemplation of statutory or constitutional provisions,18 Under these standards of our law protestants lack standing to assert a Casey challenge to an unenacted initiative measure.

E.

FEDERAL STANDING REQUIREMENTS

The standing doctrine imposes two types of restrictions on litigants seeking access to federal courts: “constitutional limitations on federal courts’ jurisdiction and prudential limitations on its exercise.”19 “In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit.”20 The requirement is met where the plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action_”21 The prudential aspect of the standing inquiry, like the constitutional aspect, derives fundamentally from “concern about the proper— and properly limited — role of the courts in a democratic society.”22 Generally, the plaintiff can only assert “his or her own legal interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”23 These limitations assure that a court does not issue “unnecessary pronouncement[s]” on constitutional issues 24 and that the issues before the court “will be concrete and sharply presented.”25

Federal standing requirements are aptly illustrated in Poe v. Ullman26 and Tileston v. Ullman.27 There the Court dismissed appeals on nonjusticiability and lack-of-threatened-prosecution grounds. The Poe plaintiffs sought to enjoin the enforcement of a criminal statute prohibiting the sale of contraceptives. Poe teaches that a litigant must show a threat of prosecution that is both real and immediate before a federal *23court may examine the validity of a criminal statute.28 There, nonjusticiability came to be rested on two factors — only one attempt to enforce the offending ban had been made during its seventy-five year history and the contraceptives were “commonly and notoriously sold in Connecticut drug stores.”29 If the Court in Poe refused to test the constitutionality of a criminal statute that went unenforced and “stood toothless” for decades, with what show of reason can this court today allow itself to probe into a measure that is not even law? Tileston,30 which is authority for the general and well-recognized principle that a litigant cannot have standing based upon the assertion of others’ rights,31 was reinforced in Warth v. Seldin.32 There the Court states that “even when the plaintiff has alleged injury sufficient to meet the ‘case or controversy’ requirement, ... the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.”33

*24Poe and Tileston illustrate that standing requires a “Hohfeldian plaintiff” — i.e., one with a personal interest that is threatened by the state.34 These protestants are non-Hohfeldian plaintiffs because they have no personal interest endangered by the une-nacted measure.35 They are not women whose intended termination of pregnancy is immediately threatened or impaired by state action in enforcing a constitutionally infirm criminal statute. I would not relax our standing requirements, identical to those in federal courts, to entertain the protestants’ Casey challenge.

II

WERE I NOW TO DEPART FROM MY UNSWERVING COMMITMENT TO THREADGILL AND WERE I ALSO TO IGNORE OUR STANDING DOCTRINE AND THAT OF THE UNITED STATES SUPREME COURT, I STILL COULD NOT JOIN THE COURT’S OPINION BECAUSE PRIMARY JURISDICTION OVER THE CONSTITUTIONAL VALIDITY OF THIS PROPOSED PENAL ANTI-ABORTION MEASURE IS REPOSED BY LAW IN THE COURT OF CRIMINAL APPEALS

A.

THE PROPOSED ANTI-ABORTION MEASURE IS A PENAL STATUTE WHOSE CONSTITUTIONAL FITNESS LIES WITHIN THE EXCLUSIVE JURISDICTION OF THE COURT OF CRIMINAL APPEALS

There is another reason to defer this measure’s consideration for constitutional testing until its adoption as law. The measure tested today in advance of its passage is at best a penal statute36 whose constitutional fitness lies within the exclusive jurisdiction of the Court of Criminal Appeals.37

Extant Oklahoma case law gives a clear exposition of the dichotomy that governs our civil and criminal appellate cognizance.38 The Court of Criminal Appeals *25has the exclusive power over matters incident or essential to the complete exercise of its appellate jurisdiction in criminal cases.39 In Walters v. Ethics Com’n.40 we abstained from taking jurisdiction over a matter relating substantially to criminal law or procedure. Final decisions upon the meaning of a penal enactment may not be made by any appellate tribunal other than the Court of Criminal Appeals.41 This applies with equal force to a criminal-law measure in progress of adoption by the initiative process.

B.

WHEN ON APPEAL OR IN AN ORIGINAL PROCEEDING AN ISSUE WHICH LIES WITHIN ANOTHER COURT’S JURISDICTION IS RAISED, IT MUST BE REFERRED TO THAT COURT UNDER THE PRIMARY JURISDICTION DOCTRINE

If this court should continue to test for constitutional conformity unenacted penal measures in initiative lawmaking process, it should defer the question at hand to the Court of Criminal Appeals. Two constitutional power sources would allow a criminal-law issue properly before us to be deferred to the Court of Criminal Appeals— Art. 7, § 6,42 and Art. 7, § 4, OkLConst.43 *26Section 6, which makes the Court of Criminal Appeals subject to the administrative control of the Oklahoma Supreme Court, gives us the authority to transfer either a whole case or a part of one. Under § 4’s constitutionally mandated division of appellate cognizance, whenever there is a dispute over a jurisdictional issue, this court decides which of the two tribunals shall take jurisdiction over the case.44

Our authority to certify an issue to another court may be likened to the primary jurisdiction doctrine that governs the allocation of cognizance between a federal court and one of the government’s administrative agencies.45 Primary jurisdiction doctrine is used where a claim is originally cognizable in federal courts. It comes into play whenever enforcement of the claim requires issues to be resolved which have been placed within the special competence and specialized knowledge of an administrative body.46 A district court’s judicial process will be suspended pending disposition of the deferred issues by the administrative body.47 This court appears to have invoked the primary jurisdiction doctrine without adopting it by name.48

Here, the doctrine of primary jurisdiction should be crafted to facilitate our jurisdictional co-existence with the other appellate court of last resort. The doctrine’s application would be necessary for this court to continue dealing with disputes which, although generally within its cognizance, call for a criminal-law analysis. An initiative petition contest is noncriminal. It cannot be transferred to the Court of Criminal Appeals. But the criminal-law aspect of this anti-abortion measure must undergo the other court’s criminal-law analysis. Its answer should be binding on us here.

The court invalidates today a proposed criminal statute. It could with no less show of reason also claim for itself the authority to validate a penal enactment. In so doing it might run into conflict with a later contrary pronouncement of the Court of Criminal Appeals. Wisdom counsels a course that would defer the criminal-law aspect of the Casey trump to the Court of Criminal Appeals.

Ill

CONSTITUTIONAL ORTHODOXY MAY NOT BE IMPRESSED ON THE POLITICAL PROCESS OF INITIATIVE LAWMAKING

The process of changing statutory law or the state’s constitution by initiative petition is a form of lawmaking. Lawmaking is a political process. Judges cannot police or censor that process for conformity to the constitution without raising an impermissible restraint on free exercise of political speech.49 Initiative process is not misused when it is invoked to advocate changes in the federal constitutional jurisprudence or to influence and press for congressional amendments to the United States Constitution. Even if Casey were to prove itself immortal and immutable, a popular assault on the Casey citadel is well within the protection of Art. 5, §§ 1-8, Okl. Const.— the state constitutional provisions for initiative lawmaking. Today’s opinion impermis-sibly imposes the rigidity of the current constitutional orthodoxy on the use of ini*27tiative process and prevents the people from having access to that genre of lawmaking as a legitimate means of testing the continued popularity of current political values to effect their legitimate change. Neither the federal constitution nor the United States Supreme Court’s exposition of that document is set in permanent stone. Today’s disregard for Threadgill’s rationale gives less latitude to the electorate’s effort at lawful change by political advocacy than does our own code of ethics for lawyers. That code specifically protects from judicial sanction a lawyer’s advocacy for a reasonable “extension, modification, or reversal of existing law.”50 We thus give lawyers a wider sweep of First Amendment freedom than we do to the sovereign electors of Oklahoma acting in the exercise of initiative lawmaking power. By denying their quest for an opportunity to test the constitutional frontiers of Roe51 and Casey52 the court deprives these pro-ponente of a legitimate means by which to press political advocacy.

Today’s decision trumps political process rather than law. Public debate on an unenacted measure and the electorate’s claim to its adoption is every bit as protected by § 2253 as is a proposed bill before either of the two legislative chambers. Although today’s axe strikes at a measure initiated outside the legislative chambers, the principle the court announces arms it with power also to require fundamental-law conformity — to be enforced without the usual procedural safeguards of the prudential rule and of standing requirements — of a bill in progress of enactment or of a state constitutional amendment proposed by the legislature under Art. 24, § 1, Okl. Const.54

Our fundamental law explicitly proscribes judicial tinkering with the election process. Art. 3, § 5,55 and Art. 2, § 4, Okl. Const.56 These constitutional provisions protect both the election and the right of franchise from excessive use of judicial *28power.57 Today’s Casey58 trump of the anti-abortion measure offends both Art. 3, § 5, and Art. 2, § 4.

SUMMARY

I must remain true to my commitment to the teachings of Threadgill. I would not in advance of submission and adoption test for constitutional orthodoxy the content of an initiative petition.59 The electorate's effort at legislating directly and its unenact-ed measures should not undergo judicial scrutiny unless the petition is attacked for noncompliance with the sine qua non procedural requirements for submission. Nor would I entertain federal constitutional challenges broader than those redressa-ble in federal courts when the case stands in a like forensic procedural framework. As I have done many times before,60 so once again today I appeal for the court’s return to the adjective-law regime that does not allow constitutional scrutiny of unenacted measures. Even if I were now to depart from my Threadgill commitment and also throw to the winds the teaching of standing, state and federal, and the prudential rule as well as all other barriers to deciding purely academic questions, I still could not join today’s opinion. This court lacks jurisdiction to test the constitutional fitness of a criminal statute. If it should persist on its path of policing unenacted penal measures for fundamental-law conformity, I would counsel that it invoke the primary jurisdiction doctrine to certify to the Court of Criminal Appeals the criminal-law aspect of the initiative controversy.

The court rests its decision on rather unstable United States constitutional jurisprudence that may change with each confirmation process.61 Today’s pronouncement deprives the proponents of a legitimate use of initiative lawmaking process to advocate a change in the federal constitutional jurisprudence or press for a congressional amendment that would redress their grievance. Lastly, I must counsel against today’s use of constitutional orthodoxy to raise an impermissible restraint on the free exercise of political speech.

. That status is secured by the terms of Art. 1, § 1, Okl.Const., which provide:

"The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land.”

. That principle is dealt with in the terms of Art. 2, § 1, Okl.Const., which provide:

"All political power is inherent in the people; and government is instituted for their protection, security, and benefit, and to promote their general welfare; and they have the right to alter or reform the same whenever the public good may require it: Provided, such change be not repugnant to the Constitution of the United States."

. Threadgill v. Cross, 26 Okl. 403, 109 P. 558 (1910).

. Advocacy for or against a proposed law is the purest form of political speech. Restraint upon free speech is prohibited by the terms of Art. 2, § 22, Okl.Const., which provide in part:

"Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; _’’

. The constitutional provisions governing the initiative and referendum are Art. 5, §§ 1-8, Okl.Const. Section 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.)

In Oklahoma Tax Commission v. Smith, Okl., 610 P.2d 794, 807 (1980), we stated that Art. 5, §§ 1, 2 and 7, together “comprise an initiative system whereby both the people and the Legislature may propose legislation independently, and neither can block the effort of the other during the process_” Our teaching in Smith applies with equal force to bar judicial as well as legislative interference with initiative process. Courts should be loath to impose judicial restraint on the electorate's power to make law. As the Arizona Supreme Court aptly remarked in State v. Osborn, 16 Ariz. 247, 248, 143 P. 117, 118 (1914), to place court-imposed restrictions “would be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other lawmaking body, the Legislature, would go untrammeled as to the legal soundness of its measures.”

. — U.S. -, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992).

. Supra note 3. My commitment to Threadgill, supra note 3, is reported in several prior decisions. See In re Initiative Petition No. 348, Okl., 820 P.2d 772, 781, 782 n. 4 (1991) (Opala, C.J., concurring in result); In re Initiative Petition No. 347, State Question No. 639, Okl., 813 P.2d 1019, 1037 (1991) (Opala, C.J., concurring); In re Initiative Petition No. 349, Okl., (No. 76,437, February 20, 1991) (Opala, C.J., concurring in part and dissenting in part); In re Initiative Petition No. 341, Okl., 796 P.2d 267, 275 (1990) (Opala, V.C.J., concurring in result); In re Initiative Petition No. 317, etc., Okl., 648 P.2d 1207, 1222 (1982) (Opala, J., concurring in the judgment); In re Initiative Petition No. 315, etc., Okl., 649 P.2d 545, 554-555 (1982) (Opala, J., concurring in result).

. In re Supreme Court Adjudication of Initiative Petitions in Norman, Oklahoma, Okl., 534 P.2d 3 (1975) [Norman], As I view Norman, its teaching is consistent with Threadgill but its language a bit broader than the holding. To me, Norman trumped an initiative measure that dealt with a subject excluded from the power of initiative lawmaking. My own analysis of Norman places that pronouncement well within Threadgill’s rationale. Post-Norman cases appear to assume our total departure from the teaching of Thread-gill.

Threadgill continues to meet with approbation of the Nation’s legal community. See the tentative report of the TIPS Task Force on Initiatives and Referenda (Tort and Insurance Practice Section of the American Bar Association), submitted August 11, 1992, where under subsection "B. Judicial Review of Proposal and Ballot Title” at page 14 the Task Force recommends that "Challenges to the substance of the initiative on general state or federal constitutional grounds should be permitted only after the election on the initiative at issue!’ (emphasis added) and then comments at page 17;

“Judicial review should not be available at this stage, however, for challenges on the basis of general state or federal constitutional issues, for instance, a challenge that the proposal, if enacted, would deny certain persons due process of law. These challenges, which may affect the desirability of the proposal, but are not directed to the specific qualifications for a ballot issue, may more appropriately be brought when and if the electorate enacts the proposal. While early determination of these issues may result in certain economies of judicial time if joined with other challenges, and would avoid the expenditure of funds for the election process on a proposition that is ultimately invalidated, the Task Force believed that these considerations were outweighed by a desire to avoid delay in the initiative campaign. Limiting litigation on these issues to post-election challenges is also consistent with the general principle that constitutional questions are to be avoided unless it is necessary to resolve them. Even where confronting constitutional issues seems inevitable, these questions should not usually be determined under conditions that permit only a limited time for reflection.” (Emphasis mine.)

. In re Initiative Petition No. 344, Okl., 797 P.2d 326, 330 (1990); In re Initiative Petition No. 342, Okl., 797 P.2d 331, 333 (1990).

. Norman, supra note 8; see also in this connection In re Initiative Petition No. 347, supra note 7 (Opala, C.J., concurring).

. See Grodin, In Pursuit of Justice at 106 (Univ. of Cal. Press 1989); Gordon and Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 Notre Dame L.R. 298, 302 (1989); see in this connection Grossman, The Initiative and Referendum Process: The Michigan Experience, 28 Wayne L.Rev. 77, 111 (1981); Note, The Judiciary and Popular Democracy: Should Courts Review Ballot Measures Prior to Elections?, 53 Fordham L.Rev. 919, 921-22 (1985).

. In re Snyder, 472 U.S. 634, 642-643, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-502, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1986); I.N.S. v. Chadha, 462 U.S. 919, 937, 103 S.Ct. 2764, 2776, 77 L.Ed.2d 317 (1983); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring); In re Initiative Petition No. 347, State Question No. 639, supra note 7 at 1037 (Opala, C.J., concurring); Smith v. Westinghouse Elec. Corp., Okl., 732 P.2d 466, 467 n. 3 (1987); Schwartz v. Diehl, Okl., 568 P.2d 280, 283 (1977); Dablemont v. State, Department of Public Safety, Okl., 543 P.2d 563, 564-565 (1975); see also Davis v. B.F. Goodrich, Okl., 826 P.2d 587, 593-594 (1992) (Opala, C.J., concurring); In re Initiative Petition No. 348, supra note 7 at 781, 782 n. 4 (Opala, C.J., concurring in result); Johnson v. Walters, Okl., 819 P.2d 694, 708, 712 n. 26 (1991) (Opala, C.J., concurring in part and dissenting in part); State ex rel. Okl. Bar Ass’n v. Lobaugh, Okl., 781 P.2d 806, 813 (1988) (Opala, J., dissenting); In re Initiative Petition No. 341, supra note 7 at 275 (Opala, V.C.J., concurring in result).

. State ex rel. Cartwright v. Okl. Tax Com’n, Okl., 653 P.2d 1230, 1232 (1982); Matter of Adoption of Baby Boy D, Okl., 742 P.2d 1059, 1062 (1987). "... [T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 497, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975).

. Matter of Estate of Doan, Okl., 727 P.2d 574, 576 n. 3 (1986) .

. Underside v. Lathrop, Okl., 645 P.2d 514, 517 (1982); Democratic Party of Oklahoma v. Estep, Okl., 652 P.2d 271, 274 n. 13 (1982); Matter of Estate of Doan, supra note 14 at 576.

. Application of State ex rel. Dept. of Transp., Okl., 646 P.2d 605, 609 (1982); Estep, supra note 15; Cartwright, supra note 13 at 1232; Independent School Dist. No. 9 v. Glass, Okl., 639 P.2d 1233, 1237 (1982); Doan, supra note 14 at 576. "... [WJhen standing is placed in issue in a case, the question is whether the person whose standing is challenged, is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." Mast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct.1942, 1952, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).

. O'Shea v. Littleton, 414 U.S. 488, 493-494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).

. Matter of Adoption of Baby Boy D, supra note 13 at 1062; Independent School Dist. No. 9 v. Glass, supra note 16 at 1237.

. Warth, supra note 13, 422 U.S. at 499, 95 S.Ct. at 2205.

. Warth, supra note 13, 422 U.S. at 498, 95 S.Ct. at 2205; Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976).

. Warth, supra note 13, 422 U.S. at 499, 95 S.Ct. at 2205) (citing, Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148-1149, 35 L.Ed.2d 536 (1973)); see, e.g., Data Processing Service v. Camp, 397 U.S. 150, 151-154, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). The constitutional prong requires, at the very least, an actual injury redressable by the court. Director, Office of Workers' Comp. Programs v. Perini North River Assocs., 459 U.S. 297, 305, 103 S.Ct. 634, 641, 74 L.Ed.2d 465 (1983).

. Warth, supra note 13, 422 U.S. at 498, 95 S.Ct. at 2205; see Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943).

. Warth, supra note 13, 422 U.S. at 499, 95 S.Ct. at 2205, citing, Tileston, supra note 22, and United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). The harm asserted cannot be a generalized grievance shared by the majority of the populace. Warth, supra note 13.

. Secretary of State of Md. v. J.H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 2846, 81 L.Ed.2d 786 (1984).

. Munson, supra note 24, 467 U.S. at 955, 104 S.Ct. at 2846, citing Baker v. Carr, supra note 16, 369 U.S. at 204, 82 S.Ct. at 703.

. 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961).

. Supra note 22.

. In Poe the Court held the constitutional challenge to a Connecticut penal statute banning the use of contraceptives presented no controversy justifying the adjudication of a constitutional issue. The plurality opinion based the appeal's dismissal on nonjusticiability for lack of a real and immediate threat of prosecution. Another opinion deemed the appeal to be dismissable for want of ripeness. Whether for want of justicia-bility or ripeness, the majority in Poe clearly found that case unfit for judicial consideration as a controversy. The appellants’ (married couples and their physician) complaints in these state declaratory judgment proceedings were held not to allege a threat of prosecution for use of or for giving advice concerning contraceptive devices. The allegations referred to a prosecutor’s statement that he intends to prosecute any breach of state law and to his claims that use of and advice concerning contraceptives would constitute criminal offenses. The lack of immediacy of the threat described by these allegations, the Court opined, might alone raise serious questions of nonjusticiability of appellants’ claims. See United Public Workers of American (C.I.O.) v. Mitchell, 330 U.S. 75, 88, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1946).

. Poe, supra note 26, 367 U.S. at 502, 81 S.Ct. at 1755.

. Supra note 22.

. There, a physician sought judgment declaring the state anti-abortion statute unconstitutional because it endangered the lives of certain of his patients and thereby violated their 14th Amendment rights. The U.S. Supreme Court dismissed the physician's appeal for lack of standing because he was not suing to vindicate his own legal rights under state law, but rather those of his patients. The physician alleged (a) that the statute, if applicable to him, would prevent his giving professional advice concerning the use of contraceptives to three patients whose health condition was such that their lives would be endangered by childbearing and (b) that the appellees, state law enforcement officers, intend to prosecute any offense against the statute and "claim or may claim” that the proposed professional advice would constitute such an offense. The complaint set out in detail the danger to the lives of the physician’s patients in the event that they should bear children, but contained no allegations asserting any claim under the 14th Amendment of infringement of the physician’s liberty or his property rights. In Tileston, the Court observed that ”[t]he sole constitutional attack upon the statutes under the Fourteenth Amendment is confined to their deprivation of life — obviously not [the physician’s] but his patients’. There is no allegation or proof that appellant’s life is in danger. His patients are not parties to this proceeding and there is no basis on which we can say that he has standing to secure an adjudication of his patients’ constitutional right to life, which they do not assert in their own behalf.” Tileston, supra note 22, 318 U.S. at 46, 63 S.Ct. at 494.

. Supra note 13.

. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474, 102 S.Ct. 752, 760, 70 L.Ed.2d 700 (1982) (quoting Warth, supra note 13, 422 U.S. at 499, 95 S.Ct. at 2205); United States v. Raines, supra note 23, 362 U.S. at 22, 80 S.Ct. at 523 (a litigant must generally assert his own constitutional rights and immunities). Without such limitations “the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.” Warth, supra note 13, 422 U.S. at 500, 95 S.Ct. at 2206.

Justice Black’s observations in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), are especially pertinent to this controversy:

“Ever since the Constitutional Convention rejected a proposal for having members of the Supreme Court render advice concerning pending legislation it has been clear that, even when suits of this kind involve a ‘case or controversy’ sufficient to satisfy the requirements of Article III of the Constitution, the task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of *24these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary.’’ Id., 401 U.S. at 52-53, 91 S.Ct. at 754 (emphasis added).

. “In a suit [against the Governor] for accounting [of expenditures from his legislative mansion allowances] petitioners [news reporters] would occupy the status of so-called 'non-Hoh-feldian’ plaintiffs, i.e. persons whose interest tendered for judicial vindication is neither personal nor proprietary." Oklahoma City News Broadcasters Ass’n v. Nigh, Okl., 683 P.2d 72, 78 n. 2 (1984) (Opala, J., concurring in result); see Flast v. Cohen, supra note 16, 392 U.S. at 119, 88 S.Ct. at 1962 n. 5 (Harlan, J., dissenting).

. There is a very narrow exception to the requirement for a Hohfeldian plaintiff — a taxpayer who complains of an unconstitutional tax levy. See Flast v. Cohen, supra note 16. The protestants in this abortion petition do not bring themselves within the narrow exception to the requirement for a Hohfeldian plaintiff.

. Section 4 of the proposed initiative measure provides:

“Section 4. Crime of Abortion and Punishments
(A)Except as provided in Section 5, a person commits the crime of abortion if:
(1) Such person performs an abortion upon another person; or
(2) Such person intentionally or knowingly aids or abets the performing of an abortion upon another person.
(B) Every natural person guilty of the crime of abortion is punishable by imprisonment in the penitentiary for not less than four (4) years.
(C) Any person, other than a natural person, guilty of the crime of abortion is punishable by a fine not less than Ten Thousand Dollars ($10,000.00) but not exceeding One Hundred Thousand Dollars ($100,000.00).” (Emphasis mine.)

. See State ex rel. Henry v. Mahler, Okl., 786 P.2d 82, 85-86 (1990); Carder v. Court of Criminal Appeals, Okl., 595 P.2d 416, 419 (1979); Anderson v. Trimble, Okl., 519 P.2d 1352, 1355 (1974); Hinkle v. Kenny, 178 Okl. 210, 62 P.2d 621, 622 (1936). See also Walters v. Oklahoma Ethics Com'n, Okl., 746 P.2d 172, 180 n. 8 (1987) (Opala, J., concurring). The Court of Criminal Appeals is not an utter stranger to appellate judicature addressing the validity of a criminal statute dealing with abortion. See, e.g., Jobe v. State, Okl.Cr., 509 P.2d 481 (1973).

. Oklahoma jurisprudence is based on judicial construction of Art. 7, § 4, Okl.Const., as well as on similar language of its pre-1967 counterpart in Art. 7, § 2, Okl. Const. The earlier version of § 2 was repealed by the 1967 amendment of Article 7, Okl.Const. (State Question No. 448, Legislative Referendum No. 164, adopted at election held July 11, 1967).

*25The terms of Art. 7, § 4, Okl.Const., provide in pertinent part:

'The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; except that the Court of Criminal Appeals shall have exclusive appellate juridiction in criminal cases until otherwise provided by statute and in the event there is any conflict as to jurisdiction, the Supreme Court shall determine which court has jurisdiction, and such determination shall be final...." (Emphasis mine.)

See Hinkle v. Kenny, supra note 37 at 622; Anderson v. Trimble, supra note 37; Corley v. Adair County Court, 10 Okl.Cr. 104, 134 P. 835, 836 (1913).

. See Hinkle v. Kenny, supra note 37 at 622, where this court reiterated its settled policy to follow the decisions of the Court of Criminal Appeals in matters of criminal law and the construction of criminal statutes. The stated purpose of this policy is to avoid "a conflict of opinions and decisions between the two courts." See also State ex rel. Henry v. Mahler, supra note 37 at 85-86; State ex rel. Ikard v. Russell, 33 Okl. 141, 124 P. 1092 (1912); Ex parte Buchanan, 113 Okl. 194, 240 P. 699 (1925); Ex parte Meek, 165 Okl. 80, 25 P.2d 54 (1933). In Ex parte Meek, supra 25 P.2d at 56, we said:

"Separate courts for the trial of criminal cases are common, as are separate appellate courts to entertain appeals in cases falling within these respective divisions. The settled and reasonable policy of the law is that there should be no conflicts in their jurisdictions or in their acts or decisions, where such conflicts are avoidable. The makers of our Constitution had this policy in mind and so indicated that this was their mind by using the term ‘exclusive appellate jurisdiction in criminal cases’ when they prescribed the jurisdiction to be given to the Criminal Court of Appeals.”

The Court of Criminal Appeals in Corley v. Adair County Court, supra note 38 134 P. at 836, acknowledged this doctrine, relying upon the principle that two bodies of equal density cannot occupy the same space at the same time.

. Supra note 37. In Walters the court abstained from deciding whether certain non-bank loans violated the Oklahoma Ethics Commission Act. Our refusal to there grant declaratory relief was rested on well-established principles of deference which must always control orderly interaction of civil remedies with criminal process.

. Ex parte Anderson, 33 Okl. 216, 124 P. 980, 981 (1912); Ex parte Meek, supra note 39; Hinkle v. Kenny, supra note 37; see Ex parte Barnett, 180 Okl. 208, 69 P.2d 643, 644 (1937); Corley v. Adair County Court, supra note 38; Hurst v. Pitman, 90 Okl.Cr. 329, 213 P.2d 877, 882 (1950).

. The pertinent terms of Art. 7, § 6, Okl.Const., are:

"Except with reference to the Senate sitting as a Court of Impeachment and the Court on the Judiciary, general administrative authority over all courts in this State ...is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules_” (Emphasis mine.)

. For the text of Art. 7, § 4, Okl.Const., see supra note 38.

. Carder, supra note 37 at 420.

. United States v. Western Pacific Railroad Co., 352 U.S. 59, 63, 77 S.Ct. 161, 164, 1 L.Ed.2d 126 (1956); Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303-305, 96 S.Ct. 1978, 1986-1987, 48 L.Ed.2d 643 (1976); Maislin Industries, U.S. v. Primary Steel, Inc., 497 U.S. 116, 110 S.Ct. 2759, 2762, 111 L.Ed.2d 94 (1990); Sears, Roebuck & Co. v. San Diego Cty., etc., 436 U.S. 180, 199, 98 S.Ct. 1745, 1758, 56 L.Ed.2d 209 (1978). ‘“The doctrine of primary jurisdiction does not necessarily allocate power between courts and agencies, for it governs only the question whether the court or agency will initially decide a particular issue, not the question whether court or agency will finally decide the issue.’” Sears, supra, 436 U.S. at 199, 98 S.Ct. at 1758 n. 29, quoting Professor Davis, 3 K. Davis, Administrative Law Treatise § 19.01, p. 3 (1958) (emphasis in original).

. United States v. Western Pacific Railroad Co., supra note 45; Nader v. Allegheny Airlines, Inc., supra note 45.

. United States v. Western Pacific Railroad Co., supra note 45.

. Stipe v. Theus, Okl., 603 P.2d 347, 349-350 (1979).

. For the terms of Art. 2, § 22, Okl. Const., see supra note 4.

. Rule 3.1, Rules of Professional Conduct, 5 O.S.1991, Ch. 1, App. 3-A, provides in pertinent part:

"A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law_” (Emphasis added.)

The pertinent terms of 12 O.S.1991 § 2011 are:

" * * * The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law_’’ (Emphasis added.)

Federal Rule 11, Federal Rules of Civil Procedure, states in part:

* * The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law....” (Emphasis added.)

. 410 U.S. 113, 163-64, 93 S.Ct. 705, 731-732, 35 L.Ed.2d 147, 182-183 (1973).

. Supra note 6.

. For the terms of Art. 2, § 22, Okl. Const., see supra note 4.

Our constitution’s initiative provisions not only guarantee the right to vote on a proposed measure, they also afford the people a valued opportunity to ventilate — i.e., to air issues in a free political debate. This court has a constitutionally mandated duty to uphold and safeguard free pre-election ventilation of political views. See In re Initiative Petition No. 314, Okl., 625 P.2d 595, 613 (1981) (Opala, J., concurring), where I observe that a measure’s submission too close to an election would deprive its proponents as well as the contestants of a fundamental right to inform the public about the merits and demerits of the issue before the electorate.

. The terms of Art. 24, § 1, Okl. Const., provide in part:

"Any amendment or amendments to this Constitution may be proposed in either branch of the Legislature ... and referred ... to the people for their approval or rejection....”

. Art. 3, § 5, Okl. Const., provides:

"All elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage, and electors shall, in all cases, except for treason, felony, and breach of the peace, be privileged from arrest during their attendance on elections and while going to and from the same.”

. Art. 2, § 4, Okl. Const., provides:

“No power, civil or military, shall ever interfere to prevent the free exercise of the right of *28suffrage by those entitled to such right.” (Emphasis added.)

. The right of a qualified elector to vote and have that vote counted is basic and fundamental. McCarthy v. Slater, Okl., 553 P.2d 489, 490 (1976); Sparks v. State Election Board, Okl., 392 P.2d 711, syllabus 1 (1964). See Jackson v. Maley, Okl., 806 P.2d 610, 623-624 (1991) (Opala, C.J., dissenting).

. Supra note 6.

. "The only options available as a remedy against invasive initiative power are (a) to curb — as Justice Mosk suggests — the people’s power to create chaos by constitutional amendment defining areas of regulation that lie outside the reserved power of initiative or (b) to act judicially and invalidate an actually adopted measure when it visits crippling damage to the operations of government by causing institutional paralysis." In re Initiative Petition No. 348, supra note 7 at 787 (Opala, C.J., concurring in result). See Kennedy Wholesale v. Bd. of Equalization, 53 Cal.3d 245, 279 Cal.Rptr. 325, 806 P.2d 1360, 1367 (1991) (Mosk, J., concurring), for Justice Mosk’s observations about the limits of the electorate’s power to legislate by initiative petition.

. See cases in supra note 7.

. As Justice Blackmun states in his dissenting opinion in Planned Parenthood v. Casey, supra note 6, — U.S. at -, 112 S.Ct. at 2843: "All that remained between the promise of Roe [supra note 51] and the darkness of the plurality was a single, flickering flame. Decisions since Webster [492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989)] gave little reason to hope that this flame would cast much light.... But now, just when so many expected the darkness to fall, the flame has grown bright. I do not underestimate the significance of today’s joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this court before Webster. And I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light." He further observes, “In one sense, the Court’s approach is worlds apart from that of the Chief Justice and Justice Scalia. And yet, in another sense, the distance between the two approaches is short— the distance is but a single vote. I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.” Id., supra, — U.S. at -, 112 S.Ct. at 2854. (Emphasis mine.)