with whom KAUGER and WINCHESTER, JJ., join, dissenting:
'T1 I respectfully dissent to the Court's decision finding no constitutional infirmity with Initiative Petition No. 408, The Court is presented with a clear example of logrolling-what Article XXIV, Section 1 of the Oklahoma Constitution intends to prevent. An extremely popular one-time pay raise for a group of state employees paired with other less popular tangentially related questions is repulsive to this constitutional provision. The plain language of Article XXIV, Section 1 requires each proposition in an initiative petition to be of one general subject. This proposed constitutional article to provide a pay raise for a small group of state employees, paired with an increase in funding for common education and higher education, a 1% sales tax, and the enhancement of the Board of Equalization's power is a perfect example of what Article XXIV, Section 1 was written to prevent. Even if logrolling were not the determinative issue, the proposed initiative petition impacts several other constitutional provisions in which allocations for salaries are delegated to the Legislature, and only the Legislature.1
T2 The Respondents admitted during oral argument that amending our founding doeument to give a pay raise to one group of state employees is unprecedented. Unprecedented may undersell this point. Stop and think about this proposal for a moment-our Constitution will be amended to grant a one-time pay raise to a group of state employees. Is constitutional amendment to become the new vehicle for pay raises for state employees going into the future? It is evident that this unprecedented constitutional pay raise is being proposed because it is the popular subject in this collection of independent and unrelated provisions. Without the pay raise provision, Initiative Petition No. 408 would likely stand no chance with the voters.
3 It is the duty of this Court to follow the rule of law and the Oklahoma Constitution. This. case is not simply an approval or disapproval of increasing pay for common education teachers of this state. If that were the case, it would sail through these challenges and be adopted by the people. I would send Initiative Petition No. 408 back to the Respondents and require the questions of a public-school-teacher pay raise, an increase in the state sales tax, the marriage of common education and higher education, and an increase in the Board of Equalization's powers to be presented to the voters as separate conditional propositions.
{4 Three impediments exist as Initiative Petition No. 403 is written currently. Initiative Petition No. 408 violates Article XXIV, Section 1 of the Oklahoma Constitution, violates Oklahoma's separation of powers as set out in the Constitution, and deceives the voters by failing to identify each erucial change to be voted on in the gist. We address each impediment in turn. -
*481I. Initiative Petition No. 403 Violates Article XXIV, Section 1
15 Amendment by initiative petition is a long-held right to Oklahomans, enshrined in the Constitution. See Okla. Const. art. V, § 1; Okla. Const. art, XXIV, §§ 1, 8. "We cannot undervalue the importance of the constitutional right, under the Oklahoma Constitution, to initiative and referendum." In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 19, 838 P.2d 1, 8. But the Constitution has imposed upon this Court the duty and responsibility to " 'see the petitions for change actually reflect the voters|'] intent and comply with the requirements set out in both the Constitution and. statutes." Id. ¶ 14, 838 P.2d at 7 (quoting In re Initiative Petition No. 344, State Question No. 630, 1990 OK 75, ¶ 16, 797 P.2d 326, 330). I believe the Court must begin with Article XXIV, Section 1 of the Oklahoma Constitoution:
No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than one general subject and the voters shall vote separately for or against each. proposal submitted; provided, however, that in the submission of proposals for the amendment of this Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition.
Okla. Const. art. XXIV, § 1.
'a. The controlling test
16 Following Article XXIV, Section 1, a proposed amendment or article to the Constitution must embrace only one general subject. Our case law has clarified the test the Court must apply:
"If the different changes contained in the proposed. amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But if it is not such that the voter supporting [the amendment] would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the constitutional prohibition."
In re Initiative Petition No. 344, 1990 OK 75, ¶ 8, 797 P.2d at 329 (quoting In re Initiative Petition No. 314, State Question No. 550, 1980 OK 174, ¶ 62, 625 P.2d 595, 603-04). Put another way, "Ivloters should not have to adopt measures of which they really disapprove in order to embrace propositions that they favor ... [or that] are not so related that a voter supporting one of the proposed measures can Feasonably be expected to support all of the changes." In re Initiative Petition No. 342, State Question No. 628, 1990 OK 76, ¶ 10, 797 P.2d 331, 333. This controlling test applies to initiative petitions proposing new articles, repealing and replacing articles, and proposing amendments. The plain language of Article XXIV, Section 1 makes no distinction.
.17 The Court fails to tackle our case law as it is written, and it instead picks and chooses the law it follows, The Court has long since backed away from the test announced in Rupe v. Shaw, 1955 OK 223, 286 P.2d 1094, as the controlling test for initiative petitions by article-doing so multiple times. See In re Initiative Petition No. 344, 1990 OK 75, 797 P.2d at 330; see also In re Initiative Petition No. 342, 1990 OK 76, ¶ 4, 797 P.2d at 333 (following In re Initiative Petition No. 314, 1980 OK 174, 625 P.2d at 595, not Rupe); In re Initiative Petition No. 382, 2006 OK 45, ¶¶ 13-14, 142 P.3d 400, 407-08 (failing to recognize the "germaneness" test and instead applying the plain language of Article XXIV, Section 1, "one general subject"). The Court does not take these cases into account, instead relying on older cases from the early 1980s and a 1996 opinion which I read as an aberration from our "one general subject" jurisprudence. The "ger-maneness" test the majority applies grossly ignores the plain language of Article XXIV, Section 1. In re Initiative Petition No. 344 and In re Initiative Petition No. 342 follow the plain language of Article XXIV, Section 1, It is an approach I whole-heartedly en*482dorse and believe this Court would be wise in applying today. - © |
b. Applicatioh of the controlling test
T8 Initiative Petition No., 408 embraces a multitude of distinct subjects; three subjects alone violate the "general subject rule" of Article XXIV, Section 1: common education, higher, education, and new power to the Board of Equalization. The Court must be on guard for logrolling in initiative petitions because to force voters to adopt a provision they do not support in order to adopt one they do is the very purpose of Article XXIV, Section 1. The Court's opinion sums it up perfectly:
For example, if a voter agrees that the Oklahoma Education Improvement Fund should be created but does not agree that an additional one-cent sales tax is appropriate funding mechanism to do so, then the voter inns}; choose whether to approve the proposition based on such considerations.
Majority Opinion, 112, While the Court attempts to argue that the choice is left to the voter, its argument perfectly encapsulates the very ill Article XXIV, Sec‘aon 1 seeks to prevent: logrolling.
T9 The Respondents argue that the one general subject of Initiative Petition No. 408 is Oklahoma Education Improvement, One immediate problem with this general subject is that is marries common education and higher education. Oklahoma has not before treated the two as similar subjects. Since the founding of our state, we have separated common education and higher education and treated them as "entirely different subjects, the one to the University, the other to the public or common schools of the state." Regents of Univ. of Okla. v. Bd. of Educ., 1908 OK 67, ¶ 6, 95 P. 429, 430 (internal quotation marks omitted). The Oklahoma Constitution establishes common education in Article XIII. Okla. Const. art. XIII. Oklahoma voters set out higher education in new articles, XIIIA and XIIIB, in the Oklahoma Constitution in the 1940s. Okla. Const. art. XIIIA; Okla. Const. art. XIIIB. The Board of Education and the Superintendent of Public Instruction - supervise - common - education. Okla. Const. art. XIII, § 5. The Board of Regents supervise higher education. Okla. Const. art. XIIIB, § 1.
'T10 I take issue with Petitioner's neatly spun buzzwords, Oklahoma Education Improvement, as the subject is merely a catchall for the myriad of topics in the petition before the Court. One need only look to two of the Court's previous cases to understand why. We have twice recently addressed initiative petitions that seek to improve state government. The first is In re Initiative Petition No. 344, 1990 OK 75, 797 P.2d 326, a case that can be easily summarized as executive branch improvement. The second is In re Initiative Petition No. 342, 1990 OK 76, 797 P.2d 331, a case whose general subject could be identified as (Corporation Commission improvement.
¶ 11 In In re Initiative Petition No. 344, the Court examined an initiative petition by article, one that proposed to rework the executive branch or executive branch improvement. 1990 OK 75, ¶ 9, 797 P.2d at 329 (proposing to address "the method of the election of the Lt, Governor ... to changing the Executive Branch to cabinet form of government, to repealing the constitutional authority for certain boards"). The Court rejected the proposed general subject, executive branch improvement, writing that the petition "simply does not give the voters a choice. Voters who may be in favor of changing the method of electing a Lt. Government are compelled to accept a cabinet form of government...." Id. ¶ 11, 797 P.2d at 329-30.
112 In In re Initiative Petition No. 342, the Court again examined an initiative petition by article, a proposal that would rework the Corporation Commission, Corporation Commission improvement. 1990 OK 76, ¶ 7-8, 797 P.2d at 333. The Court cut through the proposed general subject, identifying the "only connection that these topics have to each other is that they all tangentially relate to the general subject of corporations." 2 Id. The Court must look beyond the *483general subject proposed to determine if the topics the initiative petition seeks to alter are truly one general subject,. Simply because proponents could identify a common trait did not satisfy the constitutional test. And here, the proponents of Initiative Petition No. 408 seek to put forward the general subject of Oklahoma Education Improvement. - But digging into the topics in the initiative petition (pay raise for common education teachers, college prep funding, career tech funding, higher education funding, increase in sales tax, and additional power to the Board of Equalization), it becomes clear that voters would be forced to adopt measures of which they readily disapprove in order to embrace the popular teacher pay-raise proposal. A proposition argued by the Court in its opinion nonetheless, I refuse to buy into the Respondent's overly broad subject as each topic is only tangentially related to Oklahoma Education Improvement.
IIL Initiative Petition No. 403 Violates Oklahoma's Separation of Powers
118 Initiative Petition No. 408 contains within it an enhancement of power for the Board of Equalization. The Board of Equalization is tasked with ensuring "that the monies from the Oklahoma Education Improvement Fund are used to enhance and not supplant funding for education," allowing the Board to "examine and investigate appropriations from the Fund each year." Initiative Petition No. 408, § 5(c). The enforcement mechanism in Section 5 is where the constitutional impediment raises its head. |
If the State Board of Equalization finds that education funding was supplanted by monies from the Oklahoma Education Improvement Fund, the State Board of Equalization shall specify the amount by which education funding was supplanted. In this event the Legislature shall not make any appropriations for the ensuing fiscal year until an appropriation in that amount is made to replenish the Oklahoma Education Improvement Fund,
Id. The Board of Equalization 'can effectively shut down the' Oklahoma Legislature. Counsel for Respondents directly admitted as much in oral argument
14 The Oklahoma Constitution provides that "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." Okla. Const. art. IV, § 1. The Legislature has the constitutional power to make appropriations for the support of common schools of the state and appropriations to higher education. Okla. Const. art. XIL, § 1a; Okla. Const. art. XIIIA, § 8. The State Board of Equalization, on the other hand, is an executive board Okla. Const. art. X, § 21.
[ 15 The Court examined a similar issue in Fent v. Contingency Review Board, 2007 OK 27, ¶ 1, 163 P.3d 512, 516, In Font, the Legislature created a three-person mandatory review board, that included two legislative members, and gave it oversight and the ability to approve or deny the use of appropriated funds as expenditures over a specific state fund. Id. ¶ 14, 163 P.3d at 524. The Court held that the review board created continued legislative control over enacted appropriations which offended the constitutional concept of separated powers and was a usurpation of executive power. Id. ¶ 15, 163 P.3d at 523. The Court noted that “[p]ass1ng an appropriation bill is clearly a legislative lawmaking function while the administration of appropriated funds is a purely executive task." Id. ¶ 12, 163 P.3d at 521. In the present case, Initiative Petition 408 would give an executive board control over appropriations, a clear legislative function, in violation of the concept of separation of powers as *484outlined in the Oklahoma Constitution. And as Initiative Petition No. 408 contains no repeal of the legislative power being taken by the Board of Equalization, the Initiative Petition is in direct conflict with Article V of the Oklahoma Constitution, the power of the legislative branch.
T 16 Despite Respondents' argument to the contrary, this Court can examine any constitutional infirmity in an initiative petition.3 Part of the Court's constitutional duty is to examine these constitutional concerns in initiative petitions to "prevent the holding of a costly and unnecessary election." Initiative Petition No. 349, 1992 OK 122, ¶ 18, 838 P.2d at 8. It is the responsibility of this Court to examine all possible constitutional infirmities of the petition to prevent the people from voting on an unconstitutional amendment. See id. While a similar mechanism exists for the Board of Equalization to oversee the Legislature's use of the lottery funds, that system has never been challenged. And to close our eyes to a constitutional infirmity simply because no problem or challenge has arisen with the Board of Equalization's oversight of the lottery-funds process would be a dereliction of this Court's constitutional duty. The question is now squarely before the Court to decide.
[ 17 The usurpation of legislative power by the Board of Equalization is glaring in Initiative Petition No. 408. Unfortunately, the Court turns a blind eye to these constitutional infirmities by relying on In re Initiative Petition No. 358, State Question No. 658, 1994 OK 27, 870 P.2d 782. This support is unpersuasive as the Court in In re Initiative Petition No. 358 made the same mistake-it chose to punt on a question of constitutionality; "Although .it is conceivable that the implementation of the proposed measure may result in an unconstitational usurpation of the legislative power of appropriation, we refrain from further consideration of this argument because implementation cannot be discerned from the face of the proposed measure." 1994 OK 27, ¶ 9, 870 P.2d 782, 786. The Court is onee again punting on a clear constitutional issue, the violation of the separation of powers between the executive and legislative 'branches of government. This issue should not be left for another day, but should be addressed here and now.
18 In a future budget year, where failure of revenue will require the Legislature to make cuts across the board to all agencies, the Legislature will cut common education and higher education at its own peril due to the powers now given to the Board of Equalization. -If the Board of Equalization does not approve of the Legislature's decisions on education appropriations, then the Board of Equalization can shut down the entire legislative branch of government until it follows the command of an executive branch entity. We may very well see the Legislature grind to a halt as the Board of Equalization test-drives its new power.
' 19 There is a reason that a state employee pay raise through constitutional amendment has never been utilized before. The Oklahoma Constitution sets forth precise appropriations procedures for the Legislature to utilize, and the Legislature only,. This proposed provision thwarts a core function of the Legislature and clashes with other constitutional provisions which control the appropriations process. See Okla. Const. art. 5, §§ 55-56;4 Okla, Const, art. 18A, § 8;5 *485Okla. Const. art. 18, § 1A.6 In essence, Initiative Petition No. 408 contains internal logrolling and causes external logrolling of other relevant constitutional provisions.
IH. Initiative Petition No. 403 Violates Title 34, Section 3 of the Oklahoma Statutes
1 20 The final problem with Initiative Petition No. 408 is with the gist or proposed ballot title.7 Title 34, Section 8 of the Oklahoma Statutes requires initiative petitions to contain a "simple statement of the gist.of the proposition," and in no more than 200 words (for the ballot title), explain the changes in the proposition. The Court must examine the gist with the purpose of Title 34, Section 3 in mind: "to prevent deceit and fraud." In re Initiative Petition No. 342, 1990 OK 76, ¶ 11, 797 P.2d at 333; see 34 O.S. Supp. 2015, § 9(B)(1). "[Nloncompliance is fatal." In re Initiative Petition No. 342, 1990 OK 76, ¶ 11, 797 P.2d at 333.
©1121 This Court can examine the gist before the petition has even been put before potential signatories as the Legislature "has deemed the gist a necessary part of the pamphlet and we are not at liberty to ignore that requirement." In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, ¶ 13, 164 P.3d 125, 130. In In re Initiative Petition No. 384, the Court held that. the petition in question did not satisfy the statutory requirement for the gist before the petition was put before voters. Id. The initiative petition at issue added a new section to the Oklahoma Statutes on schools that required 65% of operational expenditures to be used for "classroom instructional expenditures." Id. ¶ 1, 164 P.3d at 126. The gist did not state the legislative sanctions imposed on "non-conforming schools and the possibility of waivers by the state superintendent." Id. *486¶ 11, 164 P.3d at 129. Because this information was not identified to voters, "a potential signatory, looking only at the gist, did not have sufficient information to make an informed decision about the true nature of the proposed legislation." Id. ¶ 12, 164 P.3d at 130.
122 As currently written, the gmst does not alert the voters to each change in Initiative Petition No. 403. The biggest problem is the gist's description of the Board of Equalization's power: Initiative Petition No. 403 "requires that monies from the fund not supplant or replace other education funding." Initiative Petition No. 403, Gist. The new powers given to the Board of Equalization have already been highlighted and clearly .are not addressed by the one minor sentence in the gist. The gist is easily deceitful to the voters in this. respect and must fail. Just as in In re Initiative Petition No. 384, a potential signatory or voter would not have sufficient information to make an informed decision about the true nature of Imtlatwe Petition No. 403.
~ {23 The gist also lumps common and h1gher education into what it calls "public education." - Public education, or public schools, has. long referred to. common education, not college,. See Regents of Univ. of Okla., 1908 OK 67, ¶ 6, 95 P. at 430. Voters would not be able to discern how Initiative Petition No. 403 marries common education and higher education for the first time in this state. The gist is dead on arrival." Along with the un-constltutxonahty of Initiative Petition No. 403, the gist or proposed ballot title deceives potential signatories and potential voters. I would send Initiative Petition No. 403 back to the Respondents as the gist does. not satisfy the statutory requirements set out by the Legislature.
CONCLUSION
€24 Public support for a public-schoolteacher pay raise is very high in this state. I could not agree more that it is a noble goal and purpose. Yet this Court has an obligation to follow the rule of law and the Constitution. And when such a well-supported measure is used as a Trojan horse to add provisions into the Constitution which are only tangentially related to public-schoolteacher pay raises, the Constitution and the Court become the gatekeepers. The voters should decide these issues, but they should not be forced to support public-school-teacher raises along with an increase in the sales tax, the marriage of common education and higher education, and an increase in the power of the Board of Equalization all in one vote, I respectfully dissent.
I have been authorized to state that Justices KAUGER and WINCHESTER join in this writing.
. Appropriations are exclusive to the legislature and as a fundamental principle, may not be delegated to any executive or administrative officer. To do so would violate not only Article V, Section 55 of the Oklahoma Constitution, but also Article I, Section 4, "by which the government is divided into three separate and distinct departments." Wells v. Childers, 1945 OK 365, ¶ 36, 196 Okla. 353, 165 P.2d 371, 376. " The Legislature, unless prohibited by the Constitution, has a right to declare fiscal policy'" In re State Bldg. Bonds Comm'n, 1950 OK 45, ¶ 10, 202 Okla. 454, 214 P.2d 934, 937 (quoting Ward v. Bailey, 198 Ark. 27, 127 S.W.2d 272, 278 (1939)).
. If the Court's jurisprudence followed Rupe and In re. Initiative Petition No. 319 as the Court *483proposes, in the executive branch and Corporation Commission improvement cases, a tangentially related subject would suffice. The Court used those words, rangential relation, when noting a concession by the challenging party in In re Initiative Petition No. 363, State Question No. 672, 1996 OK 122, ¶ 14, 927 P.2d.558, 566, that the subjects were of one general subject. It is the only time in our jurisprudence those words are used to relate topics to "one general subject"; in our other case law, tangential relation is used to indicate subjects which do not meet Article XXIV, Section 1's requirement. I believe the Court used the incorrect test in In re Initiative Petition No. 363, but the Court's result was correct under the controlling test the Court has long followed and I follow here.
. It is also relevant to note that the Court has long ago dispensed with the requirement that a challenge to an Initiative Petition cannot be heard until it has been put before the voters; a 'rule first announced in Threadgill v. Cross, 26 Okla. 403, 109 P. 558, 562 (1910), that "the constitutionality of an initiative petition is not subject to review prior to its enactment by the voters." Initiative Petition No. 349, 1992 OK 122, ¶ 26, 838 P.2d at 10. We cannot (and should not) go back to the Threadgill rule and allow Oklahoma voters to believe that their "votes on matters of intense public concern count, when this Court is already fully aware that the proposed measure is subject to being struck down as unconstitutional." Id. ¶ 32, 838 P.2d at 10.
. Article V, Section 55 provides:
No money shall ever be paid out of the treasury of this State, nor any of its funds, nor any of the funds under its management, except in pursuance of an appropriation by law, nor unless such payments be made within two and one-half years after the passage of such appropriation act, and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated and the object to which it is to be *485applied, and it shall not be sufficient for such law to refer to any other law to fix such sum.
Article V, Section 56 provides:
The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial. departments of the.State, and for interest on the public debt. The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless his employment and the amount of his salary, shall have been already provided for by law. All other appropriations shall be made by separate bills, each embracing but one subject.
. Article XIIIA, Section 3 provides:
The appropriations made by the Legislature for all such institutions shall be made in consolidated form without reference to any particular institution and the Board of Regents herein created shall allocate to each institution according to its needs and functions.
. - Article XIII, Section 1A provides:
The Legislature shall, by appropriate legislation, raise and appropriate funds for the annual support of the common schools of the State to the extent of forty-two ($42.00) dollars per capita based on total state-wide enrollment for the preceding school year. Such moneys shall be allocated to the various school districts in the manner and by a distributing agency to be designated by the Legislature; provided that nothing herein shall be construed as limiting any particular school district to the per capita amount specified herein, but the amount of state funds to which any school district may be entitled shall be determined by the distributing agency upon terms and conditions specified by the Legislature, and provided further that such funds shall be in addition to. apportionments from the permanent school fund created by Article XI, Section 2, hereof.
. The proposed ballot title is as follows:
This measure adds a new Article to the Oklahoma Constitution. The new Article creates a limited purpose fund to improve public education. It levies a one cent sales and use tax to provide revenue for' the fund. It allocates funds for specific institutions and purposes related to the improvement of public education, such as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, to increase high school graduation tates, college and career readiness, and college affordability, improving higher education and career and technology education, and increasing access to voluntary early learning opportunities for low-income and at-risk children. It requires an annual audit of school districts' use of monies from the fund. It prohibits school districts' use of these funds for administrative salaries. It provides for an increase in teacher salaries. It requires that monies from the fund not supplant or replace other education funding. The Article takes effects [sic] on the July 1 [sic] after its passage.
Initiative Petition No. 403, Proposed Ballot Title. The gist of Initiative Petition No. 403 is identical .to the proposed ballot title with the exception of the last sentence of the proposed ballot title. The analysis therefore is the same. See In re Initiative Petition No. 384, State Question No. 731, 2007 OK 48, ¶ 7, 164 P.3d 125, 129.