In Re Initiative Petition No. 366, State Question No. 689 , 73 O.B.A.J. 1106 ( 2002 )

HODGES, J.

I. HISTORY

{1 May 10, 2000, Oklahoma State Senator Carol Martin and Oklahoma State Representative Ron Kirby (proponents) started a petition drive for Initiative Petition No. 366 ¹ to enact a new statute. The proposed statute designates English as Oklahoma's official language; requires all official documents, transactions, proceedings, meetings and publications of the State of Oklahoma and its political subdivisions to be in English only, requires the return to the general revenue fund of all money appropriated or designated for translation or printing materials in a language other than in English, and prohibits all future expenditure of funds for translation services and printing in a language other than English The petition provides for exceptions for conflicts with the federal constitution, laws, and regulations and with the Oklahoma Constitution. The petition makes an exception for educational institutions subject to rules adopted by the Board of Education and State Board of Regents.

12 Oklahoma's Attorney General, deeming the ballot title proposed by the proponents to be legally inadequate, submitted a substitute ballot title.² A protest to the signatures was lodged and then abandoned. Numerous protests and letters were submitted and have been considered by this Court.³ The proponents attempted to withdraw Petition No. 366 after it was submitted to the Secretary of State. The motion to withdraw the petition was denied. The matter is now before this Court on the merits. The proponents have declined to submit briefs to this Court.

II ISSUES

13 The issues in this case are: (1) whether this Court should conduct a pre-election review of Petition No. 366, and (2) whether Petition No. 366 is constitutionally flawed. We hold that it is appropriate for this Court to address the constitutionally of the petition and that the petition is constitutionally flawed.

III. PROPRIETY OF REVIEW

1 4 The right of initiative petition and referendum is a right protected by the Oklahoma Constitution and Oklahoma Statutes.⁴ This right is not without limitations.⁵ This Court has entertained pre-election attacks on initiative petitions to avoid costly and unneec-essary elections.⁶ As discussed below, Initiative Petition No. 366 is fraught with infirmities. It would be a disservice to the citizens of Oklahoma to submit a petition which could not withstand a constitutional attack to a state-wide vote.⁷

IV. BACKGROUND

15 Twenty-two states,⁸ as well as a number of municipalities,⁹ have English only laws. In contrast to Initiative Petition No. 366, most of the laws make English the official language of the governmental entity and are non-prohibitive, brief, and symbolic.¹⁰ Arizona adopted a constitutional provision similar to Petition No. 366.¹¹ The Arizona provision was labeled as one of the most restrictive state measures.¹² Petition No. 366 is even more restrictive than Arizona's provision. Like the Arizona provision, Petition No. 366 makes exceptions for conflicts with federal law. However, the Arizona provision made exceptions for protection of pub-lie health and safety and for the protection of the rights of criminal defendants. Petition No. 366 does not make these exceptions. The Arizona provision was declared unconstitutional by both the Court of Appeals for the Ninth Circuit¹³ and the Arizona Supreme Court.¹⁴

v. CONSTITUTIONAL IMPLICATIONS

T6 In an apparent attempt to avoid the constitutional infirmaries of the Arizona provision, Petition No. 366 makes a specific exception for conflicts with the United States and Oklahoma constitutions and with federal statutes and regulations.¹⁵ Petition No. 366 states that it should not be construed to limit the constitutional rights of "any citizen, state employee, private business or corporation . . . ," These two provisions are mere sur-plusage because a statutory provision that conflicts with either the United States Constitution or the Oklahoma Constitution is unenforceable.¹⁶ In assessing the First Amendment infringements of the Arizona provision, the Arizona Supreme Court and the Ninth Cireuit Court of Appeals did not consider the exception for conflicts with federal law as curing the constitutional abridge-ments.¹⁷

A. Free Speech and Right of Petition

17 We first note that the Oklahoma Constitution is more protective of speech than is the United States Constitution.¹⁸ Article 2, section 22 of the Oklahoma Constltutmn provides:

Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right: and no law shall be passed to restrain or abrldge the hberty of speech or of the press

Article 2, section 3 of the Oklahoma Constitution provides:

. The people have the right peaceably to assemble for their own good, and to apply to those invested with the power of government for redress of grievances by petition, address, or remonstrance.

18 In order to determine whether these constitutional provisions have been abridged, it is necessary to ascertain the exact impact of section B of Petition No. 366. Section B of the petition requires "[alll official documents, transactions, proceedings, meetings, or publications issued, which are conducted or regulated by, on behalf of, or representing the state and all of its political subdivisions shall be in the English language."

T9 Rules of statutory construction require words be given their plain meaning considering the context."¹⁹ ."Official" means "[plertaining to an office; invested with the character of an officer; proceeding from, sanctioned by or done by, an officer."²⁰ An "official act" is "[olne done by an officer in his official capacity under color and by virtue of his office." ²¹ Applying the rules of statutory construction, section B would prohibit all governmental communications, both written and oral, by government employees, elected officials, and citizens, of all words, even those which are of common usage, in any language other than English when conducting state business. This construction of section B is in keeping with the encompassing words of the petition.

T 10 By restricting all governmental communications to the Enghsh language, seetion B seeks to prevent citizens of limited English proficiency from effectively communicating with government officials and from receiving, when available, vital information about government. This restriction is prohibited by both sections 3 and 22 of article 2 of the Oklahoma Constitution.

111 In Gaylord, this Court discussed the importance of freedom of speech in the political context.²² The freedom of speech protected by section 22 and the freedom to petition the government for redress of grievances protected by section 3 are closely related.²³ Protection of these freedoms is an essential part of the right to participate in self-government.²⁴ Information and meaningful discussion are necessary for a self-governing society.²⁵ "There should be 'no potential interference' with a meaningful dialogue of ideas concerning self-government; nor should there be a threat of liability that causes self-censorship." ²⁶ These protections are afforded, not only the speaker but also the listener.²⁷ These rights apply equally to those proficient in the English language and those who are not.²⁸

112 It is difficult to envision a situation where these protections are more necessary than in communications between government officials, whether eléctees or employees, and citizens. Restricting all governmental communications to English prevents citizens who are of limited English proficiency from effectively communicating with their government. Even with the exceptions for constitutional conflicts, Petition No. 366 would disenfranchise segments of Oklahoma citizens by interfering with their ability to access vital information necessary for a self-governing society and cause self-censorship by inhibiting communications with government officials. Oklahoma Constitution. All of this in contravention of the

B. Vagueness

{13 The due process clause of the Oklahoma Constitution requires statutory prohibitions to be clearly defined.²⁹ Statutory prohibitions which are not clearly defined will be void for vagueness.³⁰ Laws must afford "[a] person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that [the person] may act accordingly."³¹

T 14 There are several inherent dangers of vague laws. Vague laws "may trap the innocent" by failing to provide fair warning.³² By failing to provide explicit standards, vague laws delegate basic policy matters to judges and juries for ad hoe resolution resulting in discriminatory enforcement.³³ A vague law restraining speech causes citizens to avoid lawful conduct for fear of entering the forbidden zone.³⁴ "[A] law which interferes with the right of free speech" is éubjecfc to heightened serutiny³⁵ because "[the threat of sanctions may deter [free speech's] exercise almost as potently as the actual application of sanctions."³⁶

(I 15 Very similar to Petition No. 866 is the classic example of an unconstitutionally vague statute: "It shall be a crime to say anything in public unless the speech is protected by the first and fourteenth amendments.³⁷ Such a statute is patently vague and will deter constitutionally protected conduct.³⁸ A vague statute's prohibitions become clear only after "courts [have] proceeded on a case-by-case basis to separate out constitutional from unconstitutional areas of coverage."³⁹ Because of its vagueness, Petition No. 366 would force citizens to refrain from exercising their right to freedom of speech. Thus, Petition No. 366, if adopted, would unconstitutionally abridge article 2, section 7 of the Oklahoma Constitution.

C. Non-delegation Doctrine

{16 Section C of Petition No. 366 allows the use of languages other than English in state-supported public schools under rules promulgated by the State Board of Education and the State Board of Regents for Higher Education "to promote the following principles." However, Petition No. 366 fails to provide any principles.

§17 Articles 4 and 5 of the Oklahoma Constitution provide the basis for Oklahoma's non-delegation doctrine. Article 4 addresses the separation of the three branches of government.⁴⁰ Article 5, section 1 ⁴¹ charges the Legislature with policymak-ing for the state.⁴² The non-delegation doe-trine prevents the Legislature from abdicating its policy-making role by delegating its authority to an ageney.⁴³ The Legislature "must establish its policies and set out definite standards for the exercise of any agency's rulemaking power."⁴⁴ The non-delegation doctrine applies to enactments by the people in the same manner it applies to enactments by the Legislature.

{18 Petition No. 366's omission of any principles leaves the fundamental policy-making function to the unbridled discretion of the State Board of Education and the Board of Regents for Higher Education.⁴⁵ This delegation of legislative authority would contravene articles 4 and 5 of the Oklahoma Constitution making Petition No. 366 unconstitutional if it were to be adopted.

VI. CONCLUSION

T19 Initiative Petition No. 366 is properly before this Court for substantive review. Petition No. 366 contravenes the Oklahoma Constitution. The petition unconstitutionally infringes upon the freedom of speech,⁴⁶ upon the freedom to petition the government for redress,⁴⁷ and upon the Legislature's policy-making function.⁴⁸ Thus, the Initiative Petition No. 366 is legally insufficient for submission.to a vote of the people of Oklahoma.

[20 In finding Initiative Petition No. 366 is constitutionally infirm, we are not requiring any Oklahoma governmental entity to provide services in languages other than English beyond what is presently required by law. The issues before this Court do not include the extent that government must accommodate non-English proficient citizens and residents. Further, we do not express the propriety of laws promoting English as an official language. That is not the duty of this Court. We hold only that the restrictions Petition No. 366 places on: constitutionally protected rights runs afoul of the Oklahoma Constitution.⁴⁹

INITIATIVE PETITION NO. 366 IS DECLARED LEGALLY INSUFFICIENT FOR SUBMISSION TO A VOTE OF THE PEOPLE OF OKLAHOMA.

{21 HARCRAVE, C.J., WATT, V.C.J., LAVENDER, KAUGER, BOUDREAU, WINCHESTER, JJ., concur. - 22 OPALA, J., dissents. 123 SUMMERS, J. not participating.

APPENDIX A

BE IT-ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

Section 1. NEW LAW. A new section of law to be codified in the Oklahoma Statutes as Section 40 of title 24 unless there is a duplication created in numbering to read as follows:

A. In order to encourage every citizen of this state to become more proficient in the English language, thereby facilitating participation in the economic, political, and cultural activities of this state and of the United States, the English language is hereby declared to be the official language of the State of Oklahoma.

B. Except as otherwise provided in subsection C of this section, the English language shall be the language of the government. All official documents, transactions, proceedings, meetings. or publications issued, which are conducted or regulated by, on behalf of, or representing the state and all of its political subdivisions shall be in the English language.

C. Languages other than English may be used when required by:

1. The United States Constitution, the Oklahoma Constitution, federal laws, or federal regulations.

2. Any state supported common school or institution of higher education of this state subject to rules governing the use of foreign languages in such public education systems adopted by the State Board of Education of (sic) Oklahoma State Board of Regents for Higher Education pursuant to the provisions of the Administrative Procedures Act to promote the following principles.

D. On and after January 1, 2001, any state moneys appropriated or designated for use to print or translate reading materials, providing of services or information in a language other than English shall not be expended for such purposes. The director, agency, board, or commission which has state moneys appropriated for such purposes shall:

1. Notify the Office of State Finance of the total amount of all such moneys under their control;

2. Follow procedures established by the Director of State Finance to immediately return all such moneys to the General Revenue Fund.

E. At the beginning of the Second Session of the 47th Oklahoma Legislature specifying the total amount of these moneys returned and available for reappropriation or redesignation. All moneys received pursuant to the provisions of subsection D of this section may be used to fund English As A Second Language programs.

F. The provisions of this Section shall not be construed to limit the ability of any citizen, state employee, private business, or corporation to exercise their rights pursuant to:

1. The Constitution of the United States of America, or

2. The Constitution of the State of Oklahoma.

APPENDIX B

This measure adds a new law to Oklahoma statutes. Under the measure the State could not spend funds to:

8. Print or translate reading material into a language other than English.

4. Provide services in a language other than English

5. Provide information in a language other than English.

The State would have to return any monies provided for these purposes to the State General Revenue Fund.

The measure makes English the official language of the State and State government. The measure requires all official State documents to be in English. It requires the State to conduct all its business in English. The same requirements would apply to counties, municipalities, and school districts. The State and these subdivisions could use languages other than English when required by:

1. The United States or State Constitution, or

2. Federal law or regulation.

Schools could also use other languages under rules approved by the Legislature.

SHALL THE PROPOSAL BE APPROVED:

FOR THE PROPOSAL-YES

AGAINST THE PROPOSAL-NO

1 . The full text of the Initiative Petition No. 366, numbered State Question 689, is at Appendix A.

2 . Okla. Stat. tit. 34, § 9(D)(a) (1991). The ballot title is attached as Appendix B.

3 . The Oklahoma Attorney General's motion to file a brief as amicus curiae was granted. The brief of the American Civil Liberties Union of Oklahoma Foundation, American Civil Liberties Union Foundation of Northern California, Inc., Mexican American Legal Defense and Education Fund, Asian American Legal Defense and Educational Fund, Employment Law Center of the Legal Aid Society of San Francisco and the brief of the Cherokee Nation are accepted as amici curiae briefs.

4 . Okla. Const. art. V, § 1, provides:

[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. Title 34 of the Oklahoma Statutes addresses initiatives and referendums.

5 . In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 35, 838 P.2d 1, 12.

6 . Id.

7 . Id.

8 . Ala. Const. amend. 509; Alaska Stat. §§ 44.12.300-.380 (1998); Ark.Code. Ann. § 1-4-117 (1987); Cal. Const. art. III, § 6; Colo. Const. art. II, § 30(a); Fla. Const. art. II, § 9; Ga.Code Ann. § 50-3-100 (1996); Haw. Const. art. XV, § 49 ("'English and Hawaiian shall be the official languages of Hawaii...."); Ill.Rev. Stat. ch. 5, para. 460/20 (1991); Ind.Code § 1-2-10-1 (1995); Ky.Rev.Stat. Ann. § 2.013 (Baldwin 1984); Miss.Rev.Stat. § 3-3-31 (1987); Mont. Code. Ann. § 1-1-510 (1995); Neb. Const. Art. 1, § 27, N.H.Rev.Stat. Ann. § 3-C:1 (1995); N.C. Gen.Stat. § 145-12 (1987); N.D. Cent.Code § 54-02-13 (1987); S.C.Code Ann. § 1-1-696 (1987); S.D. Codified Laws Ann. §§ 1-27-20, 1-27-22 (1995); Tenn.Code Ann. § 4-1-404 (1984); Va.Code Ann. § 7.1-42 (Michie 1996); Wyo.Stat. § 8-6-101 (1996).

9 . Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 994 (1998).

10 . Ark.Code. Ann. § 1-4-117 (1987) ("(a) The English language shall be the official language of the State of Arkansas. (b) This section shall not prohibit the public schools from performing their duty to provide equal educational opportunities to all children."); Colo. Const. art. II, § 30(a) (''The English language is the official language of the State of Colorado. This section is self executing; however, the General Assembly may enact laws to implement this section."); N.D. Cen. Code § 54-02-13 (1987) (''The English language is the official language of the state of North Dakota.").

11 . Ariz. Const. Art. XXVIII Article 28 was declared unconstitutional in Ruiz v. Hull, 191 Ariz. 441, 957 P.2d 984, 994 (1998), and in Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir.1995) (en banc), vacated on other grounds AOE v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), on remand, Yniguez v. AOE, 118 F.3d 667 (9th Cir.1997).

12 . Ruiz, 957 P.2d at 994.

13 . Yniguez, 69 F.3d at 920.

14 . Ruiz, 957 P.2d at 984.

15 . It appears the Arizona Supreme Court and the Ninth Circuit Court of Appeals did not construe the conflict with federal laws exception in the Arizona provision to include a conflict with the United States Constitution. Ruiz, 957 P.2d at 984; Yniguez, 69 F.3d 920. Because Petition No. 366 is a proposed statutory amendment rather than a proposed constitutional amendment, it is subject to invalidation based on the Oklahoma Constitution as well as the United States Constitution: Okla. Const. art. I, § 1; Reherman v. Oklahoma Water Resources Bd., 1984 OK 12, ¶ 22, 679 P.2d 1296, 1302.

16 . Reherman, 1984 OK 12 at 22, 679 P.2d at 1302.

17 . Ruiz, 957 P.2d at 984; Yniguez, 69 F.3d 920.

18 . Okla. Const. art. 2, § 22; Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 13 n. 23, 958 P.2d 128, 138 n. 23. Compare Oklahoma's protections with the First Amendment of the United States Constitution which states: "Congress shall make no law ... abridging the freedom of speech." In our analysis of Oklahoma's Constitution, federal authority is used solely for guidance. Our determination of the validity of Petition No. 366 is premised exclusively upon Oklahoma's Constitution and not upon federal constitutional considerations. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

19 . City of Tulsa v. State ex rel. Public Employees Relations Bd., 1998 OK 92, ¶ 14, 967 P.2d 1214, 1220.

20 . Black's Law Dictionary p. 978. (5th ed.1979).

21 . Id.

22 . Gaylord Entertainment, 1998 OK 30, ¶ 13 n. 23, 958 P.2d at 138 n. 23.

23 . Id. at ¶ 24 n. 52, at 142 n. 52.

24 . Id. at ¶ 14 n. 24, at 138 n. 4.

25 . Id. at ¶ 13, at 138.

26 . Id.

27 . Id.

28 . See Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

29 . Okla. Const. art. II, § 7, provides:

No person shall be deprived of life, liberty, or property, without due process of law.

30 . Grayned v. City of Rockford, 408 U.S. 104, 107, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

31 . Id.

32 . Id.

33 . Id.

34 . Id.

35 . Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

36 . NAACP v. Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963).

37 . L. Tribe, American Constitutional Law § 12-29, at 1031 (2d ed.1988).

38 . Id.

39 . Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964).

40 . Article 4, section 1 of the Oklahoma Constitution provides:

The powers of the 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.

41 . Article 5, section 1 of the Oklahoma Constitution provides:

The Legislative authority of the State shall be vested ina Legislature, consisting of a Senate and a House of Representatives....

42 . Democratic Party of Okla. v. Estep, 1982 OK 106, ¶ 16 n. 25, 652 P.2d 271, 277 n. 25.

43 . Tulsa County Deputy Sheriff's Fraternal Order of Police, Lodge Number 188 v. Board of County Comm's of Tulsa County, 2000 OK 2, ¶ 9, 995 P.2d 1124, 1128.

44 . Estep, 1982 OK 106 at ¶ 16, 652 P.2d at 277-78.

45 . See id.

46 . Okla. Const. art. II, § 22.

47 . Id. at § 3.

48 . Id. at art. IV, § 1; id. art. V, § 1.

49 . The proponents have submitted two cases from other jurisdictions in support of their position: (1) Alexander v. Sandoval, 531 U.S. 1049, 121 S.Ct. 652, 148 L.Ed.2d 556 (2001), and (2) Anderson v. Utah, Slip OP. NO. 000909680 (D.Utah 2001). In Alexander v. Sandoval, the United States Supreme Court held administering a driver's license examination only in the English language did not violate federal regulations prohibiting fund recipients from using discriminatory methods. Alexander does not support proponents position. Anderson v. Utah is a state district court case, reported by slip opinion, upholding Viah's "Official English" act against a constitutional challenge. The Utah Supreme Court had previously held that the purpose of the act was "to declare English to be the official language for the conduct of government business in Utah." Stavros v. Office of Legislative Research and General Counsel, 15 P.3d 1013, 1018 (Utah 2000). At issue in Stavros was the ballot title, not the constitutionality of the act. We are applying Oklahoma constitutional jurisprudence, the analysis by the Court in Anderson is inapplicable in this action.