OCPA IMPACT, INC. v. SHEEHAN

comBs, vos.

FACTS AND PROCEDfiRAL HISTORY

1 On October 21, 2015, Respondents/Proponents Shawn Sheehan, Linda Reid, and Melvin Moran (Respondents) filed Initiative Petition No. 403 (State Question No. 779), with the Oklahoma Secretary of State. The petition seeks to amend the Oklahoma Constitution by adding a new Article 18-C. The proposed article creates the Oklahoma Education Improvement. Fund, designed to provide for the improvement of public education in Oklahoma through an additional one-cent sales and use tax. Funds generated by the one-cent tax would be distributed to public school districts, higher education institutions, career and technology centers, and early childhood education providers for certain educational purposes outlined in the proposed article, Additionally, a percentage of the funds would be used to provide a $5,000.00 pay raise to all public school teachers. The proposed article delegates oversight and auditing- responsibilities to the State Board of Equalization and requires monies allocated from the Fund to be used by the Legislature to enhance and not supplant current public education appropriations. The Respondents' proposed ballot title reads 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 rates, college and career readiness, and college affordability, improving higher education and career 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 after its passage.

Initiative Petition No. 403, Proposed Ballot Title.

T2 On November 12, 2015, Petitioners OCPA, Inc. and David Bond (Petitioners) filed an Application to Assume Original Jurisdiction in this Court. They raised a single constitutional challenge to the initiative measure, arguing the petition is unconstitutional because it violates the one general subject rule of Art. 24, § 1 of the Oklahoma Constitution. After hearing arguments from the parties and upon consideration, this Court assumed original jurisdiction and held on January 12, 2016, the Initiative Petition No. 403 embraces one general subject and did not violate Art. 24, § 1 of the Oklahoma Constitution. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1, 367 P.3d 472. We determined Initiative Petition No. 408 is legally sufficient to submit to the voters of this state, and the proponents of the petition may proceed with the remaining statutory requirements. We also noted, the Petitioners did not challenge the gist of the measure in that proceeding. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 1 at ¶ 2, n. 2, 367 P.3d 472.

T8 Pursuant to 34 0.8. Supp. 2015, § 8, the Secretary of State thereafter set the signature gathering period to begin February 16, 2016, and end at 5:00 pm. May 16, 2016, The signature requirement at that time was 123,725. The Respondents completed the signature process timely and on April 21, 2016, the Secretary of State notified the Respondents it had received the boxes of pamphlets ¹ and set the counting process to begin on April 25, 2016. On April 22, 2016, the Secretary of State, pursuant to 34 0.8. Supp. 2015, § 9 (D), submitted the Respondents' proposed ballot title to the Attorney General. On April 29, 2016, the Attorney General, pursuant to 34 0.8. Supp. 2015, § 9 (D) (1) concluded the proposed ballot title did not comply with applicable laws for the following reasons:

1. It fails to explain that the one cent sales and use tax contemplated by the measure will be in addition to the state sales and use tax already levied by the Oklahoma Sales and Use Tax Codes.

2. It suggests that allocated funds will, in part, be used to improve college affordability, when the measure indicates that the funds may be used for college affordability or for otherwise improving higher education. That is, funds may be allocated in whole, in part, or not at all for college affordability. ,

8. It fails to explain that the increase in teacher salaries as funded by Section 8(A) (F) (b), and as requited by Section 4 of the new Article, requires that teacher salaries be' raised by at least $5,000 more than the salaries paid in the year prior to adoption.

4, -And, finally, it inaccurately states that 'it prohibits school districts' use of funds for increasing administrative | salaries, when the measure is more limited in that it only prohibits an increase in superintendents' salaries and the addition of superintendent positions.

The Attorney General also submitted his own preliminary ballot title which reads as follows: ‘

This measure adds a new Article to the Oklahoma Constitution. The new Article creates a limited purpose fund to improve public education. To provide revenue for the fund, the state sales and use tax are increased by one cent. It allocates funds for purposes related to the improvement of public education, such as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, increasing high school graduation rates, and college and career readiness. It also allocates funds for improving higher education, improving career and technology education, and increasing access to voluntary early learning opportunities for low-income and at-risk children,. It- requires that the teacher salary increases funded by this measure raise teacher salaries by at least $5,000 over the salaries paid in the year prior to adoption of this measure. It requires an annual audit of school districts' use of monies: from the fund. It prohibits school districts' use of these funds for increasing superintendents' salaries or adding superintendent positions. It requires that monies from the fund not supplant or replace other educational funding. The Article takes effect on the July 1 after its passage.

{4 On May 10, 2016, the Secretary of State, pursuant to 34 O.S. Supp. 2015, § 8 (H), certified the signature count and votes cast for the state office receiving the highest number of votes at the last general election to this Court.² On June 1, 2016, this Court determined the signatures on the petition appeared to be numerically sufficient. In re Initiative Petition No. 403, State Question No. 779, 2016 OK 59, ¶ 2, -- P.3d --. It was further ordered that pursuant to 84 0.8. Supp. 2015, § 8 (I), the Secretary of State was to publish notification of the filing of Initiative Petition No. 403, State Question No. 779, and the apparent numerical suffi-clency of the signatures,. In re Imifiative Petition No. 403, State Question No. 779, 2016 OK 59 at ¶ 3, --- P.3d ---. In addition, the Secretary of State was ordered to publish the Attorney General's rewritten ballot title. Id. The notice by publication also informed the public that any citizen or citizens may file an objection only relating to the signature count made by the Secretary of State or the preliminary ballot title as rewritten by the Attorney Generals.³ On June 28, 2016, Petitioners filed an Application to Assume Original Jurisdiction with this 'Court to object to both the gist of the measure and the rewritten ballot tltle '

ANALYSIS

I. Post-Circulation Challenge To The Gist Of The Measure.

15 Petitioners first challenge the sufficiency of the gist of the measure found in the pamphlets already circulated for signatures. They argue it is appropriate for this Court to review the gist post-cireulation. We hold that under current law, a post-cireulation challenge to the gist of a measure is untimely.

6 Petitioners first cite our recent opinion wherein we found that a pre-cireulation challenge to the gist of a measure is appropriate. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51, ¶ 4, n. 10, 376 P.3d 250, We noted that although the ballot title review process and challenge must now statutorily come after the cireulation period pursuant to 34 0.8. Supp. 2015, § 8, the statute remains silent as to a challenge to the gist of the petition. In re Initiative Petition No. 409, State Question No. 785, 2016 OK 51 at ¶ 4, n. 10, 376 P.3d 250. However, we determined we need not decide in that opinion whether a post-civreulation challenge to the gist of the petition was appropriate. Id. That is the question we are presented thh today.

T7 It first should be noted that in all the Initiative and Referendum statutes (84 0.8. 1-27) the word "gist" only appears in one place, 34 0.8. 2011, § 8. It only - provides that the gist of the measure shall be' on the signature sheets which are then attached to copies of the petition for "the securing of signatures." It specifically identifies the signature sheets as being separate from the petition. It refers to the combination of the petition and signature sheets as a "pamphlet" which is what the proponents circulate for signatures. After filing the petition with the Secretary of State pursuant to Title 34 0.8. § 8, citizens are notified they may object to the constitutionality of the petition. However, there is no provision at the pre-cireulation stage about filing the gist or a signature sheet with the gist, Nor is there a specific provision anywhere in these statutes for challenging the gist, Title 84 0.8. Supp. 2015, § 8 (B) provides, at the pre-cireulation stage, for only a protest concerning "the constitutionality of the petition."⁴

T8 In In re Initiative Petition No. 409, State Question No. 785, we determined even though the statutes were silent concerning a challenge to the gist, at least at the pre-civeulation stage, it could be challenged because it remains a necessary part of the pamphlet cireulated to potential signatories. 2016 OK 51 at ¶ 4, n. 10, 376 P.3d 250. A challenge to the gist has historically involved its sufficiency. Here, Petitioners challenge the sufficiency of the gist. In 2009, the legislature amended 34 0.8. § 8 by adding a new subsection (B) which provides in pertinent part "[nlo objection to the sufficiency shall be considered unless it has been made and filed as herein provided, i.e., "within ten (10) business days after publication" [the original publication by the Secretary of State concerning the filing of the petition] 84 O.S. Supp. 2015, § 8 (B)). 2009 Okla. Sess. Laws c. 818, § 1. Under current law, the sufficiency of the petition and, by our interpretation as mentioned, the gist, is appropriate only within the time period for filing an objection to the petition (84 0.8. Supp. 2015, § 8 (B)). The ten-day period for filing such objection already expired prior to cireulation. This matter is at the post-cireulation stage. The only objections authorized at this stage are found in 34 0.8. Supp. 2015, § 8 (T). In 2009, the Legislature amended this subsection, which at the time was subsection (H), to restrict the content of post-cireulation objections. 2009 Okla, Sess. Laws c. 818, § 1. Following the 2015 amendments, post-civeu-lation objections must now "relate only to the validity or number of the signatures or a challenge to the ballot title." 2015 Okla. Sess. Laws c. 198, § 4. This is further proof that the Legislature intended the sufficiency of the petition and/or gist to be unchallengeable post-cireulation. Petitioners argue that a misleading gist would be relevant to the "validity" of the signatures. We do not agree. The validity of the signatures concerns only the genuineness of the signatures and does not concern whether a person signing the signature sheet was misled by the gist thereon. That issue is inherently a sufficiency argument that, at the post-cireulation stage, has expired.⁵

II. Ballot Title Challenge.

19 In addition to the gist of the measure, the Petitioners challenge the suffi-clency of the rewritten ballot title. The ballot title must reflect the character and purpose of the measure and not be deceptive or misleading. In re Initiative Petition No. 360, State Question No. 662, 1994 OK 97, ¶ 25, 879 P.2d 810. The test is whether it is written so that voters are afforded an opportunity to fairly express their will and whether it apprises voters with substantial accuracy what they are asked to approve. In re Initiative Petition No. 360, Staite Question No. 662, 1994 OK 97 at ¶ 25, 879 P.2d 810. The ballot title shall also not reflect partiality in its composition or contain any argument for or against the measure. Title 34 O.S. S. Supp. 2015, § 9 (B) (4). After the 2015 amendments to 84 0.8. § 8, a challenge to the ballot title is now only appropriate post-cireulation, 2015 Okla. Sess. Laws c. 198, § 4. As mentioned, circulation of the petition has already occurred. The Petitioners have therefore properly presented their challenge to the rewritten ballot title.

{10 The Petitioners assert five errors in the rewritten ballot title: 1) the ballot title ignores the Board of Equalization's new power to prevent the Legislature from appropriating funds, 2) the ballot title's statement that sales and use tax will be increased by "one cent" is misleading and is inconsistent with the text of the Petition, 3) the ballot title fails to explain the effect of the, proposition by omitting how the tax increase will be apportioned among governmental entities, 4) the ballot title's reference to "improving" public education expresses partiality and is an argument for the measure, and 5) the ballot title is misleading because it fails to explain the audit requirement and salary restrictions for revenue generated by the tax (they base this argument on the fact the proposed Article does not provide auditing requirements for higher education, career and technology education and the State Department of Education and the ballot title does not reflect this fact), The Petitioners propose the following amendments to the rewritten ballot title (underlined text represents added language and strike-through text represents deletions):

This measure adds a new Article to the Oklahoma Constitution. The new Article creates a limited purpose fund to improve increase funding for public education. To provide increases sales and use tax taxes arce-in-ereased by one cent percent to. provide revenue for the fund It—aAleeafses—fiu-nds—fioz-Jy 1 R ities for lox income-and-at-risk-children, The revenue shall be allocated: 69.50% for common school districts, 19.25% for the institutions under the authority of the Oklahoma State Regents for Higher Education, 8.25% for the Oklahoma Department of Career and Technology Education, and 8% for the State Department of Education. It requires that the. teacher salary increases funded by this measure raise teacher salaries by at least $5,000 over the salaries paid in the year prior to adoption of this measure. It-requires-an-annual-audit-of school-districts'-use -of -monies-from-the fand. It prohibits school districts' use of these funds for increasing superintendents' salaries or adding superintendent positions, School districts' use of the revenue will be audited annually, The Article does not provide for an audit requirement or salary restriction for the other state institutions which will receive revenue from the fund. & The Article requires that monies from the fund not supplant-or replace other educational funding. If the Board of Equalization determines funding has been replaced, the Legislature may not make any appropriations until the amount of replaced funding is returned to the fund. The Article takes effect on the July 1 after its passage.

11 We agree that the ballot title is misleading if it does not mention the Board of Equalization's role in limiting appropriations. In addition, the ballot title should refrain from partiality and should clarify the amount of the sales and use tax as well as its allocation. We do not agree with Petitioners that the ballot title must reflect items that are not provided in the proposed Article. The Petitioners' amendments 'to the rewritten ballot title, however, exceed the statutory maximum number of words. Title 34 0.8. Supp. 2015, § 9 (B) (1) provides that a ballot title shall not exceed two hundred (200) words. The Petitioners' proposed amended ballot title is two hundred and fourteen (214) words, After considering the briefs and the proposed ballot titles we hereby, pursuant to the authority vested in this Court by 84 0.8. Supp. 2015, § 10 (A)⁶, correct and amend the ballot title to read as follows:

This measure adds a new Article to the Oklahoma Constitution. The article creates a limited purpose fund to increase funding for public education, It increases State sales and use taxes by one cent per dollar to provide revenue for the fund, The revenue to be used for public education shall be allocated: 69.50% for common school districts, 19.25% for the institutions under the authority of the Oklahoma State Regents for Higher Education, 8.25% for the Oklahoma Department of Career and Technology Education, and 8% for the State De-pgrt'ment of Education. It requires teacher salary increases funded by this measure raise teacher salaries by at least $5,000 over the salaries paid in the year prior to adoption of this measure. It requires an annual audit of school districts' use of monies. It prohibits school districts' use of these funds for increasing superintendents' salaries or adding superintendent positions. It requires that monies from the fund not supplant or replace other educational funding. If the Oklahoma Board of Equalization determines funding has been ~ replaced, the Legislature may not make any appropriations until the amount of replaced funding is returned to the fund. The article takes effect on July 1 after its passage.

CONCLUSION

12 For the foregoing reasons, we grant Petitioners' Application to Assume Original Jurisdiction, deny relief requested concerning the gist of the measure, find the rewritten ballot title deficient, and rewrite the ballot title pursuant to our authority in 34 0.8. Supp. 2015, § 10, Due to the exigencies related to the element of time affecting the situation involved herein, the usual 20-day period allowed by OKlg.Sup.Ct. R. 1.13, 12 0.8. 2011, ch. 15, app.1, for the filing of petitions for rehearing generally, is, as applied to this case, reduced to 5 business days from the date of this opinion,

APPLICATION TO ASSUME ORIGT-NAL JURISDICHON IS GRANTED; CHALLENGE OF THE GIST IS UNTIMELY; BALLOT TITLE DECLARED DEFICIENT AND IS HEREBY AMENDED BY THIS COURT. PURSUANT TO TITLE 34 0.8. SUPP. 2015, § 10.

1,13 REIF, C.J., COMBS, V.C. J KAUGER, WIN CHESTER and TAYLOR (by separate writing), JJ., concur,. +T 14 EDMONDSON (by separate writing) and GURICH, JJ., MITCHELL, 8.J. and THORNBRUGH, $.J., concur in part and dissent in part. [ 15 WATT and COLBERT; JJ., disqualified,

1 . The "pamphlet" is a combination of the (initiative) petition and the attached sheets for signature. Title 34 0.8. 2011, § 3. The signature sheets are the only place where the gist of the measure is found. Id. In fact, 34 O.S. 2011, § 3 is the only se'qtion in the Initiative and Referendum statutes (34 0.8. §§ 1-27) that mentions the word "gist."

2 . On May 27, 2016, the Secretary of State filed a corrected certification with this Court.

3 . Title 34 O.S. Supp. 2015, § 8 (I) provides in pertinent part '"[alny such objection must be filed within ten (10) business days after publi‘cation and must relate only to the validity or number of the signatures or a challenge to the ballot title."

4 . Curiously, subsections C and D of 34 O.S. Supp. 2015, § 8, which provide for this Court's review of the pre-circulation objection, never again mention constitutionality. Subsection C requires this Court to fix a day at which time we will hear testimony and arguments for and against the sufficiency (not constitutionality) of the petition (not the gist found on the signature sheets). Subsection D then provides, after such hearing, this Court shall decide whether the petition is in the form required by the statutes.

5 . Petitioners' frustration is understandable. They are correct in asserting the first publication of notice did not inform anyone about challenging the gist of the measure. Title 34 O.S. § 8 never mentions when a gist may be challenged nor requires any notice for such a challenge. The problem is compounded because 34 O.S. § 8 only requires proponents of an initiative petition to initially file a petition with the Secretary of State prior to circulation. It does not require any signature sheets containing the gist to be filed at the pre-circulation stage. A clearer process would be to require the proponents to also initially file a copy of the gist which will appear on the signature sheets and for the Secretary of State to publish that gist with the initial notice as provided for in 34 O.S. § 8 (B). In addition, provisions should be made for notice allowing objections to the gist and inclusion of the gist in our review of the initial objections. Subsections B, C and D should adequately reflect that an objection may be made and review may be had as to the constitutionality and/or sufficiency of the petition and the gist. Subsection B only indicates a person may initially challenge the constitutionality of the petition yet, as mentioned, strangely subsections C and D only refer to sufficiency and proper form, not constitutionality of the petition.

6 . Title 34 O.S. Supp. 2015, § 10 (A) provides:

.A. Any person who is dissatisfied with the wording of a ballot title may, within ten (10) business days after the same is published by the Secretary of State as provided for in subsection I of Section 8 of this title, appeal to the Supreme Court by petition in which shall be offered a substitute ballot title for the one from which the appeal is taken. Upon the hearing of such appeal, the court may correct or amend the ballot title before the court, or accept the substitute suggested, or may 'draft a new one which will conform to the provisions of Seetion 9 of this title.