“the people’s legislative power as defined in article 5, section 1, of the Oklahoma Constitution does not include the power to use the initia- tive process to attempt to change federal constitutional law”
How later courts described this case
- “the people’s legislative power as defined in article 5, section 1, of the Oklahoma Constitution does not include the power to use the initia- tive process to attempt to change federal constitutional law”
- application for an Article V convention "is not binding, * * * is incapable of being carried into effect, and * * * is incapable of being enforced"
- Oklahoma initiative invalidated on Article V and state constitutional grounds
- invalidated on Article V and state constitutional grounds
Written by the judges who cited it.
The opinion
HODGES, Justice,
dissenting.
I agree that the initiative measure as submitted violates the Oklahoma and United States Constitutions. This Court, however, has failed to give effect to the severability provision of the measure which allows the valid portions to continue in full force and effect. Once the offending portions are severed, the question of whether the remainder is to enjoy a vote of the people is no longer a constitutional question and the people have a right to enact it or reject it at the polls.
We live at a time when people have become increasingly skeptical concerning their government. The term limits battle is but one example of the electorate’s desire to exercise more direct control over government. At such a time, the constitutional initiative is one device which helps maintain a balance between representative government and pure democracy. It is an avenue of communication between government and the people, to whom government must respond.
During .an earlier era of popular distrust, the framers of the Oklahoma Constitution established that “[t]he first power reserved by the people is the initiative.” Okla. Const, art. 5, § 2. “The right of initiative is precious to the people and is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter.” Oliver v. City of Tulsa, 654 P.2d 607, 613 (Okla.1982) (quoting McFadden v. Jordan, 32 Cal.2d 330 , 196 P.2d 787, 788 (1948)). Article 5, Section 1, of the Oklahoma Constitution states that “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.” (emphasis added).
This Court’s construction of Article 5, Section 1, establishes a requirement which was not expressed by the framers of the Oklahoma Constitution. Nothing in the Oklahoma Constitution states that the people’s power is limited to enacting only “laws”. The people have also reserved the power to enact amendments to the Oklahoma Constitution through the initiative process. In fact, while twenty-six states have a method of enacting legislation by popular vote, only seventeen states recognize the constitutional ini *207 tiative. See Dennis W. Arrow, Representative Government and Popular District: The Obstruction/Facilitation Conundrum Regarding State Constitutional Amendment by Initiative Petition, 17 Okla.City U.L.Rev. 5, 8 (1992). Oklahoma is one of those seventeen states.
The fact that Proponents have failed to present an initiative measure which fully complies with constitutional requirements does not require that the initiative process be withheld from advocates of term limits. When unconstitutional provisions in an initiative measure may be stricken without impairing the measure’s effect, the remaining portions are valid. In re Initiative No. 191, 201 Okla. 459 , 207 P.2d 266, 270 (1949). A sever-ability provision creates a presumption that the valid remaining portions would have been enacted without the omitted unconstitutional portions. Englebrecht v. Day, 201 Okla. 585 , 208 P.2d 538, 544 (1949). The section 6 severability provision of this initiative measure is the mechanism by which a constitutionally permissible proposed expression of the will of the people should be placed on the ballot. It provides:
The provisions of this Amendment are severable, and if any part or provision of this Amendment shall be void, invalid, or unconstitutional, the decision of the court so holding shall not affect or impair any of the remaining parts or provisions of this Amendment, and the remaining provisions of this Amendment shall continue in full force and effect.
After severing the offending portions of the initiative measure and amending the ballot title to accommodate the remaining provisions, State Question 673 would provide:
SHALL THE FOLLOWING PROPOSED AMENDMENT TO THE CONSTITUTION BE APPROVED?
() TES — FOR THE AMENDMENT
() NO — AGAINST THE AMENDMENT
BE IT ADOPTED BY THE PEOPLE OF THE STATE OF OKLAHOMA
OKLAHOMA CONGRESSIONAL TERM LIMITS AMENDMENT
AN AMENDMENT TO THE OKLAHOMA CONSTITUTION STATING THE FINDINGS AND DECLARATIONS OF THE PEOPLE AND STATING THE PUBLIC POLICY OF OKLAHOMA RELATING TO TERM LIMITS FOR MEMBERS OF THE UNITED STATES CONGRESS.
The People of Oklahoma find and declare that:
Whereas, the People of our State voted by over sixty-six percent to limit the terms of U.S. Representatives to three terms and limit U.S. Senators to two terms, and Whereas, the U.S. Supreme Court has ruled that an amendment to the U.S. Constitution is necessary to limit terms of members of Congress, and
Whereas, there are two methods to propose amendments to the U.S. Constitution that must then be ratified by three-fourths of the States, or thirty-eight. These methods are (1) for two-thirds of both houses of the United States Congress to so vote, or (2) for thirty-four States to apply for an Article Y convention to so vote, and
Whereas, the Congress has refused to propose such an amendment, and by a clear majority, defeated the same term limits passed by over sixty-six percent of the Voters of our State in 1994, and
Whereas, the Congress has a clear conflict of interest in proposing term limits on its own members.
Therefore, We, the People of Oklahoma, hereby amend our state constitution pursuant to our power under that constitution. Section 2 — Public Policy of Oklahoma Regarding Federal Term Limits.
It is hereby declared to be the Public Policy of the State of Oklahoma that the terms of office of Members of the United States Congress should be limited to three terms for members of the House of Representatives and two terms for Members of the Senate, and the United States Constitution should be amended to so provide.
If enacted, the resulting constitutional amendment would express the public policy of Oklahoma regarding term limits for its members of Congress. With the unconstitutional directive removed from the measure, each legislator would remain free to express *208 his or her own deliberative vote in representing his or her own district.
The amended measure would be consistent with the nonbinding referendum measure approved in Kimble v. Swackhamer, 489 U.S. 1385 , 99 S.Ct. 51 , 58 L.Ed.2d 225 (1978). There, Chief Justice Rehnquist determined that citizen participation in a nonbinding referendum as to whether the Nevada Legislature should ratify the Equal Rights Amendment did not violate Article V of the United States Constitution. He noted that he would be “most disinclined” to rule out “communication between members of the legislature and their constituents.” Id. at 1387-88, 99 S.Ct. at 54 . Apparently, this Court does not share Chief Justice Rehnquist’s judicial restraint. Under today’s holding, no advisory amendment to the Oklahoma Constitution could be enacted directly by the people through the initiative process. This Court should facilitate the use of the initiative process by applying the severability provision of the proposed measure and placing the constitutional portions of the measure on the ballot.