Rejecting a proposed initiative intended to create a test case for the United States Supreme Court that might have resulted in a revised interpretation of the United States Constitution, the Oklahoma Supreme Court stated: "The initiative process guaranteed to our citizens by the Oklahoma Constitution was never intended to be a vehicle for amending the United States Constitution—nor can it serve that function in our system of government." In re Initiative Petition No. 349 State Question No. 642 , 1992 OK 122, ¶ 29, 838 P.2d 1, 10-11 (1992), cert. den. , 506 U.S. 1071, 113 S.Ct. 1028, 122 L.Ed.2d 173 (1993) ; see also In re Initiative Petition No. 364 , 1996 OK 129, ¶ 30, 930 P.2d 186, 195 (1996) ("the people's legislative power as defined in article 5, section 1, of the Oklahoma Constitution does not include the power to use the initiative process to attempt to change federal constitutional law"). The "unfettered right to propose laws and constitutional amendments by initiative petition," Stranahan , 331 Or. at 64, 11 P.3d 228, thus means an unfettered right to propose only Oregon laws and Oregon constitutional amendments.
My unswerving commitment to Threadgill, supra note 7, is documented in numerous reported decisions. See In re Initiative Petition No. 366, 2002 OK 21, 46 P.3d 123, 135 (Opala, J., dissenting); In re Initiative Petition No. 364, 1996 OK 129, 930 P.2d 186, 205 (Opala, J., concurring); In re Initiative Petition No. 362, 1995 OK 77, 899 P.2d 1145, 1153 (Opala, J., concurring in result); In re Initiative Petition No. 360, 1994 OK 97, 879 P.2d 810, 821-22 (Opala, J., concurring in result); In re Initiative Petition No. 358, 1994 OK 27, 870 P.2d 782, 788 (Opala, J., concurring in result); In re Initiative Petition No. 349, 1992 OK 122, 838 P.2d 1, 18-19 (Opala, C.J., dissenting); In re Initiative Petition No. 347, 1991 OK 55, 813 P.2d 1019, 1037 (Opala, C.J., concurring); In re Initiative Petition No. 341, 1990 OK 53, 796 P.2d 267, 275 (Opala, V.C.J., concurring in result); In re Initiative Petition No. 317, 1982 OK 78, 648 P.2d 1207, 1222 (Opala, J., concurring in the judgment); In re Initiative Petition No. 315, 1982 OK 15, 649 P.2d 545, 554-555 (Opala, J., concurring in result); see also In re Initiative Petition No. 349 (No. 76,437, Feb. 20, 1991) (Opala, C.J., dissenting in part) (unpublished opinion). KAUGER, J. concurring specially.
. . . [T]he proposed duties to be given to the Secretary of State . . . are not merely ministerial; rather, they amount to substantive penalties that are equivalent to an officially sanctioned recommendation by the State of Arkansas not to vote for such candidates because they disregarded the instructions and wishes of the voters."]; In reInitiative Petition No. 364 (Okla. 1996) 930 P.2d 186, 193 ["This measure . . . would be neither nonbinding nor purely advisory in its federal aspects."]; Miller v. Moore (8th Cir. 1999) 169 F.3d 1119, 1124 ["[The Nebraska measure at issue] represents a clear attempt to coerce or bind legislators into exercising their Article V powers to pass a term limits amendment.
Id. See in this connection In re Initiative Petition No. 364, 1996 OK 129, ¶ 8, 930 P.2d 186, 199-200 (Opala, J., concurring). Although in New York v. United States, 505 U.S. 144, 185, 112 S.Ct. 2408, 2433, 120 L.Ed.2d 120 (1992), it is "suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable questions," the Court has yet to identify any exempted political questions that present justiciable claims.
¶ 11 In 1996 this Court stated that: "Four years ago, this Court held that the people's legislative power as defined in article 5, section 1, of the Oklahoma Constitution does not include the power to use the initiative process to attempt to change federal constitutional law." In re Initiative Petition No. 364, 1996 OK 129, 930 P.2d 186, 195, citing, In re Petition No. 349, State Question No. 642, 1992 OK 122, 838 P.2d 1. No language in Article 23 § 1A may be reasonably construed as an attempt to overturn federal law.
The judicial testing accorded today has earlier stood reserved for viable initiative petitions actively pressed for submission to a vote, not for a dead-end measure.See, e.g., In re Initiative Petition No. 364, State Question No. 673, 1996 OK 129, 930 P.2d 186; In re Initiative Petition No. 362, State Question 669, 1995 OK 77, 899 P.2d 1145; In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, 838 P.2d 1; In re Initiative Petition No. 348, State Question No. 640, 1991 OK 110, 820 P.2d 772; In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, 813 P.2d 1019; In re Initiative Petition No. 341, State Question No. 627, 1990 OK 53, 796 P.2d 267; In re Initiative Petition No. 332, 1989 OK 93, 776 P.2d 556; In re Initiative Petition No. 315, State Question No. 553, 1982 OK 15, 649 P.2d 545; In re Supreme Court Adjudication, Etc., 1975 OK 36, 534 P.2d 3.
Harper, 691 P.2d at 831. More recently, several courts have considered whether term limits initiatives similar to Amendment 12 violate Article V. See League of Women Voters of Maine v. Gwadowsky, 966 F. Supp. 52 (D. Me. 1997); Donovan v. Priest, 931 S.W.2d 119 (Ark. 1996), cert. denied, 117 S.Ct. 1081 (1997); Opinion of the Justices, 673 A.2d 693 (Me. 1996); In re Initiative Petition No. 364, 930 P.2d 186 (Okla. 1996). In each of these cases, the court concluded that the term limits initiative violated Article V because it called for negative ballot designations designed to coerce legislators into invoking their Article V powers.
See Miller v. Moore, 169 F.3d 1119 (CA8 1999) (Nebraska initiative invalidated on Article V and right-to-vote grounds); Barker v. Hazeltine, 3 F. Supp.2d 1088 (SD 1998) (South Dakota initiative invalidated on Article V, First Amendment, Speech or Debate Clause, and due process grounds); League of Women Voters of Me. v. Gwadosky, 966 F. Supp. 52 (Me. 1997) (Maine initiative invalidated on Article V grounds); Bramberg v. Jones, 20 Cal.4th 1045, 978 P.2d 1240 (1999) (California initiative invalidated on Article V grounds); Morrissey v. State, 951 P.2d 911 (Colo. 1998) (Colorado initiative invalidated on Article V and Guarantee Clause grounds); Simpson v. Cenarrusa, 130 Idaho 609, 944 P.2d 1372 (1997) (Idaho initiative invalidated on Speech or Debate Clause and state constitutional grounds, but did not violate Article V); Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996) (in preelection challenge, Arkansas initiative invalidated on Article V grounds); In re Initiative Petition No. 364, 930 P.2d 186 (Okla. 1996) (Oklahoma initiative invalidated on Article V and state constitutional grounds). II
State courts in other jurisdictions have held that citizen initiatives similar to Initiated Measure 1 violate Article V. The Court has carefully considered the decision of the Arkansas Supreme Court in Donovan, the decision of the Colorado Supreme Court in Morrissey v. State of Colorado, 951 P.2d 911 (Colo. 1998), and the decision of the Supreme Court of Oklahoma in In re Initiative Petition No. 364, 930 P.2d 186 (Okla. 1996). The Court has also considered the Advisory Opinion presented to the Maine House of Representatives by the Supreme Judicial Court of Maine in Opinion Of The Justices, 673 A.2d 693 (Me. 1996).
The underlying initiative is not one that is directing the Legislature to adopt a resolution, see Am. Fed. of Labor v. Eu, 686 P.2d 609. 627 (Cal. 1984), or apply to the U.S. Congress to attempt to change federal constitutional law, see In re Initiative Petition No. 364, 930 P.2d 186, 195-96 (Okla. 1996). Those types of initiatives are improper because they are not enacting laws.