Opinion · Supreme Court of Oklahoma

In Re Initiative Petition No. 348, State Question No. 640

820 P.2d 772

Type
Opinion
Court
Supreme Court of Oklahoma
Jurisdiction
Oklahoma
Date
1992-02-20
Topic
international-arbitration

*774LAVENDER, Justice. This is an original action brought pursuant to 34 O.S.1981 § 8 challenging the legality of Initiative Petition 348, State Question 640 (Petition). The Petition purports to amend by the initiative process1 Article V, § 33 of the Oklahoma Constitution. The amendment would impose severe limitations upon the Legislature’s ability to raise new revenue. We begin by emphasizing that our inquiry is limited to those challenges fundamental to the validity of the Petition as a whole.

Citator

UpLaw has not yet analyzed In Re Initiative Petition No. 348, State Question No. 640. The absence of a flag is not a finding that it is good law.

Cited by
22 opinions
IN RE INITIATIVE PETITION NO. 348,1991 OK 110
820 P.2d 772
IN RE INITIATIVE PETITION NO. 348, STATE QUESTION NO. 640.
No. 76277.
Supreme Court of Oklahoma.
October 29, 1991.
Rehearing Denied December 3, 1991.
As Corrected February 20, 1992.
Page 773
Original proceeding to determine the validity of Initiative Petition No. 348, State Question No. 640.

Initiative Petition No. 348 is a proposed submission of a constitutional amendment. Protests were filed on the basis of legal sufficiency. Also presented is an appeal from the ballot title as prepared by the Attorney General.

INITIATIVE PETITION NO. 348 IS DECLARED LEGALLY SUFFICIENT FOR SUBMISSION TO THE PEOPLE OF OKLAHOMA.
Stanley M. Ward and Duchess Bartmess, Norman, for proponents S.T.O.P. New Taxes.

Lee Slater, Carol Dennis and Thomas E. Prince, York Slater, Oklahoma City, for protestant Rosie Brown.

Thomas Dee Frasier and Steven R. Hickman, Tulsa, for protestant James C. Thomas.Page 774
LAVENDER, Justice.
[1] This is an original action brought pursuant to 34 O.S. 1981 § 8[34-8] challenging the legality of Initiative Petition 348, State Question 640 (Petition). The Petition purports to amend by the initiative process1Article V, § 33 of the Oklahoma Constitution. The amendment would impose severe limitations upon the Legislature's ability to raisenewrevenue.

[2] We begin by emphasizing that our inquiry is limited to those challenges fundamental to the validity of the Petition as a whole. We will not attempt to resolve uncertainties ensuing from the interpretation or application of the Petition. Such issues are better reserved for a day when they can be directly challenged. Likewise, we will not deliberate the wisdom of the proposed amendment, as that question will be answered by the voters of Oklahoma, rather than this court.2With those qualifications in mind, we conclude, the Petition survives alleged infirmities and is therefore legally sufficient for submission to the people of Oklahoma.
[3] FACTS
[4] Oklahoma's Constitution, Article V, § 33 reads:
All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills. No revenue bill shall be passed during the five last days of the session.


[5] The Petition, if adopted, would require all revenue raising bills3be approved by a majority of the people at the next general election unless such revenue bill was approved by a three-fourths vote of both houses. If approved by three-fourths of both houses, the bill would not be subject to an emergency measure provision and would not go into effect until ninety (90) days after the bill's approval by the Legislature and appropriate action by the Governor. Such a bill could still be defeated or its effective date delayed by a referendum of the people during the ninety day period.4

[6] Multiple protests have been alleged on behalf of two Protestants, Thomas andPage 775Brown, however, given the similarity of the arguments, we address them concurrently. Specifically, Protestants assert the Petition violates Article XXIV, § 1 of the Oklahoma constitution in that it embraces more than one general subject; that the Petition is misleading and deceptive and violative of 34 O.S. 1981 §§ 3[34-3] 9 [34-9]; that it directly conflicts with other articles of the constitution and threatens the constitutional plan for financing state government. Protestants further argue the Petition contravenes the constitutional guarantee of a republican form of government. Finally, Protestants maintain the Petition is invalid because the power of the initiative is not without limits and this amendment exceeds the power reserved to the people. We address Protestants' arguments in order to establish the legal sufficiency of this petition; our inquiry begins with a general analysis of the right of the initiative.
[7] ANALYSIS
[8] The people's right to institute change through the initiative process is a fundamental characteristic of Oklahoma government. Oklahoma's constitution Article V, § 1 provides:
The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives;but the people reserve tothemselves the power to propose laws and amendmentsto the Constitution and to enact or reject the sameat the polls independent of the Legislature, and alsoreserve power at their own option to approve orreject at the polls any act of the Legislature.


[9] (emphasis added).

[10] The right of the initiative is not absolute in that there are both constitutional and statutory limitations,5however, this power,reserved by the people,grants them the constitutional right to amend even these limitations. Whether right or wrong, thisreserved power,authorizes the people of the state of Oklahoma to amend6the constitution they created.
In other words, . . . it is universally conceded that thepeople are sovereign and that they have power toadopt a constitution and to change their own work atwill. . . .7


[11] Understandably, given this constitutional foundation, we have repeatedly maintained our defense of the initiative process. InOliver v. Tulsa,8we quotedwith approval the following persuasive language from another state court:
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. . . .All doubt as to the construction ofpertinent provisions is to be resolved in favor ofthe initiative and such legislation is to be giventhe same liberal construction as that affordedelection statutes generally.


[12] InIn re Referendum Petition No. 18,9we articulated, "[t]he right to petition for a vote of the people by Initiative and Referendum provided by Art. 5, § 2, of the Constitution of Oklahoma is asacred rightto be carefully preserved."

[13] InRuth v. Peshek,10we declared:
The people reserved to themselves the power to propose laws and amendments to the Constitution. . . . This power so reserved to the people should not be crippled, avoided, or denied by technical construction by the courts.It is the duty of thecourts to construe and preserve this right asintended by the people inPage 776adopting the Constitution,and thereby reserve unto the people this power.
Ours is a government which rests upon the will of the governed. The initiative and referendum is the machinery whereby self-governing people may express their opinion in concrete form upon matters of public concern.If the people are to be self-governed, it isessential that they shall have a right to vote uponquestions of public interest and register the publicwill.


[14] Under these constitutional mandates and precedential principles of law, we consider the proposed Petition.
[15] A. ONE SUBJECT RULE/MISLEADING EFFECT
[16] Article XXIV, § 1 of the Oklahoma Constitution provides:
No proposal for the amendment or alteration of the 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 the Constitution by articles, which embrace one general subject, each proposed article shall be deemed a single proposal or proposition.


[17] InIn re Initiative Petition No. 31411we held this section was applicable to initiative petitions.

[18] Protestant Thomas concedes the petition on its face does not encompass more than one subject, that subject being taxation. Rather, Protestant charges the petition violates the one subject rule because it wouldaffectmore than one subject. Further, Protestant contends the Petition is misleading in that the voter is not given notice of theaffectedarticles. Protestant Brown makes in essence the same argument.

[19] While appreciating Protestant Thomas's approach in conceding what is apparent on its face, we nevertheless disagree with both Protestants' contention that an amendment, having anaffecton other articles of the constitution, violates the one subject rule or is misleading. Moreover, assuming for the sake of argument such articles would be so affected, those issues are not yet ripe for review and therefore have no bearing on the sufficiency of this Petition.

[20] InIn re Initiative Petition No. 342,12we held:
The purpose of the one general subject criteria is to prevent deceit or the presentation of a misleading proposal and to prevent logrolling, the combining of unrelated proposals. InIn re Initiative Petition No.314,this court adopted the following test: 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 any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it 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.


[21] Protestants cite us two cases in which this court has recently struck down the proposed initiatives based on this single subject test, purporting that those cases are factually controlling. However, these cases offer no support for Protestants' contention. Each of those proposed initiatives clearly contained more than one subject as evidenced by the following quoted language fromIn re Initiative Petition No. 344.13There we found the Petition contained:Page 777
numerous subjects from the method of the election of the LT. Governor, to changing the term of board and commission members including non-attorney members of the Judicial Nominating Commission, to giving the Governor the sole authority `to grant reprieves, commutations, and pardons', to changing the Executive Branch to a cabinet form of government, to repealing the constitutional authority for certain boards. Some of the sections in the amendment are, at best, tenuously related to other sections. The sections are not so intertwined as to require that they be adopted at the same time in order to preserve the integrity of each section. . . . A voter supporting any one of these provisions could not reasonably be expected to support the principle of the others.


[22] Further, inIn re Initiative Petition No. 342.14we determined there were:
numerous subjects covered by the Petition ranging from financial institutions holding stock in another financial institution to the power of eminent domain of foreign corporations to the fellow-servant doctrine rule.The only connection that these topicshave to each other is that they all tangentiallyrelate to the general subject of corporations.Otherwise, they are unrelated.


[23] These cases are unlike the present proposed amendment. The only subject matter addressed in the petition is a procedural requirement allowing for direct participation by the people in the enactment of revenue measures. While the amendment, if adopted, may indeedaffectother articles of the constitution, such as the emergency clause, the balanced budget act, the Governor's veto, etc., that is insufficient reason for this court today to deny the people of Oklahoma the right to vote on this Petition, though indeed, the Petition'seffectmay result in subsequent challenges.

[24] Again, the dispositive test is that the proposed amendmentitselfnot contain more than one subject, so as to enable the voter to make a choice and not be misled, or forced to choose between two different proposals presented in one amendment. While that choice mayresultin repealing other constitutional guarantees, that is a consequence of the voting process, rather than any fault of the proposed amendment. Moreover, were we to adopt Protestants' test, the occasion may never arise in which an initiative could satisfy one that is so narrowly restrictive since, by their very nature, articles of the constitution interrelate. InCowart v. Piper Aircraft Corp.,15we held the constitution must be read in its entirety, and all articles construed together.

[25] Our analysis persuades us the proposed amendment does not violate the single subject requirement. The Petition contains only one subject, a procedural requirement for raising revenue, albeit, an inordinately restrictive one. Likewise, we do not find the Petition misleading for failing to state whateffect it willhave on the entire constitutional scheme if the Petition isadopted.16Finally, Protestants' argument lacks authoritative support and does not substantiate invalidating the Petition.
[26] B. DESTROYS STATE FINANCING/EXCEEDS RESERVED POWER
[27] Protestants assert, however, the amendment not only impacts or conflicts with numerous articles of the constitution, but destroys the entire design for financing state government as organized in the Oklahoma Constitution. For example, Protestants assert this amendment would destroy the Legislature's ability to balance the budget as provided for by the constitutional amendment of 1941. Furthermore, Protestants allege the Petition exceeds the power reserved under the initiative process as set forth in the Constitution.Page 778

[28] Our analysis of the initiative process rebuts these challenges in that the people have thesovereign rightunder the reserved power to institute constitutional tax reform by way of the initiative process. Protestants contend, however, that Article 5, §§ 7 36 limits the people's right of initiative. Section 7 provides:
The reservation of the powers of the initiative and referendum in this article shall not deprive the Legislature of the right to repeal any law, propose or pass any measure, which may be consistent with the Constitution of the State and the Constitution of the United States.


[29] Section 36 reads:
The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.


[30] Protestants' argument is without merit as thesespecificlegislative grantsof power will always be subject to thereserved powerof the people under Article V, § 1.

[31] While this Petition, if adopted, may prevail over other sections of the constitution on the same subject matter,17this in and of itself is not fatal. InIn re Initiative PetitionNo. 281,18we held, "that the real purpose of an initiative petition is to secure a vote of the people upon a proposed law or constitutional amendment. The repeal of any conflicting provisions of law in effect at the time the proposed law is to become effective is merely incidental to the purpose of such a petition."

[32] Finally, it is mere conjecture as to whether this Petition will destroy the state financing scheme. While it is true, the Constitution grants the Legislature the right to raise additional revenues so as to balance the budget, if such revenues are not available, the Legislature could curtail or shut down government services in order to maintain the constitutionally required balanced budget. Moreover, though these things may occur, we cannot invalidate this Petition on such speculation. Thus, this challenge is insupportable and again, Protestants have failed to provide legal justification for declaring the Petition invalid.
[33] C. SUFFICIENCY OF GIST AND BALLOT TITLE
[34] Protestants assert the Petition is invalid because it violates 34 O.S.Supp. 1990 §§ 3[34-3] 9 [34-9] in that neither the gist nor the ballot title explain the effect of the amendment. However, we are not persuaded by Protestants' argument.

[35] Section 3 states, "a simple statement of the gist of the proposition shall be printed on the top margin of each signature sheet. . . ." The gist on this Petition reads:
This measure will amend the Constitution to require any revenue raising bill passed by the legislature and sent to the Governor for action shall not become effective until it has been approved by a majority vote of the public, it allows a revenue raising measure to become effective without a vote by the public if it is approved by 3/4 vote of each house of the legislature and acted on by the Governor but allows time for referendum by prohibiting enacting of emergency clause.


[36] The pertinent part of Section 9 states, "The ballot title shall explain in basic words, which can be easily found in dictionaries of general usage, the effect of the proposition. . . ." The ballot title prepared by the Attorney General reads as follows:
This measure amends the State Constitution. It adds new provisions to Section 33 of Article 5. These would change the method by which state government makes laws that raise revenue. The measure requires that a bill to raise revenue be voted upon by the people at the next general election. A bill would not be effective until it was approved by aPage 779majority of the voters. The measure also provides a way that a revenue bill could become law without a vote of the people. A bill would have to be approved by a 3/4 vote of each house of the legislature and go to the Governor for proper action. A revenue bill approved by a 3/4 vote of each house of the legislature would not become effective until ninety days after the approval date. Such a bill would not be subject to the emergency measure provision.


[37] shall the proposed Constitutional amendment be approved?

[38] ( ) Yes, for the Constitutional Amendment?

[39] ( ) No, against the Constitutional Amendment?

[40] Protestants' cite us toIn re Initiative PetitionNo. 344,19as providing the standard for testing whether the gist and ballot title are legally correct. In that case, we pronounced, that they "must be brief, descriptive of the effect of the proposition, not deceiving but informative and revealing of the design and purpose of the petition." This case is factually distinguishable, however, in that the petition contained more than one subject and was therefore facially void.

[41] The proposed Petition though does not contain more than one subject and satisfies the enumerated test. The gist and ballot title sufficiently appraises the voters what the measure is intended to do, i.e., "change the method by which state government makes laws that raise revenue." We therefore approve the ballot title presented by the Attorney General of this state20and find it sufficient for submission to the people.
[42] D. GUARANTEE CLAUSE
[43] Protestants argue the proposed amendment violates the United States Constitution, Article IV, § 4 holding "[t]he United States shall guarantee to every State in this Union a Republican form of Government. . . ."21They assert thePage 780proposed amendment violates our republican form of government (lawmaking by elected representatives) because it destroys the Legislature's decision making power in the area of taxation.

[44] In keeping with our directive inIn re Supreme CourtAdjudication of Initiative Petitions,22we will review the constitutionality of questions presented by the people of this state not only as to procedure and form, but also subject matter. Accordingly, we consider whether the Petition violates Article IV, § 4 of the federal constitution.

[45]In Kadderly v. City of Portland,23the Oregon Supreme Court explained that the purpose of Article IV, § 4 of the U.S. constitution was:
to protect the people of the several states against aristocratic and monarchial invasions, and against insurrections and domestic violence, and to prevent them from abolishing a republic form of government.But it does not forbid them from amending orchanging their Constitution in any way they may seefit, so long as none of these results isaccomplished.


[46] Our own Bill of Rights, Article 2, § 1 of the Oklahoma Constitution reads:
All political power is inherent in the people; and government is instituted for their protection, security, and benefit and to promote their general welfare;and they have the right to alter or reformthe same whenever the public good may require it:Provided, such change be not repugnant to theConstitution of the United States.


[47] (emphasis added).

[48] Article 24, § 3 states that though the Legislature may also present proposals for amendments, this shall not impair the people's right to amend the Constitution by initiative petition.

[49] As evidenced by these various constitutional articles, and more specifically, Article V, § 1, which reserves the power for the initiative process, we conclude the people have the right under thisreserved powerto amend the constitution, provided, it remains a republican form of government as guaranteed by the United States Constitution. Thus the dispositive question presented is whether the Petition would so alter the existing system of government that it would constitute a loss of representative government. We have determined that while the Petition undoubtedly restricts, it does not abolish government by representation and thus does not breach the federal guaranty of Article IV, § 4.

[50] What the court inKadderlyhad to say concerning the Oregon petition is instructive in the case at bar:
The initiative and referendum amendment does not abolish or destroy the republican form of government, or substitute another in its place. The representative character of the government still remains. The people have simply reserved to themselves a larger share of legislative power, but they have not overthrown the republican form of the government, or substituted another in its place. The government is still divided into the legislative, executive, and judicial departments, the duties of which are discharged by representatives selected by the people. Under this amendment, it is true, the people may exercise a legislative power, and may, in effect, veto or defeat bills passed and approved by the Legislature and the Governor; but the legislative and executive departments are not destroyed, nor are their powers or authority materially curtailed.24


[51] We acknowledge Petitioner's contention that the continued existence of any government is dependent on the right to tax. "[T]he power of taxation for revenue purposes is probably the most vital and essentialPage 781attribute of the government. Without such power it cannot function."25Under our system of government, the Legislature has been charged with this responsibility. It is this power by which the Legislature balances the budget and manages the finances of state government. It is this power by which the stability of state government is maintained.

[52] Undeniably, however, a basic right of the people is the liberty to direct how much or how little government may spend. Indeed, this Petition represents the quintessential subject for the initiative process in that the issue of taxation has from the very beginning of this country been a topic of paramount concern.26

[53] After an extensive analysis, we conclude, the Petition, if adopted, would not result in the destruction of our representative form of government. Certainly, the Petition will impact significantly the governmental framework of this state and perhaps, not without difficulty and frustration given limited resources. However, the question presented is not whether this is a "good" or "bad" amendment, rather, if it is legal; we answer affirmatively.
[54] CONCLUSION
[55] Given the reasoning herein expressed, we find Initiative Petition No. 348 is declared LEGALLY SUFFICIENT. The Ballot Title presented by the Attorney General is thereby APPROVED.

[56] HODGES, V.C.J., and HARGRAVE, ALMA WILSON and SUMMERS,JJ., concur.

[57] OPALA, C.J., and SIMMS and KAUGER, JJ., concur in result.

[58] DOOLIN, J., dissents.
[59] OPALA, Chief Justice, concurring in result.
[60] The court declares today that the petition under consideration — which would impose limitations upon the legislature's power to raise new taxes — qualifies for submission to a vote of the electorate. I concur in the court's judgmentonly insofar asthe court declares that the measure is not vulnerable to protestants' presubmission procedural challenges. But I recede from the court's review of the measure for conformity to the "Republican Form of Government" guaranteed by Art. 4, § 4, U.S. Const.1Remaining bound by my continued and unswerving commitment to the teachings ofThreadgill,2I would not undertake to review the measure's provisions for conformity to constitutional norms.Threadgillteaches that conformity of a measure's content to constitutional norms may not be judicially examinedin advance of the initiative petition's adoption.Permissible preadoption constitutional challenges are only those which address fatally vitiating infirmities in the initiative process itself.3The electorate's effort at legislating directly should not be scrutinized by attacks other than those which affect the petition's compliance with somesine qua nonPage 782submission requirement. Furthermore, the court's review of protestants' guarantee-clause claims is without any support in federal jurisprudence. Even if guarantee-clause issues were justiciable, there are no authoritative federal-law standards by which we can gauge conformity to the fundamental-law mandate for a "republican form" of government.
I
A

[61] TODAY'S PRESUBMISSION REVIEW OFFENDS THE "PRUDENTIAL" RULE OF NECESSITY

[62] I consider today's presubmission review of the measure's conformity to the constitution — i.e., whether the measure imposes limitations upon the legislature's taxing power that would either destroy the state financing scheme or violate the federal-law guarantee of a republican form of government — to offend the time-honored prudential rule. This is so because constitutional challenges to legislation before it becomes law are to be disallowed.4No necessity exists for presubmission resolution of the constitutional validity of these content-based challenges to the petition; they do not impair the initiative petition's legal fitness for submission to a vote by the people.

[63] In presubmission stages (a) we cannot be sure that when the petition is submitted for a vote the electorate will adopt the measure as law and (b) there isnotthen a lively controversy in which antagonistic adversaries press for testing a legal norm's validity against the backdrop of facts unfolded when the measure came to be applied as law.5Where there is no forensic scenario in the context of which challenged law is to be enforced, courts will not assess the attacked norm's constitutional soundnessin vacuo.6Any departure from these basic teachings ofThreadgillcreates an impermissible burden on the people's fundamental-law power to initiate and pass measures that may change the state's constitution as well as her statutes.7Page 783
B

[64] NO ONE HAS STANDING TO CHALLENGE THE CONSTITUTIONALITY OF AN INITIATIVE PETITION'S SUBSTANTIVE PROVISIONS UNTIL THEY ARE APPLIED AS EFFECTIVE LAW

[65] Standing, the legal right of a person to challenge the conduct of another in a judicial forum,8may be raised at any level of the judicial process or by the court on its own motion.9Standing must be predicated on interest that is "direct, immediate and substantial."10The concept of standing focuses on whether the party invoking the court's jurisdiction has a legally cognizable interest in the outcome of the controversy.11A party seeking relief must show actual or threatened injury of some kind.12The inquiry is whether the party has in fact suffered injury to a legally protected interest within the contemplation of statutory or constitutional provisions.13

[66] In pre-adoption stagesno one has standingto assert a content-based challenge to an initiative or referendum petition, which is unrelated to anysine qua nonrequirement for submission.14No one can be adversely affected by a measure until it has been applied or enforced as effective law. No showing of actual or threatened injury can be made before the measure becomes effective law. Only a person against whom effective lawhas been appliedwould have standing to challenge its constitutionality. A petition may be declared ineligible for a vote of the electorate only when it is fraughtwith a fatalimpediment to its submission.15A defect in the form of the petition that would operate to render it unfit for submission is the kind of fatal flaw a citizen may assertand have standing topress. This is so because, in such instances,we know in advance of submission that, if adopted, the petition would have no legal effect as law.

[67] In short, once an initiative petition passes muster under the threshold test for submission16to a vote of the peoplenoconstitutional attacks addressed to themeasure'ssubstantive provisions may be judicially entertained in preelection stages. All such attacks must await the measure's adoption and its applicationin the context of a lively postadoption controversyPage 784between antagonistic adversaries with legal standing to presschallenges.
II

[68] GUARANTEE-CLAUSE ISSUES HAVE NEVER BEEN HELD JUSTICIABLE BY THE U.S. SUPREME COURT — THE HIGHEST COURT WITH THE POWER TO PRONOUNCE FEDERAL CONSTITUTIONAL JURISPRUDENCE

[69] The U.S. Constitution provides that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government."17The guarantee clause is the onlyconstitutional clause which the U.S. Supreme Court has held to bejudicially unenforceable.18

[70] The most significant case in the clause's development isLuther v. Borden,19where the Court first announced in 1849 the principle that federal courts will not enforce guarantee-clause claims. In this seminal case the Court refused to decide which of two factions in a Rhode Island political upheaval was the proper government. The Court found that the guarantee clause treats the issue of a state government's legitimacy as apolitical questionentrusted to Congress. In turn, Congress affirms a state's republican form of government by admitting the state's senators and representatives "into the councils of the Union."20

[71] Sixty years later inPacific States Tel. Tel. Co. v.Oregon,21the Court laid to rest all challenges to the constitutional validity of initiative and referendum under the guarantee clause. There, the CourtPage 785refused to find the initiative was unrepublican, holding that the political branches have the exclusive task of monitoring the guarantee clause and that the courts could not enforce it.

[72] InColegrove v. Green22the Court once again refused to take jurisdiction of a case involving an attack on the malapportionment of congressional districts. The Court rested its judgment23on the principle that "[v]iolation of the great guaranty of a republican form of government in States cannot be challenged in the courts."24

[73] The Court reaffirmed inBaker v. Carr25itsLutherandPacific Statesjurisprudence that the republican-form guarantee is nonjusticiable.Bakerinvolved a challenge to the apportionment of the Tennessee state legislature.26The decision premised nonjusticiability on the lack of "judicially manageable standards" by which to judge congressional or state action.27Legislative reapportionment, the Court held, must be measured by equal protection standards instead.

[74] InCity of Rome v. United States28the Court once again reaffirmed its commitment to the nonjusticiability notion. Relying onBaker,the Court refused to address the merits of a guarantee-clause claim because the "issue is not justiciable." Our own jurisprudence recognizes the guarantee clause's nonjusticiability.29Page 786

[75] In sum, the U.S. Supreme Court — the highest court with the power of judicature over federal constitutional standards — hasnever held guarantee-clause claims to be justiciable.The only permissible sanction the Court has recognized for a state's failure to conform to the guarantee clause is Congress' refusal to seat the senators and representatives, which is, of course, a purely political solution.30No precedent hence exists for today's review of the initiative measure before us for conformity to the guarantee clause.31
III
A

[76] THERE ARE NO JUDICIALLY ENFORCEABLE STANDARDS OF REPUBLICANISM

[77] Assuming that guarantee-clause claims are justiciable, I would not attempt to review themwithout any authoritative federaljudicial parametersfor gauging institutional norms of state government for their conformity to the strictures of the guarantee clause. The task of measuring the limit of permissible nonrepublicanism is difficult because the Court has neither enforced the clause nor acted decisively in this matter.32The phrase "republican form of government" does not have a fixed content either in law or in political science. There is no federally enshrined ideal to serve as a yardstick. Absent any guideposts, I would be loath to tell the people what encroachmentsmay or may not be permittedon the constitutional guarantee of republicanism in form.33
B

[78] U.S. SUPREME COURT GUARANTEE-CLAUSE JURISPRUDENCE PROVIDES NO CLEAR MANDATE TO STATE COURTS

[79] By force of the Supremacy Clause34state courts are bound by the U.S. Supreme Court's jurisprudential exposition of federal law.35We cannot give the federal constitution a different sweep of meaning from that which the highest federal tribunal accords it.36On matters of federal constitutional validity, we follow U.S. Supreme Court standards. If justiciability is questionable and no parameters for measuring it exist, it is our duty to decline review until the U.S. Supreme Court has given us sufficient guidance. In short, on federal constitutional law matters we must relinquish our own notions of propriety and follow the U.S. Supreme Court jurisprudence.Page 787
[80] SUMMARY
[81] Because of my undiminished commitment toThreadgill'steachings and because judicial review of guarantee-clause claims is without any federal jurisprudential warrant, I would not today examine the measure for conformity to constitutional norms or to the republican form of government. The only options available as a remedyagainst invasive initiative powerare (a) to curb — as Justice Mosk suggests37— the people's power to create chaos by constitutional amendment defining areas of regulation that lie outside the reserved power of initiative or (b) to act judicially and invalidate an actuallyadopted measure when it visitscrippling damage to the operations of government by causinginstitutional paralysis.

[82]Thismeasure is fit for submission and I concur in the result of today's decision.
  1. "Initiative is the power reserved to the people by the constitution to propose bills and laws and to enact or reject them at the polls independent of legislative assembly."Wyatt v.Clark,299 P.2d 799, 801-01 (Okla. 1956). ↩
  2. In re Initiative Petition No. 314,625 P.2d 595, 608 (Okla. 1981) we opined:

    Courts do not concern themselves with the expediency or wisdom of laws, but only with their legality. The social and economic policies affecting the general welfare of the people are committed exclusively to the legislative branch of government, and by our fundamental concept of government, the judiciary is not permitted to interfere therewith except in so far as the legislation may transgress fundamental legal restrictions. The chief executive may recommend, and the Legislature may enact, or the people exercising their reserved power, may initiate and approve at the polls, any legislation they may deem advisable. ↩
  3. `Revenue Bills' are those that levy taxes in the strict sense of the word and are not bills for other purposes which may incidentally create revenue.Pure Oil Co. v. Oklahoma TaxCommission,179 Okla. 479, 482,66 P.2d 1097, 1100 (1936). ↩
  4. The amendment if adopted would revise section 33 to read as follows:

    A. All bills for raising revenue shall originate in the House of Representatives. The Senate may propose amendments to revenue bills.

    B. No revenue bill shall be passed during the five last days of the session.

    C. Any revenue bill originating in the House of Representatives shall not become effective until it has been referred to the people of the state at the next general election held throughout the state and shall become effective and be in force when it has been approved by a majority of the votes cast on the measure at such election and not otherwise except as otherwise provided in subsection D of this section.

    D. Any revenue bill originating in the House of Representatives may become law without being submitted to a vote of the people of the state if such bill receives the approval of three-fourths (3/4) of the membership of the House of Representatives and three-fourths (3/4) of the membership of the Senate and is submitted to the Governor for appropriate action. Any such revenue bill shall not be subject to the emergency measure provisions authorized in Section 58 of this Article and shall not become effective and be in force until ninety days after it has been approved by the Legislature and acted on by the Governor. ↩
  5. In re Initiative Petition No. 344,797 P.2d 326, 330 (1990). ↩
  6. Black's Law Dictionary (abr. 5th ed. 1983) defines the word amend as, "[t]o change for the better by removing defects or faults. To change, correct, revise, improve." ↩
  7. In re Initiative Petition No. 314,625 P.2d at 608. ↩
  8. 654 P.2d 607, 613 (Okla. 1982) (emphasis added). ↩
  9. 417 P.2d 295, 297 (Okla. 1966) (emphasis added). ↩
  10. 153 Okla. 147, 150,5 P.2d 108, 111 (1931) (emphasis added). ↩
  11. 625 P.2d at 600. ↩
  12. 797 P.2d 331, 332 (Okla. 1990) (citations omitted). ↩
  13. 797 P.2d at 329. ↩
  14. 797 P.2d at 333 (emphasis added). ↩
  15. 665 P.2d 315(Okla. 1983). ↩
  16. The ballot title presented by the Attorney General and herein approved by this court, does include information to the effect that this amendmentchanges the methodby which state government raises revenue. ↩
  17. Sharpe v. State ex rel. Oklahoma Bar Association,448 P.2d 301,306 (Okla. 1968),cert. denied,394 U.S. 904(1969). ↩
  18. 434 P.2d 941, 946 (Okla. 1967). ↩
  19. 797 P.2d at 330. ↩
  20. See Covey v. Williamson,265 P.2d 457(Okla. 1953). ↩
  21. The Guaranty Clause has generated considerable discussion over the years. Prior to 1962, the United States Supreme Court held that the clause was judicially unenforceable because it presented a political question. Then inBaker v. Carr,369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), the Supreme Court issued factors for determining when a question is political. Prominent among those factors was whether there was a "textually demonstrable constitutional commitment of the issue to a coordinate political department. . . ." Though the Court did not find the Guaranty Clause justiciable in that case, inReynolds v. Sims,377 U.S. 533, 582, 84 S.Ct. 1362, 1392, 12 L.Ed.2d 506 (1964) the Court indicated this was not necessarilyalwaystrue when it opined, "As we stated inBaker v. Carr,somequestions raised under the Guaranty Clause are nonjusticiable, where "political in nature and where there is a clear absence of judicially manageable standards." (emphasis added).But see City of Rome v. United States,446 U.S. 156, 182 n. 17, 100 S.Ct. 1548, 1564 n. 17, 64 L.Ed.2d 119 (1980) where the Court citingBakernoted the guaranty clause was nonjusticiable. InGregory et al., Judges v. Ashcroft, Governorof Missouri,___ U.S. ___, 111 S.Ct. 2395, 2402, 115 L.Ed.2d 410 (1991), the Court considered whether a state constitutional provision requiring mandatory retirement age for most state judges violated the federal Age Discrimination in Employment Act of 1967. After citing a number of cases in which the Court had relaxed its scrutiny given the issues rested firmly on a State's constitutional prerogative, the Court concluded:

    These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials.It is an authority that lies at `the heartof representative government.' It is a power reservedto the States under the Tenth Amendment andguaranteed them by that provision of the Constitutionunder which the United States `guarantee[s] to everyState in this Union a Republican Form of Government.'(citations omitted).

    For a sister state court's analysis concluding the Guaranty Clause is justiciablesee Vansickle v. Shanahan,212 Kan. 426, 437-38,511 P.2d 223, 234 (1973).

    [T]he contention all cases arising under the guaranty clause are nonjusticiable has no historical precedent. Instead, as in other cases wherein the "political" controversy bar to judicial enforcement has been raised, we must look to the facts and circumstances surrounding the litigation, as well as the theory upon which the constitutional challenge is premised, to ascertain whether the issue may be resolved by the judicial process.

    For further discussion on the guaranty clauseseeMerritt,TheGuarantee Clause and State Autonomy: Federalism for A ThirdCentury,88 Colum.Rev., 1, 50-55 (1988); Linde,When IsInitiative Lawmaking Not "Republican Government"?,17 Hastings Constitutional Law Quarterly, 159, 172 (1989). ↩
  22. 534 P.2d 3(Okla. 1975). ↩
  23. 44 Or. 118, 144, 74 P. 710, 719 (1903) (emphasis added). ↩
  24. Id.,44 Or. at 145-46, 74 P. at 720. ↩
  25. Watchtower Bible Tract Soc. v. Los Angeles County,30 Cal.2d 426, 429,182 P.2d 178, 180 (1947) cert. denied,332 U.S. 811, 68 S.Ct. 112, 92 L.Ed. 389 (1947). ↩
  26. Taxation without representation was a major source of contention and ultimately contributed to our break from England. ↩
  27. The terms of Art. 4, § 4, U.S. Const., provide in pertinent part:

    "The United States shall guarantee to every State in this Union aRepublican Form of Government,and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." (Emphasis added.) ↩
  28. Threadgill v. Cross,26 Okla. 403,109 P. 558(1910). ↩
  29. My commitment toThreadgill, supranote 2, is reported in several prior decisions.See In re Initiative Petition No. 347State Question No. 639,Okla.,813 P.2d 1019, 1037 (1991) (Opala, C.J., concurring);In re Initiative Petition No. 349(No. 76,437, February 20, 1991) (Opala, C.J., concurring in part and dissenting in part);In re Initiative Petition No. 341,Okla.,796 P.2d 267, 275 (1990) (Opala, V.C.J., concurring in result);In re Initiative Petition No. 317, Etc.,Okla.,648 P.2d 1207, 1222 (1982) (Opala, J., concurring in the judgment);In reInitiative Petition No. 315, Etc.,Okla.,649 P.2d 545, 554-555 (1982) (Opala, J., concurring in result). ↩
  30. The prudential rule of necessity, adhered to today byallstate and federal courts, holds that constitutional issues must not be resolved in advance of strict necessity.In re InitiativePetition No. 347 State Question No. 639, supranote 3 at 1027;Smith v. Westinghouse Elec. Corp.,Okla.,732 P.2d 466, 467 n. 3 (1987);I.N.S. v. Chadha,462 U.S. 919, 937, 103 S.Ct. 2764, 2776, 77 L.Ed.2d 317 (1983);Ashwander v. Tennessee ValleyAuthority,297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring);see also Schwartz v. Diehl,Okla.,568 P.2d 280, 283 (1977);Dablemont v. State, Departmentof Public Safety,Okla.,543 P.2d 563, 564-565 (1975). ↩
  31. One reason given by Justice Grodin (formerly of the California Supreme Court) in his book,In Pursuit of Justice(Univ. of Cal.Press 1989) at 106, for moving "cautiously in considering a preelection challenge to an initiative is that the decisional process is likely to be enhanced if evaluation of the challenge is deferred until after the election. Considerations relevant to the constitutional issue may develop in the course of the campaign itself. . . . Moreover, the timing of a preelection challenge seldom leaves room for the studied consideration appropriate to decision of an important legal issue." Other legal commentators have observed: "Most courts will not entertain a challenge to a measure's substantive validity before the election. A minority of courts, however, are willing to conduct such review. Arguably, pre-election review of a measure's substantive validity involves issuing an advisory opinion, violates ripeness requirements and the policy of avoiding unnecessary constitutional questions, and is an unwarranted judicial intrusion into a legislative process." Gordon and Magleby, Pre-Election Judicial Review of Initiatives and Referendums, 64 Notre Dame L.R. 298, 302 (1989);see in thisconnectionGrossman, The Initiative and Referendum Process: The Michigan Experience, 28 Wayne L.Rev. 77, 111 (1981); Note, The Judiciary and Popular Democracy: Should Courts Review Ballot Measures Prior to Elections?, 53 Fordham L.Rev. 919, 921-22 (1985). ↩
  32. Smith v. Westinghouse Elec. Corp., supranote 4. ↩
  33. The constitutional provisions governing the initiative and referendum are Art 5, §§ 1-8, Okla. Const. Section 1 provides:

    "The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; butthe people reserve tothemselves the power to propose laws and amendmentsto 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." (Emphasis added.)

    InOklahoma Tax Commission v. Smith,Okla.,610 P.2d 794, 807 (1980), we stated that Art. 5, §§ 1, 2 and 7, together "comprise an initiative system whereby both the people and the Legislature may propose legislation independently, and neithercan block theeffort of the other during the process. . . ." Our teaching inSmithapplies with equal force to bar judicial as well as legislative interference with initiative process. Courts should be loath to impose judicial restraint on the electorate's power to make law. As the Arizona Supreme Court aptly remarked inState v. Osborn,16 Ariz. 247, 143 P. 117, 118 (1914), to place court-imposed restrictions "would be tantamount to claiming the power of life and death over every initiated measure by the people. It would limit the right of the people to propose only valid laws, whereas the other lawmaking body, the Legislature, would go untrammeled as to the legal soundness of its measures." ↩
  34. State ex rel. Cartwright v. Okla. Tax Com'n,Okla.,653 P.2d 1230, 1232 (1982);Matter of Adoption of Baby Boy D,Okla.,742 P.2d 1059, 1062 (1985). ↩
  35. Matter of Estate of Doan,Okla.,727 P.2d 574, 576 n. 3 (1986). ↩
  36. Underside v. Lathrop,Okla.,645 P.2d 514, 517 (1982);Democratic Party of Oklahoma v. Estep,Okla.,652 P.2d 271, 274 n. 13 (1982);Matter of Estate of Doan, supranote 21 at 576. ↩
  37. Baker v. Carr,369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962);Flast v. Cohen,392 U.S. 83, 100, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968);Application of State ex rel.Dept. of Transp.,Okla.,646 P.2d 605, 609 (1982). ↩
  38. O'Shea v. Littleton,414 U.S. 488, 493-494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). ↩
  39. Matter of Adoption of Baby Boy D, supranote 8 at 1062;Independent School Dist. No. 9 v. Glass,Okla.,639 P.2d 1233, 1237 (1982). ↩
  40. For an initiative to pass the threshold test it must (a) be in substantial compliance with thesine qua nonprocedural requirements for submission, (b) address but a single subject [In re Initiative Petition No. 344,Okla.,797 P.2d 326, 330 (1990);In re Initiative Petition No. 342,Okla.,797 P.2d 331, 333 (1990)]; and (c) embrace content appropriate for lawmaking by the people [In re Supreme Court Adjudication, Etc.,Okla.,534 P.2d 3(1975)];see also in this connection In re InitiativePetition No. 347, supranote 3 (Opala, C.J., concurring). ↩
  41. The measure need only pass a threshold test to qualify for submission,see supranote 14. ↩
  42. See supranote 14. ↩
  43. Art. 4, § 4, U.S. Const.,supranote 1. ↩
  44. Seein this connection Heaton, The Guarantee Clause: A Role For The Courts, 16 Cumberland L.Rev. 477, 478 (1986). The guarantee clause was first invoked in response to a series of rebellions against state or national authority between 1793 and 1843 when several brief episodes of violence flared up in the states, culminating in the 1842 Dorr Rebellion in Rhode Island.See infranote 19; Wiecek, The Guarantee Clause of the U.S. Constitution 78-85, (1972) Cornell University Press). ↩
  45. 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1849). The issues pressed inLuthergrew out of Dorr's rebellion of 1842. As the 1633 Charter of Rhode Island contained no provision for amendment and allowed only limited suffrage, dissatisfied citizens elected representatives to attend a constitutional convention, which, in turn, proposed a new state government. The new government was adopted by a majority vote of the adult male population, and its governor-elect Dorr tried unsuccessfully to uphold its authority by force. Thereafter, the issue was joined in a trespass action on the question whether officials of the charter government had acted pursuant to martial law to suppress an insurrection against the state government. The ultimate issue was which of the two competing governments was legitimate and lawful. Describing the question as political, the Court refused to decide the contest.SeeWiecek,supranote 18 at 85-129. ↩
  46. Luther v. Borden, supranote 19, 48 U.S. (7 How.) at 41, 12 L.Ed. at 599.In several post-Luther opinions the Court has heldguarantee-clause claims nonjusticiable political questions. Bakerv. Carr, supranote 11;Highland Farms Dairy, Inc. v. Agnew,300 U.S. 608, 57 S.Ct. 549, 81 L.Ed. 835 (1937);Cochran v.Louisiana State Bd. of Educ.,281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1930);Mountain Timber Co. v. Washington,243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685 (1917);Ohio ex rel. Davis v.Hildebrandt,241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (1916);O'Neill v. Leamer,239 U.S. 244, 36 S.Ct. 54, 60 L.Ed. 249 (1915);Pacific States Tel. Tel. Co. v. Oregon,223 U.S. 118, 32 S.Ct. 224, 56 L.Ed. 377 (1912);Kiernan v. Portland,223 U.S. 151, 32 S.Ct. 231, 56 L.Ed. 386 (1912).

    Even in the few early cases in which the Court considered guarantee-clause cases on the merits, there is not a single precedent in which an act or statute was invalidated.See e.g.Michigan ex rel. Kies v. Lowrey,199 U.S. 233, 26 S.Ct. 27, 50 L.Ed. 167 (1905);Forsyth v. Hammond,166 U.S. 506, 17 S.Ct. 665, 41 L.Ed. 1095 (1897);In re Duncan,139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219 (1891);Minor v. Happersett,88 U.S. (21 Wall.) 162, 22 L.Ed. 627 (1875). ↩
  47. Supranote 20.Pacific Statesinvolved a challenge to the practice of enacting legislation by citizen initiative. In Oregon the people had used the initiative to enact a license tax on telephone company gross receipts within the state.In PacificStates the Court never reached the merits of the claim,concluding as it had inLuther, supranote 11, that guarantee-clause questions are "political in character" and thus "solely committed by the Constitution to the judgment of Congress."Pacific States, supranote 20, 223, U.S. at 133, 32 S.Ct. at 224. This matter, the Court said, was "absolutely foreclosed." 223 U.S. at 143, 32 S.Ct. at 228. ↩
  48. 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). ↩
  49. Justice Frankfurter delivered the Court's judgment and not its opinion because only two other justices concurred in his opinion; one justice concurred in result, three others dissented, one was absent and another member of the Court had recently died. Wiecek,supranote 18 at 272. ↩
  50. Colegrove v. Green, supranote 22, 328 U.S. at 556, 66 S.Ct. at 1201, citingPacific States, supranote 20. ↩
  51. Supranote 11. ↩
  52. The Court cited Luther for the proposition that theguarantee provided no standards for a court to judge the validityof a state government.Acknowledging that a "permanent" military government would "obviously" be unrepublican, the Court suggested that even at this extreme, responsibility for enforcement of the guarantee clausewould lie only with Congress and not with thecourts. Baker v. Carr, supranote 11, 369 U.S. at 222, 82 S.Ct. at 712-713 n. 48. ↩
  53. After thoroughly reviewing the decisions dealing with the guarantee clause, the Court observed that it has long "refused to resort to the Guaranty Clause . . . as the source of a constitutional standard for invalidating state action."Baker v.Carr, supranote 11, 369 U.S. at 223, 82 S.Ct. at 713. The Court noted that guarantee-clause claims involve those elements which define a political question and, for that reason and no other, are nonjusticiable. While inBakerthe Court intimates there may be instances in which the guarantee clause might be implicated, it does not say the guarantee clause is justiciable.

    Shortly afterBaker,inReynolds v. Sims,377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Court held on equal protection grounds that certain apportionment plans in Alabama were unconstitutional.Reynoldsreaffirmed two fundamental points inBaker, supranote 11, i.e., that reapportionment issues are fundamentally equal protection issues and that the guarantee clause is irrelevant to the problems of reapportionment.

    InGregory v. Ashcroft,___ U.S. ___, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991), the Court referred to the guarantee of a republican form of government in discussing "the States' constitutional power to establish the qualifications" "of their most important government officials."Id.,___ U.S. at ___ and ___, 111 S.Ct. at 2401 and 2402. There, the Court was dealing with a preemption problem: whether Congress' 1974 amendment of the Age Discrimination in Employment Act of 1967 — which extended the Act's substantive provisions to include the states as employers — took states out of the arena of legislating mandatory retirement age for its state judges. The Court held that judges were not included within the Act's definition of an employee. Unless Congressclearly removes states from that arena,the Court announced, there is no federal preemption under the Supremacy Clause, Art. 6, U.S. Const. Preemption deals with congressional power to legislate to the exclusion of the states on subjects upon which Congress has the power to make law — i.e., bankruptcy, interstate commerce and Indian commerce power. Congress draws its power from the federal constitution which limits its authority to properly reserved subjects.Id.,111 S.Ct. at 2400. No preemption problem is presented by the initiative measure under consideration here.Ashcroftlends no support to the notion of guarantee-clause claims' justiciability. ↩
  54. 446 U.S. 156, 182 n. 17, 100 S.Ct. 1548, 1564, 64 L.Ed.2d 119 (1980). ↩
  55. Brown v. State Election Board,Okla.,369 P.2d 140, 149 (1962), citingColegrove v. Green, supranote 22;PacificStates Tel. Tel. Co. v. Oregon, supranote 20;Luther v.Borden, supranote 19. ↩
  56. See, e.g.,Luther v. Borden,supranote19;PacificStates Tel. Tel. Co. v. Oregon, supranote 20;Colegrove v.Green, supranote 22;Baker v. Carr, supranote 11. ↩
  57. For state and lower federal court decisions that have disregarded the rule of nonjusticiabilitysee, e.g., In reInterrogatories Propounded by Senate, Etc.,189 Colo. 1,536 P.2d 308(1975);People of City of Thornton v. Horan,192 Colo. 144,556 P.2d 1217(1976);Vansickle v. Shanahan,212 Kan. 426,511 P.2d 223(1973);Heimerl v. Ozaukee Cty.,256 Wis. 151,40 N.W.2d 564(1949);Hoxie School Dist. v. Brewer,137 F. Supp. 364(E.D.Ark. 1956). If the avenue of relief must come from the Congress, we are without any warrant to usurp the congressional power.The jurisprudence of state and lower federal courts isneither authority to nor persuasive upon this court. ↩
  58. NeitherBaker v. Carr, supranote 11, nor other Supreme Court jurisprudence has provided us with any standards or parameters for review of the Guarantee Clause. ↩
  59. We will not anticipate federal constitutional jurisprudence in advance of necessity.Brown v. State ElectionBoard, supranote 29 at 152. ↩
  60. Art. 6, cl. 2, U.S. Const.;McLin v. Trimble,Okla.,795 P.2d 1035, 1044-1045 n. 5 (1990) (Opala, V.C.J., dissenting). ↩
  61. United States v. Home Federal S. L. Ass'n of Tulsa,Okla.,418 P.2d 319, 325 (1966);Dean v. Crisp,Okla. Cr.536 P.2d 961, 963 (1975);McLin v. Trimble, supranote 34 at 1044-1045 n. 5 (Opala, V.C.J., dissenting);see also Walker v.Maruffi,105 N.M. 763,737 P.2d 544, 547 (App. 1987). ↩
  62. When we invoke the federal constitution, our power cannot be any greater than that of the U.S. Supreme Court. While state courts have the same power to make federal constitutional jurisprudence that federal courts have, they cannot exceed it. Until the Court tells us that the guarantee clause is enforceable and gives us a standard for gauging conformity to it, we cannot ourselves fashion a federal constitutional remedy. ↩
  63. Kennedy Wholesale v. Bd. of Equalization,53 Cal.3d 245,279 Cal.Rptr. 325, 332,806 P.2d 1360, 1367 (Cal. 1991) (Mosk, J., concurring). ↩