Oklahoma Constitution allows for people to legislate themselves through initiative petition (Capitol Update)

The Oklahoma Supreme Court ruled recently that Initiative Petition 446, which would become State Question 832, can go on the ballot later this year if sufficient signatures are obtained. The initiative would raise the $7.25 per hour minimum wage for Oklahoma employees to $9 per hour beginning January 1, 2025; $10.50 per hour beginning January 1, 2026; $12 per hour beginning January 1, 2027; $13.50 per hour beginning January 1, 2028, and $15 per hour beginning January 1, 2029. 

Beginning January 1, 2030, and successive years, the minimum wage would increase annually as measured by the Consumer Price Index for Urban Wage Earners and Clerical Workers as published by the U.S. Department of Labor. In addition to the increase in minimum wage, the initiative would repeal certain statutory exemptions such as farm workers, domestic workers, part-time workers, and others.

Presently, the Oklahoma minimum wage law says, “no employer within the State of Oklahoma shall pay any employee a wage less than the current federal minimum wage for all hours worked.” The current $7.25 federal minimum wage was set on July 24, 2009. Given the paralysis in Congress, it seems unlikely to significantly change any time soon, at least not until the next election.

The State Chamber and its CEO Chad Warmington, along with the Oklahoma Farm Bureau Foundation and Tommy Salisbury, who operates a 3,800-acre wheat, corn, and cattle farm in the Collinsville area, filed the challenge to the constitutionality of Initiative Petition 446, challenging the part that increases the minimum wage annually based on the federal Consumer Price Index.

The challengers’ contention was that because the minimum wage would change each year, not by an act of the legislature but by action of a federal agency, it was an improper delegation of legislative authority. Ironically, the present Oklahoma minimum wage law operates the same way. If Congress raises the federal minimum wage, the Oklahoma minimum wage would change without any action by the Oklahoma legislature.

A six-member majority of the Supreme Court in a short opinion said, based on precedent, “Initiative Petition No. 446 does not clearly or manifestly violate either the Oklahoma or United States Constitution.” Justice Dana Kuehn, a former Tulsa County Associate District Judge, agreed with the majority result but not its reason.

Justice Kuehn said the Supreme Court made a mistake in 1975 when it held that, because the Court’s “determination could prevent a costly and unnecessary election,” the court could intervene in the initiative process and determine the constitutionality of the petition before the election rather than ruling later if it passed and became law. She would have simply denied the challenge, allowed the election, and ruled on the constitutionality of the new law after it passed, if it were challenged. 

The other two justices, Chief Justice John Kane, a former Osage County District Judge, and Vice-Chief Justice Dustin Rowe, a Tishomingo attorney and former district judge of the Chickasaw Nation District Court, dissented. They had no problem ruling on the petition’s constitutionality, but they agreed with the challengers that relying on the federal Consumer Price Index for future increases was an incurable delegation of legislative authority. They would have thrown out the initiative petition.

Initiative Petition 446 is a classic case of why the members of the state constitutional convention included the initiative petition in our state constitution. The state legislature, like Congress, will not act on some issues in the face of powerful interests or fear of divided public opinion, as with some hot-button issues. In those instances, the people have a right to legislate themselves through the initiative process. 

Quite often, some legislators who disagree with the decisions the people have made, try to change the rules for initiative petitions to diminish the people’s legislative authority. Seems like a bad idea.


Steve Lewis served as Speaker of the Oklahoma House of Representatives from 1989-1990. He currently practices law in Tulsa and represents clients at the Capitol.