The Thirsty Beagle: No reason to be angry if liquor stores challenge SQ 792

Wednesday, November 9, 2016

No reason to be angry if liquor stores challenge SQ 792

You may or may not know who Jerry Fent is.

During my 12-plus-year career as a reporter and editor at The Oklahoman, I become quite familiar with his name.

Fent was often referred to as a gadfly -- by the dictionary definition, it's someone who "persistently annoys or provokes others with criticism, schemes, ideas, demands, requests, etc."

Fent was in the news because he took it upon himself to annoy our state's lawmakers. A longtime Oklahoma City attorney, he would scrutinize bills passed by the legislature and sue if he thought they were unconstitutional. He's actually still at it right now, taking on the Oklahoma Turnpike Authority most recently.

He has a enjoyed a great deal of success. Many people who know that the concept of legislative logrolling is unconstitutional probably know that only because Fent challenged several such laws that wrapped multiple unrelated topics into one bill. For me, Fent is the reason I know exactly what our single-subject rule is all about.

As court ruling after court ruling would side with Fent, throwing bills out as unconstitutional, people would complain -- why is he doing this? Why is he constantly challenging the will of the legislature, and by extension, the will of the people?

Of course, he wasn't doing anything wrong. Every court decision that went his way served to validate our governmental system of checks and balances. People actually should be thanking him for getting bills that are unconstitutional thrown out. Fent sends a firm message to the legislature time and again: You need to do better.

And so that brings us to State Question 792. The alcohol reform measure was passed overwhelmingly during Tuesday's election. Support came in above 65 percent -- a particularly emphatic result, especially for a state like Oklahoma (Surprise! We like our drinks!).

What's not a surprise is that the liquor store lobby is getting ready to play Jerry Fent on 792. They already challenged the measure in court to try and keep it off the ballot, and are on the record as saying they would challenge again if it passed the vote. They're currently soliciting donations to fund their legal battle. What will be troubling for some is that when they tried to get the measure stricken from the ballot, the judge on the case, while allowing it to stay on the ballot, openly expressed concerns about its constitutionality.

Now, since I'm fairly certain I'm blacklisted from pretty much every liquor store in the state at this point, I don't suppose it'll sting too bad to say that I don't believe those challenging 792 are as altruistic in their intentions as Fent would be.

Do I think they really care if 792 is unconstitutional as a matter of pure principal? No. Do I think they want to get it thrown out because they don't want Walmart to sell $10 wine and steal all their sales? Yes.

And that's fine! Thing is, it doesn't really matter what their intent is. It's totally their right to challenge the measure. If they take this thing to court, and it gets struck down as unconstitutional, it's not much different than what Fent has done numerous times.

While there will be much hand-wringing if it shakes out like that, I'm sure, and it may delay the inevitable reform that will one day come to Oklahoma's laws, it will serve an important purpose.

It will allow the voters to tell the legislature to get back to work and do better. To get a law on the books that is not unconstitutional. I for one have seen our legislature try any number of shenanigans, and I'm happy to see the courts keep them in check when they don't do the right thing.

To be clear, with 792, I don't believe there was any intent whatsoever to skirt the law. All the same, let's get something ironclad on the books.

And who knows, maybe the liquor store efforts will be in vain and 792 will stand. The crux of the liquor store argument right now is that 792 is unconstitutional because it doesn't treat all stores that sell alcohol the same. Many people believe that argument doesn't hold water because grocery stores and liquor stores aren't the same -- while both would have wine and beer, one would not be allowed to sell liquor, and one would. (Also, grocery stores wouldn't be able to sell beer above 8.99% ABV.)

How will the courts view that argument? It'll be interesting to see it play out.

In the meantime, the people of this state have spoken rather forcefully. Change is coming. We may just need to practice a little patience on the way.

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