Wm. C. HETHERINGTON, JR., Vice-Chief Judge.

¶ 1 Thomas Morris (Morris) appeals an order of the trial court sustaining the finding of McLoud's city clerk, A. Kay Heinz (Clerk), that McLoud Initiative Petition #2010-2 (the Petition) was insufficient. We conclude the Petition is an untimely referendum, it violates constitutional due process of the landowners in the area proposed for de-annexation, and is not the proper method to achieve the de-annexation sought. The order sustaining Clerk's finding of insufficiency is AFFIRMED.

FACTS

¶ 2 A number1 of initiative petitions, including Initiative Petition #2010-2 (the Petition), which is the subject of this appeal, were pre-filed with the City Clerk (Clerk) of McLoud (City) on July 28, 2010. The Petition seeks de-annexation of thirty tracts comprising approximately 15 square miles of City and contains legal descriptions of the tracts, a map, and a copy of a platted area. The proposed change would result in City reverting to the area originally platted in 1895 as a town.

¶ 3 The original ballot title filed by the proponents of the Petition states:

¶ 4 The Petition and signatures of those supporting the measure were filed with Clerk on October 19, 2010. The proposed ballot title for the Petition was reviewed by City's attorney, who drafted a new ballot title. This new ballot title, published in a legal notice on October 29, 2010, states:

¶ 5 The notice advises "that on October 20, 2010 the City Attorney determined that the ballot title in the above referenced Initiative Petition was not in legal form and in harmony with the law," and that City's attorney had prepared the ballot title published in the October 29, 2010 notice. The October 29, 2010 Notice advises that "[a]ny qualified elector" of City may appeal the ballot title within ten days of the notice by filing an objection with the District Court of Pottawatomie County, Oklahoma and serving notice of the appeal upon Clerk "and the persons that prepared the ballot title." The October 20, 2010 notice also contains the following statement: "The City Clerk has not yet determined the sufficiency or insufficiency of McLoud Initiative and Referendum Petition #2010-2."

¶ 6 Clerk published notice in the November 20, 2010 edition of the Shawnee News-Star newspaper stating the Petition has sufficient signatures, and "[t]he time for objecting to the City Attorney's proposed Ballot Title has expired." However, she determined the Petition is "insufficient" for the following reasons:

(Footnotes added.)

¶ 7 Morris filed a Protest to Clerk's Finding of Insufficiency in the District Court of Pottawatomie County on November 30, 2010, claiming the City Attorney's ballot title published on October 29, 2010, "is slanted to the point it does not now meet the requirements of statutes," and it "appears to contain erroneous information." Morris's Protest notes Clerk published findings of insufficiency on November 20, 2010, and asks the trial court to determine if the Petition "is in form required by law," citing 11 O.S.2011 15-104.4 Morris filed a Motion to Find Initiative Petition 2010-2 Sufficient on December 8, 2010. Clerk filed a response to Morris's Protest and to his motion to find the Petition sufficient, both parties filed trial briefs, and the trial court conducted a hearing on October 25, 2011. The trial court entered an order recounting how sworn testimony, stipulations, and arguments of counsel were received and sustaining Clerk's finding the Petition was insufficient.

THE APPEAL

¶ 8 At the outset, we note there is no dispute concerning the number of signatures necessary for the Petition. Clerk has stated the total obtained is sufficient. The challenge to Clerk's finding of insufficiency, on grounds other than the number of signatures, was timely filed within ten days of the November 20, 2010 notice. Although several cases have addressed use of the referendum process in the context of de-annexation of municipal territory, we agree with Clerk that this controversy presents a matter of first impression whether the initiative process also may be used to de-annex the subject territory.

¶ 9 Morris argues the trial court's order improperly deprives the people of McLoud of the power of initiative in violation of Okla. Const. art. 18, § 4(a) and 11 O.S.2011 15-101, improperly considers the wisdom rather than the legality of the Petition, and applies "an overly technical construction to deny the Petition." Morris claims the trial court failed to enter a finding the Petition "clearly and manifestly" violates either the Oklahoma Constitution or United States Constitution and, in the absence of such a finding, improperly declares the Petition invalid in advance of a vote of the people.

¶ 10 The trial court's order sustaining Clerk's determination does not contain specific findings of fact or conclusions of law, and there is no allegation such were requested. Morris alleges the trial court "may have improperly determined" the de-annexation was not a proper subject for an initiative petition, as it "would result in the impairment of a contract without a clear showing thereof" and it would violate due process rights of the persons in the areas de-annexed. Morris also contends the trial court "may have improperly determined" the Petition was "an impermissible attempt to dissolve the City of McLoud" and was "an impermissible attempt to hold a referendum on previous annexation ordinances."

¶ 11 The duty of a city clerk is to determine, in the first instance, if a petition "is sufficient in form." See, In re Initiative Petition No. 2 of Cushing, 1932 OK 124, ¶ 37, 157 Okla. 54, 10 P.2d 271, 281. "Those who challenge the validity of actions of public officials apparently within their statutory powers, must carry the burden of demonstrating such invalidity." U.C. Leasing, Inc. v. State ex rel. State Bd. of Public Affairs, 1987 OK 43, ¶ 24, 737 P.2d 1191, 1196.

¶ 12 Morris contends some of Clerk's given reasons for the determination the Petition is insufficient are premised on speculation regarding practical problems the City of McLoud might face if the areas described were de-annexed and contends these speculations are not support for a finding the Petition is legally insufficient, i.e., Clerk's claim the Petition is insufficient because it seeks to "dissolve" or "destroy" the City of McLoud. Morris argues these claims are not borne out on the face of the Petition, which indicates the de-annexation sought includes only areas added since the municipality's founding and the original area of the City of McLoud, which was formerly a town, will be preserved. While it is true a reduced land area might pose political and economic difficulties for a municipality if the initiative were adopted by voters, the issue for resolution at this juncture is whether the Petition clearly and manifestly contains legal insufficiencies.

¶ 13 As the Court explains in In re Initiative Petition 362, State Question No. 699, 1995 OK 77, ¶ 12, 899 P.2d 1145, 1151:

¶ 14 Constitutional issues present questions of law. Malloy v. Caldwell, 2011 OK CIV APP 26, ¶ 11, 251 P.3d 183, 185. We review the trial court's decisions on questions of law de novo and without deference to the trial court's decision. Lee v. Bates, 2005 OK 89, ¶ 4, 130 P.3d 226, 228.

¶ 15 In In Re: De-annexation of Certain Real Property from the City of Seminole, 2004 OK 60, ¶ 10-11, 102 P.3d 120, 125-126, in a subsection entitled "An Alteration of Municipal Boundaries Is Accomplished By The Exercise Of A State Sovereign Power That Has Been Delegated to Municipalities," the Oklahoma Supreme Court explains

¶ 16 In the Oklahoma Municipal Code, the Legislature has provided the procedure for detachment of municipal territories in 11 O.S. 2011 21-110:

As the Oklahoma Supreme Court states in In Re: Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶ 16, 142 P.3d 400, "We cannot undervalue the Oklahoma Constitutional right of initiative, but we also may not ignore our constitutional duty to ensure that in the exercise of the right of initiative, the provisions of the Constitution are adhered to." (Footnote omitted.) However, the Court also has determined, in Initiative Petition In re No. 349, State Question No. 642, 1992 OK 122,5 838 P.2d 1, 8, that "A PRE-SUBMISSION DETERMINATION OF THE CONSTITUTIONALITY OF THE INITIATIVE PETITION IS APPROPRIATE AND NECESSARY WHERE THE PROPOSAL IS FACIALLY UNCONSTITUTIONAL AND IS JUSTIFIED WHEN A COSTLY AND FUTILE ELECTION MAY BE AVOIDED." (Capitalization in original.) Indeed, the Court goes on to comment that "if a properly preserved constitutional challenge is leveled at a proposed law and a ruling on the issue would prevent a useless election resulting in the enactment of an unconstitutional statute, this Court has the authority, as well as the responsibility, to decide the matter." Id. ¶ 18, 838 P.2d at 8.6

¶ 17 The Legislature has adopted a statutory process for removing territory from municipalities which is limited to "[o]nly land which is within the limits of the municipality and upon its border and not laid out in lots and blocks, or land which had been annexed to a municipality" and which requires "[a] petition requesting detachment, signed by at least three-fourths (3/4) of the registered voters and by the owners of at least three-fourths (3/4), in value, of the property to be detached." (Emphasis added.) This is not the initiative petition process, under which fifty percent plus one voter of a municipality at large, i.e., not limited to those residents of the territory proposed for detachment, could detach territory from a municipality via use of the initiative. Use of an initiative petition under the circumstances here is inconsistent with the legislative intent embodied in the Oklahoma Municipal Code and fails to protect due process rights of the affected property owners. The statutory process, not the initiative process, is the de-annexation method consistent with protection of constitutional rights. Morris has failed to comply with this applicable statutory process.

¶ 18 Further, the process advocated by Morris is, effectively, an end run against longstanding prior annexations and, effectively, not an initiative petition but instead is an untimely referendum. Any referendum regarding an ordinance or resolution is due within thirty days of passage of the ordinance or resolution. 11 O.S.2011 15-103 C. We agree with Clerk that the Petition seeks to undo previously passed ordinances or resolutions and is, effectively, an untimely referendum.

CONCLUSION

¶ 19 The Legislature has provided a statutory method for the detachment of municipal territories. Although only one reason is enough for a determination of insufficiency, Clerk has identified two proper grounds for finding the Petition insufficient: (1) it is a clear and manifest violation of constitutional rights, and (2) it proposes what is effectively an untimely referendum. The order sustaining Clerk's finding of insufficiency is AFFIRMED.

JOPLIN, P.J., concurs.

KENNETH L. BUETTNER, Judge, dissenting.

¶ 20 Article 18, § 4(a) provides that the powers of initiative on referendum are reserved to the people of every municipal corporation with reference to all legislative authority which the municipality may exercise.

¶ 21 The Legislature has authorized the process by which territory of a municipality may be de-annexed. While the focus is on 11 O.S.2011 21-110(A)(2), which provides a petition process by persons living in the property sought to be de-annexed, the majority ignores 21-110(A)(1) which allows for de-annexation by an ordinance of the governing body. It would appear to me that if a city council may by ordinance, de-annex territory, then the people of the city, under their constitutionally reserved power of Article 18, § 4(a), may seek enactment of such an ordinance by initiative petition.

¶ 22 In addition, it is not clear the initiative petition was facially unconstitutional. If it was, then all efforts to de-annex territory would suffer the same "insufficiency." Rather, the objections are more properly raised when and if the initiative petition becomes law and is applied.

¶ 23 I respectfully dissent.