Legal challenges to Oklahoma laws appear to be on the increase, with the blame being cast on politics getting mixed in with policy, lawmakers trying to cram too many items in comprehensive measures or on so-called activist judges.
So far this month, the Oklahoma Supreme Court tossed out a 2009 comprehensive measure dealing with changes to how lawsuits are handled and a legal challenge was filed to a bill passed and signed into law this year that would reduce the top rate of the state's personal income tax as well as provide funds to repair the state Capitol. Also, a federal appellate court said Oklahoma's American Indian “rain god” license plate can be challenged on grounds that amounts to a state endorsement of a religion.
“There are certain things that a Legislature undertakes that no matter what they do, there's going to be a lawsuit,” said state Attorney General Scott Pruitt, whose office is involved in defending most of the litigation challenging Oklahoma laws.
A favorite target in recent years has been anti-abortion measures, which have become more common the past several years as Republicans increase their ranks to eventually capture the majority in both the House of Representatives and the Senate.
“You've got organizations that exist, that are created, they live day to day for one purpose — to go out and sue any state that passes a pro-life statute,” said Pruitt, a Republican. “You can't from a legislative or a policy perspective say, ‘Well, then we're going to shrink from our responsibility.'
“And our Legislature has not shrunk from their responsibility, God bless them,” he said. “So when they pass those statutes, we're going to defend them vigorously.
“There are certain kinds of statutes that are passed that irrespective of how sound they are constitutionally, how much time is put into drafting those consistent with court opinions …. you're just going to have lawsuits,” Pruitt said.
But Rep. Doug Cox, R-Grove, cautioned House members this year that they are pushing too far when it comes to anti-abortion measures. The bill, which since was signed into law, places a requirement that women under the age of 17 must obtain a prescription for the “morning after” emergency contraceptive. It was in response to a recent recommendation by the U.S. Food and Drug Administration that the contraceptive be made available to women 15 years of age and older without a prescription.
Cox, an emergency room physician, said the FDA recommendation is an attempt to reduce the number of abortions being given to women under the age of 17. He said he expected the Oklahoma measure to draw a legal challenge because it discriminates against women and because federal rules take precedence over state law.
Rep. Richard Morrissette, D-Oklahoma City, said he and other Democratic House members warned House Republicans that the income tax-cut law passed this year violated the single-subject rule.
He said lawmakers, especially Republicans, are trying to appease the vocal ultra conservative members of their party.
“With term limits, people are not secure in their own confidence as being re-electable because they're unsure of themselves in their own districts,” said Morrissette, who was elected in 2004..
“They're afraid of the extreme right-wingers that might take them on in the primary,” Morrissette. “They're not concerned with so much about passing constitutional policy laws. They're concerned about their own survivability with a mindset that they believe is ultra conservative. I'm convinced that's part of it.”
Sen. Brian Crain, serving his ninth year in the Legislature, said it appears legal challenges are on the increase in the past three or four years.
He disagreed with the notion that lawmakers deliberately pass constitutionally flawed measures knowing they will be overturned so that they will be able to go back to supporters and donors saying they need to get re-elected to tackle those issues again.
“That's a very cynical approach,” he said. “I've never known of anybody that intentionally voted for something that they thought was unconstitutional in order to get themselves re-elected.”
Jerry Fent, an Oklahoma City attorney who has filed challenges to various Oklahoma laws the past 14 years, said he selects those that appear to conflict with the state constitution, usually by involving more than one topic.
“Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title,” the constitution states.
The Supreme Court has long rejected a broad, expansive approach to the single-subject rule. In 1993, it said the Legislature's “skillful drafting of a broad topic” defeats the purpose of the single-subject rule and reaffirmed that in a 2008 case where it struck down a bill whose subject was “uniform laws.” It used the same reasoning in rulings issued in 2009, 2010 and 2011.
In a 2010 logrolling case, the court said it was “growing weary of admonishing the Legislature for so flagrantly violating” the single-subject rule of the constitution.
Fent said he estimates 10 to 15 percent of the measures passed each session over the past 20 years violate the single-subject rule. About 400 bills are signed into law each year.
“It seemed to be the most prevalent violation of the constitution because it's expedient, it gets rid of a lot of bills — you can put them together, “he said. “And probably a small percentage of them they knew that either side of the bill wouldn't pass if they were separate.”
Fred Morgan, president and chief executive officer of The State Chamber, which supported the 2009 lawsuit measure, said justices have chosen “to legislate from the bench instead of exercising judicial restraint.”
“Regrettably, the activist judges on this court have shown they will continue to anoint themselves the ultimate arbiter of the state's social, moral and legal values,” Morgan said. “It is clear Oklahomans need to take a serious look at revisiting our state constitution to protect the people from an activist judiciary.”
Fent said he doesn't pay that much attention to the subject matter of bills he challenges.
“The easier way to attack a statute is to see if it violates one of the constitutional provisions and we're one of the states that have a lot of constitutional provisions limiting the Legislature to what it does,” he said.
Fent, 78, pays the cost of filing his lawsuits, which has become a hobby of his since retiring from his law practice.
“I do it pro bono,” he said. “I had the spare time since I retired when I was 65. I couldn't go home and just watch soap operas.”
Fent said he estimates the number of challenges to Oklahoma laws appear to be the same or more the past couple years.
The attorney general's office doesn't keep a tally on the number of challenges filed against state laws so it's difficult to ascertain if legal challenges are increasing, spokeswoman Diane Clay said.