Lawmakers likely will be asked next year to pass several bills to restore key elements of a comprehensive lawsuit measure that has been tossed out by the Oklahoma Supreme Court, a legislative leader said Tuesday.
The state's high court in a 7-2 ruling Tuesday stated the measure, called the Comprehensive Lawsuit Reform Act of 2009, was unconstitutional because it violated the single-subject rule of the state constitution by logrolling several subjects into one.
“This bill is unconstitutional and void in its entirety,” the order written by Justice Noma Gurich reads.
Senate President Pro Tem Brian Bingman, R-Sapulpa, said the court's decision on House Bill 1603 is being reviewed. Some provisions of the measure, such as a cap on pain and suffering, were changed in legislation passed in 2011 and will remain in effect.
“If there's something in there that we didn't cover in '11, then you'll probably see that in individual legislation,” he said. “It gives us something else to do this next session.”
A spokesman for Gov. Mary Fallin said the ruling is a setback for businesses and employees.
“The governor will work with the Legislature in the interim to evaluate the state's options,” said Alex Weintz, Fallin's communications director.
Former Senate President Pro Tem Glenn Coffee, who was the Senate sponsor of HB 1603, said the measure put “a spotlight on Oklahoma as a more pro-business, business-friendly state, and now the court has given it a black eye.”
The State Chamber, which supported HB 1603, called the ruling disappointing.
The justices have chosen “to legislate from the bench instead of exercising judicial restraint,” said Fred Morgan, the chamber's president and CEO.
What is logrolling?
Gurich in the order defined logrolling as the practice of ensuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one.
“This court has long rejected a broad, expansive approach to the single-subject rule,” Gurich wrote. “We will not sit by and ignore violations of our constitution.”
The ruling means lawyers filing a personal injury or medical malpractice lawsuit likely will have to do some research, said former Sen. Charlie Laster, of Shawnee, a critic of the measure who eventually voted for it.
“I'd hate to have to figure out what law applied right now,” said Laster, a Democrat who was Senate minority leader while HB 1603 was debated. “It's kind of a mishmash.”
Rep. Richard Morrissette, D-Oklahoma City, who voted against the measure, said he wasn't surprised by the high court's decision.
“That was one of our main arguments, that it was logrolling and that it was a violation of the constitution,” Morrissette said. “As state elected officials, we have a duty to follow the constitution. … This is the result when policymakers refuse to adhere to constitutional law.”
The measure was the result of months of negotiations between Republican lawmakers, business advocates, doctors, mineral owners and trial lawyers. The deal was announced about two weeks before the 2009 session ended. Talks had been ongoing since 2007 when then-Gov. Brad Henry vetoed a similar measure.
HB 1603 contains 90 sections. Gurich wrote they encompass a variety of subjects “that do not reflect a common, closely akin theme or purpose.” The first 24 sections amend and create new laws with civil procedure code and the remaining 66 sections create entirely new acts that have nothing in common with each other, she wrote. It also creates a new law prohibiting a school district representative from presiding at a due-process hearing and then advising the school board.
“This court finds the Legislature's use of the broad topic of lawsuit reform does not cure the bill's single-subject defects,” Gurich wrote. “We find the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice to ensure the passage of favorable legislation.”
Coffee, a Republican from Oklahoma City, said the court's ruling makes it difficult for lawmakers to tackle complex legislation. “Based on their interpretation, you'd have to pass at least 90 separate bills,” he said.
The Supreme Court in its ruling is “creating huge obstacles for the passage of legislation,” Coffee said. “They're setting themselves out as a super Legislature.”
Justices James Winchester and Steven Taylor dissented in the ruling, with Winchester writing HB 1603 did not violate the single-subject rule.
“I believe it more likely that the Legislature and the public understood the common themes and purposes embodied in the legislation; it was tort reform,” Winchester wrote.
The measure passed easily, winning bipartisan support in the GOP-controlled Legislature. The House of Representatives passed it 86-13, and it passed 42-5 in the Senate before Henry, a Democrat, signed it.
“This bill appears to have had overwhelming support of two branches of government,” Winchester wrote.
“Court opinions containing an overly restrictive interpretation of the single-subject rule will likely have a chilling effect on the legislative process,” Winchester wrote. “The result will be an exponential number of bills filed along with an expanded legislative process but with no greater assurance the legislation will pass the single-subject test.”
He wrote that HB 1603 had a severability clause, allowing justices to specifically throw out certain parts of the measure found to be unconstitutional.
Gurich wrote that it would be “both dangerous and difficult” for the justices to consider separating parts of the measure.
“By picking and choosing which provisions relate to lawsuit reform and which do not, this court would essentially become the policymaker,” she wrote. “Policy-making is the job of the Legislature.”