Cross-posted at WLF’s Forbes.com contributor page
Fifteen years ago, Washington Legal Foundation published a groundbreaking Monograph, “Who Should Make America’s Tort Law: Courts or Legislatures?” Authors Victor Schwartz, Mark Behrens, and Mark Taylor described a growing tension between state legislatures and their passage of laws aimed at curbing abuses in personal injury and other types of “tort” litigation, and state courts, which asserted their authority to “make” tort law by striking down legislative reform measures. The rulings are based entirely on state constitutional law, so tort reform advocates have no recourse to the U.S. Supreme Court. The practice certainly hasn’t abated, as evidenced by the numerous shorter papers WLF has devoted to this “judicial nullification” in the years since 1997 (examples here, here, and here).
On Tuesday, the Oklahoma Supreme Court became the newest state court on the nullification list, overturning a comprehensive tort reform law because it violated the Oklahoma Constitution’s “single subject” rule (Douglas v. Cox Retirement). Just one of the law’s 90 provisions affected the plaintiff – a requirement for an expert affidavit in personal negligence cases – but she challenged the entire law as unconstitutional “logrolling.” In a twelve-paragraph opinion, the Court ruled that the reform law violated Article 5, § 57 of the Oklahoma Constitution, the single subject rule. In the five-Justice majority’s opinion, the provisions of the bill were dissimilar enough that legislators who supported some but not all of the sections would feel “logrolled” into voting for the entire legislation.
The Court’s opinion defies law and logic. The single subject or purpose of the Oklahoma law, as the dissent put it plainly, was “tort reform.” The vote in the legislature, Justice Winchester wrote, reflected that “the public understood the common themes and purposes embodied in the legislation.” The House vote was 86-13; in the Senate, it was 42-5.
So what’s a state legislature to do under the non-guidance offered by the majority opinion in Douglas? Should it spend its limited time in session trying to pass 90 separate bills or smaller groups of bills, with, as the dissent wrote, “no greater assurance the legislation will pass the single-subject test”? Douglas will have a chilling effect not only on broad-based tort reform, but any other type of comprehensive reform.
So it’s back to the drawing board for the Oklahoma legislature, which will have to devote more taxpayer dollars if they want to craft a fairer civil justice system that will help keep businesses in Oklahoma and attract new ones.