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Benjamin Lepak (J.D., University of Notre Dame) is a legal fellow at the 1889 Institute and a scholar in residence at the Institute for the Study of Free Enterprise at Oklahoma State University. He has practiced law in both the public and private sectors in Oklahoma and Texas, most recently serving as the Chief of the Civil Division in an Oklahoma district attorney’s office where he was responsible for providing advice and counsel to 24 elected officials across three counties. Prior to that, he was in private practice, first with a large law firm in Dallas and later with a firm that he co-founded in Norman. He is a recognized expert in the law surrounding local governments in Oklahoma and has broad experience with issues at the intersection of law and public policy within the state. He can be reached at [email protected]

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The Oklahoma Supreme Court conducts itself more as a rolling constitutional convention than an appellate court. The Legislature, and the people, should not tolerate the Court’s overreach.


Doctors and nurses are making life-and-death decisions under incredible circumstances during this (hopefully) once-in-a-lifetime health crisis. They work in hospitals that are often stretched to capacity and short of resources, necessitating quick (and difficult) decision-making. They will do so at great risk to their own health and that of their families. The pressure of the situation is of a nature that most of us cannot fathom, let alone choose to sign up for. In this, most of us see bravery.

Some lawyers see a payday.

Reports are already trickling in of doctors being advised to prepare for the inevitable medical-malpractice lawsuits that await them when the COVID-19 dust settles.

Jackpot justice is a problem in every state. But it’s worse in Oklahoma due to a decision of the Oklahoma Supreme Court last year striking down sensible limits on “noneconomic” damages in tort cases. Oklahoma health care providers now face unlimited liability for inherently subjective items like pain and suffering and emotional distress.

This threatens to drive doctors out of medicine, make healthcare even more expensive than it already is, further strain rural hospitals, and ultimately decrease the quality of our health care.

As if this isn’t bad enough, the Court distorted Oklahoma’s constitution and damaged the separation of powers to deliver this sop to its favorite special interest—trial lawyers. This should not be left unaddressed.

How We Got Here
First, some background. After a long history of lawsuit abuse in Oklahoma, the Legislature finally enacted comprehensive lawsuit reform in 2009. Despite broad recognition that something needed to be done, special interests made sure the effort was like pulling teeth.

Among other things, the reform placed a cap on what is known as “noneconomic damages” in tort lawsuits (originally at $400,000, later changed to $350,000). Noneconomic damages are for inherently subjective items like pain and suffering, loss of companionship, and emotional distress. They involve no direct economic loss and have no precise value, making it difficult for juries to assign a dollar value to them. As a result, these awards tend to be erratic and, in the context of emotionally charged personal injury trials, excessive.

Caps on noneconomic damages are widely considered by both supporters and detractors to be the most consequential method of reforming the tort system. This is because they hit directly at the pocketbook. Caps provide doctors and businesses more assurance they will not be hit with unexpected, wildly excessive jury awards, and trial lawyers’ contingency fees (usually 35 to 50 percent) are diminished.

It is important to note what Oklahoma’s tort reform law did not do. It did not touch direct economic damages, such as medical expenses and lost wages, meaning it left plaintiffs able to recover the actual, quantifiable harm they suffered. It also did not do away with noneconomic damages entirely, but merely limited them to $350,000, higher than some states’ caps. Significantly, the cap did not apply to wrongful death lawsuits because a provision of the Oklahoma Constitution explicitly prohibits legislation that would limit damages where a person has died.

Therefore, with the cap in place, injured plaintiffs could recover the entire amount of harm they suffered as a result of a defendant’s conduct, without limitation, plus $350,000 of additional, subjective damages. Plaintiffs in wrongful death suits could still recover totally unlimited amounts.

Oklahoma’s law was not radical: 23 other states already had similar damages caps on the books when it was enacted, and the measure was quite popular with the public. It wasn’t partisan, either. It passed through the Republican Legislature with large majorities and was signed into law by a Democratic governor.

Perhaps the best indicator of the success of the measure was the speed and ferocity with which trial lawyers sought its unraveling. In the ensuing years, trial lawyers challenged the constitutionality of virtually every aspect of the lawsuit reforms.

They found a friendly audience in the Oklahoma Supreme Court.

An Ongoing Constitutional Convention
Judicial activism of any variety is destructive, but Oklahoma’s particular flavor of activism is especially pernicious because the Oklahoma Constitution dictates far more judicial restraint than does the federal constitution. Where the U.S. Constitution gives Congress limited powers (making federal courts more justified in actively policing legislative enactments), the Oklahoma Constitution allows the Legislature to pass any law not specifically forbidden by the state or federal constitutions (meaning state courts should very rarely invalidate legislation).

Far too often, however, the Oklahoma Supreme Court disregards these constitutional guardrails in order to impose its own policy preferences in place of the Legislature’s. Such policymaking is not the job of unelected and unaccountable judges, who are supposed to faithfully interpret and apply the law, not make it. Worse than merely being poorly designed for lawmaking, the courts are illegitimate policymakers because they are not democratically accountable.

The Oklahoma Supreme Court has been especially active when it comes to the Legislature’s efforts to rein in lawsuit abuse. Taking the Court’s cases together, it is clear that little rouses the Court to action the way tort reform measures do. If necessary, the Court will engage in legal gymnastics, with such strained “reinterpretations” of the constitution as to more closely resemble something entirely new than Oklahoma’s founding document. In this sense, the Court conducts itself more as a rolling constitutional convention than an appellate court.

While the ink was still drying on the landmark lawsuit reform bill, the Court was busy inventing new legal theories to undo it. The Court’s first weapon was the Oklahoma Constitution’s single subject rule, which it deployed to invalidate the tort reform law in its entirety in a case called Douglas v. Cox Retirement Properties, Inc. In that case, the Court applied an interpretation of the single subject rule far out of step with how it had traditionally applied the clause in the 100 years since its adoption at statehood. In short, it held that because the bill was a comprehensive reform that touched many aspects of tort reform, it dealt with more than one subject in violation of the constitution. The standard the Court applied was so malleable that, in practice, it was no standard at all. Rather, the rule applied by the Court was little more than an exercise in hair-splitting, allowing the Court to pick and choose which laws passed by the legislature it would allow to stand, and which it wouldn’t.

But there was a flaw in the Court’s single subject attack, illustrated by subsequent legislative action. If the constitutional defect was that the bill dealt with too many subjects at one time, the cure was to simply break apart major components of the comprehensive bill into separate measures and vote on them one by one. That is exactly what the legislature did, to trial lawyers’ chagrin.

So the Court invented a more permanent constitutional weapon. It announced a new interpretation of the Constitution’s “special laws” clause so dislocated from the history and intent of the provision as to eliminate any remaining doubt about the Court’s determination to bury tort reform, no matter the constitutional wreckage left in its wake. This abuse of the special laws clause reached its zenith last year in a case called Beason v. I.E. Miller Services, Inc., in which the Court struck down the cap on noneconomic damages, a full decade after the Legislature first enacted it.

Many state constitutions forbid legislatures from passing “special” laws—laws that narrowly apply to particular private interests—instead requiring “general” laws that apply equally to all members of the class of persons the legislature is seeking to regulate. In the vast majority of states, this provision is rarely, if ever invoked by a court as a ground to invalidate a law. Special law provisions originated in the 19th century in response to perceived domination of politics by elites, who would use their economic power to win special grants of privilege from state legislatures. It was not uncommon for state legislatures to legislate divorces or adjudicate property rights for individual powerful people, for example. Special law provisions were also intended to tackle cronyist laws where legislatures would appropriate funds directly to private companies for infrastructure projects, a practice that proliferated after New York funded the construction of the Erie Canal.

Given this history, special law clauses were intended to have limited application. They are intended to prevent legislatures from enacting measures that either benefit or punish individual special interests, not to allow a court to endlessly slice up the electorate into differing classes, striking down any law that treats different classes differently. After all, nearly every law necessarily differentiates between different categories of people.

The Oklahoma Supreme Court approached the special law clause with similar restraint for over 100 years, only recently “discovering” its new interpretation. In Beason, the Court held that since Oklahoma’s constitution prohibits limiting damages in cases in which a person has died, the Legislature could not treat cases in which a person was injured, but lived, differently. That is, the Court defined the “regulated class” broadly to be all people suffering injuries, then found the noneconomic damages cap to be a special law because it applied only to injured people who lived, and not injured people who died.

This is exactly backwards: if the Constitution says the Legislature cannot limit damages in cases where a person dies, logic suggests that it can do so in cases where the person lives. If the intent were otherwise, why would the Constitution mention death at all rather than simply outlawing caps of any type?

Beyond this obvious interpretation of the Constitution’s plain text, it requires a willing suspension of disbelief to conclude that the Court could not discern a legitimate difference in category where a person dies from an accident and one where he lives. The dissenting justices in Beason pointed out as much. A more reasonable conclusion is that the Court simply drew the relevant class as broad as was necessary to justify invalidating a law it didn’t like.

The consequence of Beason is breathtaking in scope: the Court effectively announced that an entire area of law is off limits to the Legislature. According to Beason’s logic, any legislation limiting bodily injury lawsuits is necessarily a special law because bodily injury claims and wrongful death claims fall into the same class. Since wrongful death claims cannot be limited under the Constitution, the Court has now dictated that neither can bodily injury claims. This sweeping robbery of the Legislature’s authority over an entire area of the law is not just bad policy, it is a frontal attack on the separation of powers.

Settling This Once and For All
The Legislature, and the people, should not tolerate the Court’s overreach. Fortunately, they don’t have to. Senator Julie Daniels of Bartlesville, herself an attorney, has proposed a constitutional amendment to reinstate the noneconomic damages cap. Senate Joint Resolution 40 would put the question to the people, settling this issue once and for all. 

Capping noneconomic damages is good public policy. Maybe more importantly, a clear message needs to be communicated to the Supreme Court: we elect legislators to make our laws, and we expect the Court to act accordingly. The ongoing constitutional convention taking place at the Oklahoma Judicial Center, if not rebuked, will only get worse.

SJR 40 would put tort reform in the Constitution and signal to the Supreme Court that Oklahomans are aware of their overreach. In the process, it might give doctors a little breathing room while they work to save us from the coronavirus.

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