This week the Oklahoma Supreme Court struck down a lawsuit-reform law that capped noneconomic (“pain and suffering”) damages at $350,000, declaring it a “special law” that unconstitutionally treated similarly situated plaintiffs differently.
State political, business, and medical leaders all say there will be an effort to reinstitute the cap, which has been declared vital to keeping doctors in Oklahoma and improving the state’s attractiveness to entrepreneurs.
Asked about the court’s ruling this week, Gov. Kevin Stitt was blunt: “I don’t like it.”
“There will be some more reforms that should be passed in the future,” Stitt said.
The governor said he and legislative leaders are working on the issue and will be “looking at all options.”
Senate President Pro Tempore Greg Treat, R-Oklahoma City, appears inclined to pursue constitutional amendments. During a press briefing, Treat noted the court has cited the Oklahoma Constitution’s requirement that bills address a single subject and the constitution’s prohibition on special laws when striking down numerous workers’ compensation and lawsuit reforms.
He noted dissents issued by former Oklahoma Supreme Court Justice Steven W. Taylor stressed the need for the court to clearly define the “single subject” and “special law” provisions of the Oklahoma Constitution. Other justices have raised similar concerns in dissents.
“Until the Oklahoma Supreme Court clearly defines in a decision what they see as ‘single subject’ and ‘special law,’ we’re going to continue to have these problems and they’re going to continue to legislate from the bench. It’s very disturbing that they have thus far refused to define what they mean by those two terms.”
The Oklahoma State Medical Association has declared the cap on noneconomic damages to be an important tool to “reduce liability costs and promote access to care in the state.” The organization has said doctors’ liability insurance quickly becomes unaffordable, causing them to leave the profession, when insurers must be prepared to cover noneconomic awards that can exceed a plaintiff’s genuine economic losses by millions.
Matt Robison, director of government affairs for the Oklahoma State Medical Association, said the most likely remedy will be a constitutional amendment sent to a vote of the people.
“It’s going, of course, have to be a constitutional amendment, whether that is done by initiative petition or whether that is done by legislative action,” Robison said. “That’s one of the things that we have to wait and see: Is the Legislature going to make any kind of step? That’s probably going to be the determining factor.”
Fred Morgan, president and CEO of The State Chamber, said the ruling was a “big disappointment to the business community.”
“This is something we worked very hard on,” Morgan said. “We also think this is a decision by an activist judiciary that has been hostile to letting the Legislature set those caps.”
Like Treat, Morgan noted the court has relied heavily on the vagueness of the special-law and single-subject provisions when issuing many rulings that critics derided as based on judges’ political preferences rather than the law.
“They typically use the ‘special law’ provision to strike down laws where they do not agree with the Legislature,” Morgan said, “and that’s what they’ve done in this case.”
However, he suggested a constitutional amendment may not be the only remedy, although it is being discussed.
“There are a lot of options,” Morgan said.
He noted two members of the court majority in the noneconomic-cap ruling were special judges assigned to the case because of judicial vacancies and recusals. The shift of only one vote in the opposite direction would have resulted in a different outcome, and Stitt is poised to name two new justices to the court.
As a result, Morgan said lawmakers could pass the same law again “and get a different decision from the Supreme Court” in the future.
But constitutional amendments to clarify the “special law” provision or reconstitute the Judicial Nominating Commission have also been discussed, he said.
Over the last decade, the court has issued numerous opinions regarding single-subject challenges. Critics say those opinions provide little real guidance and even appear contradictory. Since 2009, the court has ruled a law authorizing bonds for three separate projects violated the single-subject rule and that a lawsuit-reform measure did the same, but the court upheld a workers' compensation reform bill containing many wide-ranging provisions. The court has rejected a single-subject challenge to an initiative petition effort that included a sales tax increase, mandatory increases in teacher pay, and a constitutional restructuring of the state appropriations process, but has repeatedly ruled bills dealing exclusively with abortion involve more than one subject.
The closest thing to guidance the court has provided is an opinion that compared laws to peanut butter cookies. It said a cookie is a “one flavor cookie” whether crunchy peanut butter or creamy peanut butter is used, but a “jumble” if chocolate chips or M&Ms are added.