By Richard Engle

Recently the Oklahoma Supreme Court threw out the 2009 Tort Reform law (the Comprehensive Lawsuit Reform Act of 2009) saying it violates the state constitution's single-subject rule, also known as log rolling.

This column will not delve into the virtues or vices of tort reform, as such would require an encyclopedic dissertation. However, the action by the high court was to sidestep the actual constitutionality (or lack thereof) and to empower itself with an overly broad definition of log rolling.

Former Republican leader in the state House and now President of the State Chamber, Fred Morgan said that the justices have chosen "to legislate from the bench instead of exercising judicial restraint."

Former President Pro Tem of the Senate and former Oklahoma Secretary of State, Glenn Coffee complained that the Court is "creating huge obstacles for the passage of legislation." By doing so he counsels that, "They're setting themselves out as a super Legislature."

While the law is complex, it clearly deals exclusively with the subject of lawsuit reform. One of only two dissenting judges, James Winchester (husband of former Republican legislator Susan Winchester) said, "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." He further commented that "Court opinions containing an overly restrictive interpretation of the single-subject rule will likely have a chilling effect on the legislative process." Winchester also warned that the legislature will be forced to pass a much greater number of bills with "no greater assurance the legislation will pass the single-subject test."

This ruling sets a precedent in that the Court has established that it can deem any significant or complex law to be unconstitutional on the grounds of log rolling without any specific evidence thereof. As claimed by Coffee the Court has granted itself super-legislative powers.

While we all look to the Supreme Court as a guard against tyrannical violations of our liberties, we expect them to do so with impartiality and honesty. In this case it seems they have dispensed with a law they (most of them) don't like without the guidance of specific constitutional concerns. The law had what is known as a "severability clause" which permits the court to strike any portion they find to actually violate the state or federal constitution without touching the rest. Lacking such a clause they could strike the entirety on the basis of any single portion that they find to be unconstitutional.

At best this is judicial laziness and at worst it is judicial tyranny. This writer suspects the later.

While a special session is expected to be called to address the subject of tort reform, a greater reform is actually needed.

Oklahoma Needs Court Reform

First, Oklahoma needs to better define the "single subject" provisions of our Constitution so as to prevent this kind of abuse.

Second and more importantly, Oklahoma needs reform in how we the people determine who will sit on the state's highest court.

In the distant past Oklahoma had judges elected in the same partisan manner as the Legislature and our state executives do. That system was changed to one in which a sitting Governor would appoint (under specific restrictions) a member when a vacancy occurs and that judge would sit until they die resign or are voted out on what is known as a "retention ballot."

In the history of Oklahoma, not one judge has been removed by failing to garner a simple majority for retention. As there is no opportunity for an opponent to voice disapproval of the variant egregious actions of a specific judge, there has never been an organized campaign of significance to remove one. Meanwhile, the judge who is up for retention may have a highly organized and well funded campaign to retain the seat. Attorneys who wish to have favorable consideration on a future issue before the court may find it beneficial to financially support the retention effort of a judge that they know well is not best suited to the job.

A simple and timely reform is to require a 2/3rds or 3/5ths majority for retention. If a judge fails to garner that supermajority they would be able to run for the seat against any qualified opponent. A simple majority would be all that would be required in a race in which opposition had filed.

Even with this reform nearly all judges would likely be retained as the typical retention results in 65% or more in favor. This writer believes that the threat of losing these judicial seats will give adequate responsiveness in the people's courts.

It is hoped that House Speaker T.W. Shannon and Senate President Pro Tem Brian Bingman will sponsor legislation to create this kind of responsible and needful court reform.