July 31, 2013
The practice of tucking tax breaks or other legislative favors for special interests into “must pass” federal legislation has become commonplace in the U.S. Congress, as nothing in the U.S. Constitution limits or forbids this tactic. However in the vast majority of states, such “log rolling” is prohibited by constitutional provisions limiting legislation to a “single subject.” On June 4, the Oklahoma Supreme Court invoked that state constitution’s version of this rule and invalidated the Comprehensive Lawsuit Reform Act of 2009. This article will briefly explain state rules against log rolling, discuss how the Oklahoma Court applied its rule in Douglas v. Cox Retirement Properties,1 and note the decision’s impact in Oklahoma and nationally.
I. Log Rolling and the Single Subject Rule
Black’s Law Dictionary defines log rolling as “a legislative practice of embracing in one bill several distinct matters, none of which, perhaps, could singly obtain the assent of the legislature.”2 As one assessment of single subject rules related, “Not surprisingly, legislative log rolling is as old as the legal system itself.”3 By inserting unpopular and unrelated provisions into a popular bill, the log rolling legislator forces her colleagues to vote for ideas they might otherwise oppose.
Beginning with New Jersey in 1844, over the years, forty-three states have added single subject rules for state legislation to their respective constitutions.4 The precise wording of these rules differs from state to state, but the Oklahoma constitutional provision at issue in Douglas is generally representative: “Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title . . . .”5 As one would expect, state courts have been called upon regularly to interpret and apply the very general terms of these general constitutional mandates, resulting in “thousands of cases.”6
II. Judicial Nullification and the Comprehensive Lawsuit Reform Act of 2009
Over the last two decades, plaintiffs’ lawyers and others who oppose state civil justice reforms—commonly known as “tort reforms”—have sought invalidation of these laws in state courts. This “judicial nullification” strategy, first described in detail in a 1997 Washington Legal Foundation Monograph,7 utilizes state constitutional provisions to prevent reform proponents from appealing their losses in federal court.
Tort reform opponents took this approach to challenge Oklahoma’s Comprehensive Lawsuit Reform Act of 2009 (CLRA). The CLRA took aim at a range of subjects and practices which, supporters argued, encouraged corrosive tort litigation in Oklahoma. Provisions addressed, among other subjects, joint and several liability; class actions; expert witness testimony; and asbestos litigation. The Oklahoma House of Representatives approved the CLRA 86-13, and the Senate voted 42-5.
Reform opponents got their chance to challenge the act in 2009, when a rehabilitative care center owner cited CLRA § 19—a requirement for an expert affidavit in personal negligence cases—in its attempt to dismiss a wrongful death suit. The decedent’s estate argued in state trial court that the act violated Oklahoma’s single subject rule. The trial court rejected this argument, granted Cox’s motion to dismiss, and certified the dismissal for immediate appeal. The Oklahoma Supreme Court granted review on February 14, 2012.
III. The Oklahoma Supreme Court’s Douglas Decision
In a twelve-paragraph opinion by Justice Gurich, the Oklahoma high court reversed the state trial court and found the entire CLRA unconstitutional. Justice Gurich stated that the court’s evaluation of legislation under the single subject rule has turned on the concept of “germaneness.” The “most relevant question,” he wrote, is “whether a voter, or a legislator, is able to make a choice without being misled and is not forced to choose between two unrelated provisions.” Key to this analysis is not similarity, but “whether it appears that the proposal is misleading or that the provisions in the proposal are so unrelated that those voting on the law would be faced with an all-or-nothing choice.”
The CLRA of 2009 did not meet this test because its “90 sections” encompass subjects “that do not reflect a common, closely akin theme or purpose,” Justice Gurich wrote. He asserted that the CLRA’s first 24 sections address civil procedure but otherwise “have nothing in common.” The other 66 sections include 45 “entirely new Acts, which have nothing in common.” The legislature’s reference to the “broad topic of lawsuit reform,” the Court noted, “does not cure the bill’s single-subject defects.” Though the CLRA contained a severability clause, the majority opinion concluded that “severance is not an option,” arguing that due to the number of articles, severance would be “both dangerous and difficult.”
Justice Kauger authored a separate concurring opinion. The concurrence describes the Court’s experience with the single subject rule, and expresses frustration with the legislature’s refusal to follow the rule. “Perhaps guidelines . . . will prevent this Court from having to revisit the issue,” Justice Kauger writes. He treated readers to “a culinary example” of a peanut butter cookie which can no longer be called that if one adds “pecans, coconut, M&Ms” etc.
Justice Winchester authored a dissent for himself and Justice Taylor. The justices did not hide their frustration with the court’s single subject jurisprudence and the Douglas majority opinion. The CLRA’s purpose “is tort reform,” Justice Winchester wrote. Relating the overwhelming majorities the CLRA attracted, the dissent argued that “it is more likely that the legislature and the public understood the common themes and purposes embodied in the legislation.” It reminded the majority that the legislature had previously passed a 78-section law on evidence, and the 368-section Uniform Commercial Code. Such comprehensive laws, under the rationale of Douglas, “could be found unconstitutional” and lead to “chaos.”
The dissent intimates in a footnote that the majority utilized the subjective “germaneness” test to strike down a law which it found unwise or undesirable.8 The dissenters also chided the majority for creating a “chilling effect on the legislative process” by offering little guidance and refusing to respect the CLRA’s severance clause. Justice Winchester urged the court to be more mindful of separation of powers by “adopt[ing] a more deferential approach toward the [single subject] rule.”
IV. Implications: Oklahoma and Elsewhere
The plaintiffs’ bar’s victory in Douglas has energized those who want to eliminate tort reform measures through judicial review. On the other hand, reform proponents, as well as civil litigants, are contemplating the case’s impact to determine their next steps. Several bills passed in 2011 modified provisions of the 2009 law, including a cap on damages and a full elimination of joint and several liability.9 Such changes further complicate Oklahoma’s legal landscape for plaintiffs and defendants in the wake of Douglas. One tort reform opponent remarked, “I’d hate to have to figure out what law applied right now. It’s kind of a mishmash.”10
Legislators are reportedly eager to reinstate the 2009 reforms. As this article went to print, Oklahoma Governor Fallin is considering some legislators’ demands for a special legislative session to address the Douglas decision.11 No matter when the legislature moves forward, the challenge will be devising a strategy that comports with the ruling, which offered very little guidance, beyond the concurrence’s peanut butter cookie analogy, on what would be constitutional. Opinions at this early stage vary from one former Senator saying “Based on [the Court’s] interpretation, you’d have to pass at least 90 separate bills,”12 to a current Senator remarking, “It seems very simple to me.”13 That latter Senator’s approach: break up the CLRA into five separate bills.14
The court’s ruling has also prompted legislators to reevaluate how judges are selected in the state; limits on judicial tenure are also being cosidered.15 Oklahoma is one of thirteen states that use the “Missouri Plan,” a method in which judges are appointed by the governor after nomination by a commission.16 Oklahoma may consider changing to a method that is more like the federal approach to selection, as nearby states Tennessee and Kansas utilize. In Kansas, the legislature recently adopted that approach for choosing its intermediate appellate court judges. Similarly, Tennessee abandoned the Missouri Plan in favor of the federal method for its Supreme Court Justices; state voters will have the final say on the new plan in November 2014.
*Mr. Lammi is Chief Counsel of Washington Legal Foundation’s (WLF)Legal Studies Division. WLF is a national, non-profit public interest law and policy center which advocates for free enterprise legal principles.
1. 2013 OK 37, __ P.3d __ , available at http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=469532.
2. Black’s Law Dictionary 849 (5th ed. 1979).
3. Stanley R. Kaminski and Elinor L. Hart, Log Rolling Versus the Single Subject Rule, 80 USLW 1156 (Feb. 28, 2012), available at http://www.duanemorris.com/articles/static/kaminski_hart_bloombergbna_022812.pdf.
4. Id. (citing Kurt G. Kastorf, Logrolling Gets Logrolled, 54 Emory L. J. 1633, 1641 (2005)).
5. Okla. Const. art. 5, § 57.
6. Kaminski and Hart, supra note 3, at 3 (citing Michael D. Gilbert, Single Subject Rule and the Legislative Process, 67 U. Pitt. L. Rev. 803, 806 (2006)).
7. Victor E. Schwartz, Mark A. Behrens, and Mark D. Taylor, Who Should Make America’s Tort Law: Courts or Legislatures?, WLF Monograph (Mar. 1997); see also Fact Sheet: Cases Where “Tort Reforms” Have Been Held Unconstitutional, Center for Justice and Democracy, available at http://centerjd.org/content/fact-sheet-cases-where-tort-reforms-have-been-held-unconstitutional-2011.
8. Douglas v. Cox Retirement Properties, No. 110270, slip op. at 15 n.3 (Okla. June 4, 2013)
(Winchester, J. dissenting).
9. HB 2128, 53rd Leg., 1st Sess. (Okla. 2011) (“An Act relating to damages”); SB 862, 53rd Leg., 1st Sess. (Okla. 2011) (“An Act relating to liability”).
10. Michael McNutt, Oklahoma lawsuit reform measure tossed out, The Oklahoman, June 4, 2013, available at http://newsok.com/oklahoma-lawsuit-reform-measure-tossed-out/article/3841673.
11. Patrick B. McGuigan, OK Gov. Fallin now has the call on special session to remedy Court’s tort slap down, OkalahomaWatchdog.org, July 18, 2013, http://watchdog.org/96294/ok-gov-fallin-now-has-the-call-on-special-session-to-remedy-courts-tort-slap-down/.
13. Oklahoma Law Makers to Revive Lawsuit Limits, Ins. J., June 10, 2013, available at http://www.insurancejournal.com/news/southcentral/2013/06/10/294903.htm.
14. Press Release, Oklahoma State Senate, Sen. Loveless Plans to File Bills Restoring Tort Reform after State Supreme Court Strikes Down 2009 Measure (June 4, 2013), available at http://www.oksenate.gov/news/press_releases/press_releases_2013/pr20130604a.htm.
15. McGuigan, supra note 11.
16. See www.statecourtsguide.com for more information.