Contributed by Christopher D. Barraza.
On Tuesday, the Oklahoma Supreme Court held that a sweeping state tort reform law was unconstitutional because the law violated the Oklahoma Constitution “single-subject” rule. Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, Case No. 110270 (O.K. 6/4/2013). Although the decision goes against the recent tide of tort reform, it does not foreclose tort reform proponents from trying to enact separate legislation.
Some factual and procedural background will help set the stage. In Douglas, the Administratrix of the Estate of Richard Lee Douglas filed a wrongful death action against the Defendant, Cox Retirement Properties, alleging Douglas died due to the facility’s negligent care and treatment. Defendant Cox Retirement Properties moved to dismiss the case for Plaintiff’s failure to comply with 12 O.S. Supp. 2009 § 19. Section 19 was enacted in 2009 as part of Oklahoma H.B. 1603, which is commonly known as the Comprehensive Lawsuit Reform Act of 2009 (CLRA). Plaintiff responded to the motion to dismiss, arguing the CLRA of 2009 was unconstitutional logrolling in violation of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution. The trial court granted the Defendant’s Motion to Dismiss and certified the dismissal for immediate review. The Oklahoma Supreme Court then granted the plaintiff’s cert petition.
On review, the court stressed that the issue before it was not one of policy; rather, it was “the applicability of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution to [CLRA].” Article 5, § 57 of the Oklahoma Constitution provides: “Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title . . . .” Okla. Const. art. 5, § 57. This provision is also known as the “single-subject” rule, which was intended to insure that the legislators and voters of Oklahoma “are adequately notified of the potential effect of the legislation and to prevent logrolling.” The court explained: “Logrolling is the practice of ensuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure an unfavorable provision is not enacted.” Turning to CLRA, the court noted that the act “contains 90 sections, encompassing a variety of subjects that do not reflect a common, closely akin theme or purpose.” For example, the first 24 sections of CLRA amend and create laws within the state civil procedure code, while the remaining 66 sections create new acts that are unrelated to one another. The new acts included provisions that, inter alia, imposed new requirements and limitations on expert opinion testimony, provided qualified immunity for certain food, drug and cosmetic manufacturers, and limited asbestos-related liability of successor entities. The court held that, notwithstanding the “comprehensive” title of CLRA, the various provisions of the act were so disparate that “those voting on the law were faced with an all-or-nothing choice to ensure the passage of favorable legislation.” Consequently, CLRA violated the “single-subject” rule and was unconstitutional.
It is important to note that the court did not shut the door on tort reform. To the contrary, it stated: “We do not doubt that tort reform is an important issue for the Legislature.” Perhaps most telling was the court’s following instruction: “The constitutional infirmity of logrolling, which is the basis of this opinion, can only be corrected by the Legislature by considering the acts within the CLRA of 2009 separately” (original emphasis). Thus, the court highlighted a path to revisiting tort reform.
It remains to be seen how Oklahoma legislators will respond to the decision in Douglas. We will stay abreast of developments and report back as events unfold.