OK Gov. Fallin now has the call on special session to remedy Court’s tort slap down

OKLAHOMA CITY – Gov. Mary Fallin alone – after consultation with legislative leaders – gets to decide whether to call legislators back to the Capitol to consider a “fix” (or, perhaps more accurately, “fixes”) to counter a controversial state Supreme Court decision. In recent days, powerful momentum has built for the possible special session some time this fall. 

Speaker of the House T.W. Shannon, R-Lawton, has given restrained endorsement to the  idea. Late Thursday (July 18), in a briefing for Capitol reporters, his spokesman Joe Griffin said, “The speaker is greatly concerned over the Supreme Court’s outrageous decision on tort reform. It is up to the governor if we have a special session and if she decides that’s the best route then we’ll certainly support her.” 

A more enthusiastic expression of support for a special session came from Senate President Pro Temp Brian Bingman, R-Sapulpa. He indicated several bills would be needed to avoid the single-subject strictures as applied by the High Court.

Some at the Capitol have hinted as many as two-dozen separate bills will be needed. Processing that many measures could eat up several days, even a week, if a special session is held. That could cost taxpayers about $150,000 for per diem, staff costs and other expenditures. 

In the case of “Douglas v. Cox Retirement Properties, Inc.,” Justice Noma Gurich wrote for a seven-member majority that the Comprehensive Lawsuit Reform Act of 2009 was “unconstitutional and void in its entirety.” That law made broad changes in procedures and statutes underlying lawsuits in the Sooner State. 

In her decision for a seven-member majority, Gurich argued from a line of precedents that the enactment amounted to “log-rolling.” That is a legislative tactic of packaging several distinct issues into a single bill, as a means of pressuring legislators to accept unpalatable provisions as the only means to get their desired outcome. 

The state constitution limits statutes to a single issue, and Justice Gurich wrote, “This court has long rejected a broad, expansive approach to the single-subject rule. We will not sit by and ignore violations of our constitution.” Although most legislators agreed at the time the bill dealt with a single subject – lawsuit reform – some foes argued the distinct provisions should require separate enactments. 

It is likely the speaker and pro temp would take the lead as co-sponsors of any measures designed to re-enact provisions of the 2009 law that are now in legal Limbo.

In the Senate, Judiciary Committee Chairman Anthony Sykes, R-Moore, is likely the point man for Pro Temp Bingman, while the House Judiciary Chair — state Rep. Leslie Osborn, R- Mustang — seems like the logical Shannon surrogate for detail work in the lower chamber.

In any push for the judicially-stricken measures, Republicans will have significant advantages, including the legacy of overwhelming bipartisan majorities for the original law — 42-5 in the Senate, and a 86-13 House margin. 

Advocates for the forthcoming bills will also have strong winds at their back in the form of support from a wide range of powerful interest groups. 

When the state High Court decision came out last month, President Fred Morgan of the State Chamber of Commerce said, in comments sent to CapitolBeatOK, “We are extremely disappointed in (the) ruling, as the court has chosen to legislate from the bench instead of exercising judicial restraint.”

In immediate wake of the 7-2 decision slapping down the legislation, the American Tort Reform Association (ATRA) assailed the court majority for “disrespecting both the legislators’ hard-won compromises and the will of voters who had endorsed the judgment of those legislators.” 

ATRA President Tiger Joyce continued, “Every Oklahoman who is tired of costly lawsuit abuse should feel insulted by the high court majority and its apparent willingness, on such specious constitutional grounds, to obstruct the will of the people.  Lawmakers should act quickly … to reverse this injustice, and the public should recall this decision and the activist inclinations of the majority justices when their names next appear on the retention ballot.”

The Chamber’s Morgan also said the “activist” decision should be studied in light of possible changes to the state Constitution, to put new limits on judicial tenure or change the judicial selection process. 

You may contact Patrick B. McGuigan at Patrick@capitolbeatok.com and follow us on Twitter: @capitolbeatok.