A Note from Executive Director Ben Lepak
The State Chamber was back at the Oklahoma Supreme Court last week on State Question 832. First, a little background. SQ 832, filed at the end of October, would raise prices for Oklahomans by mandating a drastic increase in the minimum wage that would increase every year in perpetuity. The State Chamber (joined by the Farm Bureau) filed a legal challenge, arguing that under the Court’s directly applicable precedent, SQ 832 is unconstitutional and should not be permitted to go to the ballot, at least not in its current form. The attorney general filed a brief agreeing with our position, and the proponents of the state question filed a brief arguing the opposite. The Supreme Court granted oral argument in our case, which is notable as the Court’s usual practice is that it only grants oral argument in cases where it is closely divided on the question in the case. This is usually a sign that the justices are grappling with the issues in the case and would be aided in their decision-making by hearing debate and analysis from the attorneys on either side of the issue.
Given that lead up, it was very surprising when the Court handed down a ruling in the case on March 4 that included no written opinion from the six justices in the majority. The order simply denied our legal challenge, offering no analysis or legal reasoning as to how the Court arrived at its decision. This would be an unusual way for an appellate court to dispose of a case in any event, but it is particularly curious when 1) we based our challenge on the Court’s own precedent that was directly applicable to SQ 832; 2) the state’s chief legal officer, the Attorney General, was on the record arguing the state question was unconstitutional; 3) the Court went to the trouble (and for the parties, expense) of holding oral argument; and 4) the case deals with matters of great public importance that will impact nearly every Oklahoman, and turned on fundamental state constitutional questions that only the Oklahoma Supreme Court is empowered to answer.
In response to this, The State Chamber filed a petition for rehearing, which is a formal request that the Court either reconsider or clarify a decision it has made. This petition has gotten some attention in the media, and for good reason: the failure of the Court to author an opinion in the original case is an abdication of one of the most basic responsibilities of an appellate court, especially when the Court is deviating from its own clear, directly applicable precedent on an issue of great public importance. We weren’t alone in finding this dereliction of duty by the Court troubling—the justices in the dissent made much the same case in their own written opinions.
Well, the Oklahoma Supreme Court evidently disagrees that it owes the public an explanation—the same six justices who originally voted to deny our legal challenge have now voted to deny our petition for rehearing, again without explanation. Three justices dissented.
The State Chamber will continue to fight SQ 832 as it moves beyond this legal spat and towards a ballot campaign, and we’ll keep you updated on those efforts. But given this course of conduct by the Oklahoma Supreme Court, it is worth pausing for a moment and assessing the state of our appellate courts and broader legal system in Oklahoma.
On the surface, the way the Oklahoma Supreme Court has handled this case has been… weird. But only if you have not been following the Oklahoma Supreme Court over time. To those of us who are long-time observers (and critics) of the Court, it is not lost on us that by refusing to author an opinion, the Court was engaged in a sort of sleight of hand. The Court’s precedent that we cited is effectively a weapon the Court can wield to strike down as unconstitutional laws the justices don’t like from a policy standpoint. But in this case, we were asking them to wield that weapon against a proposed law they do like. They could not logically square this circle, meaning, they could not deny our legal challenge and also hold on to their precedent to use as a weapon in future cases. So, as one of the dissenting justices put it, they decided to “have their cake and eat it too.” That is, they just didn’t write an opinion that would have to explain away this inconsistency.
Clever trick, huh?
If this were an isolated event, perhaps we could write off the Court’s maneuvering as a peculiar anomaly. Unfortunately, this type of results-driven gameplaying by the Oklahoma Supreme Court is more like par for the course. The fact of the matter is that the Oklahoma Supreme Court is consistently hostile to the business community, and it regularly deviates from its own well-established legal doctrines and practices in order to arrive at policy results preferred by justices on the Court. Too often, justices on the Supreme Court are not simply applying the law as written, and letting the chips fall as they may (what a court is supposed to do). Rather, through analytical contortions, novel interpretations of well-established constitutional provisions, or unusual procedural tactics, the Court gives the impression that it first determines the policy outcome it desires, then works backward to create a rationale for how it will “reason” it’s way to that result. This type of policymaking is not the job of the unelected and unrepresentative Supreme Court, it’s the job of the elected legislature.
More to the point for the business community: the Oklahoma Supreme Court’s results-driven decision-making seems, with very few exceptions, to land on expansions of liability for Oklahoma businesses, not restrictions of liability. In recent years, the Court has invalidated the central provisions of legislatively enacted tort reform, watered down Oklahoma’s landmark workers comp reform, and generally expanded the ways businesses can be dragged through expensive litigation that results in paydays for trial lawyers and existential threats for businesses. After all, Oklahoma hasn’t been featured on the American Tort Reform Association’s “Judicial Hellhole” list for nothing.
Oklahoma needs judicial reform if we are to have an attractive and competitive business environment. We will continue to advocate for policy solutions that promote quality, predictability, and fairness in Oklahoma courts. Stay tuned.
–Ben