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Capitol News Update     

 

June 10, 2013


 

                  The Oklahoma Supreme Court has probably created a firestorm with the two opinions it issued this week holding the 2009 tort reform law unconstitutional.  The first case held the requirement in professional negligence cases that an expert opinion finding negligence be filed with the petition or soon thereafter.  Since it applies only to professional malpractice cases, the court said that's unconstitutional "special legislation."

 

                  In the other case the court held in a 7-2 opinion that the 90 provisions of the Comprehensive Lawsuit Reform Act covered more than one subject in violation of the "single subject" rule in the Constitution.  The constitution clearly provides that a bill may only cover a single subject, but determining what that means has been a constant source of litigation in the past few years. 

 

                  It's pretty hard to read the majority opinion without realizing the legislature went out of its way to write an extremely broad bill, probably as a matter of convenience rather than "log rolling."  The bill was negotiated with various interested parties right up until the end of the session, and it probably didn't seem practical to divide its contents into 8 or 10 bills to be voted on separately.  It will make their work more difficult, but the legislature, if it wants to, can find a way to honor the single subject rule and get their work done in a timely fashion.  Truthfully, they just haven't taken the court seriously and the court knows it. 

 

                    But the dissenting opinion makes a good point that the court should, in some way, adopt a more deferential view of the single subject rule.  After all, the legislature is in session only 4 months a year, and it has a lot of work to do during that time.  But the court won't and can't just ignore a section of the constitution where the violation is obvious. 

 

                  I can see a couple of recent developments that have added to the problem.  It seems to me committee chairmen are refusing to hear a lot of bills for reasons that seem arbitrary to the bills' authors.  If a committee chairman truly believes a bill is bad, most authors will respect the chairman and the committee process.  But when it seems bills are not being heard for reasons having little to do with the merits of the bill, the authors begin to look for other bills to add the language to.  This creates a risk of bills covering more than one subject. 

 

                  Another recent development involves the "germaneness" rule in the House.  In the past it was strictly enforced.  Although the House still has such a rule, it has adopted new rules and made rulings from the chair that effectively repealed it.  An effective "germaneness" rule was in effect for years and worked well to minimize the number of bills that might later be found to violate the single subject rule.    

 

                  Unfortunately, tort reform has been a hot button issue for years.  The business community could overreact and propose changes neither necessary, desirable nor in their own best interests.  Just because "business" seems to be of one mind on tort reform, they are not so monolithic on all issues.  All kinds of legislation pit one business interest against another.  Legislative log rolling is just too tempting, and it can do a lot of damage.  Business has a lot to lose if logrolling becomes rampant.  If you don't believe that, watch Congress for a while.    

Okla. GOP leaders say pensions, tax credits undone

By Sean Murphy  

Associated Press  

OKLAHOMA CITY - Gov. Mary Fallin and Republican legislative leaders gave themselves high marks for the recently concluded legislative session, but acknowledge that work remains on several key issues, including examining costly tax credits, shoring up the state's underfunded pension systems and dealing with the state's uninsured population.

Fallin, House Speaker T.W. Shannon and Senate President Pro Tem Brian Bingman all gave the 2013 session an "A'' grade because they were able to accomplish some of their top priorities, but differences between the three sides clearly emerged in the late days of the session.

The House and Senate easily passed and sent to the governor a bill that would begin overhauling the state's pension system by allowing newly hired state workers to enroll in a defined contribution retirement plan similar to a 401(k). But Fallin vetoed that measure and promised to work with lawmakers to "create true pension reform."

Shannon said in the waning days of the session that House members were considering a veto override, but Bingman said he didn't support ending the session on a "sour note." Last week, in his first meeting with reporters since the session ended, Bingman didn't rule out the possibility of a veto override when lawmakers return next year.

"I certainly was disappointed, but I haven't had a chance to visit with the governor about the veto," said Bingman, R-Sapulpa. "We can look at our options, and certainly that's one to consider, an override of the governor."

A separate proposal Fallin supported to consolidate the administrative functions of the state's major pension system never got off the ground in the Legislature, leaving all three sides to acknowledge changes that will shore up the unfunded liability of the state's pension systems will be a top priority next year.

"I wish we could have gotten some pension system reform done," Fallin said. "That's a heavier lift to get done because it's a major issue."

Fallin, Shannon and Bingman also couldn't reach agreement on a last-minute proposal to use $50 million in state tobacco revenue to fund the state's Insure Oklahoma program that provides health insurance to about 30,000 low-income working Oklahomans. Because the federal government is withdrawing its funding for the program, Fallin proposed using the $50 million to cover about 9,000 people who won't otherwise be covered.

But that proposal, which passed the Senate, was rejected by Shannon, who said he believes the government has no business providing health insurance.

Both the governor and Bingman have suggested that a special session could be an option for lawmakers to address the issue, but that would be unlikely if Shannon doesn't intend to rally Republicans in the House around expanding health insurance to the state's poor.

"I suspect there will be some ideas floated out there as we enter this interim period and as we ramp up for next session we'll take a look at it, (but) if we're talking about just a subsidy program, that gives me pause," Shannon said. "The problem we have with health care is that it's too expensive. Subsidizing it does nothing to drive down costs.

"I'm trying to get the government out of health care, not find new ways to get it back in it."

The Legislature also failed to accomplish any significant changes to the hundreds of millions of dollars the state hands out every year in the form of various tax credits, subsidies and other tax expenditures. Bingman acknowledged that will continue to be something legislators take a close look at next year.

"All those tax credits have sunset dates on them, and I think it's our responsibility to look at them and make sure they're bringing economic benefit to Oklahoma," Bingman said. "We will continue looking at them."

Democrats, meanwhile, contend that the Legislature took care of big businesses with a broad workers' compensation overhaul and wealthy Oklahomans with a one-quarter of 1 percent reduction in the income tax, but did little to help the average working Oklahoman.

"Unfinished business would be giving troopers a pay raise, giving our teachers a pay raise, properly funding the other functions of education, looking to see how our corrections officers are paid," said Senate Democratic Leader Sen. Sean Burrage, D-Claremore. "I think it appears to me that we spent a lot of time taking care of millionaires."

Treasurer: Okla. revenue collections keep growing

By Sean Murphy 

Associated Press  

OKLAHOMA CITY - Oklahoma's economy continues to move in a positive direction, with overall collections to the state treasury continuing to grow in May compared to the same time last year, state Treasurer Ken Miller reported Wednesday.

Gross receipts last month totaled nearly $884 million, a 2.9-percent increase over May 2012. That compares to an average month-over-month growth rate of 2.3 percent during the last 12 months, Miller reported.

"Our economic engine continues to improve," Miller said.

Miller, who is also an economist, said he's particularly encouraged by an increase in collections of oil and gas production taxes. These taxes generated nearly $64 million in May, an increase of 1.28 percent from May 2012. Collections also bested April receipts by $6.75 million, or nearly 12 percent.

Miller said it was the first time in 18 months that gross production tax collections exceeded the same month of the prior year.

Personal income tax collections in May totaled $272 million, a 5.5-percent increase over May 2012, while corporate income tax collections of $8.6 million were down about 17 percent. Overall sales tax collections were up 3.8 percent over May 2012, while motor vehicle taxes produced $59 million, a decrease of 5.2 percent from the same month last year.

The treasurer added that the devastating tornadoes that pummeled Moore and other Oklahoma City-area communities in recent weeks ultimately will provide a boost to the state's economy as people rebuild homes and replace vehicles and other personal items lost in the storm.

"You're going to see a construction boom and a lot of economic activity generated from the storm," Miller said. "You're going to see that bleed over into many sectors of our economy."

Protecting our core: Judiciary system needs to be independent of politics, O'Connor says

By M. Scott Carter 

The Journal Record  

OKLAHOMA CITY - Just a day after the Oklahoma Supreme Court issued a controversial ruling overturning a 2009 law that tightened access to the judiciary, the first woman appointed to the Supreme Court of the United States called for increased civics education and new efforts to keep the judiciary independent.

Speaking at the Oklahoma Supreme Court's Sovereignty Symposium, retired high court Justice Sandra Day O'Connor said the United States was dependent on judicial involvement and enforcement of some of its core principles.

"Our judicial system has served as a model for many parts of the world today and (it) provides a place for anyone to come as an equal for a fair hearing in front of an unbiased judge or jury and seek protection of those rights which have been awarded to the citizens," she said.

O'Connor's speech comes on the heels of a 7-2 ruling issued Tuesday by the Oklahoma Supreme Court. That ruling overturned the Comprehensive Lawsuit Reform Act of 2009. The law, the majority said, violated the single-subject rule of the Oklahoma Constitution because it contained multiple subjects that did not reflect a common theme. Justices said the bill contained 90 sections on a variety of subjects. The measure made several changes to the state's civil justice system.

In addition, the court ruled - in a separate decision - against a requirement that forced residents who were injured to submit a certificate of merit before they could file a professional malpractice lawsuit.

The ruling drew harsh criticism from the American Tort Reform Association, which issued a media statement claiming the state's high court has taken it upon itself to undercut the prerogatives of the proper policymaking branches of government.

 "By selectively reading one precedent and ignoring others, the majority opinion contends that various elements of the state's civil justice system, particularly those elements that had been most routinely manipulated and exploited by the personal injury bar, do not constitute a 'single subject,' around which a section of the Oklahoma Constitution requires legislation to be centered," said ATRA President Sherman "Tiger" Joyce.

Speaking Wednesday, O'Connor said too many people think of judges as just politicians in robes.

"They are often called judicial activists or godless secular humanists," O'Connor said. "I worry that the idea of having your day and time in court and having the issues of your case decided without prejudice is being eroded by the threats to judicial independence."

State Supreme Court Justice Steven Taylor said the court, though composed of public servants, had only one master - the law and the Constitution.

"It's true we are servants of the public, but our master is the law and the Constitution," he said. "That's the oath we took."

The country will maintain its independent judiciary system, O'Connor said, if political leaders understand that the measure of a great judge is not how often she agrees with you, but how fairly she approaches the parties and the cases before her.

The Sovereignty Symposium - now in its 26th year - continues Thursday at the Skirvin Hilton Hotel in Oklahoma City.

Judge notes progress of Indian legal systems

By M. Scott Carter  

The Journal Record  

OKLAHOMA CITY - Tribal governments are seeing a resonance and the fruition of the work done by their ancestors who came to Oklahoma, and their legal systems are strong and working well, the presiding judge of the Citizen Potawatomi Nation Tribal Court said Wednesday.

"Back in the late sixties, when I attended the National American Indian Conference, there would be these hard-charging speeches about the things that Indian tribes were going to do," Chief District Judge Philip Lujan said during the Oklahoma Supreme Court's Sovereignty Symposium at the Skirvin Hilton Hotel. "We would all get charged up and then the speaker would say, figuratively, 'but not for you, you Oklahoma Indians, you redheaded, freckled-face stepchild.'"

Because of Oklahoma's unique legal arrangements with the tribes, Lujan said, progress was more difficult. But, he said, things have improved.

"That day is gone," he said. "We're seeing the fruition of all the work of the pioneers. We are now in a place where Indian tribes have not only made up that ground, but have moved ahead."

Oklahoma, Lujan said, is now a living laboratory for Indian tribes, culture and law. He said a big reason for that change came from the courts.

"Now things are different," he said. "There is a concern on the part of the federal judiciary, state judiciary, state legislators and Congress about what kids of courts do these Indians have."

Today, tribes have seen increased jurisdiction over nontribal members under federal laws such as the Tribal Law and Order Act and the Violence Against Women Act.

"When that day happened (Violence Against Women Act), I almost got goose bumps," he said.

Still, the increased jurisdiction has also brought more scrutiny from federal and state officials. Tribal leaders, Lujan said, should welcome that scrutiny.

"We shouldn't be upset by that, we shouldn't be annoyed by that, we should accept the challenge of that," he said, "to show that we have been historically providing fair and impartial justice to non-Indians through our courts."

Lujan's call for an impartial judiciary was echoed by retired U.S. Supreme Court Justice Sandra Day O'Connor. Speaking during the symposium's keynote address, O'Connor said the country was dependent on judicial efforts and enforcement to uphold the Constitution.

Many people, O'Connor said, don't see the need for an independent judiciary. Instead, they prefer a judiciary that reacts to popular will.

"This is not the right approach to maintenance of the system that was created and has served us well," she said. "We want judges to decide cases and issues before them impartially."

While both federal and state judicial systems were created to be impartial, both speakers said efforts continue to eliminate that impartiality.

"You always have to be on guard," O'Connor said. "You have to care about it and maintain what we have."

Oklahoma Plan subject of debate

By Sarah Terry-Cobo 

The Journal Record 

OKLAHOMA CITY - Several Oklahoma state legislators debated the future of the state's health insurance plan at a forum at the Oklahoma City University Meinders School of Business on Thursday. The forum, sponsored by the nonprofit think tank Oklahoma Academy, addressed the effects of the changing landscape of health care regulations on state businesses.

Gov. Mary Fallin rejected $56 million in federal funds to expand Medicaid in 2012, but lawmakers haven't yet created a concrete plan of how to address the state's uninsured residents.

In Fallin's State of the State address, she mentioned the so-called Oklahoma Plan her administration would create to help improve people's health, reduce preventable illness and improve access to health care. Thursday's panelists at the forum disagreed on the best way to address the issue of rising health care costs and the hundreds of thousands of people who don't have health insurance.

"No one has yet to ask, inform me or tell me what is the Oklahoma Plan," said state Rep. Scott Martin, R-Norman. "I fear as the Republican majority, we will bury our heads in sand and do nothing, that is what got us in the position we're in."

Doing nothing would be a huge mistake for the health of Oklahomans, he said. The Oklahoma Academy could play a vital role in helping lawmakers craft a plan, he said. Martin said Insure Oklahoma should help provide a model of how to shape any future health care assistance program.

State Rep. Scott Inman, D-Del City and House minority leader, said tobacco tax money should be used to cover the 200,000 people who currently don't have insurance. That tax money can also be used to support rural hospitals that are in danger of closure.

State Sen. Rob Standridge, R-Norman, said the entire system needed reform. He said he would like to see a tiered Medicaid system in which people accept less assistance as they earn higher incomes.

State Sen. A.J. Griffin, R-Guthrie, said there isn't a formal Oklahoma Plan in the works, but a bipartisan group of legislators is in contact with experts. Personal behavior, such as smoking, drinking alcohol and eating poorly, contributes to much of the state's poor health outcomes, she said.

Anne Rodgers, director of legislative affairs with Integris Health, asked Griffin how people can change personal behavior when the Legislature is reluctant to enforce health education in the primary and secondary school system.

Griffin responded that the best health reform is to improve the economy, allowing people to get full-time employment and then have access to health insurance, which will lead people to access better health care. She recommends a plan that would emphasize preventive services to reduce the incidence of diseases like diabetes.

Fent sues to stop HB 2032

By M. Scott Carter  

The Journal Record  

OKLAHOMA CITY - The state's Republican-controlled Legislature wrote and passed an unconstitutional bill when it sent House Bill 2032 to the governor, an Oklahoma City attorney said Thursday.

Jerry Fent is seeking to have the Oklahoma Supreme Court overturn a measure that lowered the state income tax and earmarked $120 million to refurbish the ailing state Capitol building.

Fent said the bill was an example of a measure with more than one subject - known as logrolling - and wasn't allowed under the Oklahoma Constitution. Fent filed his argument Thursday.

In his lawsuit, Fent asks the court to hear the case, calling the issue a pure question of the Oklahoma Constitution and statutory law.

"House Bill 2032 must be stopped before it starts to receive taxpayers' money in fiscal years 2013 and again in FY 2014 by force of law," Fent wrote.

Fent, who has successfully challenged several pieces of legislation passed by state lawmakers, said HB 2032 has other unconstitutional provisions, including a section that allocated funds over a two-year period to fix the state Capitol.

"House Bill 2032 is totally unconstitutional because it creates a Capitol Repair Fund's mandatory revenue from two fiscal years - one present FY 2013 and one future FY 2014 year," he wrote.

Because the bill affects revenue, he said, it would require a three-fourths vote of the Oklahoma Legislature.

"None of the merit's voting in the House or the Senate reached the three-fourths approval and thus, the bill is void," he wrote.

Fent pointed to a ruling by the state's high court issue this week as support for his argument. That ruling - which the court endorsed with a 7-2 vote - overturned the 2009 Oklahoma Lawsuit Reform Act because the bill, the court said, contained more than 90 different subjects.

Tuesday's ruling drew harsh criticism from the State Chamber of Oklahoma and the American Tort Reform Association. Both the chamber and the ATRA criticized the state court, claiming the justices were attempting to legislate through judicial ruling.

Fent said he supported the court's ruling.

"It's a great case and the majority opinion is wonderful," he said. "The court is following the constitution."  

Fent said the state's high court has, over the years, sent several laws back to the Legislature because they were contained in multiple-subject bills.

"I think they know what they're doing but it's done for political reasons," he said. "It's done (logrolling) to expedite the legislation and cut off losing a bill that they want to go through. Bills that are constitutional give them problems if they are also controversial."

Fent said he filed the lawsuit because HB 2032 definitely has two different subjects.

"One lowers takes and the other spends revenue," he said.

A hearing before a court referee is set for 9:30 a.m. July 9 at the Oklahoma Judicial Center.

Lawmakers seek to revive lawsuit limits

By Tim Talley  

Associated Press

OKLAHOMA CITY - Oklahoma lawmakers will again consider legislation setting limits on lawsuits and making it easier to dismiss those that don't have merit after the state Supreme Court struck down a 2009 law on the matter.

Legislative leaders were studying their options after the state's highest court on Tuesday invalidated the tort reform law, ruling 7-2 it was unconstitutional because it violated the single-subject rule in the Oklahoma Constitution. The majority opinion said the legislation amounted to logrolling, or the passing of legislation that contains multiple subjects.

Among the changes the 2009 law made was redefining what constitutes a frivolous lawsuit and strengthening summary judgment rules, making it easier for a judge to dismiss a lawsuit that has no merit. It also set limits on damages in some cases.

Republican Senate President Pro Tem Brian Bingman of Sapulpa plans to meet with Gov. Mary Fallin and other legislative leaders to decide how best to resurrect those changes in the 2014 Legislature, spokesman Nate Atkins said Friday.

"There is concern and disagreement with the ruling," Atkins said. The Comprehensive Lawsuit Reform Act of 2009 received bipartisan support in the state House and Senate, a reflection of the will of Oklahomans that was swept aside by the Supreme Court's action, he said.

"We obviously are disappointed and think that they got it wrong," Atkins said.

One option for lawmakers next year is to break down the various sections of the legislation adopted in 2009 and consider them as separate bills. The Supreme Court's decision said the bill contained 90 sections that encompassed a variety of subjects that do not reflect a common, closely akin theme or purpose.

"It's seems very simple to me," said state Sen. Kyle Loveless, R-Oklahoma City. "Just do separate bills that basically accomplish the same goal. Just break them up."

Supporters of the legislation said it was designed to block frivolous lawsuits and reduce malpractice and liability insurance costs for doctors and businesses.

But an opponent, Guy Fortney, president of the Oklahoma Association for Justice, a coalition of trial attorneys and their clients, said the bill tramples on individual rights for the benefit of big business.

"What would really make Oklahoma good for business is a smart and educated work force," Fortney said. "That's why education should be this Legislature's No. 1 priority."

The measure changed joint and individual liability guidelines to alter so-called "deep pocket" rules that had allowed an injured person to recover all damages from any defendant, regardless of the defendant's individual share of liability. The measure also capped pain and suffering damages at $400,000 but allowed a judge or jury to waive the cap in cases of gross negligence or catastrophic injury.

Fred Morgan, president and CEO of the State Chamber and a former state lawmaker who has been active in efforts to set limits on lawsuits, said he is concerned about the "overly restrictive view" the court's majority opinion takes in its interpretation of the Oklahoma Constitution's single-subject clause.

"I think the court has taken an incredibly restrictive view," Morgan said. "It certainly handcuffs the Legislature."

In their dissent, Justices James R. Winchester and Steven W. Taylor say the court had previously ruled that the term "subject" should be interpreted broadly to allow the Legislature to include all matters having a logical connection in one bill.

"The Legislature and the public understood the common themes and purposes embodied in the legislation; it was tort reform," the dissenting opinion states.

Meanwhile, Republican House Speaker T.W. Shannon of Lawton announced plans Friday for an interim study on term limits for judges at the appellate and Supreme Court levels. Shannon spokesman Joe Griffin declined to answer questions about whether the study was related to Tuesday's Supreme Court decision.

"This study will be a healthy evaluation of our judicial process to make sure we are properly serving the public and correctly enforcing the will of the people," Shannon said in a statement. "We must make sure that system is not completely controlled by a powerful handful of activists."

The interim study will be conducted this fall.

Storms damage 56 schools

OKLAHOMA CITY (JR) - As many as 56 school sites were damaged by severe storms and tornadoes in Oklahoma May 19 to 31, according to Janet Barresi, state superintendent of public instruction.

Three of those sites were completely destroyed in Moore. The El Reno campus of the Canadian Valley Technology Center was heavily damaged.

 "With 57 buildings sustaining various degrees of damage from minor to total destruction, the cost to rebuild or repair will total in the millions of dollars," Barresi said.

The state Department of Education staff is working with school districts to help in areas such as waiving reporting deadlines and assisting with counseling services.

Districts that have damage as a result of the storms and tornadoes include Moore, El Reno, Mid-Del, Crutcho and Moss. During the May 20 tornado, Moore Public Schools completely lost Briarwood and Plaza Towers elementary schools and its technology center. Highland East Junior High School and the administration building both sustained major damage, with the administration building rendered uninhabitable. The administrative staff is currently working out of the Moore High School Media Center.

During the May 31 storms, an additional 20 sites in Moore Public Schools experienced roof damage, major leaks and damage to air conditioning units.

All seven El Reno Public School sites were damaged on May 31 from wind, water and hail. Lincoln, Hillcrest and Rose Witcher elementary schools are temporarily closed because they all have roofs that have been declared total losses.

Mid-Del Schools reports damage to 22 sites. Moss Public Schools and Crutcho Public Schools both experienced flooding. Crutcho was forced to delay the start of summer school.

Have a good week.  Give me a call at 918.671.6860 if I can be of help in any way

                  Steve Lewis


 
 
This Week's Meetings


 

 

 
This Week's News
GOP Leaders Say Pensions Undone
Revenue Collections Growing
Protecting Our Core
Progress of Indian Legal Systems
Oklahoma Plan Debate
Fent Sues to Stop HB2032
Lawmakers Seek to Revive Lawsuit Limits
Storms Damage 56 Schools