Initiative Petitions

Oklahoma is unique in that it allows citizens the right of iniative petition. The purpose is to allow the people to propose laws and, following a petition process, attempt to enact them into law through a vote at the polls. The right is anchored in the Oklahoma Constitution, Art. 5, sec. 1, which generally provides "the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."

The Oklahoma Supreme Court has stated that this "fundamental and precious right is zealously protected," but that the right is not absolute. In re Initiative Petition 379, 2006 OK 89, 155 P.3d 32. Any citizen can protest the sufficiency of the initiative petition, and the Supreme Court must review the petition to ensure it complies with the rights and restrictions established by the legislature and the Courts.

And, of the three initiative petitions proposed this year, the Supreme Court has nullified each one. In a well-publicized opinion, the Court struck the "TABOR" petition, which would have set limits on the growth of state spending and would have required that surplus funds be placed in a constitutional emergeny fund. See In re Initiative Petition No. 379, 2006 OK 89. The Court held that the petition had to be stricken because of the mass involvement of out-of-state circulators in the signature-gathering process. The Court found a pervasive pattern of wrongdoing and fraud sufficient to strike the entire petition. The Court was obviously concerned that the TABOR initiative was not an Oklahoma petition, circulated by Oklahomans interested in changing Oklahoma law; rather, the Court found it was a campaign funded primarily by out-of-state organizations. (It is notable that the Court issued an early order in the case striking the petition, see 2006 OK 60, and later issued its lengthy opinion, see 2006 OK 89.)

In In re Initiative Petition No. 384, 2007 OK 48, the petition proposed a new law requiring school districts to expend 65% of their "operational expenditures" on "classroom instructional expenditures." In a 5-4 opinion, the Court struck the petition because it failed to contain an adequate "gist." The "gist" is a short statement placed at the top of each signature page (of the petition) attempting to describe the proposed legislation. The language of the "gist" was somewhat detailed, yet the Court found it insufficient because it failed to adequately describe the sanctions contained in the law for a particular school district's failure to comply with the proposed law.

Finally, in Terry v. Bishop, 2007 OK 29, the Court struck an initative petition which sought to rezone property to a single family residential district for a period of 10 years. The property had previously been zoned to allow the development of a new hospital. The district court refused to order the question be placed on the ballot, and the Supreme Court affirmed. The Court held that the petition was legally insufficient because it unconstitutionally sought to bind the city from exercising its legislative power to rezone.

It is clear that the Court has no qualms with striking an initiative petition when the petition appears to violate constitutional provisions; this is true, even where the initiative petitions are highly political in nature.

Qualified Immunity and the "Order-of-Battle"

Do you like your Constitution raw or well done? The recent Supreme Court decision in Scott v. Harris, 127 S.Ct. 1769 (2007),* contains a concurrence by Justice Breyer questioning the Saucier framework in civil rights cases for deciding qualified immunity by requiring that courts find a constitutional violation before proceeding to an immunity analysis. As argued by Justice Breyer, this leads courts to issuing more and unnecessary opinions on constitutional questions.

Saucier itself is a two pronged analysis: was a constitutional right violated, and, if so, were the contours of the right sufficiently clear that a reasonable person would know their conduct violated clearly established law? If reasonable minds could differ, then qualified immunity applies. (Other cases describe qualified immunity as protecting all but the “plainly incompetent,” or “those who knowingly violate the law”).

In Scott, Justice Breyer complained that Saucier forces district courts to issue unnecessary constitutional decisions before disposing of cases on immunity grounds: “the order-of-battle rule violates that older, wiser judicial counsel not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Scott, 127 S.Ct. at 1780 (citations omitted).

Bolstering his critique, Justice Breyer points out that Saucier’s “order-of-battle,” “may immunize an incorrect constitutional ruling from review,” id, where a case is disposed on the second prong. Justice Breyer further argues that “order-of-battle” “will spawn constitutional rulings in areas of law so fact dependent that the result will be confusion rather than clarity.” Id.

And Justice Breyer is not alone. Joined by 28 States which filed amici briefs, and, most likely by Justices Ginsberg and Stevens, (if you accept the concurrence in Saucier as evidence), there is some momentum for change.

Of course, this momentum does not swing one way only. Saucier itself grounded the wisdom of resolving constitutional questions in principle building, or the establishment of legal guide posts for subsequent courts:

“In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

The contrast between Saucier and Justice Breyer could not be more clear, which gets back to the initial question: how do you like your Constitution, raw or well done?

*(The Scott decision is noteworthy as the first opinion in which the Court embeded a web link, which in this case directs the user to a video of the car chase at issue. The video can be found here).

State Constitutional Challenges

The Oklahoma Supreme Court has, of late, been amenable to challenges of state statutes as violative of the Oklahoma Constitution. For instance, in the recent case of Conaghan v. Riverfield Country Day School, 2007 OK 60, (which is available here), the Court analyzed a worker's compensation statute that created a rebuttable presumption in favor of the treating physician's determination of the extent of the claimant's disability. (The statute allowed the employer to select the treating physician.) One subsection of the statute, however, allowed the presumption to be rebutted only where the opinion of an independent medical examiner showed the opinion of the treating physician was not supported by "objective medical evidence." In such a case, the statute directed the worker's compensation court to follow the opinion of the independent medical examiner, the opinion of the treating physician, or establish its own opinion "within the range of opinions of the treating physician and the Independent Medical Examiner."

The Court first rejected a constitutional challenge to the rebuttable presumption, finding it did not "change the value or weight of the evidence," but merely imposed upon the opposing party "the duty to offer evidence to the contrary." The Court, nevertheless, was troubled by the subsection limiting the scope of evidence available in rebutting the presumption. The Court held that the language of the statute impermissibly encroached on the powers of the judicial branch of government (in conflict with Oklahoma Constitution, art. 4, sec. 1) by attempting to "predetermine the range of the adjudicative facts" and improperly invaded "the judiciary's exclusive constitutional prerogative of fact-finding." In other words, the subsection gave determinative effect to the opinions of the medical examiner and the treating physician, even in situations where such opinions were not supported by objective medical evidence. The Court severed the offending subsection from the remainder of the worker's compensation act, and remanded the case.

In another recent case, Zeier v. Zimmer, Inc., 2006 OK 98, 152 P.3d 861, (which is available here), the Court addressed the constitutionality of a statute requiring that a plaintiff's attorney file an affidavit which established that an expert agreed that a patient’s medical malpractice lawsuit had merit. The Oklahoma Supreme Court found the affidavit requirement was unconstitutional pursuant to the section of the Oklahoma constitutition (Article 5, sec. 46) which proscribes certain "special laws." The Court held that the affidavit law was a "special law" that was prohibited by the Oklahoma constitution because it treated medical malpractice cases differently than all other negligence cases. In addition, the Court found that the affidavit requirement was an unconstitutional "barrier to the access to courts" in violation of Article 2, sec. 6. The Court held that medical malpractice plaintiffs cannot be forced to incur the cost of consulting with an expert witness at the cost of between $500 and $5,000 before they may file their lawsuit.

Conaghan and Zeier may indicate that the Court is more amenable to accepting, or at least considering, challenges to state statutes on state constitutional grounds. (It should be noted that the Court has probably rejected a similar number of constitutional challenges. For instance, see here, here, and here).

Brown v. Creek County, 2007 OK 56

In answering certain certified questions from the District Court for the Northern District of Oklahoma, the Oklahoma Supreme Court faced the question of whether the time limitations contained in the Oklahoma Governmental Tort Claims Act ("GTCA") or the statute of limitations contained in 12 O.S. sec. 95(A)(11) applied to the plaintiff's claim. The GTCA generally requires that any action brought under the GTCA be filed within 180 days after the claim is denied or deemed denied. The statute of limitations, on the other hand, appeared to require that certain prisoner-lawsuits be brought within one year of "accrual."

HELD: The Court first addressed the date on which a GTCA claim "accures." While recognizing disparate case law on the issue, the Court ultimately concluded that a review of the more "prevalent" articulations "leads one to the inescapable conclusion that a cause of action does not accrue until the claim may be maintained." In the case of a GTCA claim, a claim cannot be maintained until the claim has been denied (or until the claim has been "deemed" denied). This is because the plaintiff has no access to the courts while awaiting the political subdivision's decision.

Once the GTCA claim has "accrued," the GTCA itself governs the time limit within which the action must be filed. The statute of limitations contained in 12 O.S. sec. 95(A)(11) apparently has no application in such a situation. The language of the GTCA compelled this result, as did the principle that, in the case of a conflict, the specific controls the general.
Opinion

Miller Dollarhide, P.C., v. Moshe Tal, 2007 OK 58

The plaintiff had, on several occasions, requested that the trial judge recuse from the case on the basis of "bias." The trial judge refused. While the plaintiff pursued several remedies related to the recusal issue, the trial court entered a default judgment against the plaintiff. The plaintiff later attempted to have the judgment vacated in light of the pending recusal proceedings, but the trial judge denied his request.

HELD: The trial court erred in continuing to entertain proceedings during the pendency of the disqualification process. "When a Rule 15 proceeding to seek disqualification of a trial judge is initiated, the trial court must refrain from presiding over the case until the disqualification ruling is memorialized and the movant has, at the movant's option, exhausted the Rule 15 procedure." In fact, the trial court has no discretion in this regard; it must refrain from further participation, lest a party's right to due process of law be violated.

The Court also held that the trial court abused its discretion in refusing to disqualify on the basis of "bias." The Court cited certain dialogue between the trial judge and the plaintiff, and held that "although the trial court may have believed himself to be unprejudiced, unbiased and impartial, circumstances . . are of such a nature at to cause doubts as to the impartiality. . . [E]rror, if any, should be made in favor of disqualification."
Opinion

Williams v. CSC Credit Serv's, 07-255-CVE

Williams filed suit under both the Oklahoma Consumer Protection Act, (OCPA) (15 O.S. 751 et seq.), and the Fair Credit Reporting Act, (FCRA) (15 U.S.C. 1681 et seq), alleging Defendant credit reporting agency wilfully and maliciously refused to correct his credit report.

HELD: Willaims' FRCA claim is regulated by the Federal Trade Commission. The OCPA, in turn, exempts all claims that are regulated by other agencies. Therefore, because the FTC regulates Williams' FRCA claim, he cannot proceed under the OCPA.

Opinion

Claims of Deliberate Indifference

The June 2007 issue of For the Defense contains an article regarding civil rights claims of deliberate indifference in the correctional context. The article provides a framework for litigaitng such cases as well as practical defense considerations.

DRI Article - Section 1983 Claims - Deliberate Indifference to Serious Medical Needs

Haven v. Famous Footwear, 06-516-JHP

Employee filed suit alleging reverse gender discrimination under Title VII. Defendant issued written discovery, and counsel for Employee filed to withdraw from the case. Court stayed case to allow Employee to associate with new counsel, or enter an appearance pro se; Employee did neither. By Employee's failure, Court struck new scheduling conference set for the benefit of Employee's as-yet-to-be-named counsel.

HELD: Employee's failure to associate with new counsel, or otherwise enter appearance pro se (1) frustrated Defendant from obtaining discovery; (2) interfered with the judicial process by causing Court to strike scheduling conference; and (3) undermined authority of Court by failing to abide with various orders. Court found Employee's failure resulted from wilful or inexcusable neglect and therefore the efficacy of lesser sanctions was outweighed by conclusion that anything less than dismissal would result in serial and escalating sanctions.
Opinion

Happy Fourth of July

The following excerpts come from the Supreme Court opinion protecting flag burning as expressive activity under the First Amendment. The case is Texas v. Johnson, 491 U.S. 397 (1989):

"the constitutionally guaranteed ‘freedom to be intellectually ... diverse or even contrary, and the right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous. Nor may the government, we have held, compel conduct that would evince respect for the flag. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind." Texas v. Johnson, 491 U.S. 397, 414 (1989) (citations omitted);

"We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag-and it is that resilience that we reassert today.

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. And, precisely because it is our flag that is involved, one's response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by-as one witness here did-according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." Texas v. Johnson, 491 U.S. 397, 419-420 (1989) (citations omitted) (emphasis added).
Opinion

Graubart v. So. Hills Veterinary Hospital, Inc., 06-347-JHP

Former veterinary employee claimed employer interfered with leave under the FMLA and did not provide reasonable accommodation under the ADA.

HELD: Vet did not employ the minimum number of employees (15) determined necessary to handle the "many nuanced requirements" of the statutes.

Opinion