Update on State Constitutional Challenges

A previous post discussed the Oklahoma Supreme Court's decision to strike down part of the state's workers compensation laws. In that case, the Court found that the law inappropriately limited the worker's compensation court's ability to consider certain evidence in assessing the degree of a claimant's disability. (According to the Court, the law inappropriately [and unconstitutionally] restricted the worker's compensation court's determination of "impairment" and "disability" to the range of opinions provided by the treating physician and the independent medical examiner.)

The Court's momentous decision has apparently had a significant political response. The decision is the subject of an article in the Tulsa World, (available here and here), where certain lawmakers have "vowed to respond to the opinion." In the article, the paper quotes the Senate Democratic Leader (Mike Morgan) as saying that the legislature will respond in a positive manner in the next legislative session. Sen. James Williamson, who co-chairs the Senate Judiciary Committee, believes the ruling will negatively impact the state's ability to recruit businesses, and said it was a "key factor in the workers comp reform bill." Williamson was critical of the Court's decision to strike the statute, noting that "every time we make one step forward the Supreme Court puts us two steps back."

Welcome to Picher, Oklahoma

This billboard sits directly in front of City Hall in Picher, Oklahoma, located in the far northeast corner of the state. For those unfamiliar, the Picher mines supplied a large percentage of the zinc and lead used to manufacture bullets from World War II through early Vietnam.

Working the mines left behind enormous piles of chat that perpetually dust the surrounding community of 20,000 with a residue laden with zinc, lead and cadmium.

From the most recent EPA report (June, 2007): "[T]he percentage of children with elevated blood lead levels remains well above state and national averages." The full report can be found here.

The New Five-Part "Garcetti-Pickering" Test

Following a recent Supreme Court case, Garcetti v. Cebalis, 126 S.Ct. 1921 (2006), freedom of speech retaliation claims are now governed by a new five-part test. In Garcetti, the Court held that speech by a public official is only protected if it is engaged-in as a private citizen, not if it is expressed as part of the official's public duties. (An audio recording of the oral argument for Garcetti can be found here.)

Prior to Garcetti, courts charged with evaluating such free-speech claims used a test called the "Pickering-Connick" test. However, in the aftermath of Garcetti, the test has been referred to as the "Garcetti/Pickering" analysis. And, the Courts have added an additional step to the traditional four-part test.

In evaluating retaliation claims, the district court now asks the following questions:

(1) Does the governmental employee speak "pursuant to his official duties"? If so, there is no constitutional protection because the restriction on speech "simply reflects the exercise of employer control over what the employer itself has commissioned or created." Garcetti, 126 S. Ct. at 1960.

(2) If the employee does not speak pursuant to his official duties, but instead speaks as a citizen, is the subject of the speech is a matter of public concern? If the speech is not a matter of public concern, the speech is not protected.

(3) If the employee speaks as a citizen on a matter of public concern, does the employee's interest in commenting on the issue outweigh the interest of the state as employer?

(4) Assuming the employee's interest outweighs the state's interest, was the employee's speech a "substantial factor or motivating factor in a detrimental employment decision"? The employee has the burden of showing this.

(5) Finally, if the employee established that his speech was such a factor, would the employer have taken the same action against the employee in the absence of the protected speech? The employer has the burden of showing this.

The first three steps are to be resolved by a court, and the last two are ordinarily for the trier of fact.

The Tenth Circuit has recently discussed these factors -- in the context of the new 5-part Garcetti-Pickering test -- in the case of Brammer-Hoetler v. Twin Peaks Charter Academy, 2007 WL 2007546 (10th Cir. July 12, 2007). In that case, several former teachers sued a school district claiming they were terminated and retaliated against for exercising certain first amendment rights. The Court reversed a summary judgment in part, but found that a large portion of the plaintiffs' First Amendment claims were barred by the new Garcetti analysis.

The Brammer-Hoetler court struggled to refine the analysis related to determining when an employee speaks pursuant to his official duties. Garcetti declined to articulate a formula for such determinations. After Brammer-Hoetler, it is clear that speech relating to tasks within an employee's "uncontested employment responsibilities" is not protected from regulation (even if such speech relates to an aspect of the job that is not part of the employee's everyday functions). This includes speech that is "generally consistent with the type of activities the employee was paid to do."

An employee's official job description is not conclusive. Speech may relate to official duties even if it deals with activities the employee is not expressly required to perform. If an employee engages in speech during the course of performing an official duty and the speech contributes to the employee's performance of the official duties, the speech is made pursuant to the employee's official duties. Yet, not all speech that occurs at work is made pursuant to the employee's official duties. Rather, the court takes "a practical view of all the facts and circumstances surrounding the speech and the employment relationship."

In Brammer-Hoetler, the Court found nearly all of the speech related to the teacher's "duties as teachers," including: (1) the school's expectations of student behavior, (2) the school's curriculum and pedagogy, and (3) the school's expenditures on instructional aids, furniture and classroom computers. The Court nevertheless held that certain matters were not made pursuant to their official duties, including (1) the resignations of other teachers, (2) whether the school's code of conduct restricted their freedom of speech, (3) staffing levels, (4) the school's expenditures on salaries and bonuses, (5) criticisms of the school board, (6) the visibility of the superintendent and the school board at events, and others.

However, through application of the remainder of the 4 steps of the Garcetti-Pickering test, the Court narrowed plaintiffs' claim to four discrete areas of speech: (1) discussions regarding whether the code of conduct restricted their freedom of speech, (2) matters related to the superintendent's restrictions on speech and association, (3) speech concerning whether the school charter should be renewed, and (4) comments regarding the upcoming board elections. "Speech concerning potential illegal conduct by government officials is inherently a matter of public concern . . . The prospect that the Acadamy's charter might not be renewed is of public concern . . . [and] political speech regarding upcoming Board elections is undoubtedly a matter of public concern." The matter was remanded to the district court for additional proceedings, including the issue of whether the superintendent was entitled to qualified immunity.

Judge Easterbrook, from the Seventh Circuit, has stated that public employers must be able to react to events -- including statements -- that reveal whether employees are faithfully performing their job functions:

Public employers must be able to change assignments in response to events (including statements) that reveal whether employees will be faithful agents of the decisions made by the politically accountable managers. It promotes rather than undermines first amendment values when those who make decisions, and are held accountable for them at the polls, can ensure their implementation within the bureaucracy. Chief Gulledge was entitled to insist that his subordinates not play the “Yes, Minister” game and undermine his directions. The power of transfer is essential if the top of the bureaucracy is to see its decisions through.

See Mills v. City of Evansville, Ind., 452 F.3d 646, 658 (7th Circ. 2006) (cited in Brammer-Hoetler). Further cases will undoubtedly refine the Garcetti-Pickering analysis.

Frontline Justice

The Tulsa World recently published an article devoted to the 70+ attorneys who volunteer their time for the benefit of the public and the Court. The article by David Harper can be found here.

When stripped of television and anecdotal stories of runaway juries, law and justice in the United States is typically doled out in the conference rooms of America. The overwhelming majority of cases filed are ultimately disposed by settlement or Court order. In this regard, adjunct settlement judges serve as the legal surrogate to Article III of our Constitution.

Considering the framers only provided for one court - the Supreme Court - there is little doubt they placed confidence in the wisdom of future courts to fashion these unique dispute resolution systems.

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