Douglas v. Cox Retirement Properties, Inc.

WINCHESTER, J.,

with whom Taylor, J. joins, dissenting.

{1 I respectfully dissent. This opinion demonstrates how difficult the single-subject rule is to explain with the precision necessary to instruct a legislative body concerning the rule's application. House Bill 1608 is commonly called the Comprehensive Lawsuit Reform Act of 2009. Its purpose is tort reform. The majority opinion recites the number of sections and some of the subjects addressed within H.B. 1608. The majority opinion states that the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice. It says this Court will not pick and choose which provisions of the bill are germane and cites Thomas v. Henry, 2011 OK 53, 260 P.3d 1251, as a comprehensive review of our case law regarding the single-subject rule. The majority opinion explains that in Thomas this Court severed the offending provisions of the Oklahoma Taxpayer and Citizens Protection Act of 2007, but that bill had only 18 sections so the Court easily discerned the sections related to discouraging illegal immigration, the subject of that act.

12 Early after statehood, the Supreme Court in Griffin v. Thomas, 1922 OK 134, 17, 206 P. 604, 609, quoted with approval from 25 R.C.L. 1, § 88, p. 842;

"The term 'subject' as used in these provisions is to be given a broad and extended meaning, so as to allow the Legislature full scope to include in one act all matters having a logical or natural connection. If all parts of an act relate directly or indirectly to the general subject of the act, it is not open to the objection of plurality....This constitutional provision does not contain any limitation on the compre*802hensiveness of the subject, which may be as comprehensive as the Legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject and not several; it may include innumerable minor subjects, provided that all the minor subjects, when combined, form only one general subject or topic."

13 The majority opinion gives little guidance to the legislature regarding why the law found in H.B. 1603 is unconstitutional. What is the lesson from the majority's analysis of Thomas v. Henry and the 13 sections the Court examined within it? Is this Court willing to examine a "comprehensive" bill and consider severing sections if the bill has only 13 sections, but not if it has 907

1 4 I believe it more likely that the legislature and the public understood the common themes and purposes embodied in the legislation; it was tort reform. The vote in the House of Representatives was 86 in favor of the bill and 18 opposed. The Senate voted 42 in favor of the bill and 5 against it. Governor Brad Henry signed the bill. This bill appears to have had overwhelming support of two branches of government.

15 Although the majority recites case law that "a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality" and that "[elvery presumption is to be indulged in favor of the constitutionality of a statute," the majority's result does not appear to meet that burden or fulfill that presumption. Requiring affidavits in professional malpractice cases, 12 0.8. 2011, $ 19, appears to me to be both related and germane to tort reform.2 Without deciding the wisdom, need, or desirability of H.B. 1603,3 I have no trouble concluding that the affidavit requirement of § 19 has a close relationship to the title of the Act, which subject is comprehensive lawsuit reform.

T6 In addition, this Act has a severability clause, as did the Oklahoma Taxpayer and Citizens Protection Act of 2007, which this Court reviewed for a violation of the single-subject rule in Thomas. Even if the H.B. 1603 did not have a severability clause, 75 0.8.2011, § 112 specifically provides for sev- . erance if any of the provisions of an act are found to be unconstitutional.4

T7 Are topics such as "civil procedure" or "tort reform" too broad to be encompassed within one bill? In 1978, the legislature passed the Civil Procedure-Criminal Procedure-Evidence *803Code.5 It had a total of 78 sections. It is likely that some of the legislators who voted in favor of the bill compromised to secure its passage. It did involve one subject, evidence. The Uniform Commercial Code was passed by the legislature in 1961.6 It had 10 articles and a total of 868 sections. Its articles included Sales, which contains 97 separate sections; Commercial Paper; Bank Deposits and Collections; Letters of Credit; Bulk Transfers; Warehouse Receipts and Special Provisions; Investment Securities; Secured Transactions, Sales of Accounts, Contract Rights and Chattel Paper; and a Repealer Section that removed amended statutes throughout titles 6, 9, 13, 15, 18, 28, 24, 42, 46, 48, 55, and 60. When considering all that it encompasses, the Uniform Commercial Code likely resulted in compromises by legislators to pass an important and significant piece of legislation.

"[ 8 Logrolling is the "legislative practice of including several propositions in one measure or proposed constitutional amendment so that the legislature or voters will pass all of them, even though these propositions might not have passed if they had been submitted separately." 7 If this is a description of the "single-subject" rule, the legislature would have substantial difficulty passing any comprehensive legislation including any uniform codes that are generally adopted among the states. One recent article commented that although the single-subject rule "is a noble attempt to reign in state legislatures and encourage the passage of more coherent and uniform laws supported in fact by majority votes, the implementation of the states' various single subject rules has had mixed sue-cess, at best." 8 It further observed:

"The Oklahoma Supreme Court defines a 'single subject' as one that has 'a readily apparent common theme and purpose.! Likewise, in Minnesota, the courts have found that a single subject means 'one general subject' and in Alaska, it means 'one general idea." Similarly, in Alabama, 'one subject' means that the provisions are referable to and cognate of the bill's sub-jeet. No doubt, with definitions as amorphous as these, it is easy to see how determinations of whether a subject is indeed 'single' can be based on a number of subjective factors including possibly the popularity or necessity of the legislation." [Footnotes omitted.]

1 9 Legislation requires some compromise. At times, even the wording of a single statute on a single subject may result in an all-or-nothing choice for those voting on it. The single-subject dilemma leads me to conclude that this Court should adopt a more deferential approach toward the rule. Based on the majority's present opinion, statutes that were enacted in a comprehensive bill, and that have remained as law for years could be found unconstitutional. The legislature will have wasted its time in working on any comprehensive legislation. Such legislation may be declared unconstitutional immediately, or worse, after a few years codified in the official state statutes a whole comprehensive bill will be struck and cause the chaos that will inevitably follow this opinion. Court opinions containing an overly restrictive interpretation of the single-subject rule will likely have a chilling effect on the legislative process. The result will be an exponential number of bills filed along with an expanded legislative process but with no greater assurance the legislation will pass the single-subject test. The severance clause is included to allow the courts to remove unconstitutional sections and still preserve the legislation.

1 10 I would find that H.B. 1603 does not violate the single subject rule.

. 25 William Mark McKinney & Burdett Alberto Rich, RULING CASE LAW 842 (1919).

. "Oklahoma adheres to the germaneness test and the most relevant question under such analysis is whether a voter (or legislator) is able to make a choice without being misled and is not forced to choose between two unrelated provisions contained in one measure. In re Initiative Petition No. 382, 2006 OK. 45, ¶ 9, 142 P.3d 400, 405." Thomas v. Henry, 2011 OK 53, ¶ 26, 260 P.3d 1251, 1260.

. Where legislation is constitutionally valid, this Court is not authorized to delve into the wisdom, need, or desirability of a legislative enactment. Oklahoma Industries Authority v. Barnes, 1988 OK 98, ¶ 14, 769 P.2d 115, 119.

. Title 75 0.$.2011, § 11a (1) provides:

"In the construction of the statutes of this state, the following rules shall be observed:
"1. For any act enacted on or after July 1, 1989, unless there is a provision in the act that the act or any portion thereof or the application of the act shall not be severable, the provisions of every act or application of the act shall be sever-able. If any provision or application of the act is found to be unconstitutional and void, the remaining provisions or applications of the act shall remain valid, unless the court finds:
"a. the valid provisions or application of the act are so essentially and inseparably connected with, and so dependent upon, the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or
"b. the remaining valid provisions or applications of the act, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.
"2. For acts enacted prior to July 1, 1989, whether or not such acts were enacted with an express provision for severability, it is the intent of the Oklahoma Legislature that the act or any portion of the act or application of the act shall be severable unless:
"a. the construction of the provisions or application of the act would be inconsistent with the manifest intent of the Legislature;
"b. the court finds the valid provisions of the act are so essentially and inseparably connected with and so dependent upon the void provisions that the court cannot presume the Legislature would have enacted the remaining valid provisions without the void one; or
"c. the court finds the remaining valid provisions standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

. 1978 Okla.Sess.Laws, ch. 285, §§ 101 through 1103.

. 1961 Okla.Sess.Laws, pp. 69 through 182.

. Black's Law Dictionary (Westlaw 9th ed. 2009)

. Stanley Kaminski and Elinor Hart, Log Rolling versus the Single Subject Rule, 80 USLW 1156, 02/28/2012, http://www.duanemorris.com/ articles/static/kaminski_hart_bloombergbna 022812.pdf