302 P.3d 789 (Okla. 2013), 110270, Douglas v. Cox Retirement Properties, Inc.

Docket Nº:110270.
Citation:302 P.3d 789, 2013 OK 37
Opinion Judge:GURICH, J.
Party Name:Carol A. DOUGLAS, Administratrix of the Estate of Richard Lee Douglas, deceased, Plaintiff-Petitioner, v. COX RETIREMENT PROPERTIES, INC., an Oklahoma Corporation, Defendant-Respondent.
Attorney:Michael Carr, Anne Cardea, Holden & Carr, Tulsa, Oklahoma, Attorneys for Defendant-Respondent. Randy Lewin, Richards & Connor, Tulsa, Oklahoma, Attorney for Amicus Curiae Oklahoma Association of Defense Counsel.
Judge Panel:COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, COMBS, and GURICH, JJ., concur. KAUGER, J., (by separate writing) concurs specially. WINCHESTER, J., (by separate writing) and TAYLOR, J. (joins WINCHESTER) dissent. KAUGER, J. concurring specially. WINCHESTER, J., with whom Taylor, J. joins, dissenting.
Case Date:June 04, 2013
Court:Supreme Court of Oklahoma
 
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Page 789

302 P.3d 789 (Okla. 2013)

2013 OK 37

Carol A. DOUGLAS, Administratrix of the Estate of Richard Lee Douglas, deceased, Plaintiff-Petitioner,

v.

COX RETIREMENT PROPERTIES, INC., an Oklahoma Corporation, Defendant-Respondent.

No. 110270.

Supreme Court of Oklahoma.

June 4, 2013

Page 790

[Copyrighted Material Omitted]

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ON APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, STATE OF OKLAHOMA, HONORABLE REBECCA BRETT NIGHTINGALE

¶ 0 Plaintiff filed a wrongful death action in Tulsa County against the Defendant, Cox Retirement Properties, alleging Richard Douglas died as a result of the facility's negligent care and treatment. Defendant moved to dismiss the case for Plaintiff's failure to comply with 12 O.S. Supp.2009 § 19. Section 19 was enacted in 2009 as part of H.B. 1603, which is commonly known as the Comprehensive Lawsuit Reform Act of 2009. Plaintiff responded to the motion to dismiss, arguing the CLRA of 2009 was unconstitutional logrolling in violation of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution. The trial court granted the Defendant's Motion to Dismiss and certified the dismissal order for immediate review. We granted Plaintiff's Petition for Certiorari to Review Certified Interlocutory Order. We hold that H.B. 1603 violates the single-subject rule of Article 5, § 57 of the Oklahoma Constitution and is unconstitutional and void in its entirety.Steven R. Hickman, Frasier, Frasier & Hickman, LLP, Tulsa, Oklahoma, Attorney for Plaintiff-Petitioner.

Michael Carr, Anne Cardea, Holden & Carr, Tulsa, Oklahoma, Attorneys for Defendant-Respondent.

Randy Lewin, Richards & Connor, Tulsa, Oklahoma, Attorney for Amicus Curiae Oklahoma Association of Defense Counsel.

TRIAL COURT'S ORDER DISMISSING CASE IS REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT

GURICH, J.

Facts & Procedural History

¶ 1 On April 2, 2009, Richard Douglas was admitted to the Defendant's rehabilitative care center for extended care. Douglas remained at the facility for approximately 21 days and was discharged on April 23, 2009. He died a short time later on May 12, 2009. The decedent's estate filed a wrongful death action in Tulsa County against the Defendant, alleging Douglas died as a result of the facility's negligent care and treatment.

¶ 2 Defendant moved to dismiss the case for Plaintiff's failure to comply with 12 O.S. Supp.2009 § 19. Section 19 was enacted in 2009 as part of H.B. 1603, which is commonly known as the Comprehensive Lawsuit Reform Act of 2009. Plaintiff responded to the motion to dismiss, arguing that the CLRA of 2009 was unconstitutional logrolling in violation of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution.1 The trial court granted Defendant's Motion to Dismiss and certified the dismissal order

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for immediate review.2 Plaintiff filed a Petition for Certiorari on January 9, 2012, and we granted review on February 14, 2012.

Standard of Review

¶ 3 " In considering a statute's constitutionality, courts are guided by well-established principles and a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality." Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254 (citing Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶ 3, 984 P.2d 200, 204). " Every presumption is to be indulged in favor of the constitutionality of a statute." Id. " It is also firmly recognized that it is not the place of this Court, or any court, to concern itself with a statute's propriety, desirability, wisdom, or its practicality as a working proposition." Fent, 1999 OK 64, ¶ 4, 984 P.2d 200, 204. " A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the legislative provision and a court's function extends no farther in our system of government." Id.

Analysis

¶ 4 The issue before us is the applicability of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution to H.B. 1603. Article 5, § 57 of the Oklahoma Constitution provides: " Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title...." Okla. Const. art. 5, § 57. This provision is commonly known as the single-subject rule. The purposes of the single-subject rule are to ensure the legislators or voters of Oklahoma are adequately notified of the potential effect of the legislation and to prevent logrolling. Nova Health Sys. v. Edmondson, 2010 OK 21, 233 P.3d 380. Logrolling is the practice of ensuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure an unfavorable provision is not enacted. Id.

¶ 5 This Court has long rejected a broad, expansive approach to the single-subject rule. Campbell v. White, 1993 OK 89, ¶ 14, 856 P.2d 255, 258. In Campbell, we stated that the Legislature's " skillful drafting of a broad topic" defeats the purpose of the single-subject rule. Id. We reaffirmed such an approach in Weddington v. Henry, 2008 OK 102, 202 P.3d 143, where we struck down a bill whose subject was " uniform laws." In Fent v. State ex rel. Okla. Capitol Improvement Auth., 2009 OK 15, ¶ 20, 214 P.3d 799, 806, Nova Health Systems, 2010 OK 21, 233 P.3d 380, and Thomas, 2011 OK 53, ¶ 27, 260 P.3d at 1260, we continued to reject a broad, expansive approach to the single-subject rule.

¶ 6 In Thomas we reiterated that Oklahoma adheres to the germaneness test.3 Id. ¶ 26, 260 P.3d at 1260. The most relevant question under such an 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. Id. The question is

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not how similar two provisions in a proposed law are, but whether it appears that the proposal is misleading or that the provisions in the proposal are so unrelated that those voting on the law would be faced with an all-or-nothing choice. Id. The purpose is not to hamper legislation but to prevent the Legislature from making a bill " veto proof" by combining two totally unrelated subjects in one bill. Id. If a bill contains multiple provisions, the provisions must reflect a common, closely akin theme or purpose. Id. ¶ 27, 260 P.3d at 1260.

¶ 7 H.B. 1603 contains 90 sections, encompassing a variety of subjects that do not reflect a common, closely akin theme or purpose. The first 24 sections of H.B. 1603 amend and create new laws within our civil procedure code found in Title 12. Many of these provisions have nothing in common. For example, Section 3 purports to give a trial court the authority to transfer a case to another state. Section 10 creates a law that assists the Oklahoma Healthcare Authority in collecting refunds for the Medicaid program. In Section 13, the Legislature adopts a portion of the federal civil procedure code to control a state court action.

¶ 8 Of the remaining 66 sections of H.B. 1603, 45 sections create entirely new Acts, which have nothing in common with each other, including The Uniform Emergency Volunteer Health Practitioners Act, The Common Sense Consumption Act, The Asbestos and Silica Claims Priorities Act, The Innocent Successor Asbestos-Related Liability Fairness Act, and The School Protection Act. For example, sections 43 through 46 create The Common Sense Consumption Act. The Act creates immunity from suit only for entities defined under the federal Food, Drug, and Cosmetic Act, and by its terms eliminates remedies for certain injured consumers. Sections 54 through 65 create the Asbestos and Silica Claims Priorities Act. Section 58(A) limits a physician's ability to testify in asbestos and silica litigation based upon his or her education, training, and experience, and instead requires adherence to the AMA Guides to the Evaluation of Permanent Impairment (5th Edition) (2000).

¶ 9 Other dissimilar sections of H.B. 1603 amend the Mandatory Seat Belt Use Act and the Oklahoma Livestock Activities Liability Limitation Act, limit the liability of firearm manufacturers, and amend existing laws regarding school discipline. H.B. 1603 also creates a new law that a school district representative may not conduct or preside as the hearing officer or judge at a due process hearing and then attend, advise, or influence an executive session of the school board.4

¶ 10 This Court finds the Legislature's use of the broad topic of lawsuit reform does not cure the bill's single-subject defects. Campbell, 1993 OK 89, ¶ 14, 856 P.2d at 258. Although the Defendant argues the CLRA of 2009 does not constitute logrolling because the provisions within it are not so misleading as to create for a legislator an all-or-nothing choice, we find the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice to ensure the passage of favorable legislation.

¶ 11 Unlike in Thomas, where the Court severed the offending provision of the Oklahoma Taxpayer and Citizens Protection Act of 2007, H.B. 1603 encompasses so many different subjects that severance is not an option. 5 It would be both dangerous and difficult for this Court to engage in the exercise of severance in this case. By picking and choosing which provisions relate to lawsuit

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reform and which do not, this Court would essentially become the policy-maker. Policy-making is the job of the Legislature. And although the dissenters argue we should sever the unconstitutional portions of this bill, the separate writing does not provide an...

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