Douglas v. Cox Retirement Properties, Inc.

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

GURICH, J.

Facts & Procedural History

I 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 28, 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.

T2 Defendant moved to dismiss the case for Plaintiffs failure to comply with 12 0.8. S$upp.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 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

138 "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

T4 The issue before us is the applicability of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution to H.B. 1608. 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.

T5 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 Compbell, 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.

16 In Thomas we reiterated that Oklahoma adheres to the germaneness test³ 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 not bow 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. 127, 260 P.3d at 1260.

T7 HB. 1608 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 18, the Legislature adopts a portion of the federal civil procedure code to control a state court action.

18 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).

T 9 Other dissimilar sections of H.B. 1608 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. 1608 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

T 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 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 analysis of how severance should be accomplished. Additionally, unlike in Thomas, were we to sever all the invalid portions of H.B. 1603, we could not presume the Legislature would have enacted the remaining provisions of the bill without the voided provisions.⁶

Conclusion

112 This is not the first time we have invalidated a bill in its entirety for violation of the single-subject rule.⁷ Although we are mindful of the practical consequences of today's decision, we will not sit by and ignore violations of our Constitution. The Legislature should be well aware of the single-subject requirements of the Oklahoma Constitution. We do not doubt that tort reform is an important issue for the Legislature. But the constitutional infirmity of logrolling, which is the basis of this opinion, can only be corrected by the Legislature by considering the acts within the CLRA of 2009 separately.⁸ We hold that H.B. 1603, commonly known as the Comprehensive Lawsuit Reform Act of 2009, violates the single-subject rule of Article 5, § 57 of the Oklahoma Constitution. The bill is unconstitutional and void in its entirety.

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

1 13 COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, COMBS, and GURICH, JJ., concur. 1 14 KAUGER, J., (by separate writing) concurs specially. 1 15 WINCHESTER, J., (by separate writing) and TAYLOR, J. (Joins WINCHESTER) dissent.

1 . Today this Court also issued an opinion in Timothy Wall v. John S. Marouk, D.O., 2013 OK 36, 302 P.3d 775, 2013 WL 2407160, which disposes of Plaintiff's additional argument that the requirement for filing affidavits in malpractice cases was conclusively decided by this Court in Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861. Therefore, we will not address the issue in this opinion.

2 . Ordinarily, an order dismissing a case is a final, appealable order unless the trial court grants leave to amend the petition to cure the defect. Kelly v. Abbott, 1989 OK 124, ¶ 10, 781 P.2d 1188, 1191. If leave to amend is granted, the order dismissing the case is an interlocutory order and does not become final until the petition is not amended within the time set by the trial court. Id. In this case, the trial court dismissed the action but gave the Plaintiff 30 days to file the affidavit required by 12 O.S. Supp. 2009 § 19. The trial court also certified the order for immediate review and ordered: "If Plaintiff chooses to file a certified interlocutory appeal of this Order, and not file the required affidavit, then the proceedings shall be stayed pending disposition of the interlocutory appeal by separate order to be filed by this Court." Journal Entry Sustaining Defendant's Motion to Dismiss at 2. Rather than filing the affidavit, Plaintiff appealed the order and filed a Petition for Certiorari to Review Certified Interlocutory Order with this Court.

3 . Other opinions discussing the single-subject rule include: Nova Health Sys., 2010 OK 21, 233 P.3d 380; Fent, 2009 OK 15, 214 P.3d 799; Weddington, 2008 OK 102, 202 P.3d 143; Fent v. Office of State Finance, 2008 OK 2, 184 P.3d 467; In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, 142 P.3d 400; Edmondson v. Pearce, 2004 OK 23, 91 P.3d 605; Morgan v. Daxon, 2001 OK 104, 49 P.3d 687; Campbell, 1993 OK 89, 856 P.2d 255; Johnson v. Walters, 1991 OK 107, 819 P.2d 694.

4 . The Defendant argues that this section, section 74, was repealed, so H.B. 1603 is cured of its single-subject defects. Section 74 is not the only section that violates the single-subject rule. However, even if it were, it has not been repealed as the Defendant claims. Section 74 was passed in two different bills in the 2009 session-H.B. 1603 (CLRA of 2009) and H.B. 1598. HB. 1598 was repealed so as to prevent duplicate statutes. Section 74, as it was enacted in HB. 1603, remains intact at 70 O.$.2011 § 6-101.7 and has not been repealed.

5 . Although the bulk of the Act in Thomas dealt with discouraging illegal immigration, only one section was found to violate the single-subject rule. Thomas, 2011 OK 53, ¶ 31, 260 P.3d at 1262. The bill had 13 sections, and this Court found Section 13 of the bill, which sought to amend 70 O.S. Supp.2006 § 3242(A)(1) and (2) so as to deny resident tuition for higher education to those who successfully completed the GED examination, did not relate to the common theme of discouraging illegal immigration and should be severed. Id. ¶ 31, 260 P.3d at 1262.

6 . 75 0.8. § 11a(1) reads:

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 severable. 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.

7 . See Nova Health Sys., 2010 OK 21, 233 P.3d 380 (finding that S.B. 1878, which comprised portions of five separate bills and involved multiple subjects concerning freedom of conscience, obviously violated the single-subject rule and was void in its entirety); Weddington, 2008 OK 102, 202 P.3d 143 (finding that S.B. 1708, which related to uniform laws, was facially contrary to Article 5, § 57 and void in its entirety).

8 . Although our opinion in Nova Health Systems, 2010 OK 21, 233 P.3d 380, was decided after the CLRA of 2009 was passed, in that case we explicitly told the Legislature that if it believed the subjects involved in a particular bill were important, it should enact those subjects in separate bills. We reiterate that idea today.