Deal v. Brooks

THORNBRUGH, P.J.,

concurring specially:

¶ 1 I concur entirely with this opinion and its reasoning. I write separately only to emphasize two points: Fust, I emphasize the clear fact that the Oklahoma Constitution and its protections and restraints on state power are above the statutory law. Imposing no penalty for state-sponsored violations of fundamental constitutional rights would allow the state to act with complete impunity. The matter is very well stated in ¶23 of Bosh, as follows:

The OGTCA cannot be construed as immunizing the state completely from all liability for violations of the constitutional rights of its citizens. To do so would not only fail to conform to established precedent which refused to construe the OGT-CA as providing blanket immunity, but would also render the Constitutional protections afforded the citizens of this State as ineffective, and a nullity.

¶ 2 This simple truth cannot be evaded by urging a doctrine that a state actor automatically ceases to act with the authority of the state if he or she breaches a fundamental constitutional right of a citizen. If an act is forbidden to the King, it may not be carried out by those acting on behalf of the King.

¶ 3 Second, I write to note a current lack of clarity in the procedure regarding the type of claim presented in this case. If the OGT-CA purports to grant the state immunity from violation of a fundamental constitutional right, a court may either (1) declare that the OGTCA immunity in this area is not absolute, or (2) declai’e that the OGTCA does grant absolute immunity, but that a cause of action is available outside the OGTCA. Bosh appears to take the latter view—that a claim resulting from the violation of a fundamental constitutional right “does not arise from the OGTCA,” and hence represents a separate, common-law claim that is not subject to the notice and limitations provisions of the OGT-CA. I note, however, that further procedural clarification of whether such claims are (or are not) subject to the various procedural requirements of the OGTCA would be of enormous value to the judges and practitioners in state courts.