Small: Oklahoma Supreme Court is legislating from the bench

Legislating from the bench

By Jonathan Small

Judges are often accused of legislating from the bench and a recent decision by the Oklahoma Supreme Court is one reason why. The court majority declared, in essence, that we have fallen through the looking glass like Alice in Wonderland and up is now down – depending on what outcome is favored by justices.

In Stricklen v. Multiple Injury Trust Fund, the Oklahoma Supreme Court was asked to decide whether a section of a 2013 workers’ compensation reform was a “special law.” Instead, the court struck down that provision by rewriting the plain definition of a word.

The law being challenged allowed an injured worker to receive support from the Multiple Injury Trust Fund (MITF) only if the employee had multiple injuries and the latest injury happened “at a subsequent employer.”

In the case under consideration, the worker’s injuries all occurred while working for the same employer—the Grand River Dam Authority (GRDA). As a result, the MITF argued it was not liable to the worker.

In their decision, the court’s majority acknowledged that the “term ‘subsequent’ does refer to something following or later than something else,” but then said there’s no reason a “subsequent employer must be a different employer.”

You read that right. The court believes you can be both the prior and subsequent employer, simultaneously, even if a worker has never had another job.

Under our system of government, the Legislature passes laws and the courts interpret them.

But now the Oklahoma Supreme Court controls definitions with the untethered freedom of a fiction writer and does so after a law has been passed. That effectively wipes out any real role for the Legislature and makes the court both the legislative and judicial branch in one entity. How can lawmakers draft laws when the definition of words can be readily rewritten after the fact?

Can you imagine a greater demonstration of legislating from the bench than intentionally twisting the definition of a word like “subsequent”? There may be more brazen examples, but they don’t come readily to mind.

Things are so bad in Oklahoma that many people now say the court truly writes the law, not the Legislature. That means voters have less say in what laws are passed, because they elect legislators, not judges.

This insanity is due to Oklahoma’s good-old-boy system of judicial selection, in which a committee substantially comprised of lawyers selects judges, as well as a mindset among some Oklahoma politicians and judges on the Supreme Court that they will determine the law in a manner that facilitates their desired outcome.

If we want Oklahoma to operate as the founders intended, we must change our judicial selection system and the composition of Oklahoma appellate courts. Otherwise, we will continue to see the bench populated by judges who feel free to unilaterally write and rewrite — rather than interpret – Oklahoma laws.

Jonathan Small serves as president of the Oklahoma Council of Public Affairs.