Small: OK Supreme Court creativity reduces legal certainty

Court creativity reduces legal certainty

By Jonathan Small

Creativity is often a good thing, but the courtroom is an exception. When judges get creative, it means less legal certainty for everyone else.

Sadly, the Oklahoma Supreme Court has provided an example in recent years.

In Gibby v. Hobby Lobby Stores, a Hobby Lobby employee made a claim for workers’ compensation benefits. Hobby Lobby paid temporary total disability and medical benefits, but claimed the employee waived any permanent disability benefits claim because he had missed two medical appointments without having a valid excuse in violation of state law.

The reason for that law is obvious. If an injured employee skips more than one doctor’s visit without any valid reason, that’s a pretty good sign the employee does not believe he has a serious medical problem. And if workers are allowed to skip multiple doctor’s visits, it undermines the whole purpose of the workers’ compensation system, which is to provide injured workers swift access to medical care for injuries that occur on the job.

In Gibby v. Hobby Lobby Stores, an administrative law judge denied permanent benefits to the employee, siding with Hobby Lobby, and the Workers’ Compensation Commission affirmed the decision.

But the Oklahoma Supreme Court took the appeal and found the law unconstitutional, based on a constitutional provision referred to as the “open courts” provision that says, “The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”

The Oklahoma Supreme Court ruled this clause requires a right to a remedy “for every wrong and every injury to person, property, or reputation.”

But the “open courts” clause has long been understood to refer to the fundamental idea that the judiciary operates independently from the executive branch. To claim it requires that anyone, anywhere must be allowed to pursue litigation for any reason obviously opens the door for massive abuse.

If you are upset that a donut shop doesn’t carry your favorite donut, can you sue them? Under this ruling, that’s a possibility.

We have a Legislature for good reason, including to pass laws that determine what “wrongs” can be made right in court.

Put simply, the court’s creative thinking in this case leaves Oklahoma businesses and citizens without certainty when it comes to potential liability. Just because the law is clear no longer means anything when a case goes to court.

Rather than risk potential expensive litigation, many businesses will simply forgo Oklahoma as a potential place of operation or move out of state.

That means fewer job opportunities and lower wages for all Oklahomans. There’s a high price to pay for judicial creativity.

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

<