BY RICHARD L. FRICKER

A memo circulating among state House Democrats details the number of unconstitutional bills passed by lawmakers in recent years that were challenged and overturned by various courts.

The Republican majority harps constantly about tight budgets and the need to cut expenditures. Yet it repeatedly enacts unconstitutional teabagger- and evangelical-driven legislation.

The result: the taxpayers end up paying dearly to defend dubious legislation, either via direct costs to the attorney general’s office or by hiring outside counsel.

In the near future The Observer will be analyzing not only the costs involved in passing ideologically-driven legislation, but also the campaign contributions received by those who sponsored these Constitution-challenged measures.

Here is the complete text of the internal House Democratic memo:

Dear Members,

I’ve summarized some bills passed and later deemed to be unconstitutional by the courts. It’s interesting that many of the authors of these bills are still here, just recently left, or are still around in some capacity.

From a March 4, 2010 Huffington Post article, Oklahoma Supreme Court Tells Legislature: Stop Wasting Money on Unconstitutional Laws.

“In a strongly worded ‘excoriation’ of the Oklahoma state legislature, according to Stephanie Toti, a staff attorney at CRR, the Supreme Court ruling calls the passage of these laws “a continuous failure to abide by the Oklahoma constitution.” “We are growing weary of admonishing the Legislature for so flagrantly violating the terms of the Oklahoma Constitution.” The Oklahoma Supreme Court goes on to state that violating the OK Constitution over and over again in relation to the single-subject rule [“Over the last two decades we have addressed the single subject rule at least seven times” is: ” … a waste of time for the Legislature and the Court, and a waste of taxpayer’s money.”

How much of our taxpayer dollars have been wasted defending unconstitutional laws?

Just this past session the legislature passed HB 2032, which violates the “single-subject” rule in the Oklahoma Constitution, and a legal challenge was immediately filed, as expected. Oral arguments were heard on July 9th.

How many dollars have been wasted fighting federal statutes, such as the ACA?

Recent legislation declared unconstitutional:

June, 2013 – The Oklahoma Supreme Court ruled that a 2007 amendment [HB 1760 by Rep. Blackwell/Sen. Lamb] increasing sex offender level assessments which placed offenders back onto the registry for life or retroactively, and without a hearing, was unconstitutional. This ruling resulted from the case of Starkey v. Oklahoma Department of Corrections, filed by plaintiff James Starkey, who found his registration period extended retroactively.

June, 2013 – The Oklahoma Court of Civil Appeals, after granting a rehearing to the Oklahoma Tax Commission, upheld its earlier ruling in January that the deduction that treats out-of-state companies differently than Oklahoma firms is unconstitutional. The court held the Oklahoma law enacted in 2005 [HB 1547 by Rep. Calvey/Sen. Gumm] as an economic and business development incentive violated the Commerce Clause of the U.S. Constitution by facially discriminating against out-of-state businesses. The appellate court directed that its ruling applies only to the 2008 tax return of the company that filed the appeal.

June, 2013 – The Oklahoma Supreme Court struck down the Comprehensive Lawsuit Reform Act of 2009 [HB 1603 by Rep. Sullivan/Sen. Coffee] as invalid under the state’s constitution. It was struck down due to the unique provision of the Oklahoma State Constitution under which the CLRA was held invalid: the single-subject rule. The “single-subject rule” is an anti-logrolling provision that requires that “every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title.” This means that every bill, with limited exception, must be limited to only one subject matter. The provision was enacted over a century ago.

June, 2013 – An Oklahoma law [HB 1603 by Rep. Sullivan/Sen. Coffee – 2009] requiring plaintiffs alleging professional negligence to submit an expert affidavit of merit with their petition is an unconstitutional “special law” that creates a special subclass of persons, the state Supreme Court has ruled. The state’s highest court ruled 7-2 that the affidavit requirement violates the prohibition on special laws related to judicial proceedings in Article 5, Section 46 of the Oklahoma Constitution. A special law is one that confers a right or imposes a duty on some but not all of the members of a class of persons. Section 19 also places an undue financial burden on plaintiffs by requiring them to pay the costs of expert review in violation of their constitutional right to access to the courts as conferred in Article 2, Section 6 of the state constitution.

December, 2012 – The Oklahoma Supreme Court ruled two of Oklahoma’s anti-abortion laws unconstitutional. The OSC determined that both HB 2780 and HB 1970 were unconstitutional because they violate the U.S. Supreme Court’s 1992 ruling in Planned Parenthood v. Casey. HB 2780 [Rep. Billy/Sen. Sykes – 2010] required that women had an ultrasound performed and described to her within an hour before having an abortion. HB 1970 [by Rep. Grau/Sen. Treat – 2011] prohibited off-label use of medications, including RU-486, to induce abortions. HB 1970 was defeated by a unanimous opinion from all eight judges and HB 2780 was defeated by seven of the judges. One judge recused herself from the case of HB 2780 because she had issued an injunction against the law in 2010. Oklahoma Attorney General Scott Pruitt is appealing this latter decision to the U.S. Supreme Court.

November, 2012 – The Oklahoma Supreme Court unanimously ruled that the use of $25 million in state bond funds to make improvements to a dam owned by the City of Tulsa is unconstitutional [SB 239 by Rep. Miller/Sen. Mazzei – 2009]. The Court found that: “In reality, the bonds appear to be nothing more than a gift to the City of Tulsa and surrounding communities from the State. This type of gift is precisely what is prohibited by the Oklahoma Constitution, Article X, Sections 14 and 15. Accordingly, the proposed bonds are unconstitutional.” Sen. Patrick Anderson, who argued this case before the Supreme Court, stated, “In the future, I would hope that policy makers will pay closer attention to the state Constitution.”

May, 2012 – An Oklahoma County District Court tossed out a law [HB 1970 by Rep. Grau/Sen. Treat – 2011] that put restrictions on drugs used to induce abortions. The court found that it is “an unconstitutional law in violation of the fundamental rights of women to privacy and bodily integrity,” guaranteed by the Oklahoma Constitution. The state Attorney General’s Office plans to appeal the ruling. Fallin spokesman Alex Weintz. “The governor is disappointed with the court’s ruling and supports the decision of the attorney general to appeal.”

April, 2012 – An attempt to change the Oklahoma constitution to define an embryo as a person is unconstitutional, per the state’s highest court. The Supreme Court ruled unanimously that a proposed amendment to the Oklahoma Constitution that would define a fertilized human egg as a person violates a 1992 U.S. Supreme Court decision involving a Pennsylvania case and “is clearly unconstitutional.” Supporters of the personhood amendment are trying to gather enough signatures to put it before Oklahoma voters on the November ballot.

January, 2012 – The 10th Circuit Court of Appeals struck down Oklahoma’s ban on Sharia law, declaring that the move violated the United States Constitution. In November 2010, Oklahoma voters approved a ballot initiative [created by HJR1056 by Rep. Duncan/Sen. Sykes – 2010] to prevent Sharia law from being used in the state, something that even the measure’s defenders could not identify ever happening. Before the Oklahoma law could take effect, however, a federal judge issued an injunction blocking the measure while courts considered its constitutionality. The 10th Circuit, in a 37-page decision, agreed that Oklahoma’s Sharia ban violated the First Amendment’s Establishment Clause and was therefore unconstitutional.

September, 2011 – A portion of a highly touted criminal justice reform measure [HB 2131 by Rep. Steele/Sen. Anderson – 2011] is unconstitutional, according to an opinion by Oklahoma Attorney General Scott Pruitt. The new law said that if the governor did not act within 30 days on low-risk, non-violent favorable parole recommendations made by the Pardon and Parole Board, the parole was deemed granted. The opinion says that portion of the law is unconstitutional because the Oklahoma Constitution grants the governor the power to determine paroles and does not place a time limit on exercise of that power. The opinion did not disturb other portions of the new law.

June, 2011 – The Oklahoma Supreme Court upheld a state immigration law [HB 1804 by Rep. Terrill/Sen. Williamson – 2007] as constitutional EXCEPT for a section denying bail to illegal immigrants charged with crimes. The court ruled 8-1 that HB 1804’s denial of bail to illegal immigrants charged with felonies or for driving under the influence was unconstitutional because it infringed on the authority of the trial judge.

March, 2010 – The Oklahoma Supreme Court declared that an Oklahoma law [SB 1878 by Rep. Peterson/Sen. Lamb – 2008] regulating abortion practice and requiring ultrasounds for women seeking abortion violated the state constitution’s single-subject rule, saying it contained multiple subjects for legislation. The high court struck down SB 1878, upholding the August 2009 decision of Oklahoma County Judge Vicki Robertson, who ruled the multiple legislative mandates in the law required separate bills to pass constitutional muster.

February 2010 – The Oklahoma County District Court ruled that a law passed by the legislature in 2009 [HB 1595 by Rep. Sullivan/Sen. Lamb] that prohibited abortion based on gender and required an invasive questionnaire for those seeking abortions was unconstitutional. The court ruled it addressed too many topics, and therefore violated the Oklahoma constitution’s “single-subject” rule.

August, 2009 – Oklahoma state court judge Vicki Robertson ruled that a state law [SB 1878 by Rep. Peterson/Sen. Lamb – 2008] requiring women seeking an abortion to have an ultrasound within an hour of the procedure violates the Oklahoma Constitution. Without reaching the validity the of the ultrasound requirement itself, the judge held that the law violated the Oklahoma constitution’s “single-subject” rule. The law also included sections on requirements for abortion clinic signs, the administration of an early-term abortion pill, and rules on lawsuits relating to abortions. Attorneys for the state have indicated that they will likely appeal the ruling.

March, 2009 – The Oklahoma Supreme Court ruled as unconstitutional a three-piece bond measure [SB1374 by Rep. Miller/Sen. Mike Johnson – 2008] that included construction funding for Tulsa-area dams, the American Indian Cultural Center in Oklahoma City and conservation dams in rural areas around the state. The Supreme Court ruled that the legislation violated the Oklahoma constitution’s “single-subject” rule, also known as “logrolling.” Only funding for the cultural center was allowed to move ahead. [In response, the following year the Legislature passed single-issue bond bills for the Tulsa project and the conservation dams – later also ruled unconstitutional.]

January, 2008 – The Oklahoma Supreme Court struck down a law [HB1728 by Rep. Harrison/Sen. Lerblance – 2005] allowing county assessors to base their property tax assessments on the total purchase price for the land divided by the number of lots platted. The law allows the assessment to remain fixed until the buildings constructed on the land are sold or leased. The Supreme Court, in a ruling penned by Justice Marian Opala, found the Legislature overstepped its authority in allowing the assessment to remain frozen for an indeterminate length of time. Though laws ruled unconstitutional are often applied retroactively, the Supreme Court saw fit to limit the application of its ruling to future cases only so as not to impose hardship or liability on public officials and taxpayers who applied the law in good faith.

June 2008 – The U.S. Supreme Court issued its opinion in the case of Kennedy v. Louisiana and ruled that the death penalty was unconstitutional for the rape of a child. The move struck down death penalty laws in five states, including Oklahoma [SB 1800 by Rep. Fred Morgan/Sen. Nichols – 2006].

September, 2007 – After a preliminary stay against HB 3004 [Rep. Fred Morgan/Sen. Coffee – 2006], U.S. District Judge Robin Cauthron issued a permanent injunction on the bill that would classify violent games in the same category as pornography. The bill was ruled to be unconstitutional in that video games are to be classified as a form of creative expression that is protected under the First Amendment. HB 3004 revised the state’s definition of what is harmful to minors to include games with “inappropriate violence.” Under the law, no person, not even a minor’s parents or guardians, would be allowed to give or show them an inappropriately violent game. Retailers would also not be able to have such games on display where minors could see them, unless the lower two-thirds of the boxes were hidden behind “blinder racks,” of the sort commonly used for sexually explicit magazines.

July, 2007 – The Oklahoma Supreme Court ruled that a state law that prohibits workers’ compensation claimants from introducing testimony from their own physicians was unconstitutional [SB1x by Rep. Hiett/Sen. Morgan – 2005 Special Session]. The court found that these “restrictions on the workers’ compensation court … attempt to predetermine the range of the adjudicative facts and impermissibly invade the judiciary’s exclusive constitutional prerogative of fact-finding.”

December, 2006 – The Oklahoma Supreme Court ruled that requiring a malpractice claimant to file an affidavit of merit violated state constitutional provisions that guaranteed access to the courts and prohibited special laws [SB629 by Rep. Adair/Sen. Fisher – 2003].

May, 2006 – A federal judge struck down a 2-year-old law [HB1821 by Rep. Winchester/Sen. Smith – 2004] that prohibits Oklahoma from recognizing adoptions by same-sex couples from other countries and U.S. states. U.S. District Judge Robin Cauthron ruled the measure violated due process rights under the U.S. Constitution because it attempted to break up families without considering the parents’ fitness or the children’s best interests.

– Richard L. Fricker lives in Tulsa, OK and is a regular contributor to The Oklahoma Observer. His latest book, The Last Day of the War, is available at https://www.createspace.com/3804081 or at www.richardfricker.com.