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Legislating through Litigation

Oklahoma’s Attorney General and trial courts appear to now be in the business of taxing industries and appropriating funds to state agencies. These are powers that the Oklahoma Constitution explicitly grants to the legislature. They are certainly not given to the Attorney General or the courts. But in the name of mitigating a “public nuisance,” these legislative powers have effectively been misappropriated. 

The $572 million judgment recently handed down in Oklahoma’s opioid litigation looks an awful lot like a piece of legislation. It purports to tackle a broad societal problem by taxing a company alleged to have contributed to it and using the money to fund government agencies and programs aimed at ameliorating the problem. The Court and Attorney General justified this approach by claiming an “abatement plan” was needed to counter the so-called public nuisance of prescription drug abuse. Besides stretching the public nuisance theory far beyond its historical application, the ruling closely resembles the type of public policy that is normally (and properly) implemented through legislation.

For example, the Court's Order:
  • Creates and funds programs (well in excess of $100 million) at state agencies dealing with everything from prenatal screening and treatment for opioids to public medication disposal programs;
  • Funds licensing boards to hire additional personnel, including the state's veterinary, dentistry, nursing, and medical licensure boards;
  • Funds law enforcement agencies;
  • Funds programs at the OU Health Sciences Center; and
  • Contains a specific line item (more than $11 million) to fund the Attorney General’s office for, among other things, the AG’s “Policy and Legislative Development Tracking division.”
We elect legislators to perform this type of function, not judges. And for good reason. Legislators run campaigns proposing solutions to societal problems. Once in office, they can do expansive fact finding and hear from all segments of society. We can petition them to influence their policymaking. Most critically, when legislators make policy we think unwise we can vote them out of office and change course. This is the democratic process, and it has worked out pretty well for the United States over the last two centuries.

Judges perform a different function in our system. They are supposed to apply the rule of law to decide discrete disputes between parties with a particular stake in the outcome of the case. Public opinion and solving society’s problems are simply not in the job description. Again, this is for good reason. Judges do not have the tools legislators have to consider what is best for the broader society, and do not have the legitimacy that comes with standing for regular elections (yes, trial court judges are elected in Oklahoma, but they are prohibited from campaigning on particular issues and the races are nonpartisan, meaning they are mostly popularity contests).

The opioid litigation featured the wrong branch of government (an executive agency instead of the legislature) using the wrong vehicle (a lawsuit instead of legislation) to lobby another wrong branch of government (the judiciary) to impose a tax, appropriation, and regulatory scheme. 

Missing from all of this? The rule of law and those who are ultimately in charge of state policy, the People. What has happened to the separation of powers?

There is no doubt that the illegal use and abuse of prescription drugs is a serious problem. Many people believe the state government has a role in trying to get control of the situation. Apparently those people have been voting, because the elected branches of state government have been passing legislation and setting up programs to try to combat the problem (and with some success; opioid-involved deaths have actually been on the decline in Oklahoma in recent years).

So does it really matter how we get to a solution as long as we get one? What does it matter whether it was the AG suing a company and a judge making public policy from the bench rather than the elected legislature doing the legislating?

For an answer to that question, ask yourself: if the abatement plan doesn’t work, how are you going to convince a district court judge in Norman to change the state’s policy? If a state agency misspends the money, who will you hold responsible at the ballot box? If you just plain disagree with this approach to the opioid abuse problem, who’s townhall meeting are you going to show up to?

Don’t look at the legislature, because they had nothing to do with this.

Perhaps they should get involved.


by Benjamin Lepak, 1889 Institute Legal Fellow

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