I have referred often to the Oklahoma Supreme Court’s “lawmaking” or to justices acting like “legislators in black robes” as rhetorical devices intended to illustrate a point about judicial activism. I never imagined the Court would go so far as to actually begin legislating. With its latest actions, however, it seems the Court views the exigencies created by our current public health woes as a greenlight to literally change the law in Oklahoma.
On Friday of last week, the Oklahoma Supreme Court issued (and the Court of Criminal Appeals signed off on) an “Emergency Joint Order” declaring that “all deadlines and procedures whether prescribed by statute, rule or order in any civil, juvenile or criminal case, shall be suspended through May 15, 2020” due to COVID-19 (emphasis added). The Court made this suspension specifically applicable to statutes of limitation in all civil cases. The Court had, on March 16, issued a similar order suspending deadlines for 30 days.
These Emergency Orders were not issued in the context of some pending case before the Court or in response to a litigant petitioning the Court for relief, but simply as a decree from on high, not subject to debate or appeal.
Where the Court thinks it gets the authority to suspend duly enacted statutes is anyone’s guess, as the Order includes no citations to statute, the constitution, or caselaw.
I suspect the Court views this as within a combination of their general administrative authority and their “superintending control” over the courts granted by the Oklahoma Constitution, Article 7, Sections 4 and 6. Again, we don’t know, because the Court didn’t see a need to explain where it gets this power. But the idea that these parts of the Constitution grant the Court the power to suspend the application of valid laws stretches the Constitution to the point that it ceases to limit judicial activity in any meaningful way. Justices are not kings, and even vague constitutional provisions provide some constraints on their powers.
To understand the significance of this action, consider just the suspension of statutes of limitation. For the unacquainted, statutes of limitation are kind of a big deal. They are the drop dead date by which an aggrieved individual must file his lawsuit, after which he is forever barred from seeking relief in court. They are imposed because the more time that elapses from an event that gives rise to a lawsuit, the more likely it is that evidence grows stale and witnesses become unavailable or their memories become foggy. The practical result is that even the most severely injured person who has a totally legitimate legal claim against a defendant is completely prohibited from collecting a dime if he waits too long to file his lawsuit. Deciding when this date falls (should it be one year? Two? Should there even be a limitation in certain types of suits?) is a matter very important to plaintiffs and defendants alike.
The line must be drawn somewhere, and in Oklahoma, the deadlines are imposed by statute. That is, by the elected legislature. That means after a legislative process, with opportunity for debate, and by people who can be voted out of office for drawing the line in a place their constituents think unwise or unfair.
Incidentally, I think it may very well be necessary to extend these deadlines, given the shutdown policy the rest of the government has imposed. It is difficult for anyone to get any work done in this environment, and lawyers are no exception. To enforce deadlines against litigants in this environment would most likely result in unfair disadvantage to someone, somewhere. But this is a public policy change that requires a law passed by the Legislature (which is still in session, by the way) and signed by the Governor, not an emergency fiat issued from nine lawyers in Oklahoma City.
Or it could possibly be subsequently decided by courts as part of a case or controversy for which a court has jurisdiction if there is some other, valid legal authority to do so. Courts have come up with various interpretations of written statutes of limitations, finding them to be “tolled” or extended, such as when a person is injured but does not discover the injury until a later time or some exigent circumstance precluded timely filing of the lawsuit. Some of these interpretations are better reasoned than others, but all of them are at least rooted in the law as written by the elected branches.
More importantly, such interpretations are developed in the context of a case with an actual plaintiff, an actual defendant, a legal dispute, and a request for relief from the court—in short, when there is a live case or controversy for which the court has a constitutional basis to weigh in. They are not pulled from thin air by an unelected and unaccountable court and imposed on all of society. Courts are not supposed to be in the business of—and are structurally ill-equipped for—unprompted policymaking decrees of general applicability.
This is of a different category than the Governor, as the chief executive, exercising emergency powers to do things (like temporarily closing businesses) he normally would have no power to do. For one, executives are given this type of power in the constitution, specifically because an emergency may arise that requires decisive action outside of normal procedures. Moreover, there are checks on the Governor. Citizens can go to court if he overreaches, and the legislature can reign him in with legislation, the power of the purse, and even impeachment. The legislature is also granted special powers in an emergency, but there are also checks on it. The Governor can exercise his veto, and the courts can invalidate legislative enactments. The people have the ultimate check over the political branches at the ballot box.
As with most of the Oklahoma Supreme Court’s excesses, there is no meaningful check on this action by the Court.
Process and seemingly small details matter in legal proceedings in a way they do not when we cut corners in other aspects of life but end up at the “right” result. If your co-worker forgets it’s his turn to drive the carpool and you end up a little late to the office, c’est la vie, you might be inconvenienced but you still made it to work. If the courts start ignoring written rules, you might lose your liberty.
What will stop the Court from exercising its newfound power in other contexts, where the need for such action is less clear, or where reasonable minds differ as to the extent of the emergency? What precedent does this set? Given the repeated overreach by this particular Court, chronicled in great detail, we should not take a casual view of such deviations from the norm.
They have earned a short leash.
Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.