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Stopping a Judicial Power Grab Before it Upends Oklahoma


A case is pending at the Oklahoma Supreme Court that will have lasting consequences for governance of the state. You wouldn’t know it from the way the case has been reported, but at stake is a principle no less fundamental than whether Oklahomans will continue to be in charge of their government or whether it will be the other way around. That’s the argument of the amicus brief I filed in the case last week (joined by law professor Andy Spiropoulos and the Oklahoma Council of Public Affairs).


According to the Plaintiff (Oklahoma’s Attorney General), State of Oklahoma v. Johnson & Johnson, et al. is about the costs the state has and will incur as a result of the abuse of opioid drugs. He filed a lawsuit against the manufacturers of these legal drugs, claiming that they created a “public nuisance” in the state. All the defendants settled except one, and after a bench trial (no jury), a Cleveland County judge levied a $465 million judgment against J&J to “abate” the public nuisance.


This case isn’t really about opioids, though. It’s about much more fundamental principles like the separation of powers and self-government. Here’s how.


The Attorney General asked for, and the trial judge ordered, an “Abatement Plan” that is materially indistinguishable from a bill one might see enacted during a session of the Oklahoma Legislature. In substance, the trial court’s judgment (1) identifies a broad, complex societal problem facing the state, (2) levies a tax on the industry alleged to have contributed to the problem (or that is in the best financial position to weather the tax), and (3) appropriates the proceeds of the tax to a cornucopia of government agencies and programs in an attempt to ameliorate the problem.


The term for this is “legislating.” But courts and attorneys general aren’t supposed to legislate. That’s what legislatures are for.


Like the federal constitution and all other state constitutions, Oklahoma’s constitution requires policymaking be done by the elected legislature. Outside of the governor’s power to approve or veto legislation, the Constitution gives executive branch officers like the Attorney General no role in the lawmaking process. Even administrative rulemaking is permitted only to the extent the legislature authorizes it, and stays within the confines of the Constitution.


The courts are purposely shielded from the messy legislative process, not only because they are ill-suited to lawmaking, but also to preserve their independence from the hurly burly of politics. Courts decide particularized controversies between individual litigants, making them necessarily limited to the facts relevant to a case as presented to them by the interested parties. This will leave many issues important to the public out of the calculus, increasing the (already steep) odds of unintended consequences when sweeping policy is imposed.


Legislatures, on the other hand, have expansive fact-finding capabilities that can reach far beyond the narrow interests advanced by the parties to a discrete lawsuit. They are elected, lobbied, engage in open debate, and are held accountable to the people who will live under their laws. Legislatures, then, can take a comprehensive view of societal challenges, taking into account the interests of the broad society. When courts are dragged into the policymaking process by lawsuits seeking to regulate entire industries, the judiciary is damaged. And when courts assent to being dragged in, like the court in Norman did, they ought to be reversed on appeal.


The court’s judgment construes Oklahoma’s public nuisance statute so broadly as to leave no limits to future policymaking by litigation. Permitting lawsuits that attempt to comprehensively resolve complex societal challenges, like the opioid epidemic, allows litigants to inject courts into what is—and should be—a democratic policymaking task. Allowing Oklahoma’s public nuisance statute to be weaponized into a catchall vehicle for involving courts in matters the Constitution commits to the elected legislature undermines the separation of powers in Oklahoma government, lacks democratic legitimacy, results in poorly-crafted public policy, and invites ever more policymaking by litigation.


In fact, it already has. Apparently the novel strategy the Attorney General pursued in the opioid case—stretching Oklahoma’s public nuisance law beyond all recognition to achieve policy goals—has inspired would-be social engineers to try their hand at lawmaking by litigation. 


Earlier this year, a lawsuit was filed in Tulsa seeking to abate the “public nuisance” of the last 100 years of race relations in the city. The plaintiffs in that case—African-American citizens and two nonprofits in Tulsa—seek redress in the courts for no less than the entire racial history of the city, including everything from decades of alleged discrimination in housing and economic development policy to failures by public officials to adequately atone for (universally acknowledged as horrific) racial violence that occurred in 1921. 


In effect, the plaintiffs in that suit seek to put society on trial—in a court of law—to remedy historical racism and what they conclude are its modern-day aftereffects. As in need of redress as this history may be, it is obviously a question for politics, not the adversarial system. The plaintiffs in that case were no doubt inspired by—and saw the opportunity for success only after—witnessing what was done to the defendants in the opioid case.


Many people despise pharmaceutical companies in general, and opioid manufacturers in particular. That’s fine (although, I wonder how many of the pharma-haters out there will be lining up for the Covid-19 vaccine Johnson & Johnson is in the late stages of FDA approval for). But this case goes well beyond the two parties involved. If the Oklahoma Supreme Court goes the wrong way on this, the result will not just be to strike a blow at the hated Big Pharma, it will be a blow at your own ability to influence how your state is governed.


Hopefully, the Supreme Court will recognize the high stakes. With our amicus brief in the court record, the justices won’t be able to claim ignorance.


-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.

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