Okla. AG’s Flip-Flop on Appropriate Application of Public Nuisance Legal Theory

Photo by Haley Lawrence on Unsplash

Attorney General Mike Hunter’s 2019 opioid trial alleges that Johnson & Johnson’s FDA-approved and regulated opioids constitute a “public nuisance.” But in a 2018 Washington Examiner op-ed, he takes the opposite position with regard to climate change litigation. He again stated this position in a May 17, 2019 amicus brief in which he joined 17 fellow state AGs in filing an amicus brief in a 9th Circuit climate change case stating that the use of public nuisance law is inappropriate in the matter. The brief states that “the issues surrounding climate change and its effects — and the proper balance of regulatory and commercial activity — present political questions that cannot be resolved by judicial decree.” We agree with Hunter and his fellow AGs with regard to climate change. But he discarded this analysis regarding public nuisance in the opioid litigation. We took the liberty of showing how this same argument, in this exact op-ed, could apply to his own use of public nuisance regarding the opioid crisis.

While these are different matters, they each intend to establish public policy through litigation while “solving” complex problems. Attempting to resolve a public health crisis in court requires the court to assume the responsibilities and authority of the other two branches of government. Public policy, however, should be made by those elected and appointed officials with both the expertise and responsibility to do so. They, ultimately, are accountable to all Oklahomans.

After Hunter took it upon himself to determine distribution of a $270 million settlement, the Oklahoma legislature passed a bill reaffirming its basic power to decide how state funds are allocated. In June 2019, a judge stated that he would not approve an additional $85 million settlement until he can be sure it complies with the new law.

Our annotated edits to his op-ed highlight just how much Hunter flip-flopped on public nuisance.

ATRA is the nation’s first organization dedicated exclusively to reforming the civil justice system. Stories are authored by Tiger Joyce unless otherwise noted.

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