Who’s to Blame for Oklahoma’s New Title: Judicial Hellhole
The rule of law is a cornerstone of our economy and society at large. But the courts, judges and state leaders in what we call “Judicial Hellholes” weaken this pillar because — in our view — equal justice under law is not available to civil defendants in those jurisdictions. The problems that we have identified with Oklahoma’s legal environment are now so troubling that we are adding it to our “Judicial Hellholes” list.
Headline-grabbing litigation brought by Attorney General Mike Hunter, along with liability-expanding decisions by the Oklahoma Supreme Court and the failure of the legislature to address growing problems have put the state in the unenviable position of joining plaintiff-friendly jurisdictions like California and New York on our annual list.
Attorney General Mike Hunter has sued Johnson & Johnson using an overly-expansive view of the state’s “public nuisance” law, claiming the company created a public nuisance — the opioid crisis — through misleading advertisements. Similar cases have failed in other states, and if AG Hunter is successful in his claim, Oklahoma’s interpretation of public nuisance law will be a national outlier. Manufacturers of all products, from mobile phones to automobiles, would view a victory for the state in this case with great concern as they could be targeted in future cases as the state looks for additional sources of funding to address public health problems.
The argument AG Hunter puts forth is in stark contrast to his view on climate change litigation. He has repeatedly stated his opposition to suing energy companies as a public nuisance and blaming them for climate change. In such a case, Hunter himself has stated “You cannot litigate what legislators refuse to legislate and regulators refuse to regulate.” We agree with him, but we also believe this statement is applicable to the opioid litigation.
Oklahoma’s problems don’t end here. In 2019, the Oklahoma Supreme Court has issued a series of opinions that undermine the legislature and diminish its authority. In doing so, it has expanded liability and ignored well-established legal precedent such as when it struck down the state’s statutory limit on noneconomic damages — finding it was a “special law,” and therefore, unconstitutional. Judges should not substitute their policy preferences for those of elected legislators.
Once a national leader in enacting legal reform, the legislature doesn’t escape the spotlight. It has failed to enact commonsense reforms that would restore fairness into the judicial system in recent years.
A return by Oklahoma to its reform mindset would be a welcome development. In particular, legislation such as the Transparency in Private Attorney Contracting Act (TiPAC), a version of which has been enacted in 23 states, would ensure greater transparency in the hiring of outside counsel by the state, and, in the process, help ensure that lawsuits brought by the state serve the public interest. This would be a good start to return Oklahoma to national leadership on civil justice reform and to remove the state from the “Judicial Hellholes” list.