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Constitutional Differences

May 2013

By: James C. Milton

The Oklahoma Constitution contains procedural requirements that can be used to challenge legislation through court action. Journal Record columnist M. Scott Carter pointed this out in a recent column, noting potential constitutional defects in House Bill 2032, the tax cut and capital funding legislation passed this month.

Procedural defects have defeated many legislative initiatives. In 2008, the Oklahoma Supreme Court relied on the single-subject rule in striking a Senate bill containing a number of new laws, including an attempted adoption of the Uniform Trust Code.

The Oklahoma Constitution is not limited to procedural obstacles to be studied and navigated at the state Capitol. It contains more substantive provisions deeply rooted in Oklahoma history and legal tradition.

In 2006, the Oklahoma Supreme Court relied on the state constitution to strike Muskogee County's exercise of eminent domain for purposes of economic development. In Muskogee County v. Lowery, the county condemned land for placement of water lines for a private energy generation facility. In striking the condemnation, the court "determined that our state constitutional eminent domain provisions place more stringent limitation on governmental eminent domain power than the limitations imposed by the Fifth Amendment of the U.S. Constitution."

The result in Lowery is opposite the result in the U.S. Supreme Court's 2005 decision in Kelo v. City of New London. In Kelo, the city used eminent domain to acquire private property for an economic development project. The U.S. Supreme Court allowed the taking, holding that the condemnations were for public use under the Fifth Amendment takings clause of the U.S. Constitution.

The Lowery decision shows that Oklahoma state constitutional law is not in lock step with federal constitutional law. The Lowery court pointed to text contained in the Oklahoma Constitution - but absent from the U.S. Constitution. The Oklahoma Constitution provides that "no private property shall be taken of damaged for private use, with our without compensation." The state constitution expressly prohibits taking of property for private use. Had this text existed in the federal Constitution, the result in Kelo might have been different.

These differences mean that attorneys have two sources of constitutional law to use when evaluating the constitutionality of a state statute or action.

The Oklahoma Constitution is longer that the U.S. Constitution. Download your copy from the Oklahoma Legislature's website, at bit.ly/154CS5a.