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Mixed Bag of Bills

September 2013

By: James C. Milton

From a procedural point of view, the recent special session of the Oklahoma Legislature is a mixed bag. Gov. Mary Fallin signed 23 bills approved by the Legislature during the special session. These 23 bill covered some, but not all, of the topics included in the 2009 Comprehensive Lawsuit Reform Act, which was declared unconstitutional by the Oklahoma Supreme Court earlier this year in Douglas v. Cox Retirement Properties.

After the Douglas decision, some attorneys noticed that several of the statutes amended or enacted by the 2009 act had been amended during subsequent sessions of the Legislature. This raised the question whether the subsequent amendment of these statutes had re-enacted the statutes under the same Oklahoma constitutional provision that contains the prohibition against logrolling.

In reviewing the 23 bills approved by the governor, some of the bills covered statutes that had been amended after 2009. For example, special session House Bill 1015 amends a statute relating to child passenger restraint systems. This statute was amended by the 2009 act. The statute was later amended two more times - in 2011 and 2012. Despite these subsequent amendments, the Legislature included the statute as part of the bills passed during the special session.

On the other hand, the Legislature did not take up the Oklahoma statute on summary judgment, which was enacted by the 2009 act and was later amended in 2011. Special session Senate Bill 5 would have addressed this statute, but the bill was not passed.

Likewise, the Legislature did not take up Section 3226 of the Discovery Code, which deals with the disclosure of damages as part of discovery in civil actions. This statute was amended three times since 2009.

In practice, Oklahoma attorneys can expect that they will need to check legislative histories regarding whether a particular statute was amended or enacted by the 2009 act, whether subsequent amendments saved the statute, and whether this year's special session resolved these issues.