With certain limited exceptions, the Oklahoma Supreme Court has in the past followed the U.S. Supreme Court’s seminal decision in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) when evaluating a party’s standing to bring suit. This standard requires a litigant to, among other things, demonstrate that the challenged act causes the plaintiff “injury in fact” that is “concrete and particularized” to the plaintiff. This safeguard of the judicial process evaporated for public law actions in Oklahoma with the Oklahoma Supreme Court’s 5-4 ruling in Hunsucker v. Fallin.
In 2017, the Oklahoma Legislature passed the Impaired Driving Elimination Act 2. The new law enacted significant reforms in the state’s DUI laws. It moved away from a system of administrative license revocations for drunk drivers (which had generated significant backlogs in administrative forums) to incentive programs that encouraged those arrested for impaired driving to consent to the installation of ignition interlock devices (which has been shown to reduce recidivism in other states.) The law made other changes to the state’s drunk driving law regime as well, such as improved impairment testing procedures.
Four attorneys that regularly represent clients charged with DUI violations challenged the constitutionality of the new law, alleging that the law violated the state’s constitutional requirement that all acts of the Legislature “embrace but one subject.” The challengers attempt to demonstrate their standing in four ways.
First, the DUI attorneys speculated that the new law might impact them as licensed drivers should they be arrested at some unspecified time in the future for driving under the influence of alcohol. Second, they brought suit on behalf of future hypothetical clients that may be arrested for DUI, although that basis for standing had been rejected by the U.S. Supreme Court in Kowalski v. Tesmer, 543 U.S. 125 (2004). Third, the attorneys argued the new law could impact future business from hypothetical clients who would no longer be subject to administrative license revocations. Fourth, the challengers claimed they possessed “public interest” standing.
Without addressing the other claimed bases for standing, the Court accepted the challenger’s final theory of “public interest” standing, asserting “discretion to grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance.” Justice Edmondson, writing for the five justice majority, wrote that the Court will exercise such discretion in cases where “there are ‘competing policy considerations’ and ‘lively conflict between antagonistic demands.’” The Court also reasoned that granting standing was appropriate due to the exigent nature of the controversy (since the law was going into effect imminently) and by analogy to historical common-law prototypes in writs and bills in equity to test the legality of the conduct of public officials.
Having granted the challengers standing, the Court ruled that the new law did not meet Oklahoma’s constitutional “single subject” rule. For the purposes of a single subject analysis, the court noted that the title of the act (referencing “impaired driving” as the subject) was “highly generalized,” and instead chose to focus on the bill’s uncodified “purpose” section, which focused on “administrative monitoring” of impaired drivers. Because the law addressed both administrative and criminal solutions to reducing impaired driving, the Court determined it did not embrace a single subject and therefore was unconstitutional. The Court also held that, because all portions of the law were tightly interrelated, even those aspects that related to “administrative monitoring” were not severable from the rest of the law.
Petitioners also challenged a portion of the law on procedural due process claims, but the majority took the liberty of deeming the law invalid under substantive due process.
Justice Wyrick, in a dissent joined by two of the other three Justices in the minority, criticized the “boundless” nature of the majority’s “public interest” exception to standing, which he argued undermined the Oklahoma Constitution’s separation of powers. “By limiting our jurisdiction to justiciable ‘cases,’” Justice Wyrick writes, “the Constitution ensures that the judicial branch stays confined to its role of exercising judicial judgment rather than political will.” Justice Wyrick continues:
“Let that sink in. The Court believes it can reduce to nil ‘the irreducible constitutional minimum’ of standing anytime it is presented with two parties disagreeing over important policy considerations. In other words, the Court can disregard constitutional limits on its jurisdiction anytime it is presented with precisely the type of policy dispute that those constitutional limits are designed to bar it from deciding. But nothing in our Constitution permits us to assume jurisdiction over a case merely because the issue it presents is ‘important,’ and the Court's invocation of the publici juris standard as a measure of justiciability is without precedent.”
The dissent also provides a detailed criticism of the majority’s single subject ruling. Justice Wyrick warns that the Court’s “increasingly permissive standing rules and amorphous single-subject (and special-law) jurisprudence have created a potent one-two punch that allows the Court to judicially veto virtually any of the Legislature's and People's laws.”
The dissent concludes by taking the majority to task for its sua sponte finding of a substantive due process violation. While the U.S. Supreme Court has only once invalidated a law under substantive due process’s rational basis review, Justice Wyrick points out that “[t]his Court, however, has now done so twice in two years, this time to tell the Legislature that it ‘clearly lies beyond the outer limits’ of its power to enact a law allowing law enforcement to seize licenses from drunk drivers[.]”
This case has significant implications for public law jurisprudence in Oklahoma. In such cases, there would seem to be little barrier to standing. Litigants challenging the state’s new regulations on medical marijuana, for example, have already cited to Hunsucker to attack rulemakings that do not apply to them. Meanwhile, the Court’s increasingly uncertain single subject jurisprudence makes future legislative actions a crapshoot. Finally, the creation of a new substantive due process jurisprudence portends the expansion of the state supreme court’s practice of questioning the justifications for any of the Legislature’s policy choices.
*A.J. Ferate is Of Counsel at Spencer Fane LLP in Oklahoma City.