State Court Docket Watch: Ritter v. Oklahoma

The drafters of the Oklahoma Constitution—“[f]earing excessive power in the hands of one individual”—strictly delimited the powers of each branch of government and expressly prohibited one branch from exercising the authority of another.[1]

This separation of powers was at the center of the Supreme Court of Oklahoma’s recent decision in Ritter v. Oklahoma, where it held that a provision of state law prohibiting public schools from imposing mask mandates absent the declaration of a state of emergency by the governor violated the Oklahoma Constitution.[2] Although a narrow and somewhat technical ruling, Ritter is a significant decision.   

In May 2021, following the formal rescission of Governor Kevin Stitt’s COVID-19 state of emergency declaration, the Oklahoma legislature passed Senate Bill 658.[3] Senate Bill 658 amended Oklahoma’s school health and safety statutes by imposing various COVID-19-related restrictions on local public educational authorities, such as school boards.[4] Senate Bill 658 was codified in two separate provisions of the Oklahoma Statutes.

The first provision—codified at 70 Okla. Stat. tit. 70, § 1210-189—concerns COVID-19 vaccination requirements.[5] Section 1210-189 prohibits public educational authorities from mandating vaccination against COVID-19 or requiring so-called “vaccine passports” as a condition for admission or attendance.[6] It also prohibits public educational authorities from implementing any mask mandate for unvaccinated students.[7]

The second provision—codified at 70 Okla. Stat. tit. 70, § 1210-190—concerns public school mask mandates for all students.[8] Section 1210-190 requires school boards to consult with public health authorities and make information publicly available prior to imposing any mask mandate.[9] It also requires regular reconsideration of any mask mandate.[10] Most significantly, Section 1210-190—as written—prohibits school boards from imposing any mask mandate absent the declaration of a state of emergency by the governor.[11]

Shortly after Senate Bill 658 was passed, a coalition of parents, doctors, and the Oklahoma State Medical Association (the doctors) sued.[12] The doctors sought an injunction against enforcement of both Section 1210-189 and Section 1210-190.[13] In support of their request, they asserted the statutes violated the Oklahoma Constitution’s guarantee of due process and equal protection;[14] its prohibition on the enactment of “special laws” regulating public school districts;[15] its requirement that laws “embrace only one section”;[16] and its guarantee of “a free education in a safe environment.”[17]

The doctors obtained partial relief from the trial court.[18] The trial court temporarily enjoined enforcement of Section 1210-189’s prohibition on mask mandates for unvaccinated K-12 students.[19] And it temporarily enjoined Section 1210-190 to the extent it prohibited local educational authorities from imposing any mask mandate.[20] Oklahoma then appealed, and the doctors filed a counter-appeal.[21]

After expedited briefing and argument, the Oklahoma Supreme Court ruled that Senate Bill 658 is unconstitutional.[22] But only to the extent it prohibits school boards from imposing mask mandates absent the declaration of a state of emergency by the governor.[23] The court severed the specific language in Section 1210-190 conditioning such mandates upon declaration of a state of emergency by the governor,[24] and it upheld the remainder of Senate Bill 658.[25]

Justice Yvonne Kauger wrote the majority opinion. She was joined by Chief Justice Richard Darby and Justices James Winchester, James Edmondson, Noma Gurich, Dustin Rowe, and Dana Kuehn.[26]

Although it granted partial relief, the majority declined to address the doctors’ constitutional arguments.[27] Rather, the majority exercised its “independent judgment”[28] to find that the offending portion of Section 1210-190 was an unconstitutional delegation of legislative authority to the governor in violation of the separation of powers guaranteed by Article 4, Section 1, of the Oklahoma Constitution.[29]

The majority began by noting what Senate Bill 658 does not do: categorically prohibit school boards from imposing a mask mandate.[30] Rather, the majority observed, Senate Bill 658 conditions any mandate upon consultation with local health authorities and the declaration of a state of emergency by the governor.[31] The majority took judicial notice of Governor Stitt’s public statements in which he asserted that he would not declare any further state of emergency in response to the COVID-19 pandemic.[32] It therefore observed that the statutes effectively functioned as a statewide prohibition on public school mask mandates, contingent upon the governor’s decision to declare a state of emergency.[33]

This posed a separation of powers problem. The drafters of the Oklahoma Constitution, motivated by a desire to “to protect the people of the State of Oklahoma against excessive political and economic power,” placed significant limitations upon the governor’s authority.[34] They delimited the individual duties of the governor and legislature, outlined various checks and balances, and expressly guaranteed a separation of powers between the two branches.[35]

Discussing this separation of powers, the majority explained that the legislature has “plenary authority” to enact laws to “to establish the public policy of the State.”[36] The governor, on the other hand, “has limited autonomous authority,”[37] and his “primary role” is limited to the “faithful execution” of laws duly enacted by the legislature.[38] Importantly, the legislature is forbidden from circumventing this separation of powers and delegating its lawmaking authority to the governor.[39]

The majority was careful to note that the legislature may delegate limited rulemaking authority. [40] That is, the legislature may delegate to the governor the authority to promulgate regulations in furtherance of his faithful execution of the law.[41] However, any such delegation must be subject to “definite standards,” and it may not “confer the power to change the underlying law.”[42]

In the majority’s view—by conditioning a school's ability to implement a mask mandate upon the governor’s decision to declare a state of emergency—Senate Bill 658 went far beyond any lawful delegation of rulemaking authority.[43] By imposing such a condition, Senate Bill 658 permitted the governor “to alter the implementation of the law,” and therefore exercise legislative authority over local school boards.[44] This was an unconstitutional delegation of legislative authority.[45]

The majority was especially concerned by the context in which this unconstitutional delegation arose. In Oklahoma’s public education system, local school boards are to retain “maximum . . . autonomy.”[46] Yet, in the majority’s view, the legislature’s unlawful delegation resulted in the governor usurping local control to make decisions affecting the health and safety of schoolchildren.[47] The majority observed that the governor has neither statutory nor constitutional authority to direct the operation of local school boards in this manner.[48]

Judge John Fischer (sitting by special designation), joined by Justice Douglas Combs, wrote separately, concurring in part, and dissenting in part.[49]

Judge Fischer concurred with the majority’s conclusion that Section 1210-190 contained an unconstitutional delegation of lawmaking authority to the governor.[50] He also agreed that once the offending language was stricken, the remainder of Section 1210-190 passed constitutional muster.[51]

However, Judge Fischer dissented from the court’s decision upholding Section 1210-189, which placed various COVID-19 vaccine-related restrictions upon local educational authorities.[52] He observed that Oklahoma law already set forth a list of nine immunizations that all students attending school (public or private) in Oklahoma must receive.[53] He also observed that only the State Commissioner of Health may alter that list of immunizations and that the Commissioner had made no amendment to require immunization against COVID-19.[54] Judge Fischer then explained that the effect of 1210-189 was therefore to treat public and private school students differently.[55] Section 1210-189 deals only with immunization against one disease (COVID-19) and one class of students (public school students).[56] As such, in Judge Fischer’s view, Section 1210-189 violates Article 5, section 46 of the Oklahoma Constitution, which prohibits the legislature from passing “special law[s]” to regulate public schools.[57]

Ultimately, Ritter v. Oklahoma is a significant decision affirming the separation of powers guaranteed by the Oklahoma Constitution. Notwithstanding the unique circumstances presented by the COVID-19 pandemic, the Oklahoma Supreme Court delivered a stark reminder that the legislature may not delegate its lawmaking authority to another branch of government.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].