Oklahoma Pushes Legal Limits on Taxpayers' Dime
April 29, 2010 - 10:13 AMWith full control of the Oklahoma Legislature for the first time, Republicans have been flexing their political muscles, passing laws they know will face court challenges, including ones making it harder to get abortions and easier to buy guns.
With the state more than $1 billion in the red, however, even some among their ranks wonder if they can afford such success.
"I respect my colleagues' right to put those issues out there, and I generally vote for most of them, if not all of them. But in these budget times, it is kind of concerning," said Republican state Rep. Doug Cox, of Grove.
Democratic Gov. Brad Henry vetoed a law Tuesday that would restrict federal authorities' ability to regulate the sale of firearms produced and kept in Oklahoma. The Justice Department is challenging a similar law in Montana, and constitutional experts say there is little chance any court would uphold the law.
"It simply makes no sense to continue to pass unconstitutional measures that run up legal bills and waste taxpayers' money," Henry said after rejecting the bill. Despite its slim chances of being upheld, its Republican sponsor has vowed to override the veto.
Lawmakers didn't have much trouble this week overriding Henry's veto of two bills critics have said give Oklahoma some of the strictest abortion laws in the country. One law requires women seeking abortions to undergo an intrusive method of ultrasound early in their pregnancies.
Henry predicted the bill could lead to a "potential futile legal battle," and already an abortion rights group has challenged the ultrasound bill's constitutionality.
"In addition to being constitutionally suspect, these bills are fiscally irresponsible," said University of Oklahoma constitutional law professor Joseph Thai. "Taxpayers may not appreciate that a challenged law costs hundreds of thousands of taxpayer dollars to litigate."
The number of lawsuits challenging state statutes has jumped each of the past three years - with 15 cases filed in 2007, 18 in 2008 and 24 last year. Most cases are handled by the Attorney General's Office, which didn't have an estimate of the number of hours it has spent defending such challenges. But the state sometimes hires outside counsel, as was the case with one lawyer who billed the state $90,000 to defend it against two lawsuits challenging other abortion laws that ultimately were overturned.
In some cases, the number of attorney hours can easily climb into the thousands, and if the state loses, they can be forced to pay attorney fees for the other side, said Micheal Salem, an attorney who reached a "six-figure" settlement with the state last year over a challenge to an Oklahoma law on initiative petition circulators. He declined to disclose the exact amount.
"It's no fun to pay your own attorney, but it's even worse to pay your opponent's attorney," Salem said.
Oklahoma is among the nation's most conservative states, and many residents support the recent Republican-backed measures. But with the state facing a $1.2 billion budget deficit, some residents have questioned whether now is the right time to be picking legal fights.
"They're spending millions of state dollars defending these things for someone to basically have a small headline in the newspaper, and in the long run it will mean absolutely nothing except a lawsuit," said University of Oklahoma art professor Eric Anderson, who said he's worried about possible furloughs at the school amid looming budget cuts. "It's absolute demagoguery."
Some Republicans are conflicted over the collision between their conservative ideology and their party's mantra of fiscal restraint. But supporters of the new laws remain undeterred.
"Ever since I've been here I've heard great legal minds in the Senate talk about the fact that our job is to propose legislation, to argue the merits of it and whether it's good policy," said Senate President Pro Tem Glenn Coffee, R-Oklahoma City. "It's the court's job to determine if it's constitutional."
A bitterly debated anti-immigration bill approved three years ago is still tied up in litigation, with a federal appeals court ruling this month that two provisions in the law are not enforceable.
Coffee and House Speaker Chris Benge vowed to attack the new federal health care overhaul through the Legislature after Attorney General Drew Edmondson, a Democratic candidate for governor, declined to challenge it.
A bill being considered this session would authorize the death penalty for child rapists - a penalty that was struck down by the U.S. Supreme Court in a Louisiana case two years ago. And last year, lawmakers passed a bill calling for a Ten Commandments monument to be placed on the state Capitol grounds. The U.S. Supreme Court upheld the placement of a similar monument on the Capitol grounds in Texas, but ruled unconstitutional a Ten Commandments display in Kentucky.
Tom Daxon, a former budget director under Republican Gov. Frank Keating and former chairman of the Oklahoma Republican Party, said lawmakers should only pick legal fights they think they can win. He praised lawmakers for taking a stand on important GOP issues like the federal health care bill and abortion, but he warned that fighting too many lawsuits could backfire.
"If it's a matter of having two or three of these challenges a year, that's just not that significant," Daxon said. "If we have a situation where we're fighting constitutional battles on 20 bills, that could become a significant factor, and an especially significant factor given the budget situation."
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