Public Interest

Is Oklahoma Suddenly A Progressive Bastion?

Sometimes it doesn't matter where you are when you've got the law on your side.

By Sam Wright on July 07, 2015 1:21 pm

No. It isn’t. But the headlines about two recent Oklahoma Supreme Court rulings might make you think otherwise. Before too many starry-eyed, Northeastern, public-interest-lawyer types pack their carpetbags to go ply their trade in the apparently plaintiff-friendly Oklahoma courts, let’s take a look at not just the headlines but also the rulings behind them.

First up, from the New York Times, is this: “Oklahoma Court Rules Homeowners Can Sue Oil Companies Over Quakes.” A few weeks ago, the prestigious journal Science published an article strengthening the link between the underground injection of wastewater by oil and gas extraction companies and resulting earthquakes. On the heels of that article, one might extrapolate from the Times’s headline that the Oklahoma Supreme Court had issued some kind of substantive ruling on the issue of whether a homeowner can sue an oil company for earthquake damage.

Instead, it turns out that the court’s ruling in Ladra v. New Dominion was a narrow one that dealt only with venue: Could the plaintiff sue in court, or did she have to go first to the Oklahoma Corporation Commission, which has jurisdiction over oil and gas companies? From the court’s opinion, it appears the answer was an easy one squarely controlled by precedent. The court quoted the following language from an earlier opinion, which pretty much sums the whole thing up: “The Commission, although possessing many of the powers of a court of record, is without the authority to entertain a suit for damages.” End of analysis.

Why would the New York Times even cover this? Berkeley law professor Dan Farber was apparently just as confused as I was: “It’s not quite clear why this fairly technical ruling got national attention.” Maybe, he opined, “it was partly on a ‘man bites dog’ argument — no one would be surprised if the Oklahoma courts ruled in favor of oil companies.”

Whatever the reason for the coverage, there’s really no story there. Notwithstanding Ladra, I would still bet the Oklahoma court system is not the place to take your novel climate change lawsuit.

Second is an AP article that also ran in the Times: “Oklahoma Court: Ten Commandments Monument Must Come Down.” This isn’t the first time that court challenges to Ten Commandments monuments on public property have been in the news. I’m sure we all remember ten years ago, when the United States Supreme Court handed down Van Orden v. Perry and McCreary County v. ACLU. In Van Orden, the Court held that a Ten Commandments monument at the Texas State Capitol did not violate the First Amendment. In McCreary, the Court held that Ten Commandments displays at two county courthouses in Kentucky did violate the First Amendment. The distinction between the cases was a somewhat nebulous one having to do with what a reasonable observer would conclude from the context of the different displays.

Even if you don’t remember these cases, Oklahoma State Representative Mike Ritze apparently does. According to NewsOK, his family “bought the original Ten Commandments monument for placement on [Oklahoma State] Capitol grounds.” And he’s quoted in the NewsOK article about the decision that the monument has to go: “It is a surprise and a disappointment because an identical monument that sits at the Texas state Capitol and numerous other state and federal buildings has withstood two Supreme Court challenges.”

Rep. Ritze may well be correct that the Oklahoma Ten Commandments monument would pass muster under the First Amendment. Unfortunately for him, though, Oklahoma has a state constitution too. And the Oklahoma State Constitution provides that “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion.” Given this broad language, it wasn’t a stretch for the Oklahoma Supreme Court to hold in Prescott v. Oklahoma Capitol Preservation Commission that a Ten Commandments monument on the state capitol grounds constituted the use of state property for the indirect benefit of a Judeo-Christian system of religion.

Liberal result, yes, but regardless of your politics it’s hard to argue with the reasoning.

So what’s the takeaway for public interest lawyers? For starters, don’t go thinking that the Oklahoma courts are suddenly a friendly venue for progressive change. But do recognize that sometimes the law is squarely on your side, and when it is, you can win — anywhere.

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at [email protected].