TRIAL COURT'S ORDER DISMISSING CASE IS REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT

GURICH, J.

Facts & Procedural History

¶ 1 On April 2, 2009, Richard Douglas was admitted to the Defendant's rehabilitative care center for extended care. Douglas remained at the facility for approximately 21 days and was discharged on April 23, 2009. He died a short time later on May 12, 2009. The decedent's estate filed a wrongful death action in Tulsa County against the Defendant, alleging Douglas died as a result of the facility's negligent care and treatment.

¶ 2 Defendant moved to dismiss the case for Plaintiff's failure to comply with 12 O.S. Supp.2009 § 19. Section 19 was enacted in 2009 as part of H.B. 1603, which is commonly known as the Comprehensive Lawsuit Reform Act of 2009. Plaintiff responded to the motion to dismiss, arguing that the CLRA of 2009 was unconstitutional logrolling in violation of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution.1 The trial court granted Defendant's Motion to Dismiss and certified the dismissal order for immediate review.2 Plaintiff filed a Petition for Certiorari on January 9, 2012, and we granted review on February 14, 2012.

Standard of Review

¶ 3 "In considering a statute's constitutionality, courts are guided by well-established principles and a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality." Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254 (citing Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶ 3, 984 P.2d 200, 204). "Every presumption is to be indulged in favor of the constitutionality of a statute." Id. "It is also firmly recognized that it is not the place of this Court, or any court, to concern itself with a statute's propriety, desirability, wisdom, or its practicality as a working proposition." Fent, 1999 OK 64, ¶ 4, 984 P.2d 200, 204. "A court's function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the legislative provision and a court's function extends no farther in our system of government." Id.

Analysis

¶ 4 The issue before us is the applicability of the single-subject rule of Article 5, § 57 of the Oklahoma Constitution to H.B. 1603. Article 5, § 57 of the Oklahoma Constitution provides: "Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title...." Okla. Const. art. 5, § 57. This provision is commonly known as the single-subject rule. The purposes of the single-subject rule are to ensure the legislators or voters of Oklahoma are adequately notified of the potential effect of the legislation and to prevent logrolling. Nova Health Sys. v. Edmondson, 2010 OK 21, 233 P.3d 380. Logrolling is the practice of ensuring the passage of a law by creating one choice in which a legislator or voter is forced to assent to an unfavorable provision to secure passage of a favorable one, or conversely, forced to vote against a favorable provision to ensure an unfavorable provision is not enacted. Id.

¶ 5 This Court has long rejected a broad, expansive approach to the single-subject rule. Campbell v. White, 1993 OK 89, ¶ 14, 856 P.2d 255, 258. In Campbell, we stated that the Legislature's "skillful drafting of a broad topic" defeats the purpose of the single-subject rule. Id. We reaffirmed such an approach in Weddington v. Henry, 2008 OK 102, 202 P.3d 143, where we struck down a bill whose subject was "uniform laws." In Fent v. State ex rel. Okla. Capitol Improvement Auth., 2009 OK 15, ¶ 20, 214 P.3d 799, 806, Nova Health Systems, 2010 OK 21, 233 P.3d 380, and Thomas, 2011 OK 53, ¶ 27, 260 P.3d at 1260, we continued to reject a broad, expansive approach to the single-subject rule.

¶ 6 In Thomas we reiterated that Oklahoma adheres to the germaneness test.3 Id. ¶ 26, 260 P.3d at 1260. The most relevant question under such an analysis is whether a voter, or legislator, is able to make a choice without being misled and is not forced to choose between two unrelated provisions contained in one measure. Id. The question is not how similar two provisions in a proposed law are, but whether it appears that the proposal is misleading or that the provisions in the proposal are so unrelated that those voting on the law would be faced with an all-or-nothing choice. Id. The purpose is not to hamper legislation but to prevent the Legislature from making a bill "veto proof" by combining two totally unrelated subjects in one bill. Id. If a bill contains multiple provisions, the provisions must reflect a common, closely akin theme or purpose. Id. ¶ 27, 260 P.3d at 1260.

¶ 7 H.B. 1603 contains 90 sections, encompassing a variety of subjects that do not reflect a common, closely akin theme or purpose. The first 24 sections of H.B. 1603 amend and create new laws within our civil procedure code found in Title 12. Many of these provisions have nothing in common. For example, Section 3 purports to give a trial court the authority to transfer a case to another state. Section 10 creates a law that assists the Oklahoma Healthcare Authority in collecting refunds for the Medicaid program. In Section 13, the Legislature adopts a portion of the federal civil procedure code to control a state court action.

¶ 8 Of the remaining 66 sections of H.B. 1603, 45 sections create entirely new Acts, which have nothing in common with each other, including The Uniform Emergency Volunteer Health Practitioners Act, The Common Sense Consumption Act, The Asbestos and Silica Claims Priorities Act, The Innocent Successor Asbestos-Related Liability Fairness Act, and The School Protection Act. For example, sections 43 through 46 create The Common Sense Consumption Act. The Act creates immunity from suit only for entities defined under the federal Food, Drug, and Cosmetic Act, and by its terms eliminates remedies for certain injured consumers. Sections 54 through 65 create the Asbestos and Silica Claims Priorities Act. Section 58(A) limits a physician's ability to testify in asbestos and silica litigation based upon his or her education, training, and experience, and instead requires adherence to the AMA Guides to the Evaluation of Permanent Impairment (5th Edition) (2000).

¶ 9 Other dissimilar sections of H.B. 1603 amend the Mandatory Seat Belt Use Act and the Oklahoma Livestock Activities Liability Limitation Act, limit the liability of firearm manufacturers, and amend existing laws regarding school discipline. H.B. 1603 also creates a new law that a school district representative may not conduct or preside as the hearing officer or judge at a due process hearing and then attend, advise, or influence an executive session of the school board.4

¶ 10 This Court finds the Legislature's use of the broad topic of lawsuit reform does not cure the bill's single-subject defects. Campbell, 1993 OK 89, ¶ 14, 856 P.2d at 258. Although the Defendant argues the CLRA of 2009 does not constitute logrolling because the provisions within it are not so misleading as to create for a legislator an all-or-nothing choice, we find the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice to ensure the passage of favorable legislation.

¶ 11 Unlike in Thomas, where the Court severed the offending provision of the Oklahoma Taxpayer and Citizens Protection Act of 2007, H.B. 1603 encompasses so many different subjects that severance is not an option.5 It would be both dangerous and difficult for this Court to engage in the exercise of severance in this case. By picking and choosing which provisions relate to law-suit reform and which do not, this Court would essentially become the policy-maker. Policy-making is the job of the Legislature. And although the dissenters argue we should sever the unconstitutional portions of this bill, the separate writing does not provide an analysis of how severance should be accomplished. Additionally, unlike in Thomas, were we to sever all the invalid portions of H.B. 1603, we could not presume the Legislature would have enacted the remaining provisions of the bill without the voided provisions.6

Conclusion

¶ 12 This is not the first time we have invalidated a bill in its entirety for violation of the single-subject rule.7 Although we are mindful of the practical consequences of today's decision, we will not sit by and ignore violations of our Constitution. The Legislature should be well aware of the single-subject requirements of the Oklahoma Constitution. We do not doubt that tort reform is an important issue for the Legislature. But the constitutional infirmity of logrolling, which is the basis of this opinion, can only be corrected by the Legislature by considering the acts within the CLRA of 2009 separately.8 We hold that H.B. 1603, commonly known as the Comprehensive Lawsuit Reform Act of 2009, violates the single-subject rule of Article 5, § 57 of the Oklahoma Constitution. The bill is unconstitutional and void in its entirety.

TRIAL COURT'S ORDER DISMISSING CASE IS REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH TODAY'S PRONOUNCEMENT

¶ 13 COLBERT, C.J., REIF, V.C.J., WATT, EDMONDSON, COMBS, and GURICH, JJ., concur.

¶ 14 KAUGER, J., (by separate writing) concurs specially.

¶ 15 WINCHESTER, J., (by separate writing) and TAYLOR, J. (joins WINCHESTER) dissent.

KAUGER, J. concurring specially.

I.

INTRODUCTION

¶ 1 The issue of the legislative amendment to 12 O.S.2011 § 19 in the aftermath of Zeier v. Zimmer, 2006 OK 98, 152 P.3d 861, was resolved in Timothy Wall v. John S. Marouk, D.O., 2013 OK 36, 302 P.3d 775, 2013 WL 2407160, which we promulgated today. After we held it to be unconstitutional, I had hoped that if only a small number of sections of the CLRA were infirm and unrelated, they could safely be severed. However, the bill is simply too large, and attempts to address too many subjects, to be reconciled with the requirements of the Okla. Const., art. 5, § 57.1

II.

SECTION 74 OF THE CLRA VIOLATES THE OKLA. CONST., ART. 5, § 57.

¶ 2 The respondents have conceded that 2009 Okla. Session. Laws ch. 228, sec. 74, might have constituted logrolling. Petitioner charges that because it places limits on a lawyer's representation in school board hearings on teacher terminations, it violates the single subject rule, and renders the CLRA an unconstitutional violation of Okla. Const., art. 5, § 57.2

¶ 3 Respondent, however, argues that § 74 of the CLRA was subsequently repealed, and therefore no longer constitutes a part of the corpus of the legislation contained within the CLRA.3 This argument is also made by the Oklahoma Association of Defense Counsel in its Amicus Curiae brief:

Respondent made the same point during the August 30, 2011, hearing on its motion to dismiss, stating that "[t]he provision regarding teachers has been-or, excuse me, regarding due process hearing for teachers has been repealed.... Clearly that argument goes by the wayside."5 The arguments are unconvincing because the language of § 74 remains part of the Oklahoma Statutes. It is found at 70 O.S.2011 § 6-101.7.6

III.

OTHER PROVISIONS OF THE CLRA ALSO VIOLATE THE OKLA CONST., ART. 5, § 57.

¶ 4 If § 74 had been repealed or was by itself severable from the CLRA,7 it is not the only offending provision in the CLRA that renders the Act itself in violation of the Okla. Const., art. 5, § 57. In addition to changes to the civil procedure code, 12 O.S. § 1 et seq., H.B. 1603 also creates entirely new Acts in other titles, such as the Uniform Emergency Volunteer Health Practitioners Act, The Common Sense Consumption Act, The Asbestos and Silica Claims Priorities Act, The Innocent Successor Asbestos-Related Liability Fairness Act, and the School Protection Act.

¶ 5 For example, §§ 31-41 of the CLRA create the Uniform Emergency Volunteer Health Practitioners Act.8 Sections 33-35 detail the creation of a registration system for volunteer health practitioners who will provide health or veterinary services in the state in the event of an emergency declaration.9 Section 35, in particular, details the requirements a registration system must fulfill to satisfy the new law.10 An examination of §§ 31-41 reveals a comprehensive new set of laws for new categories of volunteer emergency workers, with no basis in lawsuit reform or civil procedure.

¶ 6 Other provisions are indicative of the same fatal flaws. Sections 75-83, creating the School Protection Act, create a new criminal offense for making false accusations of criminal conduct against an education employee.11 It is difficult to argue that modifications to the criminal code are germane to the reform of civil procedure. Even if the stated goal is to prevent false accusations, the connection is simply too tenuous to say that the School Protection Act shares the same subject as something like the Uniform Emergency Volunteer Health Practitioners Act. They are not germane to each other, other CLRA provisions, or the subject of the bill, civil procedure.

¶ 7 The respondent has failed to address any of the other disparate provisions of the CLRA, beyond § 74, in its reply brief. During the hearing held on August 30, 2011, the Respondent mentioned12 § 25 of the CLRA, which created a Health Care Indemnity Fund Task Force.13 Respondent argued that this particular section was no longer a problem because the statute had already lapsed by its own terms.14 Presumably Respondent was referring to the fact that the provision required the task force to report its findings and recommendations to the President Pro Tempore of the Senate and the Speaker of the House of Representatives by May 1, 2011, after which its purpose would be fulfilled.15

¶ 8 The various pieces of the CLRA do not reflect a common, closely akin theme or purpose.16 The application of broad, sweeping categories such as civil procedure and lawsuit reform do not change the fact that the Constitution will not allow unrelated legislation to be included in a single enactment simply by the skillful drafting of a broad topic.17 In Nova Health Systems v. Edmondson, 2010 OK 21, ¶ 3, 233 P.3d 380, we explained the rational for the single subject rule. We said:

IV.

HISTORY OF THE SINGLE SUBJECT RULE

¶ 9 Addressing the violation of the single subject rule is a recurring theme in our jurisprudence. At the time of our 2010 holding in Nova Health Systems v. Edmondson, 2010 OK 21, 233 P.3d 380, we had addressed the single subject rule at least seven times over the previous two decades, and four times in three years, in the following cases: Fent v. State of Oklahoma ex. rel. Oklahoma Capitol Improvement Authority, 2009 OK 15, ¶¶ 10-23, 214 P.3d 799; Fent v. State ex. rel. Office of State Finance, 2008 OK 2, ¶ 30, 184 P.3d 467; Weddington v. Henry, 2008 OK 102, ¶ 1, 202 P.3d 143; In Re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, ¶ 18, 142 P.3d 400; Morgan v. Daxon, 2001 OK 104, ¶ 1, 49 P.3d 687; Campbell v. White, 1993 OK 89, ¶ 20, 856 P.2d 255.

¶ 10 One of the main reasons the logrolling continues to be a problem is the consolidation of multiple unrelated bills together. This was the problem in Nova, where five disparate bills related tangentially to freedom of conscience were consolidated together into one bill.18 If these individual bills, each in themselves concerning only one subject, had been left unconsolidated, then they would likely not have triggered the anti-logrolling provisions of the Oklahoma Constitution.

¶ 11 For over a hundred years, this Court has considered the provisions of the Okla. Const., art. 5, § 57. In 1908, in In Re County Comm'rs of Counties Comprising Seventh Judicial Dist., 1908 OK 207, ¶¶ 4-5, 98 P. 557, this Court enforced the requirement of the Oklahoma Constitution that bills shall embrace but one subject.19

¶ 12 The real problem with logrolling is that it creates a situation where there is only the illusion of choice, where various legislative proposals are amalgamated into a statutory chimera in order to force individual Legislators to vote for all measures if they wish one to see the light of day. It is easy to see why the issue might be confusing. Because the United States Constitution does not have a provision prohibiting logrolling, Congress is permitted to combine various disparate subjects together in one bill and frequently does so. The Oklahoma Legislature may not.

¶ 13 In Campbell v. White, 1993 OK 89, 856 P.2d 255, this Court found unconstitutional two bills which contained multiple subjects in violation of the Okla. Const., art. 5, § 56.20 We stressed the important nature of the Oklahoma Constitution's anti-logrolling provisions and emphasized the reasons for such provisions, which are designed to prevent the enactment of legislation through the combination of unpopular causes with popular legislation on an entirely different subject.21 We further stated that not only does the single subject rule prohibit log-rolling, it also enables the public and the Legislature to understand the scope and effect of pending legislation.22

¶ 14 Since Campbell, we have repeatedly addressed violations of the single subject rule. In Morgan v. Daxon, 2001 OK 104, 49 P.3d 687, the Court found a reconciliation bill unconstitutional for violating the anti-logrolling provisions of the Okla. Const., art. 5, §§ 56 and 57. Again, we addressed the application of the single subject rule in In Re Initiative Petition No. 382, State Question No. 729, 2006 OK 45, 142 P.3d 400. In that case, we responded to a challenge that an initiative petition addressing the power of eminent domain as well as the enforcement of zoning laws violated the single subject requirement of the Okla. Const., art. 5, § 57.23

¶ 15 Proponents of Initiative Petition No. 382 argued that previous decisions of this court implied adoption of an expansive test of germaneness that is broad, liberal, and satisfied by all proposed laws but those with the most scattered and disconnected provisions.24 We explained that such a reading is not consistent with the requirements of Okla. Const., art. 5, § 57, and held that:

¶ 16 In Fent v. State ex rel. Office of State Finance, 2008 OK 2, 184 P.3d 467, the petitioner argued that an appropriations bill violated the single subject rule because it made multiple special appropriations to several different subjects or objects of state government. We rejected the notion that the subject of the legislation should be tested by broad, expansive themes such as allocating surplus or managing accounts, and once again affirmed the use of the germaneness test we put forward in Campbell.26

¶ 17 A year later, in Fent v. State ex rel. Oklahoma Capitol Improvement Authority, 2009 OK 15, 214 P.3d 799, we again addressed violations of the single subject rule, and discussed our previous cases on the subject. We rejected any kind of broad, expansive, and thematic based approach in favor of measuring the germaneness of various bill provisions to each other.27 We reiterated that while bond measures do not necessarily have to be brought individually, at the very least they must have some semblance of relation to each other and must not be misleading or provide the voter or legislator with an all or nothing choice.28

V.

GUIDELINES

¶ 18 Perhaps guidelines with regard to the single subject provision of Okla. Const., art. 5, § 57 will prevent this Court from having to revisit the issue. This Court interprets the single subject rule using a "germaneness" test.29 The single subject rule requires the following:

¶ 19 A culinary example may be more illustrative. If you make a peanut butter cookie, it is apparent that it is a smooth, one flavor cookie. It is still a peanut butter cookie even if you use crunchy peanut butter, because its major flavor is still peanuts. When you add chocolate chips, pecans, coconut, M & M's, raisins, and dried cranberries, the additional discrete ingredients change the homogenous nature of a peanut butter cookie into a jumble of different tastes and textures. It is still a cookie, it is just not a peanut butter cookie. Likewise, the CLRA is still a statute, but it ceased to be a statute for the reform of civil procedure when sections having nothing to do with civil procedure were included.

¶ 20 The nature of the single subject rule necessarily requires that legislation be examined on a case by case basis.34 The aforementioned guidelines illustrate how legislation can be drafted which satisfies the requirements of Okla. Const., art. 5, § 57.

CONCLUSION

¶ 21 It is not the role of this Court to determine the wisdom of legislation. It is my hope that in the future the Court will not be forced to invalidate reform legislation because it runs contra to the Oklahoma Constitution.

WINCHESTER, J., with whom Taylor, J. joins, dissenting.

¶ 1 I respectfully dissent. This opinion demonstrates how difficult the single-subject rule is to explain with the precision necessary to instruct a legislative body concerning the rule's application. House Bill 1603 is commonly called the Comprehensive Lawsuit Reform Act of 2009. Its purpose is tort reform. The majority opinion recites the number of sections and some of the subjects addressed within H.B. 1603. The majority opinion states that the provisions are so unrelated that those voting on the law were faced with an all-or-nothing choice. It says this Court will not pick and choose which provisions of the bill are germane and cites Thomas v. Henry, 2011 OK 53, 260 P.3d 1251, as a comprehensive review of our case law regarding the single-subject rule. The majority opinion explains that in Thomas this Court severed the offending provisions of the Oklahoma Taxpayer and Citizens Protection Act of 2007, but that bill had only 13 sections so the Court easily discerned the sections related to discouraging illegal immigration, the subject of that act.

¶ 2 Early after statehood, the Supreme Court in Griffin v. Thomas, 1922 OK 134, ¶ 17, 206 P. 604, 609, quoted with approval from 25 R.C.L.1, § 88, p. 842:

¶ 3 The majority opinion gives little guidance to the legislature regarding why the law found in H.B. 1603 is unconstitutional. What is the lesson from the majority's analysis of Thomas v. Henry and the 13 sections the Court examined within it? Is this Court willing to examine a "comprehensive" bill and consider severing sections if the bill has only 13 sections, but not if it has 90?

¶ 4 I believe it more likely that the legislature and the public understood the common themes and purposes embodied in the legislation; it was tort reform. The vote in the House of Representatives was 86 in favor of the bill and 13 opposed. The Senate voted 42 in favor of the bill and 5 against it. Governor Brad Henry signed the bill. This bill appears to have had overwhelming support of two branches of government.

¶ 5 Although the majority recites case law that "a heavy burden is cast on those challenging a legislative enactment to show its unconstitutionality" and that "[e]very presumption is to be indulged in favor of the constitutionality of a statute," the majority's result does not appear to meet that burden or fulfill that presumption. Requiring affidavits in professional malpractice cases, 12 O.S. 2011, § 19, appears to me to be both related and germane to tort reform.2 Without deciding the wisdom, need, or desirability of H.B. 1603,3 I have no trouble concluding that the affidavit requirement of § 19 has a close relationship to the title of the Act, which subject is comprehensive lawsuit reform.

¶ 6 In addition, this Act has a severability clause, as did the Oklahoma Taxpayer and Citizens Protection Act of 2007, which this Court reviewed for a violation of the single-subject rule in Thomas. Even if the H.B. 1603 did not have a severability clause, 75 O.S.2011, § 11a specifically provides for severance if any of the provisions of an act are found to be unconstitutional.4

¶ 7 Are topics such as "civil procedure" or "tort reform" too broad to be encompassed within one bill? In 1978, the legislature passed the Civil Procedure — Criminal Procedure — Evidence Code.5 It had a total of 78 sections. It is likely that some of the legislators who voted in favor of the bill compromised to secure its passage. It did involve one subject, evidence. The Uniform Commercial Code was passed by the legislature in 1961.6 It had 10 articles and a total of 368 sections. Its articles included Sales, which contains 97 separate sections; Commercial Paper; Bank Deposits and Collections; Letters of Credit; Bulk Transfers; Warehouse Receipts and Special Provisions; Investment Securities; Secured Transactions, Sales of Accounts, Contract Rights and Chattel Paper; and a Repealer Section that removed amended statutes throughout titles 6, 9, 13, 15, 18, 23, 24, 42, 46, 48, 55, and 60. When considering all that it encompasses, the Uniform Commercial Code likely resulted in compromises by legislators to pass an important and significant piece of legislation.

¶ 8 Logrolling is the "legislative practice of including several propositions in one measure or proposed constitutional amendment so that the legislature or voters will pass all of them, even though these propositions might not have passed if they had been submitted separately."7 If this is a description of the "single-subject" rule, the legislature would have substantial difficulty passing any comprehensive legislation including any uniform codes that are generally adopted among the states. One recent article commented that although the single-subject rule "is a noble attempt to reign in state legislatures and encourage the passage of more coherent and uniform laws supported in fact by majority votes, the implementation of the states' various single subject rules has had mixed success, at best."8 It further observed:

¶ 9 Legislation requires some compromise. At times, even the wording of a single statute on a single subject may result in an all-or-nothing choice for those voting on it. The single-subject dilemma leads me to conclude that this Court should adopt a more deferential approach toward the rule. Based on the majority's present opinion, statutes that were enacted in a comprehensive bill, and that have remained as law for years could be found unconstitutional. The legislature will have wasted its time in working on any comprehensive legislation. Such legislation may be declared unconstitutional immediately, or worse, after a few years codified in the official state statutes a whole comprehensive bill will be struck and cause the chaos that will inevitably follow this opinion. Court opinions containing an overly restrictive interpretation of the single-subject rule will likely have a chilling effect on the legislative process. The result will be an exponential number of bills filed along with an expanded legislative process but with no greater assurance the legislation will pass the single-subject test. The severance clause is included to allow the courts to remove unconstitutional sections and still preserve the legislation.

¶ 10 I would find that H.B. 1603 does not violate the single subject rule.