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STATE SUPREME COURT HAS STRUCK DOWN SEVERAL LAWS AS UNCONSTITUTIONAL 7-2, SO LEGISLATOR WANTS TO FORCE COURT TO BE 9-0 OR 8-1 IN THE FUTURE

Posted by on February 02, 2016
Recently the Oklahoma Supreme Court has struck down several laws passed by the state’s legislature on 7-2 votes. Of particular note was the July 2015decision by the court that resulted in the removal of a Ten Commandments display from the State Capitol Grounds as well as a 2013 ruling that struck down the legislature’s tort reform package for violating the state constitution’s “single subject” rule.
The result: a 2016 proposal to require at least an 8-1 or 9-0 vote to overturn state laws.

Under HJR 1063 as prefiled for the 2016 session

in any case in which the constitutionality of legislation enacted by the Legislature is at issue, the vote of the Supreme Court must be unanimous or there must not be more than one dissenting vote for the legislation to be declared unconstitutional. If the vote of the Supreme Court is not unanimous and there is more than one dissenting vote , the legislation shall not be held to be unconstitutional.

Interestingly, the bill does not apply to the state’s other court of last resort (Court of Criminal Appeals).

Only Nebraska (5/7) and North Dakota (4/7) require specific vote totals to find a law unconstitutional by the state’s court of last resort. A few states have quorum-minimums that require a majority of all justices of the court (as opposed to just amajority of the panel of justices hearing the case) are needed to strike down a law.

Arizona

The state’s constitution provides the Supreme Court may sit together (“in banc”) or in panels of 3 judges, however “the court shall not declare any law unconstitutional except when sitting in banc.” (Art. VI, Sec. 2)

Nebraska

The state’s constitution provides “No legislative act shall be held unconstitutionalexcept by the concurrence of five [out of seven] judges.” (Art. V, Sec. 2)

This came up most recently in 2015 regarding a law that allowed “major oil pipeline” carriers to bypass the  regulatory procedures of the Public Service Commission.  (Thompson v. Heineman, 289 Neb. 798; 857 N.W.2d 731). Four judges ruled 1) appellees had standing and 2) the statute in question was unconstitutional. Three dissenting judges found that the five-judge requirement applied to both the questions of standing/jurisdiction and the merits and because there were not 5 votes on standing/jurisdiction the case should have been dismissed.

North Dakota

The state’s constitution provides “the supreme court shall not declare a legislative enactment unconstitutional unless at least four of the [five] members of the court so decide.” (Art. VI, Sec. 4)

This came up most recently in a 2014 case regarding a 2011 statute that addressed medication-induced abortions. (MKB Mgmt. Corp. v. Burdick, 2014 ND 197; 855 N.W.2d 31) The court fractured in a unique pattern

  • Two justices (one regular justice and a trial judge filling in due to a vacancy on the court) found the statute in question violated the ND constitution. Two justices found the statute constitutional under the ND constitution. One justice found the question did not need to be decided under the ND constitution. (2-2-1)
  • Three justices (two regular justices plus the fill-in trial judge) found the statute also violated the Federal constitution. One justice found the statute constitutional under the Federal constitution. One justice found the question was not properly before the court.  (3-1-1)

The court ultimately found “The effect of the separate opinions in this case is that [the statute] is not declared unconstitutional by a sufficient majority…”

Utah

The state’s constitution provides “The Supreme Court by rule may sit and render final judgment either en banc or in divisions. The court shall not declare any law unconstitutional under this constitution or the Constitution of the United States, except on the concurrence of a majority of all [five] justices of the Supreme Court. (Art. VIII, Sec. 2)

Virginia

The state’s constitution is similar to Utah’s: “The Court may sit and render final judgment en banc or in divisions as may be prescribed by law…[N]o law shall be declared unconstitutional under either this Constitution or the Constitution of the United States except on the concurrence of at least a majority of all justices of the Supreme Court.” (Art. VI, Sec. 2)