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Oklahoma Supreme Court Dissenters Jump the Rails

Some dissents are fun to read. Others are baffling. A recent dissent from an election law decision by the Oklahoma Supreme Court fits into the latter category.
The case involves a challenged petition to amend the Oklahoma Constitution. If successful, the amendment would create an education improvement fund that is filled by a sales and use tax. The amendment would raise the pay of teachers, make other distributions from the fund, and create structural changes to the way the state manages its education spending in light of the new fund. Overall, the majority opinion rejects the argument that the initiative violates the state constitution’s “single-subject rule,” a provision that requires legislation to address only a single subject.
The fun starts with a dissent by Justice Taylor (joined by Justices Kauger and Winchester), which argues that both creating an education improvement fund and simultaneously providing for its funding/spending amounts to “logrolling.” (If simultaneously paying for a spending increase counts as “logrolling,” it’s hard to see why that’s a bad thing, much less why the state constitution would forbid it.)
As odd as that argument is, it’s definitely not the oddest. Justice Taylor’s other major argument goes something like this. The amendment requires the Board of Equalization to determine whether the legislature is cutting its own spending to account for the improvement fund’s outlays, and if so, it restricts the legislature’s permissible appropriations. The Board thus acts as a check against the legislature. But, Justice Taylor argues, the state constitution grants the legislature the sole power to make appropriations for education, so amending the constitution to create a check on this power violates the separation of powers.

But wait, you might be asking yourself. How can checks and balances violate the separation of powers? Aren’t checks and balances the natural consequence of the separation of powers? And since Oklahoma’s constitutioncreates the state’s separation of powers in the first place, isn’t it true that a constitutional amendment by definition cannot violate the separation of powers? And wouldn’t standard interpretive principles like the general/specific canon and the presumption against implied repeal require courts to apply the new amendment on its own terms anyway?
Alas, poor reader, lesser minds like ours are no match for this flick of Justice Taylor’s mental scalpel: “[A]s Initiative Petition No. 403 contains no repeal of the legislative power being taken by the Board of Equalization, the Initiative Petition is in direct conflict with Article V of the Oklahoma Constitution, the power of the legislative branch.” Thus, under Justice Taylor’s theory of interpretation, constitutional amendments would need to explicitly repeal the legislature’s powers before they could add checks or balances to those powers. As Texas-born legal philosopher Waylon Jennings once argued, “That Dog Won’t Hunt.”
The dissent’s poor reasoning is especially ironic because the members of this court were selected through the Missouri Plan, which is sometimes described loosely as “merit selection.” Oklahoma should allow its citizens to elect justices on their own merits instead of letting an unaccountable committee choose for them. read more

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