Document Type

Article

Publication Date

2020

Publication Title

Oklahoma Law Review

Abstract

The State of Oklahoma has explicitly adopted sovereign immunity for a broad array of tort claims, including constitutional torts—legal wrongs by government actors in violation of duties imposed by the Oklahoma Constitution. In the years before and after this explicit invocation of sovereign immunity for constitutional torts, however, the question in Oklahoma was whether the Oklahoma Legislature had the authority to do this. Even though the Oklahoma Legislature enacted a statute that invoked sovereign immunity as to certain torts, utilizing a seemingly all-encompassing definition of “tort,” the Oklahoma Supreme Court nevertheless found that private rights of action—commonly referred to as “Bosh claims”—existed for violations of the Oklahoma Constitution. The Oklahoma Supreme Court offered no useful reasoning for this finding, but it could be inferred that it must have viewed constitutional tort rights of action as arising out of the Oklahoma Constitution itself, not the common law, because the court validated these actions notwithstanding the legislature’s attempt to invoke sovereign immunity for the same. In its recent decision, Barrios v. Haskell County Public Facilities, the Oklahoma Supreme Court confronted the aforementioned question head-on and reversed course, finding that the Legislature is free to limit monetary remedies available for such tort claims because private rights of action for violations of the Oklahoma Constitution are products of common law. Thus, courts will not recognize new Bosh claims, and previously recognized Bosh claims may not even be recognized by the Oklahoma Supreme Court going forward. This result is technically correct because it is consistent with the Constitutions of the United States and Oklahoma, as well as relevant policies. But it is functionally deficient in that it limits the remedy for violations of certain Oklahoma constitutional provisions to prospective injunctive relief, providing no redress for violations of the past. This result fails to appreciate the purpose of a remedy, which is to make the injured whole and deter legal wrongs. The Barrios decision, in contravention of the Oklahoma Constitution, effectively leaves constitutional rights that may only be vindicated with prospective injunctive relief, without remedies and should, therefore, be reconsidered by the Oklahoma Supreme Court.

Volume

72

First Page

341

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