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Suing on Shifting Sands

The Oklahoma Constitution, Retroactive Legislation and the Scramble for Clarity

By Mbilike M. Mwafulirwa

It is a principle which has always been held sacred in the United States, that laws by which human action is to be regulated, look forwards, not backwards; and are never to be construed retrospectively unless the language of the act shall render such construction indispensable.

De Niz Robles v. Lynch1

Imagine that it is July of 2014, and you have finally achieved notoriety in life. You’re a celebrity lawyer. Then, unexpectedly, a “friend” publishes a tell-all video on social media maligning you. You are accused of being an incompetent and unethical lawyer, with specific instances outlined as examples (all false, of course). The allegations make rounds in the media and have devastating effects on your practice and reputation.

You decide to take swift action. Within 30 days, you file suit against your friend, asserting various reputational torts. While the suit is pending, the legislature passes a new law that affects reputational tort claims like yours. The law provides that within 60 days, the defendant can move to dismiss the case by merely showing that the case relates to First Amendment protected speech (e.g., a matter of public concern) or that a defense applies. As soon as the defense motion is filed, all discovery tools are automatically stayed.

To keep your case alive, you have the burden of proving by clear and specific evidence each and every element of your case, without the benefit of discovery (unless the court allows you). If you lose, you are taxed costs and attorney fees automatically. Your opponent immediately files her defense motion based on the new statute. You object to the new statute applying to your case because, in your view, it moves the goal posts in the middle of the game. Your opponent disagrees; she argues the statute merely outlines new civil procedures, as such, like any other rule of civil procedure, it should apply to your case.

This hypothetical situation raises a profound constitutional question: Can legislation with the same design and effects as that outlined above apply retroactively to an active case consistent with Okla. Const. Art. 5, §§52-54? This question has arisen several times under various Oklahoma statutes, and most recently, the Oklahoma Citizens Participation Act (OCPA),2 a statute with the same design and effect as the one in the hypothetical, that came into effect on Nov. 1, 2014. Our courts have held that the OCPA and similar statutes cannot apply retroactively. This article will flesh out the various legal and policy considerations that underlie those holdings and lay out some bright lines to guide the Oklahoma legal practitioner to effectively address retroactive statutes in civil cases.

The OCPA is among a class of statutes commonly referred to as anti-SLAPP laws that came into effect on Nov. 1, 2014.3 The acronym “SLAPP” stands for “Strategic Lawsuits Against Participation,” a phrase first coined by professors George W. Pring and Susan Canan.4  In essence, a SLAPP lawsuit is one that is filed with the clear purpose of “deter[ing] public participation in decision-making forums … [by] intimidat[ing] the petitioners into dropping their initial petitions due to the expense and fear of extended litigation.”5 Anti-SLAPP statutes are legislative responses aimed at curbing SLAPP lawsuits. Indeed, anti-SLAPP statutes draw their inspiration from two seminal United States Supreme Court decisions, Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc.6 and United Mine Workers of America v. Pennington.7

The two cases underscore emphatically the First Amendment’s Petition Clause’ guarantee that the government “shall make no law …abridging … the right of the people … to petition the Government for a redress of grievances.”8 The Petition Clause is the full embodiment of “the very idea of a government, republic in form.”9 In the first of the two cases referenced above, Noerr Motor Freight, trucking companies and their trade association sued competitor railroads under the antitrust laws because they had conspired to engage in petitioning conduct that had deleterious effects on the trucking industry.10The district court, after a trial, entered judgment in favor of the trucking companies.11The Supreme Court reversed and held that “the Sherman Act does not prohibit … persons from associating … in an attempt to persuade the legislature or the executive to take particular action with respect to a law that would produce a restraint or a monopoly.”12 In the other case, Pennington, a case that also implicated antitrust concerns, the court extended its earlier holding in Noerr to emphasize that the great deference accorded to the right to petition “shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.”13

Against this background, the OCPA should be considered beginning with the words of the statutory text.14 The OCPA professes to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law …”15  The OCPA’s reach is very broad – it applies to any action that “is based on, relates to or is in response to a party’s exercise of the right of free speech, right to petition or right of association.”16 The “right of association” is defined as “communication between individuals who join together to collectively express, promote, pursue or defend common interests.”17 The “right of free speech” captures communications “made in connection with a matter of public concern.”18  The “right to petition,” on the other hand, pertains to communications in judicial proceedings, public meetings and most of other public proceedings.19“[C]ommunication” captures the “making or submitting of a statement or document in any form or medium …”20

The main striking point of the OCPA is its summary dismissal procedures.21 During the sufficiency stage of the proceedings, within 60 days of the date of service of the case, and without the benefit of discovery, a defendant can move to summarily dismiss the case on the merits by merely showing by a preponderance of the evidence that either the case relates to protected speech or that a defense applies.22 In contrast, in order to keep his case alive, a plaintiff must establish by “clear and specific evidence a prima facie case for each essential element of the claim in question.”23 In making a determination whether to dismiss a suit, the court “shall consider the pleadings and supporting and opposing affidavits …”24 Arguably, the OCPA contemplates a trial on the pleadings.25

The OCPA also imposes sanctions. The OCPA provides that when a motion to dismiss is sustained, the court “shall” award the moving party reasonable attorney fees and costs.26On the other hand, if a defendant’s motion to dismiss is deemed “frivolous or solely intended to delay,” a court “may” award plaintiff costs and attorney fees.27 The district court has discretion, which it may exercise upon motion or sua sponte, to order limited discovery.28

Oklahoma law presumes that unless the words in a statute expressly indicate that it applies retroactively, it should ordinarily be presumed to only apply prospectively.29However, the same is not true of purely procedural statutes: they apply retroactively.30There are, however, “constitutional limitations on this general rule.”31 Oklahoma law remains deeply committed to the constitutional principle that later-enacted statutory changes cannot make substantive changes to existing claims.32 In pertinent part, Okla. Art.  5, §52  provides:

The Legislature shall have no power to revive any right or remedy, which may have become barred by lapse of time, or by any statute of this State. After suit has been commenced on any cause of action, the Legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit.33

Also worthy of note on this subject is Okla. Art. 5, §54. In pertinent part, it provides:

The repeal of a statute shall not revive a statute previously repealed by such statute, nor shall such repeal affect any accrued right, or penalty incurred, or proceedings begun by virtue of such repealed statute.34

The Oklahoma Supreme Court addressed these provisions in Cole v. Silverado Foods Inc.35 In Cole, retroactive workers’ compensation legislation attempted to shorten the time period within which an injured worker could present accrued claims from five to three years.36 The court held that later-enacted legislation could not alter accrued substantive rights (decreasing the time to present claims from five to three years).37 The court reasoned that later-enacted legislation is “subject solely to prospective application,”38 if it re-fashions an existing remedial scheme “into a different and moreextensive liability-defeating mechanism … [and] destroys the claimant’s right to present her claim free from being subjected to new and more extensive instruments of destruction.”39

Oklahoma courts have so far issued a number of published opinions on the OCPA. The first of these cases was Anderson v. Wilken.40 In Anderson, the plaintiff, who was at the time the clerk of Rogers County, sued the Claremore Daily Progress and its reporter for publications that she alleged placed her in a false light.41 The defendants filed OCPA motions to dismiss, and pursuant to 12 O.S. Supp. 2015 §1433,42 the trial court was required to set a hearing within 60 days but no later than 90 days.43 After failing to hold a hearing within 60 days and no later than 90 days, the trial court issued an order that defendants’ motion had been denied automatically as a matter of law.44  The case was appealed, and it was assigned to Court of Civil Appeals (COCA) Division IV. While the case was pending, Anderson filed a motion to dismiss the appeal because, in her view, the OCPA did not apply to the case, as such, the appellate court lacked jurisdiction.45

The appeal set the stage for three difficult questions: 1) Could the trial court ignore an explicit statutory command to hold a hearing within the specific time frames set by the statute? 2) Considering that the trial court had failed to hold a hearing and issue a ruling, was there a final appealable order to trigger the appellate court’s jurisdiction? And finally, 3) even if the trial court could be ordered to conduct the OCPA hearing that it should have held in the first place, how could that be reconciled with 12 O.S. Supp. 2015 §1433(A) that expressly provides that “in no event shall the hearing occur more than ninety (90) days after service of the motion to dismiss?”

Division IV gave interesting responses to these vexing questions. The court elected to address the questions in reverse order – the jurisdiction question first.46 The court noted that “in the absence of any proceedings in the district court,”47 there was no appealable decision to review on appeal.48 As the court explained, appellate courts in Oklahoma do not usurp the trial court’s role in addressing legal questions in the first instance.49

The lack of an appealable order, however, did not end the court’s analysis. The OCPA’s appellate provision – 12 O.S. Supp. 2015, §1437(B) – has two components, “appeal or other writ.”50 Division IV reasoned that even though this case failed to trigger §1437(B)’s appeal component, there had to be a situation in which the “writ” portion of the provision was triggered; otherwise, that portion of the statute would be redundant.51In this case, the appellate court reasoned that the trial court had a mandatory duty to hold a hearing within a specified timeframe, but it had failed to do so.52 The failure to discharge a mandatory duty, Division IV reasoned, was a basis for the issuance of a writ in this case.53 The trial court was ordered to hold a hearing “no later than 60 days after the date of service of the motion unless docket require a later hearing … but in no event shall the hearing occur more than 90 days after service of the motion to dismiss.”54 The court declined to address other issues.55 The question of the OCPA’s retroactivity was still open.

The Oklahoma Supreme Court squarely addressed this question in the twin cases Anagnost v. Tomacek56 and Steidley v. Singer.57 We address each case in turn.

Anagnost v. Tomacek

In Anagnost, the Oklahoma Board of Medical Licensure and Supervision (board) commenced an investigation against doctor-plaintiff, on allegations that he rendered below par treatment to patients, among other alleged infractions.58 Plaintiff, in turn, filed multiple legal proceedings challenging the board proceedings, and also filed claims against a number of doctors and their entities. On Dec. 12, 2014, the plaintiff filed an amended pleading adding additional claims.59 After the amendment, while the suit was underway, the defendants filed OCPA motions to dismiss, a year after the suit had originally been filed.60 The trial court held that since the amended pleading was filed after the OCPA came into effect, it applied to this case. The trial court sustained defendants’ motions and dismissed the case.61 As relevant here, the COCA affirmed.62The court reasoned that the OCPA applies to any “legal action” without qualification, including the case at hand.63

Division I’s conclusion raised very interesting and potential conflicts with prior OCPA appellate rulings for multiple reasons: 1) Oklahoma law is fully committed to the view that the law in effect at the time a claim accrues applies throughout its lifespan,64 2) Division I held in Steidley v. Community Newspapers Inc., a month before Anagnost, that the OCPA is a substantive law that cannot constitutionally apply retroactively to an accrued claim65 and 3) the plaintiff’s claims in Anagnost, at least against the original defendants, arguably accrued before the OCPA came into effect.66 That would in effect preclude the OCPA retroactively applying to those claims.67 Even then, what about the claims against the newly added defendants? When did those claims accrue? One possibility is that those claims accrued the same time as the original because Oklahoma law does not recognize tolling of claims against unknown tortfeasors (or simply because a plaintiff does not know all the people responsible for bringing about his injuries).68 In that case, the law applicable should have been that predating the OCPA, regardless of an amendment.69 Another possibility, like Division I found, is that the newly added claims accrued after the OCPA came into effect, meaning it could apply to the case.70 The Oklahoma Supreme Court grantedcertiorari in Anagnost on Oct. 24, 2016, to address these issues.71

The court held that the OCPA does not apply retroactively.72 To begin with, the court reasoned that the statute contained no express “indication that the Legislature intended for the OCPA to operate retrospectively.”73 In addition, the court reasoned that even if the OCPA was intended to apply retroactively, by its design and effect, it was substantive; as such, it could not apply to existing claims.74 As the court explained, the OCPA creates a new defense – a new expedited motion to dismiss without the guarantee of discovery – for claims that implicate First Amendment rights.75 As the court had earlier explained in Cole, later-enacted legislation is subject solely to prospective application if it refashions an existing remedial scheme “into a different and more extensive liability-defeating mechanism … [and] destroys the claimant’s right to present her claim free from being subjected to new and more extensive instruments of destruction.”76  Furthermore, the court explained that because the OCPA creates a new remedy for damages “by providing [an] award of attorney fees, costs and other reasonable expenses as well as sanctions,” in line with existing Oklahoma law, it should only apply prospectively.77

The court also addressed the interplay between the OCPA and amended pleadings. The court held that as long as an amended pleading relates back to the original pleading under 12 O.S. §2015(C) the OCPA “is inconsequential.”78 In Anagnost, the court left it to the trial court to make a definitive determination on the relation back issue.79

Steidley v. Singer

On the same day that Anagnost was decided, the court also issued its opinion in Steidley, which also held that the OCPA cannot apply retroactively.80 Janice Steidley, the former district attorney for Rogers, Mayes and Craig counties, together with her two assistants, sued several individuals for allegedly publishing deliberate and reckless falsehoods in the body of a grand jury petition.81 The district court approved the grand jury petition on Aug. 29, 2013.82 On Oct. 16, 2013, plaintiffs filed their initial petition alleging defamation.83 Plaintiffs filed an amended petition in November of 2013.84 While the suit was pending, a year later, the OCPA came into effect; defendants filed their OCPA motion to dismiss.85

The lower courts held that the OCPA does not apply retroactively. The trial court denied defendants’ motion to dismiss, implicitly holding that the OCPA was not retroactive.86COCA affirmed, holding that the statute is not retroactive because it is substantive.87 The Oklahoma Supreme Court granted certiorari on Dec. 13, 2016, to consider the OCPA’s applicability.

The court held that the OCPA is not retroactive, citing Anagnost. Because the OCPA is substantive, Okla. Const. Art. 5, §54 prohibits its retroactive application.88

Oklahoma law – Okla. Const. Art. 2, §6 – attempts to guarantee every litigant his fair day in court. Retroactive legislation, however, upsets settled expectations. That is why Oklahoma law only tolerates retroactive legislation when it makes purely procedural changes to existing procedures because “no one has a vested right in any particular procedure.”89

Distinguishing between purely procedural and substantive legislative changes is very difficult. However, this article – from its survey of Oklahoma case law – has laid out some bright lines to guide the Oklahoma legal practitioner. Thus far, a law is generally substantive if it either 1) attempts to give one party a defense and/or immunity it did not have before, or to take away a defense in the middle of a case,90 2) creates a new right to damages or substantially increases existing damages,91 3) creates a new right to attorney’s fees or costs for the prevailing party,92 4) attempts to change the standard of review on appeal for a particular claim93 or 5) decreases the benefits or awards due to the plaintiff/claimant.94

Mbilike M. Mwafulirwa is an associate at Brewster & De-Angelis PLLC. Mr. Mwafulirwa’s practice focuses on general civil litigation, civil rights defense and appellate law. He is a 2012 graduate of the TU College of Law.

1. De Niz Robles v. Lynch, 803 F.3d 1165, 1169 (10th Cir. 2015).
2. 12 O.S. Supp. 2015 §§1430, et seq.
3. See Laws 2014, HB 2366, c. 107, §1, eff. Nov. 1, 2014.
4. See George W. Pring & Penelope Canan, SLAPPs: Getting Sued for Speaking Out 2-3 (1996). 
5. Laura Long, “Slapping Around the First Amendment: An Analysis of Oklahoma’s Anti-SLAPP Statute and Its Implications on the Right to Petition,” 60 Okla. L. Rev. 419, 420 (2007). 
6. 365 U.S. 127 (1961). 
7. 381 U.S. 657 (1965). 
8. U.S. Const. amend. I (emphasis added). 
9. United States v. Cruikshank, 92 U.S. 542, 552 (1876).  
10. Noerr Motor Freight, 365 U.S. at 129. 
11. Id. at 132-133. 
12. Id. at 136. The court refused to read the Sherman Act in such a way as to compromise the people’s constitutional right to petition the government for redress. See id. at 138. 
13. Pennington, 381 U.S. at 370 (emphasis added). 
14. State ex relMacy v. Freeman, 1991 OK 59, ¶8, 814 P.2d 147, 153.
15. 12 O.S. Supp. 2015 §1430.
16. Id. §1432(a). 
17. Id. §1431(2).
18. Id. §1431(3).
19. Id. §§1431(4)(a)-(9)(e).
20. Id. §1431(1).
21. 12 O.S. Supp. 2015 §1432.
22. See 12 O.S. Supp. 2015 §§1432, 1434.
23. Id. §1434(C) (emphasis added). “[C]lear and specific evidence” has no discernable definition under Oklahoma law.
24. 12 O.S. Supp. 2015, §1435(A) (emphasis added). 
25. See id. (trial court must consider conflicting evidentiary presentations and render decision).
26. 12 O.S. Supp. 2015 §1438(A)(1-2) (emphasis added). 
27. Id. §1438(B)(emphasis added).
28. Id. §1435(B).
29. Trinity Broad. Corp. v. Leeco Oil Co., 1984 OK 80, ¶6, 692 P.2d 1364, 1366.
30. Okla. Bd. of Med. Licensure and Supervision v. Okla. Bd. of Examiners in Optometry, 1995 OK 13, ¶6, 893 P.2d 498, 499 (“no one has a vested right in any particular procedure.”). 
31. Robinson v. Clark, 2009 OK CIV APP 56, ¶9, 217 P.3d 155, 158 (Approved for publication by the Oklahoma Supreme Court). 
32. See Okla. Const. Art. 5, §§52 & 54. A retroactive “procedural” amendment that in fact makes substantive changes to existing claims is impermissible. Bertland v. Laura Dester Cntr., 2013 OK 18, ¶¶14-15, 300 P.3d 1188, 1192. 
33. Okla. Const. Art. 5, §52 (emphasis added).
34. Id. §54 (emphasis added).
35. 2003 OK 81, 78 P.3d 542.
36. Id. ¶1, 78 P.3d at 544. 
37. Id
38. Id. ¶13, 78 P.3d at 548.
39. Id. (emphasis added); see also Thomas v. Cumberland Operating Co., 1977 OK 164, ¶10, 569 P.2d 974, 977 (newly created right to damages was substantive, so restricted to prospective application); see also Hammons v. Muskogee Med. Cntr. Auth., 1985 OK 22, ¶¶6-7, 697 P.2d 539, 542 (finding that amendment that provided new protections from suit to defendants was a substantive change limited to prospective application).
40. 2016 OK CIV APP 35, 377 P.3d 149, cert. denied (May 9, 2016).
41. Id. ¶2, 377 P.3d at 150.
42. Id. ¶7, 377 P.3d at 151-152.
43. 12 O.S. 2015 §1433.
44. Anderson, 2016 OK CIV APP 35, ¶2, 377 P.3d at 150.
45. Id.
46. Id. ¶6, 377 P.3d at 151. 
47. Id
48. Id. ¶10, 377 P.3d at 152.
49. Anderson, 2016 OK CIV APP 35, ¶10, 377 P.3d at 152.
50. 12 O.S. Supp. 2015 §1437(B).
51. Anderson, 2016 OK CIV APP 35, ¶7, 377 P.3d at 151-152.
52. Id. ¶11, 377 P.3d at 152.
53. Id.; see also City of Tulsa v. State ex rel. Okla. Tax Comm’n, 2001 OK 23, ¶3, 20 P.3d 144, 147 (refusal to perform mandatory legal duty is basis for writ of mandamus). 
54. Anderson, 2016 OK CIV APP 35, ¶13, 377 P.3d at 153 (emphasis in original).
55. Id.
56. 2017 OK 7, 390 P.3d 707.
57. 2017 OK 8, 389 P.3d 1117. 
58. Anagnost, 2017 OK 7, ¶2, 390 P.3d at 708. 
59. Id. ¶3, 390 P.3d at 708-709. 
60. Id. ¶4, 390 P.3d at 709. 
61. Id
62. Anagnost v. Tomacek, No. 113748, at *8 (Okla. Ct. Civ. App. Feb. 5, 2016) (unpublished). 
63. Id. 
64. See Williams Companies Inc. v. Dunkelgod, 2012 OK 96, ¶¶14-18, 295 P.3d 1107, 1111-1115; Cole, 2003 OK 81, ¶13, 78 P.3d at 548.
65. 2016 OK CIV APP 63, 383 P.3d 780, cert. denied (Oct. 3, 2016).
66. See 12 O.S. §2015(C) (details relation back principles).  
67. Dunkelgod, 2012 OK 96, ¶¶14-16, 295 P.3d at 1111-1115 (the law in effect at the time a claim accrues applies throughout its lifespan) (collecting cases). 
68. Dotson v. Rainbolt, 1995 OK 39, ¶¶18-19, 894 P.2d 1109, 1113-1114.
69. Cf. id. (holding that there is no relation back for claims against John Doe defendants).
70. Anagnost, No. 113748, at ¶8. 
71. Anagnost, 2017 OK 7, ¶6, 390 P.3d. at 709. 
72. Id. ¶19, 390 P.3d. at 713. 
73. Id. ¶16, , 390 P.3d. at 712.
74. Id. ¶17, 390 P.3d. at 712.
75. Anagnost, 2017 OK 7, ¶16, 390 P.3d. at 712.
76. 2003 OK 81, ¶13, 78 P.3d at 548; see also Walls v. Am. Tobacco Co., 2000 OK 66, 11 P.3d 626 (same); Hammons, 1985 OK 22, ¶¶6-7, 697 P.2d at 542. 
77. Anagnost, 2017 OK 7, ¶17 n. 26, 390 P.3d. at 712 n. 26 (citing Sudbury v. Deterding, 2001 OK 10, ¶18, 19 P.3d 856; Thomas, 1977 OK 164, ¶10, 569 P.2d at 977).
78. Anagnost, 2017 OK 7, ¶18, 390 P.3d. at 713.
79. Id
80. 2017 OK 8, ¶8, 389 P.3d 1119-1120. 
81. Id. ¶2, 389 P.3d 1118.
82. Id. ¶3, 389 P.3d 1118. 
83. Id. ¶0 (Syllabus by the court), 389 P.3d 1117. 
84. Steidley, 2017 OK 8, ¶0 (Syllabus by the court), 389 P.3d 1117.
85. Id. ¶7, 389 P.3d 1119. 
86. Id. ¶6, 389 P.3d 1119.
87. Id.; see also Steidley v. Singer, No. 114534, at *10 (Okla. Ct. Civ. App. Aug. 16, 2016) (unpublished).
88. Steidley, 2017 OK 8, ¶8, 389 P.3d 1119-1120.
89. Okla. Bd. of Med. Licensure and Supervision, 1995 OK 13, ¶6, 893 P.2d at 499.  
90. Cole, 2003 OK 81, ¶13, 78 P.3d at 548 (shortening of statute of limitations was substantive).
91. Thomas, 1977 OK 164, ¶10, 569 P.2d at 977 (newly created provision of damages); Sudbury, 2001 OK 10, ¶19, 19 P.3d 856, 860 (same). 
92. Anagnost, 2017 OK 7, ¶17, 390 P.3d 712-713. 
93. Dunkelgod, 2012 OK 96, ¶¶14-16, 295 P.3d at 1111-1115. 
94. Id. ¶¶29-31, 295 P.3d 1115-1116 (retroactively capping claimant’s injury benefits to 300 weeks); see also Bertland, 2013 OK 18, ¶¶14-15, 300 P.3d at 1192 (depriving injured worker of mileage reimbursement).

Originally published in the Oklahoma Bar Journal OBJ 88 pg 935 (May 20, 2017)