It is a question no doubt running through the minds of legal professionals all across this land. The Oklahoma Workers' Compensation Commission, in a decision that is landmark not just for what it is but also for who decided it, declared the Oklahoma Opt Out law “unconstitutional and unenforceable” almost two weeks ago. The case, Jonnie Vasquez v. Dillard’s Department Stores, may now be appealed directly to the Oklahoma Supreme Court.

Many are wondering what the Supremes will do. I am wondering if they will do it for the right reason.

There has been much hullabaloo over this decision, with some questioning the ability of the commission to make such a momentous declaration. They are, after all, an administrative body appointed by their Governor to facilitate and manage the workers' compensation program in that state. People are asking, “What gives this group the right to determine constitutional law?” One Opt Out proponent went so far as to call it “one of the most bizarre decisions in the history of any such tribunal in the world”.

Clearly the man has never watched “America's Got Talent”. But I digress….

The answer, of course, is that the power conveyed upon the OK WCC was in fact drawn from the very legislation they determined to be unconstitutional. The Oklahoma Employee Injury Benefit Act (OEIBA) specifically gives the Commission the power to act as a “Court of Competent Jurisdiction” for ERISA style issues.

And that is exactly what they did. I cannot help but wonder if that fact alone may influence the decision the Supreme Court makes regarding this case.

Please let me be clear; I am in no way being critical of the Oklahoma Workers' Compensation Commission. In fact, I think they did a bang up job with their decision and justification for same. They nailed it, and called out ERISA style Opt Out for the lopsided debacle that it is. Likewise, I am not being critical of the Oklahoma Supreme Court Justices. This speculation is purely theoretical, and not borne of any actions of that august body. Still, to understand where I am coming from, we need to look more closely at both the Commission and the Supreme Court.

The Commission consists of 3 members, all appointed by the Governor. The Chair of the Commission, Robert Gilliland, is a highly experienced attorney by trade. In addition to private practice, he served four years as a captain in the Judge Advocate General’s Corps of the US Army. A second member, Mark Liotta, has 18 years' experience as a quality manager and human resources manager in the pipeline industry. He also served as a county commissioner and in the state House of Representatives, as well as “owner, operator and ranch hand” of his own cattle ranch. The third, Dr. Leroy Young, is an Osteopathic Physician.

Now, let us take a looksee at the makeup of the OK Supreme Court.

All have Juris Doctorate degrees.

Chief Justice John F. Reif, was appointed to the Supreme Court in 2007. His first judgeship was 1981. Time in a black robe; 35 years.

Justice Steven W. Taylor was appointed to the SC in 2004. First judgeship, 1984. Time in black robes; 32 years.

Justice Noma Diane Gurich was appointed in 2011. First judgeship (workers' compensation court) was 1988. Time in black robes; 28 years.

Justice Yvonne Kauger was appointed in 1984, which appears to have been her first judgeship. Time in black robes, 32 years.

Justice James Winchester was appointed in 2000. First judgeship, 1983. Time in black robes, 33 years.

Justice Tom Colbert was appointed in 2004. First judgeship, 2000. Time in black robes, 16 years.

Justice James E. Edmondson, appointed in 2003. First judgeship, 1983. Time in black robes, 33 years.

Justice Douglas Combs, appointed in 2010. First judgeship, 1995. Time in black robes, 21 years.

Justice Joseph M. Watt, appointed in 1992. First judgeship, 1985. Time in black robes, 31 years.

Collectively they are a body with almost 129 years of experience on the Supreme Court, and 261 years of time on the bench. Compare that to our commission, who were all appointed to their current roles less than one year ago, and, until this point, never served as judges.

It is almost akin to asking the United States Navy to commission a nuclear aircraft carrier built by the butcher, the baker and the candlestick maker.

I've previously opined on the challenges of being a judge. It is not a simple task, by any stretch of the imagination. Still, it strikes me that there are some unique qualities to the position. Similar to being a US Senator, becoming a judge means joining an elite group that commands immediate respect, even before you've actually said or done anything (and unlike a Senator, the respect remains after you've opened your mouth). I have to wonder, as members of an elite club with 261 years of experience under their belt, will the source of the decision they are asked to review affect their view of the decision itself?

I would hope not, but there is speculation nationally that the Oklahoma legislature overreached its authority by creating a court where none previously existed. Ultimately that argument will boil down to what the Oklahoma constitution allows. I will not venture to guess what the outcome of that process may be.

I just hope the Supreme Court looks at the decision itself as it relates to the legislation at hand. Everything else being constitutionally sound, the message is more important than the messenger. And all things considered, the messenger did a very sound job with this particular message.

There are indications that the Supreme Court, if looking purely at the decision rather than the source, would uphold the Commission's decision. Fellow blogger and major Lexis Dude Tom Robinson wrote an excellent comparison of Vasquez with the OK SC decision Torres v. Seaboard Foods, LLC. He points out that in Torres, the Supreme Court of Oklahoma struck down a provision in the state's workers' compensation law that disqualifies a claimant from recovering for a cumulative trauma injury unless the claimant has completed at least 180 days of “continuous active employment with the employer.” Robinson points out that the decision in that case found that the law created “two classes of employees that have been similarly injured and, without appropriate justification, treats them differently.” That is essentially the same conclusion that is the basis of the Vasquez vs. Dillard's decision. Robinson concludes by saying “Combining the reasoning of the Commission Panel's decision in Vasquez with that of the high Court in Torres, I can't see how the Opt Out provisions survive constitutionally.”

I am in complete agreement with that view, and if the Oklahoma Supremes do not become mired in the “who”, and only concentrate on the “what”, they have a very, very strong chance of upholding the declaration of unconstitutionality of the Opt Out law.

We will not ultimately know, until the appeal that is sure to surface has played out. It is extremely important for all of us to remember when Dillard's appeals this decision, that they will have the right to representation before the court. They will be able to participate in the appeal, and contribute to the documents and defense filed on their behalf. They will be exercising their full rights to due process under the Oklahoma legal system. And if successful, they will have won the right to deny their employees that same level of due process when it comes to workplace injuries.

The irony is appalling. We can only hope that 261 years of judicial experience and expertise will be able to see through the clutter of who, and honestly deliberate the what.

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