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It’s common knowledge that not every wrong can be remedied in a court of law. In law school, one of my professors gave a silly, but clear, example. I may be upset that the donut shop doesn’t carry my favorite donut—the blueberry cake donut with sprinkles—but I can’t sue the donut shop for that “wrong.” The case would quickly get dismissed, and that’s a good thing. 

So how do we determine which “wrongs” should be made right in a court of law? The answer is we have legislatures, and they pass laws. These laws dictate, among other things, what kind of claims can be brought in court. But this situation, which is foundational to representative government and based in popular sovereignty, is problematic for the Oklahoma Supreme Court, which fancies itself the supreme arbiter of which wrongs must be remedied. 

A recent example of this was the case of Gibby v. Hobby Lobby Stores, Inc. In that case, a Hobby Lobby employee made a claim for workers’ compensation benefits. Hobby Lobby paid temporary total disability and medical benefits, but claimed the employee waived any permanent disability benefits claim because, as the relevant statute stated, he had missed two medical appointments without having a valid excuse. 

The Oklahoma Legislature, in enacting this provision, likely believed that injured employees skipping doctor visits without a valid excuse undermined the workers’ compensation system. After all, one of the benefits of a workers’ compensation system is that it results in a quick way to get medical care to injured workers. But the whole system is pointless if the employee won’t attend scheduled doctor visits without so much as providing notice they won’t be there. Given this policy decision by the Legislature, the administrative law judge denied permanent benefits and the Workers’ Compensation Commission affirmed.

The Oklahoma Supreme Court took the appeal and found the law unconstitutional. This time, it relied on an obscure constitutional provision sometimes referred to as the “open courts” clause. It says, “The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” The Oklahoma Supreme Court believes this clause requires a right to a remedy “for every wrong and every injury to person, property, or reputation.” 

But as I stated above, there is no right to a remedy for every wrong. What about the baker who doesn’t have my donut? In a future article, I plan to discuss how the Oklahoma Supreme Court used to interpret this provision more accurately, but in this article it’s sufficient to recognize that this provision cannot mean the Oklahoma Constitution provides a right to a remedy for every wrong. Such an interpretation cannot be taken seriously.

So what does this provision mean? Why does it exist? Well, the answer requires a longer history lesson than can be recounted here. But the short answer goes something like this. Oklahoma and other “western” states include an “open courts” provision similar to the one that first appeared in the original Delaware Constitution—a document that precedes the United States Constitution. Delaware took it from Sir Edward Coke’s restatement of Magna Carta Chapter 40 a century earlier. Coke had been fighting against the Crown’s habit of injecting itself into the court system. Properly understood, the “open courts” provision was a call for the judiciary to operate independently of the executive—it certainly did not empower the judiciary to displace the power of the legislature to determine the scope of legal rights. 

After the Delaware Constitution was written, the American founders had the brilliant idea of building the separation of powers—including an independent judiciary affording the right to due process—into the very structure of our government. Thus, they elected not to include the “open courts” provision because it was no longer necessary. If our Oklahoma Supreme Court would do the historical analysis, it would avoid encroaching on another branch’s power—the very thing that clause is designed to prevent.