If you tried, you could probably comb through the Oklahoma Statutes and find a law or two that would qualify as “absurd” based on some drafting error. But the Oklahoma Supreme Court only needs to find a policy disagreement in order to hold a statute absurd. As with other cases I’ve highlighted, this judicial overreaching threatens the separation of powers that is the foundation of the American political system.

In McIntosh v. Watkins, the Oklahoma Supreme Court was asked to determine whether a man injured in a hit-and-run accident was entitled to treble damages—that is, three times his actual damages. Oklahoma law states the “driver of any vehicle involved in an accident resulting only in damage to the vehicle … shall immediately stop such vehicle at the scene of such incident ...” It further states that in addition to “the criminal penalties imposed [for not stopping at the scene], any person violating the provision of this section shall be subject to liability for damages in an amount equal to three times the value of the damage caused by the accident.” 

In other words, Oklahoma law allows victims of hit-and-run accidents to recover three times their actual damages, but only in cases “resulting only in damage to the vehicle.” The legislature clearly decided that the treble damages provision should not apply to cases resulting in bodily injury or death. That may not be the best policy decision, but it was clearly the policy choice the Oklahoma Legislature made.

Without explaining why, a majority of the justices decided the law in question was “susceptible to more than one reasonable interpretation and [was] therefore ambiguous.” Once declared ambiguous, the Court’s majority began trying to discern the “legislative intent” of the statutory scheme—which, especially as Oklahoma does not maintain a comprehensive record of legislative history, is impossible to determine beyond faithfully reading the words of the statute. If the words on the page can’t demonstrate legislative intent, how are nine lawyers detached from the legislative process supposed to read the legislators’ minds?

The Court’s majority permitted the plaintiff to recover treble damages despite the fact he was also injured—and did not dispute his injury—in the accident. In doing so, the Court determined it was “absurd” to think the Legislature intended that treble damages be awarded in cases not resulting in injury but not in cases involving hit-and-run accidents resulting in bodily harm or death. As Justice Wyrick’s dissent pointed out, 

the text of a statute cannot simultaneously be ambiguous and absurd. An ambiguous statute, after all, is one that is susceptible to more than one reasonable meaning. If a statute can be read one way that is quite reasonable, but another way that is quite absurd, then by definition it is not ambiguous.

According to Justice Wyrick, the Court ignores this reality when faced with a case “where the Court merely thinks a policy embodied in a statute is unwise.” The Oklahoma Supreme Court does not have the legitimate authority to decide that the Legislature could not have meant what it said simply because the Court thinks it makes no sense as a matter of policy. But if it is never held accountable, that’s exactly what the Court will continue to do.