NOVEMBER 2022 | 29 THE OKLAHOMA BAR JOURNAL INTERACTION BETWEEN THE COURTS AND THE LEGISLATURE On a final note, since the Tort Claims Act is a public policy statement by the Legislature concerning the extent of the waiver of the doctrine of sovereign immunity (i.e., historically there was no tort liability of the government to injured claimants until 1978), it is very important that one pay close attention to cases that construe the meaning of specific provisions of the OGTCA comparing that language to the current language of the OGTCA. In its time since 1978, and then its replacement in 1985, there have been many instances where a particular construction of OGTCA language by the Oklahoma appellate courts was followed by a change in language by the Legislature in the legislative sessions following a particular court decision. A fairly recent example of this dynamic is highlighted in Payne v. Kerns.34 In that case, a prisoner brought an action against the sheriff and county jail administrator alleging civil rights violations, including violation of state constitutional prohibition against cruel or unusual punishment, arising from his extended incarceration past his sentence expiration. In a prior case, Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, the Oklahoma Supreme Court recognized an actionable Oklahoma Constitution tort that was not addressed by the OGTCA. Following Bosh, the Legislature amended the OGTCA to make it clear that constitutional torts, such as those recognized in Bosh, fell under the OGCTA. In Payne, the Oklahoma Supreme Court, in holding the prisoner’s private right of action for cruel or unusual punishment at the time of his delayed release was still viable, noted the alleged tort occurred after Bosh but prior to legislative enactment barring constitutional torts under the OGTCA. So the tortious conduct occurred during a narrow period of time between when the Oklahoma Supreme Court recognized a private action and the Oklahoma Legislature, as a matter of public policy, amended the language of the Tort Claims Act to close that window.35 Legislative amendments to the OGTCA following an appellate court decision have occurred many times over the years as the public policy conversation continues at the Legislature to set the parameters for protecting the public purse (taxpayer dollars) balanced with when, how and at what level recovery will be available to citizens who are injured due to the tortious conduct of employees of governmental entities in the state of Oklahoma. For this reason, it is important to compare the language construed in cases to the language in the statute at the time the tortious conduct is alleged to have occurred to determine whether the court’s ruling is construing statutory language that has since been modified by the Legislature. CONCLUSION The OGTCA waives sovereign immunity, providing for limited recovery for an injured claimant caused by tortious conduct of governmental employees. However, the OGTCA also provides significant protection for cities and towns from such liability. Sovereign immunity is an Old English law doctrine that was firmly seated in American jurisprudence that stood for the axiom, “The King can do no wrong.” In Oklahoma, the OGTCA asserts sovereign immunity but then provides a limited waiver of that immunity if a claimant follows both the procedural rules, such as filing requirements, and shortened limitation periods and respects liability limits. Governmental employees acting in good faith are protected both from suit and liability. The OGTCA is the Legislature’s effort to balance taxpayer dollars with available remedies for governmental tortious conduct. This public policy discussion is ongoing, and a legal practitioner would be well-served to compare statutory language being construed by court decisions with statutory language in effect at the time the alleged injury from tortious governmental employee conduct occurred. The Legislature may very well have rebalanced the public interest between providing compensation to injured citizens with protecting the public purse holding taxpayer dollars. Author’s Note: The Oklahoma Association of Municipal Attorneys (OAMA) is an organization of municipal attorneys whose primary mission is to provide those across the state of Oklahoma who are practicing municipal law with resources to assist them in providing sound advice to the cities and towns they represent. OAMA has established a program that provides such information accessible through the OAMA website at www.okmunicipalattorneys.org. ABOUT THE AUTHOR Jeff Harley Bryant has served as director of Legal Services/associate general counsel for Oklahoma Municipal Assurance Group since 2019. Retiring in 2018, he served as city attorney for the city of Norman, rounding out a 32-year municipal law career. He is a Rotarian, United Way board member and a Leadership Oklahoma graduate.
RkJQdWJsaXNoZXIy OTk3MQ==