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By Greg Haubrich

Attorney at Law

 

Why don’t I know all the law there is to know?  Why can’t I answer every legal question you ask, since I am after all a lawyer?  It turns out the law is pretty complex.  In one way or another it has a say in almost every aspect of human behavior.  Laws are rules and guidelines for safety; commercial transactions; drafting and interpretation of contracts;  landlord and tenant; wills and trusts; creditor and debtor; oil and gas royalties; water rights; marriage, divorce, and adoption; negligence; and the rules of war and international relationships — just to name a few.

Our law in Oklahoma comes from four primary sources:  1)  English common law; 2) federal and state constitutions; 3) federal and state statutes; and 4) federal and state regulations.

1.  The Common Law

Much of America’s law is derived from English law, because most of the early colonies were founded and inhabited by English people.  English “common law” is judge-made law based on legal “precedent.”  Judges would hand down written decisions, which became the law applicable to that particular human activity.  Because times are always changing, those guidelines tend to evolve also.  One of the great beauties of American constitutional and common law is that it is capable of evolving so that its principles remain relevant as society changes.

In federal courts the trial judges and appeal judges can write opinions which have “precedential value”:  i.e., which operate as guides for other judges in similar cases to follow.  In our state court system only appeals courts (the Oklahoma Supreme Court, the Courts of Civil Appeals, and the Court of Criminal Appeals) can write opinions that establish the law of that type of case.

Although it is our original source of law, the common law is trumped by Constitutional law, because constitutions are the founding law of both state and federal government.

Haynes v. Brown, 31 OK 2003, 445 Okla. 998, is an example of a citation to a case when you argue that it is precedent for this particular case.

The Constitution of the United States

2.  Constitutional Law

The federal and state Constitutions establish the form and structure of government.  They also have other functions, including establishing basic rights of citizens, such as due process of law, freedom from self-incrimination, and equal protection of the laws. 

Constitutions are interpreted by the judiciary, not by politicians, so they help our system to resist political whims and influence.  Both constitutions were deliberately made very difficult to amend, so that an ambitious President, Governor, or legislature could not easily change the basis of the state’s authority.

Oklahoma’s Supreme Court in the past few years has demonstrated the wisdom of an independent judiciary charged with protecting and preserving the Constitution.  “Tort reform” laws, which restrict rights of people to recover fair compensation for their injuries, have been stricken because they denied equal protection of the law and covered multiple subjects rather than just one subject.

On that particular bill I was watching in the State Senate when a very powerful Senator stated:  “It is not our job to pass constitutional legislation.”  When the powerful disrespect law that blatantly, it is well to hope that the justices of the Supreme Court were not bought and paid for by either political party or any rich and powerful economic interest.

A citation to the United States Constitution would be Art. IV, Sect. 3, U. S. Const. …

3.  Statutes

Statutes are laws passed by legislatures:  the Congress of the United States, and the Oklahoma State Legislature.  In both cases, per their respective Constitutions, laws must be passed by both the House and the Senate, and signed into law by the Chief Executive (President or Governor) to become a law.  Sometimes new laws repeal old laws; sometimes they simply add new law.

After a law becomes effective it is “codified” into the statues: it gets a Title Number and a Section number:  for example, 47A O.S. 213(b)(3) … meaning section 213, subsection b, sub sub section 3 of Title 47A of the Oklahoma Statutes.  Title 47A, by the way, is the one with all the rules governing highways, traffic, and the rules of the road.  Wear your seatbelt.  Yield to the right at ungoverned intersections.

The State Constitution trumps state statutes when they are in conflict.  Early this year the Oklahoma Supreme Court decided that the due process clause and equal protection clause of the Oklahoma Constitution provide constitutional protections independent of the federal constitution.  Therefore the Governmental Tort Claims Act (GTCA — found in Title 51), which limits claims against state and local governments to $125,000.00 ($175,000.00 in Oklahoma City and Tulsa) is unconstitutional to the extent that it shields governments from liability for violations of civil rights — such as police brutality, or failure to provide medical care to prisoners.

4.  Regulations

State and federal agencies, if they are given the power to do so by Statute, can put into place regulations.  Indeed, many statutes require agencies to write and adopt regulations.  For example, once Congress passed the Clean Water Act, it left it to the Environmental Protection Agency to promulgate regulations establishing specific standards for identifying risks, measuring pollutants, regulating industrial discharges,  and responding to environmental crises.

Regulations must conform to both the statutes that authorized them AND to constitutions.  An example of a federal regulation citation would be 15 C.F.R. Part 2118(b)(5)(A).  Good luck figuring those suckers out ….  .  As far as I can tell there is no one place where Oklahoma State regulations are all organized together.  Each agency has its own regulations which you may be able to find on their web sites if you really look hard and long.

Conclusion:  It’s a gorgeous fall day and I need to go ride my motorcycle.  Vikings beat the Steelers in London while I was writing this so I guess they won’t go win-less this season after all.  Later Gators.  Have fun researching and learning all the law there is to know!