OK Supreme Court Declares Cigarette Cessation Fee as Unconstitutional

The Oklahoma Supreme Court declared Thursday the $1.50 cigarette cessation fee passed at the last minute by the Legislature as unconstitutional and could send the Legislature into a Special Session. The Court heard oral arguments on Tuesday of this week. Two other issues are still being decided.

The Supreme Court’s decision was written by its newest justice Peter Wyrick. There was no dissention to the decision. You can read the decision at this link.

At issue, was the decision if Senate Bill 845 was indeed a revenue bill passed in the final week of this year’s session which is restricted by the Oklahoma Constitution. The Court decided that several sections of the bill constituted a revenue raising measure passed within the restricted time period.

Governor Fallin had hoped the Supreme Court would let the fee stand.

“I am disappointed to hear the Supreme Court struck down the smoking cessation fee, but I certainly respect the justices’ authority. I will be discussing with legislative leaders from both parties the need to address the $215 million shortfall this will create for the Department of Human Services, the Department of Mental Health and Substance Abuse Services and the Oklahoma Health Care Authority, the three agencies that received the bulk of the money that was to be generated by the cessation fee,” said Fallin.

She indicates that a Special Session is likely to happen.

“These agencies and the people they serve cannot sustain the kind of cuts that will occur if we do not find a solution. My belief is we will have to come into special session to address this issue.”

If a Special Session is called, lawmakers will likely have to address the loss of revenue to health-related agencies. The Oklahoma Health Care Authority would have received $70 million, the Department of Mental Health and Substance Abuse Services would have been given $75 million and the Department of Human Services would have received $69 million if the fee was collected. It was estimated it would have generated around $225 million.

House Speaker Charles McCall said it is time for lawmakers to get back to work to solve the funding issue.

“The Court has made their ruling and now it is up to the Governor and legislative leaders to agree on the best course of action moving forward,” said McCall. “It is important to remember that the reason our budget has been suffering is because Oklahoma families and businesses have been struggling.  State revenues are a reflection of the people of our state.  When our citizens have less money in their pockets to spend the state will realize less revenues.  I am a firm believer that government must live within its means.”

McCall also throws blame on House Democrats for not compromising during the session.

“The tobacco fee for health care was passed in an effort to avoid significant budget cuts. After House Democrats refused time and again to support increased revenue measures, the fee was our only opportunity to balance the budget without deeper cuts. The minority party decided to play games with the budget, and now that opportunity has passed,” said McCall.

House Minority Leader Scott Inman, who is running for governor, said he tried to warn House Republicans the Legislature should have acted much sooner to patch the nearly $900 million budget gap.

“Once again, Governor Fallin and Republican legislators have failed Oklahoma. My caucus and I sounded every alarm bell we could to stop this from happening, yet here we are, just as we warned,” said Inman. “Today, I’m urging Governor Fallin to call for a special session and for Republican leaders to come together with myself and Sen. Sparks and draft a truly bipartisan and constitutional budget plan that will help to restore, reinvest in, and rebuild Oklahoma.”

Republican gubernatorial candidate Gary Richardson also is suing over the revenue bills passed in the final week of the session. He sees this decision as a good sign for his challenge.

“We are encouraged by the Supreme Court upholding the intent of SQ 640, which was passed by the voters in 1992 to require either a supermajority of the legislature to raise revenue or send the measure to a vote of the people,” said Richardson.  “We were fully supportive of this challenge as it violates Article 2, Section 33 of the Oklahoma Constitution just like the three bills I challenged in court.”

The Senate’s Democratic caucus isn’t surprised by the Court’s decision.

“The opinion issued today by the Oklahoma Supreme Court finding that the so-called “cigarette fee” passed by the legislature was, in fact, an unconstitutional tax comes as no surprise. We knew this tax was unconstitutional when it was passed by the legislature back in May. We made the same arguments that the Court has articulated in today’s opinion when Republican leadership at the Capitol was playing partisan political games and pushing this desperate revenue measure through during the last hours of the 2017 regular session,” said Senate Minority Leader Senator John Sparks.

He believes a Special Session is eminent.

“We need to approach a special session thoughtfully with real plans for revenue measures that can fill the $215 million budget hole which has been created at the Oklahoma Department of Mental Health and Substance Abuse Services, the Oklahoma Healthcare Authority and the Department of Human Services. We need to set clear priorities, take hard votes and make tough choices with all revenue options on the table for open, transparent discussion and debate. This is a time for cooperation and compromise. This is the time for a plan of action, accountability and real results. This is what our constituents demand of us and what they deserve from us with no exceptions and no excuses,” said Sparks.

If a Special Session is called, some advocates are calling for a wider scope than just filling in the gap created by the fee being struck down. The Stand for Children Oklahoma advocacy group wants teachers to get the raise they were promised.

“Today’s ruling gives Governor Fallin an incredible opportunity to lead on the issue of teacher pay and investments in education. She should immediately call a special session and instruct the Legislature to find additional revenue to fix the broken budget and come up with a plan that pays for a much needed teacher pay raise and investments in education to help restore cuts to our schools,” said Stand for Children Oklahoma Executive Director Amber England.

“Lawmakers broke their promise to our teachers passing an unconstitutional budget and adjourning without passing a teacher pay or investing in education. Their inaction has meant record number of emergency certifications and teachers literally panhandling for money to buy supplies for their classrooms.

“By calling a special session that compels the legislature to address teacher pay and investments in education, our governor can show true leadership and leave a legacy that under her watch, Oklahoma did right by our schools and our teachers,” England said.



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  1. Cheryl, 11 August, 2017

    And is anyone surprised? NO!!! This was not about health, saving people’s lives, or anything else. It was clearly a tax increase! The people clearly spoke with SQ 640 – don’t raise taxes!

  2. Vernon Woods, 11 August, 2017

    We can endure rough roads and traffic congestion much more than the citizens needing medical services noted in this post. I’m sure that other departments need less funds in order to ensure that the departments noted provide personal services for those in most need.

    Air-head Fallin and the idiots in the capitol need to cease enacting obviously deceptive and unconstitutional legislation in order to create a faux budget – and cost us 35k a day.

    People are more important than physical infrastructure – get your priorities corrected before you take the state lower in the pit.

  3. Jimbo, 12 August, 2017

    Has any Oklahoma Legislator EVER passed a High School civics class. They should be required to pass a civics test before they can be sworn in.


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