Another Tort Reform Law Goes Down – Violates Constitutional Rights

One interesting aspects about tort “reform” legislation is that it highlights the very reason why a strong judicial system is necessary–to protect the rights of citizens. Even when legislature move to limit their rights to the very judicial system itself, courts can stand firm and refuse to allow such encroachment when constitutions have been breached.

Last week yet another state Supreme Court–this time Oklahoma–struck down a tort “reform” law for breaching the state’s own constitution. It is a textbook example of how legislative overreach is checked by a clear-sighted judicial system free of unnecessary encumbrances
The Case
The appellant in the case–the plaintiff challenging the law–argued that part of a measure (12 O.S. 2011 §9) violated article 5 §46 of the state constitution. The law in question required that plaintiffs in cases alleging professional negligence (like medical malpractice cases) file an “affidavit of merit” with the initial filing.

The plaintiff’s original malpractice lawsuit involved claims that a surgeon negligently cut a nerve on his arm, resulting in permanent injury. However, the case was dismissed because the plaintiff did not attach the “affidavit of merit” to the complaint. The plaintiff appealed arguing the laws unconstitutionality.

The Ruling
The state Supreme Court took up the case recently, and they issued a sweeping ruling in the plaintiff’s favor. A full copy of the court opinion can be found online here.

Essentially the court noted that the law failed the constitutional test on two grounds. First, the law violates one unique aspect of the state constitution which does not allow certain “special laws” to be passed dealing with at least 28 subject-areas. By requiring an affidavit to be filed in some negligence cases and not others, the legislature violated those requirements by passing a special law where it does not have the authority. The state constitution does not allow treating two types of cases differently in this way. The court noted that “the shortcoming of a special law is that it does not embrace all the classes that is should naturally embrace, and that it creates preference and established inequality.”

Second, in addition to breaching the “special law” rule, the court also found that the affidavit law violated another section of the state constitution which prohibits unconstitutional economic burdens on court access. The law enacts a high financial hurdle, because securing the affidavit requires paying an expert witness to provide testimony–even before filing the case. Those plaintiffs who are unable to pay for that expert testimony are essentially denied their ability to seek justice simply as a result of their financial status.

The state’s constitution–like those found in similar documents throughout the country–requires that courts be open to everyone for speedy remedy for every wrong and “shall be administered without sale, denial, delay, or prejudice.” Trying to increase the cost of using those courts via ancillary “requirements” like the affidavit are just as wrong as charging an exorbitant fee to file a complaint. Both cannot be tolerated.

The state Supreme Court’s decision in this case should be applauded. Hopefully more of those involved in legislative matters understand the principles underlying these decisions and refrain from pursuing laws which clearly violated basic constitutional principles.

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