Special session needed to bridle unaccountable Court

August 14, 2013

Gov. Mary Fallin announced this week that Oklahoma’s special legislative session on lawsuit reform will begin on September 3. One of the first voices to call for a special session was OCPA distinguished fellow Andrew Spiropoulos, who wrote on June 13:

No fair person can deny that our current court is not a court at all, but an unaccountable political body that, without sufficient legal justification, routinely imposes its political will on the elected branches of government and the people. The latest exercise of partisan overreaching is the court’s evisceration of the comprehensive lawsuit reform legislation enacted in 2009 after years of debate and multiple elections.

In two decisions announced last week, the court, with two justices dissenting, invalidated the entire act. The decision receiving the most attention, involving the state constitution’s single-subject rule, is the less harmful of the two. In theory, the Legislature can remedy any single-subject problem by enacting the same provisions in separate bills.

The other, neglected decision is worse. It invalidates the section requiring those bringing actions for professional negligence to submit an affidavit of merit from an expert. With the same two justices dissenting, the court voided this provision.

In the court’s opinion, it was an unconstitutional special law. This means the legislation arbitrarily distinguished lawsuits against professionals from other negligence claims. It seems this court is unwilling to defer to the self-evidently reasonable judgment that different kinds of lawsuits are not similarly situated, despite the separation-of-powers requirement that it presume legislation valid. Thus, different rules are required. Then, even if the single-subject problem is cured, it’s likely that the court’s anti-lawsuit-reform majority will discover additional pretexts for striking down reform provisions.

I encourage you to read Professor Spiropoulos’s entire column here.