Wednesday, June 5, 2013
The Oklahoma Supreme Court has held that the requirement of an affidavit of merit in a professional negligence action is an unconstitutional infringement on access to the courts:
The Oklahoma Constitution does not anticipate that litigants will be burdened with the entire bill for maintenance of the court system. The Oklahoma courts were never intended to be self-funded, and the increasing degree to which they have become so is disturbing. Despite our holding in Fent v. State ex. rel. Dep't of Human Services, 2010 OK 2, 236 P.3d 61, the judicial department of government is burdened with collecting fees for thirty seven entities--only seven of which have a relationship to the third branch of government. The Okla. Const. art. 2, §6, guarantees the right of individuals to access the courts, and while litigation does not have to be free and entirely at the public expense, at the very least the provision means that justice cannot be for sale. The idea that money cannot be used as a bar to deny justice long predates the Oklahoma Constitution, and is one of the fundamental values of our legal system.
The Magna Carta, one of the oldest progenitors of American legal principles, states: "We will sell to no man, we will not deny or defer to any man, either justice or right." When the cost of obtaining an affidavit of merit in professional negligence actions is added to the already high and increasingly rising cost of using the court system to resolve disputes, the result is that a line is crossed, and litigation costs go from being merely a hurdle to being an unconstitutional burden on accessing the courts.
The title expresses my views. (Mike Frisch)