¶1dissenting:
¶2{1 Even though I concurred in result in Zeier v. Zimmer, Inc., 2006 OK 98, 152 P.3d 861, I must respectfully dissent from today's pronouncement. There are two major differences in the statute which this Court found unconstitutional in Zeter and in title 12, seetion 19 of the 2011 Oklahoma Statutes which is before us today. First, section 19 is not limited to medical negligence as was the provision in Zeier but includes all professional negligence. 12 0.S8.2011, § 19(A)(1). See-ond, it provides for an indigeney exemption to the certificate of merit requirement. Id. § 19(D).
¶3{2 In Zeter, this Court struck down seetion 1-1708.1E of the Affordable Access to Health Care Act, 63 O.S8.8upp.20083, § I-1708.1E, which required a certificate of merit only in medical malpractice actions. The Legislature responded to Zeer by enacting title 12, section 19 of the Oklahoma Statutes, which expanded the certificate of merit requirement to all professional negligence. Now section 19 is under attack in this appeal as a special law in violation of article 5, section 46 of the Oklahoma Constitution.
¶4T3 In construing section 19, this Court is guided by the overarching principle that every statute is presumed constitutional and *789will be upheld until its constitutional invalidity is clearly shown. Wilson v. Fallin, 2011 OK 76, ¶ 21, 262 P.3d 741, 748. Further, this Court is to presume that the Legislature has not done a vain and useless act. Surety Bail Bondsmen of Okla., Inc. v. Insurance Comm'r, 2010 OK 73, ¶ 26, 243 P.3d 1177, 1185. Following these principles leads to the conclusion that the Legislature did not intend the term "professional negligence" to have the identical meaning as "medical lability." Rather, consistent with these principles, seetion 19 must be construed as expanding the class to which the certificate of merit requirement applies to include all negligence actions against any professional. Further, this Court itself has taken a more expansive approach by using the term "professional negligence" in reference to actions against lawyers, Leak-Gilbert v. Fahle, 2002 OK 66, 55 P.3d 1054; realtors, Rice v. Patterson, 1993 OK 103, 857 P.2d 71; and engineers, Samuel Roberts Noble Foundation, Inc. v. Vick, 1992 OK 140, 840 P.2d 619.
¶5I 4 It would certainly have been a vain and useless act for the Legislature to enact a statutory provision that this Court had determined to be unconstitutional only three years earlier. By expanding the class of torts requiring a certificate of merit to professional negligence, the Legislature remedies the concerns this Court expressed in Zeter regarding section 1-1708.1E of the Affordable Access to Health Care Act. I would find that title 12, section 19 of the Oklahoma Statutes does not offend article 5, section 46 of the Oklahoma Constitution.
¶6T5 I would likewise find that section 19 does not offend article 2, section 6 of the Oklahoma Constitution. The impediment that this Court found to the cost of procuring an expert's opinion before trial, the Legislature addressed in title 12, section 19(D) by providing for an indigeney exemption and leaving the Judicial Branch with authority to define indigeney. See 20 0.8.2011, § 56. Title 12, section 192 imposes a nonrefundable application fee of $40.00 on a plaintiff seeking an indigeney exemption but this fee can be deferred. If the $40 fee is a constitutional impediment, then striking only the $40.00 fee for the indigency exemption as violative of article 2, section 6, rather than striking down the certificate of merit requirement, gives the appropriate measure of deference to the Legislature. There are other procedures in place to address any impediment of access to the courts: this Court could define indigency in such a manner as to alleviate any monetary obstruction that the certificate of merit requirement creates.
¶7T 6 In deference to the Legislature and the rules of statutory construction, I would construe title 12, section 19 in a way to find that it does not violate article 5, section 46 of the Oklahoma Constitution. I would also exercise this Court's power in as narrow a swath as possible rather than the most extensive.