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Hilburn v. Enerpipe Ltd.

Supreme Court of Kansas

June 14, 2019

Diana K. Hilburn, Appellant,
v.
Enerpipe Ltd., Appellee.

         SYLLABUS

         Section 5 of the Kansas Constitution Bill of Rights declares, "The right of trial by jury shall be inviolate." The quid pro quo test that has been applied to analyze challenges under section 18 of the Kansas Constitution Bill of Rights is inapplicable to challenges under section 5. The noneconomic damages cap under K.S.A. 60-19a02 violates the right protected by section 5, because it intrudes upon the jury's determination of the compensation owed personal injury plaintiffs to redress their injuries.

         Review of the judgment of the Court of Appeals in 52 Kan.App.2d 546, 370 P.3d 428 (2016).

          Appeal from Sedgwick District Court; Timothy H. Henderson, judge.

          Thomas M. Warner, Jr., of Warner Law Offices, P.A., of Wichita, argued the cause and was on the briefs for appellant.

          Andrew D. Holder, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and Justice B. King, of the same firm, and Kelly A. Ricke, of the same firm, of Overland Park, were with him on the briefs for appellee.

          Toby Crouse, solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for intervenor Kansas Attorney General Derek Schmidt.

          Timothy J. Finnerty and Bryan R. Kelly, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, were on the brief for amicus curiae Kansas Association of Defense Counsel.

          James D. Oliver and Scott C. Nehrbass, of Foulston Siefkin LLP, of Overland Park, and Clayton Kaiser, of the same firm, of Wichita, were on the brief for amicus curiae Kansas Chamber of Commerce and Industry, Inc.

          David R. Morantz, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, and James R. Howell, of Prochaska, Howell & Prochaska, of Wichita, were on the brief for amicus curiae Kansas Trial Lawyers Association.

          DECISION

          BEIER, J.

         This case requires us once again to examine the constitutionality of K.S.A. 60-19a02, which caps jury awards for noneconomic damages in personal injury actions. Plaintiff Diana K. Hilburn argues that the application of K.S.A. 60-19a02 to reduce her jury award of $335, 000 to a judgment of $283, 490.86 violated her rights under section 5 and section 18 of the Kansas Constitution Bill of Rights.

         In Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), a majority of this court upheld the application of the noneconomic damages cap to a medical malpractice plaintiff's jury award in the face of challenges under section 5 and section 18. The Miller majority extended what it described as a "well-entrenched" section 18 quid pro quo analysis to section 5 challenges. Under that test, the Legislature must provide an "adequate and viable substitute when modifying a common-law jury trial right under Section 5 or right to remedy under Section 18." 295 Kan. at 654.

         Today, in this auto-truck accident case, we change course on section 5, declining to apply the quid pro quo test to analyze Hilburn's challenge. Section 5 declares, "The right of trial by jury shall be inviolate." As discussed below in detail, the noneconomic damages cap under K.S.A. 60-19a02 violates Hilburn's right protected by section 5 because it intrudes upon the jury's determination of the compensation owed her to redress her injury. We therefore reverse the Court of Appeals decision affirming the district court, reverse the district court's judgment, and remand this case to district court for entry of judgment in Hilburn's favor on the jury's full award. This decision eliminates any necessity of addressing Hilburn's section 18 claim.

         Factual and Procedural Background

         Hilburn was injured in November 2010 when the car in which she was riding was rear-ended by a semi-truck. Hilburn sued the truck's owner, Enerpipe Ltd., alleging that the truck driver's negligence caused the collision and that Enerpipe was vicariously liable for its driver's actions.

         In its answer to Hilburn's Petition, Enerpipe admitted the driver's negligence and conceded its vicarious liability.

         The case proceeded to a trial on damages, after which a jury awarded Hilburn $335, 000 in damages comprising $33, 490.86 for medical expenses and $301, 509.14 for noneconomic losses.

         Defense counsel prepared a journal entry of judgment against Enerpipe for $283, 490.86 because, "pursuant to K.S.A. 60-19a02(d), judgment must be entered in the amount of $250, 000 for all of Diana K. Hilburn's noneconomic loss." Hilburn objected on the ground that K.S.A. 60-19a02 is unconstitutional. She alleged violations of sections 1, 5, and 18 of the Kansas Constitution Bill of Rights, as well as the jury trial and due process guarantees of the United States Constitution.

         The district court judge acknowledged that Hilburn's case was distinguishable from Miller, which was a medical malpractice case, but he ultimately decided the constitutional issues in defendant's favor. The judge accepted Enerpipe's argument that there was an adequate substitute remedy for Hilburn's loss of any section 5 or section 18 rights, just as mandatory medical malpractice insurance had constituted an adequate substitute remedy in Miller. He relied on federal law mandating that a motor carrier operating in interstate commerce must maintain a minimum level of liability insurance, see 49 U.S.C. § 13906(a)(1) (2012); on Kansas law and regulation adopting the federal minimum liability requirements, see K.S.A. 2010 Supp. 66-1, 108b; K.A.R. 82-4-3n (2014 Supp.); and on Kansas' no-fault auto insurance regime under the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. (KAIRA); see also K.S.A. 40-3107(e)-(f) (requiring all policies contain minimum levels of personal injury protection benefits). The district judge entered a $283, 490.86 judgment for Hilburn.

         Hilburn appealed to the Court of Appeals. In her brief, Hilburn asserted a facial challenge to the damages cap under section 5, asserting that the quid pro quo test should not be applied to analyze that claim. In addition, she argued that the cap violated section 18 because the Legislature had not provided a suitable or sufficient substitute remedy. According to Hilburn, the two necessary prongs of the quid pro quo test were unmet: The noneconomic damages limitation was not reasonably necessary in the public interest, "as applied" to her; and the Legislature failed to provide an adequate substitute remedy for impairment of her constitutional rights.

         The Court of Appeals panel rejected Hilburn's arguments and affirmed. See Hilburn v. Enerpipe, Ltd., 52 Kan.App.2d 546, 560, 370 P.3d 428 (2016). Believing itself bound by the precedent of Miller, the panel summarily declined Hilburn's invitation to reexamine the threshold legal issue of whether the quid pro quo test should apply to section 5. 52 Kan.App.2d at 554.

         The panel then turned to the first prong of the quid pro quo test for both section 5 and section 18 and determined that it had been satisfied. Modification of the right to jury trial under section 5 and the common-law right to remedy under section 18 was "'reasonably necessary in the public interest to promote the public welfare, '" because "the damages cap operates in a broader scheme of mandatory insurance and the State maintains an interest in that insurance remaining available and affordable to compensate accident victims." 52 Kan.App.2d at 554, 556 (quoting Miller, 295 Kan. at 657).

         The panel also concluded that the "'more stringent'" second prong of the quid pro quo test, that is, adequacy, had been satisfied because mandatory insurance for motor carriers guaranteed "a reliable source of recovery" for victims in accidents involving trucks. Hilburn, 52 Kan.App.2d at 556, 558. The panel relied on federal and state mandatory motor vehicle insurance laws and KAIRA.

         Hilburn petitioned this court for review, which was granted.

         The Kansas Attorney General intervened after initial oral argument in this case, pursuant to K.S.A. 2018 Supp. 75-764. The Attorney General, like Enerpipe, argued that the quid pro quo test had been satisfied for both section 5 and section 18. But, like Hilburn, he questioned the applicability of the test to section 5, arguing that "legislative restrictions on remedies do not violate the right to trial by jury." The Attorney General also asked this court to reconsider whether a statute alleged to violate section 18 must satisfy the quid pro quo test.

         Discussion

         Preservation

         As a preliminary matter, we take up whether Hilburn preserved her challenge to the applicability of the quid pro quo test for section 5 analysis.

         The version of Kansas Supreme Court Rule 8.03(a)(4)(C) in effect at the time Hilburn filed her petition for review required that such a petition contain a "statement of the issues decided by the Court of Appeals of which review is sought" and said that this court would "not consider issues not presented or fairly included in the petition." Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79). Hilburn's petition focused exclusively on whether the Court of Appeals correctly held that the quid pro quo test was satisfied; it did not separately list as an issue or subissue whether the quid pro quo test applied in analyzing a section 5 claim. However, the same rule subsection that purported to limit the number and identity of issues that could be decided on petition for review also explicitly allowed us to "address a plain error not presented." Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79). And, in civil cases such as this, a different subsection of Supreme Court Rule 8.03 permitted but did not require us to consider "other issues that were presented to the Court of Appeals and that the parties have preserved for review." Supreme Court Rule 8.03(h)(1) (2015 Kan. Ct. R. Annot. 81).

         Hilburn argued in the district court that her section 5 jury trial right was violated by the noneconomic damages cap, preserving the necessary subissue on the proper legal test to determine the existence of a violation. Her brief to the Court of Appeals challenged whether the quid pro quo test should apply in analysis of her section 5 claim. Indeed, the Court of Appeals panel decided the issue in Enerpipe's favor. See Hilburn, 52 Kan.App.2d at 554. Once Hilburn's petition for review was granted, she argued in her supplemental brief to this court that the "'inviolate' constitutional right to trial by jury should not be impaired by the judicial creation of a quid pro quo substitute remedy" and "urge[d] this court on review to strictly construe Section 5 to its simple, unambiguous meaning and not engage in the judicial creation of exceptions to this 'inviolate' right." In Enerpipe's supplemental brief, filed the same day, it argued we should continue to apply the quid pro quo test in a section 5 analysis. It advanced this argument again in its response to Hilburn's supplemental brief. As mentioned, the Attorney General, as intervenor, also has dealt with the applicability of quid pro quo analysis in cases alleging section 5 violations.

         Supreme Court Rule 8.03 has since been amended, effective July 1, 2018, in part to address the inherent tension in the language that was in effect when Hilburn filed her petition for review. See Supreme Court Rule 8.03 (2019 Kan. S.Ct. R. 53). We are satisfied, however, that the issue of whether the quid pro quo test applies to analysis of Hilburn's section 5 claim is properly before us under the old rule. It was preserved in the district court, argued and decided in the Court of Appeals, and addressed by both parties and the intervenor before us.

         Standard of Review

         The core substantive issue before us is whether K.S.A. 60-19a02 is constitutional. "Whether a statute is constitutional is a question of law." Board of Johnson County Comm'rs v. Jordan, 303 Kan. 844, 858, 370 P.3d 1170 (2016). We have often said that "before a statute may be struck down, the constitutional violation must be clear. The statute is presumed to be constitutional, and all doubts are resolved in favor of upholding it. If a court can find any reasonable way to construe the statute as valid, it must." Board of Johnson County Comm'rs, 303 Kan. at 858; see also State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 (2009) ("Whenever a court considers the constitutionality of a statute, the separation of powers doctrine requires the court to presume the statute is constitutional.").

         Recently, however, we pared back this presumption of constitutionality in cases dealing with "fundamental interests" protected by the Kansas Constitution. See Hodes & Nauser, MDs v. Schmidt, 309 Kan. 611, 673-74, 440 P.3d 461 (2019). In such cases, the presumption of constitutionality does not apply.

         Section 5 of the Kansas Constitution Bill of Rights states that "[t]he right of trial by jury shall be inviolate." We have previously acknowledged that "[t]his right is 'a basic and fundamental feature of American jurisprudence.'" Miller, 295 Kan. at 647 (quoting Gard v. Sherwood Construction Co, 194 Kan.541, 549, 400 P.2d 995');">400 P.2d 995 [1965]) "'It is a substantial and valuable right and should never be lightly denied The law favors trial by jury, and the right should be carefully guarded against infringements'" Miller, 295 Kan.at 647 (quoting Gard, 194 Kan.at 549); see also Miller, 295 Kan.at 696 (Beier, J, concurring in part and dissenting in part) (right is more than right to impanel a jury, it is a process that includes: right to assemble a jury, right to present evidence, right to have the jury determine and award damages, and right to a judgment for the full damages as determined by jury and supported by evidence).

         Hence, we have little difficulty deciding that the right protected by section 5 is a "fundamental interest" expressly protected by the Kansas Constitution Bill of Rights. As such, we will not apply a presumption of constitutionality to challenges brought under section 5.

         The Challenged Statute

         K.S.A. 60-19a02(a) defines "'personal injury action'" as "any action seeking damages for personal injury or death." Further,

"(b) In any personal injury action, the total amount recoverable by each party from all defendants for all claims for noneconomic loss shall not exceed a sum total of $250, 000.
"(c) In every personal injury action, the verdict shall be itemized by the trier of fact to reflect the amount awarded for noneconomic loss.
"(d) If a personal injury action is tried to a jury, the court shall not instruct the jury on the limitations of this section. If the verdict results in an award for noneconomic loss which exceeds the limit of this section, the court shall enter judgment for $250, 000 for all the party's claims for noneconomic loss. . . ." K.S.A. 60-19a02.

         The amount of the cap has since been amended upward and is currently $325, 000. It is set to increase again, to $350, 000, on July 1, 2022. But these changes are inapplicable to Hilburn and thus not at issue here. See K.S.A. 2018 Supp. 60-19a02(d).

         The Test for Section 5 Claims

         "Section 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence." Miller, 295 Kan. at 647 (citing State ex rel. v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310');">12 P. 310 [1886]); see also Miller, 295 Kan. at 696 (Beier, J., concurring in part and dissenting in part) ("This language preserves the right to jury trial in those causes of action that were triable to a jury under the common law extant in 1859, when the Kansas Constitution was ratified by the people of our state."); In re L.M., 286 Kan. 460, 476, 186 P.3d 164 (2008) (Luckert, J., concurring) ("[T]he uncompromising language of [section 5] applies if an examination of history reveals there was a right at common law to a jury trial under the same circumstances.").

         We have consistently held that the determination of noneconomic damages was a fundamental part of a jury trial at common law and protected by section 5. See Miller, 295 Kan. at 647 (no dispute that determination of damages, including noneconomic damages, was question of fact for jury in common-law tort actions); see also Smith v. Printup, 254 Kan. 315, 324, 866 P.2d 985 (1993) ("There is no question in Kansas that the right to trial by jury includes the right to have a jury determine actual damages."); Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 358, 789 P.2d 541 (1990) (Samsel II) (jury trial right includes right to have jury determine damages in personal injury action), disapproved of on other grounds by Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991); Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 343, 757 P.2d 251 (1988) (jury's traditional role is to decide issues of fact, determination of damages is issue of fact; thus jury's responsibility to determine damages), disapproved of on other grounds by Bair, 248 Kan. 824. Accord Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633');">376 S.W.3d 633, 640 (Mo. 2012) (Missouri Constitution's "inviolate" right to jury includes right to have jury determine facts, including noneconomic damages).

         The noneconomic damages cap in K.S.A. 60-19a02 clearly implicates section 5's "inviolate" jury trial right, as that right has historically been understood. The next question is whether it impairs that right by interfering with the jury's fundamental function. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 376, 116 S.Ct. 1384, 134 L.Ed.2d 577 (1996) (after determining applicability, court considers impairment; Seventh Amendment jury trial analysis asks whether "particular trial decision must fall to the jury . . . to preserve the substance of the common-law right as it existed" at ratification); 9 Wright & Miller, Federal Practice & Procedure: Civil § 2302.4 (2008) (analysis of whether procedure violates Seventh Amendment "must look to whether that procedure obstructs or interferes with the jury's substantive role as the fact-finder").

         We hold the statute necessarily infringes on the constitutional right.

"'The individual right to trial by jury cannot "remain inviolate" when an injured party is deprived of the jury's constitutionally assigned role of determining damages according to the particular facts of the case.' Watts, [376 S.W.3d at 640.] Giving the jury 'a practically meaningless opportunity to assess damages simply "pays lip service to the form of the jury but robs it of its function."' [376 S.W.3d at 642] (quoting Sofie v. Fibreboard Corp., 112 Wash.2d 636');">112 Wash.2d 636, 655, 771 P.2d 711');">771 P.2d 711 [1989] [en banc]); see also Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 735-36, 691 S.E.2d 218 (2010) (striking down damages cap for infringing state constitution's inviolate right to jury trial); Lakin v. Senco Products, Inc., 329 Or. 62, 78-79, 987 P.2d 463, 473 (1999) (same); Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 164 (Ala. 1991) (same); Smith v. Department of Ins., 507 So.2d 1080, 1089 (Fla. 1987) (same); Arneson v. Olson, 270 N.W.2d 125, 136 (N.D. 1978) (same)." Miller, 295 Kan. at 698 (Beier, J., concurring in part and dissenting in part).

         Despite this infringement of section 5's jury trial right by K.S.A. 60-19a02, a majority of this court held in Miller that any impairment was permissible as long as the two-part due process-based quid pro quo test applicable in section 18 analysis was satisfied. But the overlay of the quid pro quo test "transforms what the people made inviolate into something violable at will." 295 Kan. at 698-99 (Beier, J., concurring in part and dissenting in part). The court's previous decision to apply the quid pro quo test to section 5 "overlook[ed] long-standing limitations on the legislature's power to modify the common law; overestimate[d] the persuasive force of prior Kansas cases; and shortcut[] the necessary cost-benefit evaluation" necessary when examining whether to keep or jettison originally erroneous precedent. 295 Kan. at 699 (Beier, J., concurring in part and dissenting in part).

         In Miller, the majority ignored

"the plain 'inviolate' language chosen by Kansas citizens for Section 5's jury trial provision. Inviolate means not 'disturbed or limited.' In re Rolfs, 30 Kan. [758, ] 762[, 1 P. 523 (1883)]. It is defined as '"[n]ot violated; unimpaired; unbroken; unprofaned."' Samsel II, 246 Kan. at 368 (Herd, J., dissenting); see also Watts, [376 S.W.3d at 638] ('inviolate' means free from change or blemish, pure, unbroken) (citing Webster's Third New International Dictionary 1190 [1993]); Sofie[ v. Fibreboard Corp.], 112 Wash.2d [636, ] 656, [771 P.2d 711 (1989) (en banc)] (citing same) ('inviolate' connotes deserving of highest protection, free from assault, trespass, untouched, intact). This inviolate right to jury trial is 'a basic and fundamental feature of American jurisprudence.' Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995');">400 P.2d 995 (1965); see also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 340-41, 343, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting) (right so important that denial of 'right of jury trial was listed among the specific offensive English acts denounced in the Declaration of Independence'; right a 'bulwark' of liberties, so essential that it '"was probably the only one universally secured by the first American state constitutions"') (quoting Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 [1960]).
"The language of Section 5 is 'uncompromising.' In re L.M., 286 Kan. at 476 (Luckert, J., concurring). Section 5 imposes a 'clear, precise and definite limitation[] upon the powers of the legislature.' Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 665, 3 P. 284 (1884). It was chosen precisely because the people recognized that the right to jury trial required protection from legislative efforts to modify it in ways that destroy the substance of that right. See Wyandotte Const. Convention 462-63 (July 25, 1859) ('[T]hat very valuable right we propose to secure to the citizen in retaining the right of trial by jury, intact, will be accomplished by the words, "The right of trial by jury shall be inviolate."'); see also State ex rel. v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310');">12 P. 310 (1886) (by preserving the right as 'inviolate,' framers intended that the right of trial by jury 'shall be and remain as ample and complete as it was at the time when the [C]onstitution was adopted')." Miller, 295 Kan. at 699-700 (Beier, J., concurring in part and dissenting in part).

         As all members of this court acknowledged in Miller, it is within the power of the Legislature to modify the common law. See 295 Kan. at 648; 295 Kan. at 705 (Beier, J., concurring in part and dissenting in part). But "what may have been a mere common-law right to jury trial on the day before ratification of Section 5 was no longer a mere common-law right from ratification onward." 295 Kan. at 705 (Beier, J., concurring in part and dissenting in part).

"Ratification expressed the people's choice to elevate the common-law right to jury trial to enumerated constitutional status. That status put it beyond everyday legislative meddling. The people entrusted juries with the task of deciding damages. The legislature's unwillingness to [entrust juries with deciding damages]. . . requires endorsement by the people before it can enjoy the force of law." 295 Kan. at 705-06 (Beier, J., concurring in part and dissenting in part).
As the United States Supreme Court emphasized long ago:
"It is said that the common law is susceptible of growth and adaptation to new circumstances and situations, and that the courts have power to declare and effectuate what is the present rule in respect of a given subject without regard to the old rule; and some attempt is made to apply that principle here. The common law is not immutable, but flexible, and upon its own principles adapts itself to varying conditions. [Citation omitted.] But here, we are dealing with a constitutional provision which has in effect adopted the rules of the common law, in respect of trial by jury, as these rules existed in 1791. To effectuate any change in these rules is not to deal with the common law, qua common law, but to alter the Constitution. The distinction is fundamental, and has been clearly pointed out by Judge Cooley in 1 Const. Limitations, 8th Ed., 124." Dimick v. Schiedt, 293 U.S. 474, 487, 55 S.Ct. 296, 79 L.Ed. 603 (1935).

See also Watts, 376 S.W.3d at 643 (allowing Legislature to modify constitutional rights makes protections "of only theoretical value . . . [s]uch rights would not be rights at all but merely privileges that could be withdrawn"); Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 736, 691 S.E.2d 218 (2010) (general legislative authority to modify common law does not permit abrogation of constitutional rights); Sofie v. Fibreboard Corp., 112 Wash.2d 636');">112 Wash.2d 636, 652-53, 771 P.2d 711');">771 P.2d 711 (1989).

"Justice Herd made the same point in his dissent in Samsel II:
"'Giving the legislature the authority to limit damages by changing the common law, or otherwise, violates § 5 of the Kansas Bill of Rights by taking the damage question away from the jury. A written constitution is adopted for the purpose of limiting the power of government. Providing that trial by jury shall be inviolate is a limitation on government as a protection of individual rights. There is no question the legislature has the power to change or abolish the common law. That, however, does not change the Kansas Constitution. A later change in the common law does not affect the meaning of § 5. Its meaning was fixed in 1859. The proper method of constitutional change is by amendment, not legislation.' 246 Kan. at 369-70 (Herd, J., dissenting).
"Even the case that is generally considered the source of recognition of legislative power to modify common law, Munn v. Illinois, 94 U.S. 113, 134, 24 L.Ed. 77 (1876), is explicit about constitutional limitations on the power: 'Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations.' See also In re Tax Appeal of ANR Pipeline Co., 276 Kan. 702, 725, 79 P.3d 751 (2003) (Kansas Constitution limits otherwise plenary power of legislature); Harris v. Shanahan, 192 Kan. 183, 207, 387 P.2d 771 (1963) ('It is axiomatic that [any] act of the legislature[] is subject to the limitations contained in the Constitution, and where such act exceeds the bounds of authority vested in the legislature and violates the limitations of the Constitution, it is null and void and it is the duty of courts to so declare.'); Lemons v. Noller, 144 Kan. 813, 817, 63 P.2d 177 (1936) (citing State v. Weiss, 84 Kan. 165, 168, 113 P. 388');">113 P. 388 [1911]; Ratcliff v. Stock-yards Co., 74 Kan. 1, 16, 86 P. 150 [1906]) (legislature free to act except where Kansas Constitution restricts)." Miller, 295 Kan. at 706-07 (Beier, J., concurring in part and dissenting in part).

         In Miller, a majority of this court relied on stare decisis to ground its application of the quid pro quo test to analysis of a section 5 jury trial challenge. In general, a "court of last resort will follow the rule of law it established in its earlier cases unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent." Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010).

         But this rule "excuses us from following precedent that is 'plainly and unmistakably' the result of mistake and error.' Prowant, Administratrix v. Kings-X, 184 Kan. 413, 416-17, 337 P.2d 1021 (Jackson, J., dissenting), rev'd on rehearing, 185 Kan. 602, 347 P.2d 254 (1959)." Miller, 295 Kan. at 707-08 (Beier, J., concurring in part and dissenting in part); see also Arizona v. Gant, 556 U.S. 332, 348, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (Stare decisis does not require adherence to "a past decision when its rationale no longer withstands 'careful analysis.'") (quoting Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 [2003]); Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009) ("This court is not inexorably bound by precedent; it will reject rules that were originally erroneous or are no longer sound.").

         Moreover, "stare decisis is at its weakest in constitutional cases because our mistakes cannot be easily corrected by ordinary legislation." Miller, 295 Kan. at 708 (Beier, J., concurring in part and dissenting in part) (citing State v. Hoeck, 284 Kan. 441, 463, 163 P.3d 252');">163 P.3d 252 [2007]); see also Agostini v. Felton, 521 U.S. 203, 235, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (erroneous court interpretations in such cases "can be altered only by constitutional amendment or by overruling our prior decisions"); Watts, 376 S.W.3d at 644 (if people disagree with court interpretation of constitution, opportunity to change organic law more remote than opportunity to repeal, alter statute; "'[m]oreover, no set of judges ought to have the right to tie the hands of their successors on constitutional questions, any more than one [set of legislators] should those of its successors on legislative matters'") (quoting Mountain Grove Bank v. Douglas County, 146 Mo. 42, 54, 47 S.W. 944');">47 S.W. 944 [Mo. 1898]). And strict application of stare decisis must be tempered in constitutional cases because

"[o]ur allegiance must be to the Constitution itself, 'not what we have said about it.' Graves v. N.Y. ex rel. O'Keefe, 306 U.S. 466, 491-92, 59 S.Ct. 595, 83 L.Ed. 927 (1939) (Frankfurter, J., concurring); see also Harris v. Anderson, 194 Kan. 302, 314, 400 P.2d 25 (1965) (Fatzer, J., dissenting) (quoting 3 Warren, The Supreme Court in United States History, p. 470: '"However the court may interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the court. 'To the decision of an underlying question of constitutional law no . . . finality attaches. To endure, it must be right.'"')." Miller, 295 Kan. at 708-09 (Beier, J., concurring in part and dissenting in part).

         A careful examination of the majority opinion in Miller and the precedent it relied on reveals that application of a quid pro quo test to section 5 claims rests on a shaky foundation.

"The [Miller majority] relies on Kansas Malpractice Victims Coalition and Samsel II, both of which applied the quid pro quo test to excuse impairment of the right to jury trial. Samsel II, 246 Kan. at 358, 362; Kansas Malpractice Victims Coalition, 243 Kan. at 344-52. Samsel II followed Kansas Malpractice Victims Coalition on this point, Samsel II, 246 Kan. at 351-62; and Kansas Malpractice Victims Coalition, in turn, relied on Manzanares[ v. Bell, 214 Kan. 589, 522 P.2d 1291');">522 P.2d 1291 (1974)], saying that Manzanares 'found, in substance, that the injured person entitled to benefits under the statute received a sufficient quid pro quo for the limitation placed on his right to a jury trial.' Kansas Malpractice Victims Coalition, 243 Kan. at 344. In none of these three cases, however, did this court see fit to explain how or why the quid pro quo test, a due process-based rule originally relating to whether legislation impairs a vested right, can excuse legislation's impairment of a constitutional right to jury trial.
"Moreover, it appears that the initial reliance Kansas Malpractice Victims Coalition placed on Manzanares in order to apply quid pro quo arose out of a misreading. Nowhere in Manzanares' one-paragraph discussion of the right to jury trial claim before it did this court 'require that the legislature provide an adequate substitute of the right to trial by jury[.]' Note, Testing the Constitutionality of Tort Reform with a Quid Pro Quo Analysis: Is Kansas' Judicial Approach an Adequate Substitute for a More Traditional Constitutional Requirement?, 31 Washburn L.J. 314, 332 (1992)." Miller, 295 Kan. at 709 (Beier, J., concurring in part and dissenting in part).

         In addition, application of a quid pro quo test to section 5 claims cannot be bolstered by reaching still farther back to Shade ...


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