Diana K. Hilburn, Appellant,
Enerpipe Ltd., Appellee.
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.
of the judgment of the Court of Appeals in 52 Kan.App.2d 546,
370 P.3d 428 (2016).
from Sedgwick District Court; Timothy H. Henderson, judge.
M. Warner, Jr., of Warner Law Offices, P.A., of Wichita,
argued the cause and was on the briefs for appellant.
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.
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
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
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.
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.
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.
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.
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.
and Procedural Background
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.
answer to Hilburn's Petition, Enerpipe admitted the
driver's negligence and conceded its vicarious liability.
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.
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
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.
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
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.
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).
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.
petitioned this court for review, which was granted.
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.
preliminary matter, we take up whether Hilburn preserved her
challenge to the applicability of the quid pro quo test for
section 5 analysis.
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).
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.
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.
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
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.
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 ) "'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).
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.
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,
"(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.
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.
Test for Section 5 Claims
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 ); 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
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 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").
the statute necessarily infringes on the constitutional
"'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  [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
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
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 ); 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 ).
"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).
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
"Justice Herd made the same point in his dissent in
"'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,
"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 ;
Ratcliff v. Stock-yards Co., 74 Kan. 1, 16, 86 P.
150 ) (legislature free to act except where Kansas
Constitution restricts)." Miller, 295 Kan. at
706-07 (Beier, J., concurring in part and dissenting 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).
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 ); 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.").
"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
); 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
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).
addition, application of a quid pro quo test to section 5
claims cannot be bolstered by reaching still farther back to