Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund

2018 WI 78

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP2812
COMPLETE TITLE: Ascaris Mayo and Antonio Mayo,
Plaintiffs-Respondents-Cross-
Appellants,
United Healthcare Insurance Company and
Wisconsin State Department of Health Services,
Involuntary-Plaintiffs,
v.
Wisconsin Injured Patients and Families
Compensation Fund,
Defendant-Appellant-Cross-Respondent-
Petitioner,
Proassurance Wisconsin Insurance Company, Wyatt
Jaffe, MD, Donald C. Gibson, Infinity
Healthcare, Inc. and Medical College of
Wisconsin Affiliated Hospitals, Inc.,
Defendants.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 377 Wis. 2d 566, 901 N.W.2d 782
PDC No: 2017 WI App 52 - Published

OPINION FILED: June 27, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 19, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jeffrey A. Conen

JUSTICES:
CONCURRED: R.G. BRADLEY, J., concurs, joined by KELLY, J.
(opinion filed).
DISSENTED: A.W. BRADLEY, J., dissents, joined by
ABRAHAMSON, J. (opinion filed).
NOT PARTICIPATING:

ATTORNEYS:

For the defendant-appellant-cross-respondent-petitioner,
there were briefs filed by Kevin M. St. John, Roisin H. Bell,
John N. Giftos, and Bell Giftos St. John LLC, Madison. There
was an oral argument by Kevin M. St. John.
 For the plaintiffs-respondents-cross-appellants, there was
a brief filed by Susan R. Tyndall, Daniel A. Rottier, James M.
Fergal, and Habush Habush & Rottier, S.C., Madison. There was
an oral argument by Daniel A. Rottier.

An amicus curiae brief was filed on behalf of the Wisconsin
Academy of Family Physicians, the Wisconsin Academy of
Ophthalmology, Inc., the Wisconsin Chapter of the American
College of Emergency Physicians, Inc., the Wisconsin Orthopaedic
Society, the Wisconsin Psychiatric Association, Inc., the
Wisconsin Radiological Society, Inc., the Wisconsin Society of
Anesthesiologists, Inc., and the Wisconsin Society of Plastic
Surgeons, Inc. by Guy DuBeau and Axley Brynelson, LLP, Madison.

An amicus curiae brief was filed on behalf of the State of
Wisconsin by Misha Tseytlin, solicitor general, Brad D. Schimel,
attorney general, and Amy C. Miller, assistant solicitor
general. There was an oral argument by Misha Tseytlin,
solicitor general.

An amicus curiae brief was filed on behalf of Wisconsin
Hospital Association by Sara J. MacCarthy, Timothy W. Feeley,
and Hall, Render, Killian, Heath & Lyman, P.C., Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin
Medical Society and American Medical Association Litigation
Center by Anne Berleman Kearney and Appellate Consulting Group,
Milwaukee.

An amicus curiae brief was filed on behalf of The Physician
Insurers Association of America by Samuel J. Leib, Brent A.
Simerson, Brenden M. Leib, and Leib Knott Gaynor LLC, Milwaukee.

2
 An amicus curiae brief was filed on behalf of Wisconsin
Manufacturers and Commerce by Lucas T. Vebber, Corydon J. Fish,
and Wisconsin Manufacturers and Commerce, Madison.

An amicus curiae brief was filed on behalf of the Wisconsin
Association for Justice by William C. Gleisner, III and Law
Offices of William Gleisner, Brookfield, with whom on the brief
were J. Michael End and End, Hierseman & Crain, LLC, Milwaukee.

An amicus curiae brief was filed on behalf of Wisconsin
Defense Counsel by Justin F. Wallace and Nash, Spindler,
Grimstad, & McCracken, LLP, Manitowoc, with whom on the brief
were Monte E. Weiss, Charles W. Kramer, and Weiss Law Office SC,
Mequon.

An amicus curiae brief was filed on behalf of the American
Tort Reform Association, the Wisconsin Civil Justice Council,
the National Federation of Independent Business, the Chamber of
Commerce of the United States, and the Wisconsin Insurance
Alliance by James A. Friedman, Bryan J. Cahill, and Godfrey &
Kahn, S.C., Madison.

3
 2018 WI 78
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2812
(L.C. No. 2012CV6272)

STATE OF WISCONSIN : IN SUPREME COURT

Ascaris Mayo and Antonio Mayo,

Plaintiffs-Respondents-Cross-
Appellants,

United Healthcare Insurance Company and
Wisconsin State Department of Health Services,

Involuntary-Plaintiffs,

v.
FILED
Wisconsin Injured Patients and Families JUN 27, 2018
Compensation Fund,
Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant-Cross-Respondent-
Petitioner,

Proassurance Wisconsin Insurance Company,
Wyatt Jaffe, MD, Donald C. Gibson, Infinity
Healthcare, Inc. and Medical College of
Wisconsin Affiliated Hospitals, Inc.,

Defendants.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.
 No. 2014AP2812

¶1 PATIENCE DRAKE ROGGENSACK, C.J. Our review considers

whether the legislatively-enacted cap of $750,000 (the cap) on

noneconomic damages for victims of medical malpractice that is

set out in Wis. Stat. § 893.55 (2015-16)1 is unconstitutional

facially or as applied, based on equal protection and due

process grounds. In reliance on Ferdon ex rel. Petrucelli v.

Wis. Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573, 701

N.W.2d 440, the court of appeals concluded that the cap was

facially unconstitutional.2 The court of appeals did not address

whether § 893.55 was unconstitutional as applied to Ascaris and

Antonio Mayo (the Mayos). However, the circuit court had

concluded that the $750,000 cap on noneconomic damages was

unconstitutional as applied to the Mayos.3

¶2 We conclude that rational basis is the proper standard

by which to judge the constitutionality of Wis. Stat. § 893.55;

that § 893.55 is facially constitutional and constitutional as

applied to the Mayos; and that Ferdon erroneously invaded the

province of the legislature and applied an erroneous standard of
review. Accordingly, we reverse the court of appeals' decision,

overrule Ferdon, and conclude that the $750,000 cap on

1
All references to Wisconsin Statutes are to the 2015-16
version unless otherwise noted.
2
Mayo v. Wis. Injured Patients and Families Comp. Fund,
2017 WI App 52, ¶1, 377 Wis. 2d 566, 901 N.W.2d 782.
3
The Honorable Jeffrey A. Conen of Milwaukee County
presided.

2
 No. 2014AP2812

noneconomic damages in medical malpractice judgments and

settlements is constitutional both facially and as applied to

the Mayos.

¶3 Therefore, we reverse the court of appeals and remand

to the circuit court to impose the $750,000 cap on noneconomic

damages.

I. BACKGROUND

A. The Guaranteed Payment System

¶4 In 1975, as a result of what was deemed to be a

"medical malpractice crisis," the legislature established a

comprehensive system of guaranteed payments and controlled

liability. The Wisconsin Injured Patients and Families

Compensation Fund (the Fund) was created at that time as part of

the legislature's comprehensive system. Wis. Patients Comp.

Fund v. Wis. Health Care Liab. Ins. Plan, 200 Wis. 2d 599, 607,

547 N.W.2d 578 (1996) (hereinafter WHCLIP). In addition to

guaranteeing payment and controlling liability, the legislature

established required procedures for processing and paying claims
that alleged medical malpractice. § 1, ch. 37, Laws of 1975.

¶5 Chapter 655 "provide[s] the exclusive procedure for a

person to pursue a malpractice claim against a health care

provider." Rouse v. Theda Clark Med. Ctr., Inc., 2007 WI 87,

¶35, 302 Wis. 2d 358, 735 N.W.2d 30. Under Wisconsin's

comprehensive system, each health care provider must maintain

liability coverage of at least $1 million per claim and

3
 No. 2014AP2812

$3 million for all claims in a given policy year, Wis. Stat.

§ 655.23(4)(b)2, or qualify as a self-insurer, § 655.23(3)(a).4

In addition to maintaining liability insurance, health care

providers are required to participate in the Fund by paying

annual assessments. Wis. Stat. § 655.27(3)(a).

¶6 The combination of required insurance and required

assessments by the Fund, which health care providers must pay,

creates a mechanism for guaranteed payment to those who are

injured by medical malpractice. This is so because the Fund

pays medical malpractice claims in excess of the health care

provider's insurance coverage amount. Wis. Stat. § 655.27(1).

"In other words, the Fund is liable for payments 'after a health

care provider's statutorily mandated liability coverage limits

are exceeded.'" Wis. Med. Soc'y v. Morgan, 2010 WI 94, ¶12, 328

Wis. 2d 469, 787 N.W.2d 22 (quoting WHCLIP, 200 Wis. 2d at 613).5

¶7 In regard to those injured by medical malpractice, the

Fund guarantees payment of 100 percent of all settlements and

judgments for economic damages arising from medical malpractice.
However, payments by the Fund for noneconomic damages are

4
Health care providers employed by the state, county,
municipality and federal government are, however, exempt from
the requirements of Chapter 655. See Wis. Stat. § 655.003(1).
5
The Fund also covers claims made against any provider's
employee who is acting within the scope of his or her employment
in providing health care services, ensuring that any person
seeking care from a covered provider is protected under the
Fund. Wis. Stat. § 655.005(2).

4
 No. 2014AP2812

limited to $750,000 for each claim.6 Wis. Stat. § 893.55(4)(d)1.

So long as health care providers maintain the required insurance

and annually contribute to the Fund, they are not personally

liable for damages arising from medical malpractice. Wis. Stat.

§ 655.23(5).7

¶8 From the time the Fund was created, July 1, 1975,

until March of 2005,8 the Fund paid approximately $586,300,000 in

claims. Morgan, 328 Wis. 2d 469, ¶21. By December 31, 2007,

the total claim payments had increased to $666,100,000. Id.

Through December 31, 2017, the fund has paid approximately

$866,100,000 in claims. 2017 Functional and Progress Report,

Wis. Office of the Comm'r of Ins. (Feb. 23, 2018), https://

oci.wi.gov/Documents/Funds/IPFCF2017FunctionalandProgressReport.

pdf. The number of Fund claims begun in any given year

fluctuates. In 2013-14, there were 83 pending potential claims

6
"Noneconomic damages" are defined as "moneys intended to
compensate for pain and suffering; humiliation; embarrassment;
worry; mental distress; noneconomic effects of disability
including loss of enjoyment of the normal activities, benefits
and pleasures of life and loss of mental or physical health,
well-being or bodily functions; loss of consortium, society and
companionship; or loss of love and affection." Wis. Stat.
§ 893.55(4)(a).
7
The statute directs that a provider is liable for "no more
than the limits expressed in sub. (4) or the maximum liability
limit for which the health care provider is insured, whichever
is higher." Wis. Stat. § 655.23(5).
8
Our decision in Ferdon which eliminated the previous
noneconomic damages cap was issued on July 14, 2005. Ferdon ex
rel. Petrucelli v. Wis. Patients Comp. Fund, 2005 WI 125, 284
Wis. 2d 573, 701 N.W.2d 440.

5
 No. 2014AP2812

against the Fund, followed just two years later in 2015-16 with

40 potential claims, and the most recent report for 2016-17

shows 55 potential claims against the Fund. Id.

¶9 When the Fund was created in 1975, there was no cap on

noneconomic damages. It was not until 1986 that the legislature

capped noneconomic damages. The 1986 cap was $1 million. 1985

Wis. Act 340, §§ 30, 72. The initial cap expired on January 1,

1991. Id.

¶10 After the expiration of the 1986 cap on noneconomic

damages, the cost of insurance for health care providers rose,

as did health care costs. See Maurin v. Hall, 2004 WI 100, ¶65

n.7, 274 Wis. 2d 28, 682 N.W.2d 866, overruled on other grounds

by Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91, 293

Wis. 2d 38, 717 N.W.2d 216. In response, the legislature again

enacted a cap on noneconomic damages, this time setting the

limit at $350,000. 1995 Wis. Act 10, §§ 5, 9.

¶11 The $350,000 cap remained in place until we concluded

that it was unconstitutional in Ferdon.9 Following Ferdon, the
legislature acted to impose the $750,000 cap on noneconomic

damages that is before us. 2005 Wis. Act 183, §§ 1, 7. For all

other damages, payment is guaranteed to the injured party for

100 percent of a judgment or settlement.

9
While the original amount of the cap was $350,000, the
limit was indexed to inflation so that at the time of the Ferdon
decision, the cap was $445,755. Ferdon, 284 Wis. 2d 573, ¶200
(Prosser, J., dissenting).

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 No. 2014AP2812

¶12 In creating the $750,000 cap for noneconomic damages,

the legislature undertook substantial investigative efforts to

assure that any future legislation in regard to a cap would be

constitutionally appropriate. The assembly established a

"Medical Malpractice Task Force" with the aim of implementing

revisions to the law in response to the court's Ferdon decision.

The task force found that noneconomic damages are an aspect of

recovery that often is based on emotion and not on any

predictable standard. The task force said that "[a] reasonable

cap on noneconomic damages serves as a rational balance [in] the

Legislature's plan to ensure that successful malpractice

plaintiffs are able to recover appropriate damages." Further,

"[m]edical liability reform is part of a broad legislative

strategy designed to keep health care affordable and available

in Wisconsin." "[C]apping noneconomic damages for

unquantifiable harms while continuing to allow unlimited

recovery for economic damages is crucial to this strategy."

¶13 Sixty-two members of a bipartisan committee of the
legislature submitted new legislation that would increase the

cap to $750,000. See 2005 AB 1073, §§ 1, 7. Hearings then were

held, and testimony was provided both for and against the

$750,000 cap.

¶14 The legislature carefully set out its objectives,

stating that "[t]he objective of the treatment of this section

is to ensure affordable and accessible health care for all of

the citizens of Wisconsin while providing adequate compensation
to the victims of medical malpractice." 2005 Wis. Act 183, § 3.

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 No. 2014AP2812

Further, the legislature codified its reasoning by which

"[e]stablishing a limitation on noneconomic damage awards

accomplishes the objective:"

1. Protecting access to health care services
across the state and across medical specialties by
limiting the disincentives for physicians to practice
medicine in Wisconsin, such as the unavailability of
professional liability insurance coverage, the high
cost of insurance premiums, large fund assessments,
and unpredictable or large noneconomic damage awards,
as recognized by a 2003 U.S. congress joint economic
committee report, a 2003 federal department of health
and human services study, and a 2004 office of the
commissioner of insurance report.

2. Helping contain health care costs by limiting
the incentive to practice defensive medicine, which
increases the cost of patient care, as recognized by a
2002 federal department of health and human services
study, a 2003 U.S. congress joint economic committee
report, a 2003 federal government accounting office
study, and a 2005 office of the commissioner of
insurance report.

3. Helping contain health care costs by providing
more predictability in noneconomic damage awards,
allowing insurers to set insurance premiums that
better reflect such insurers' financial risk, as
recognized by a 2003 federal department of health and
human services study.

4. Helping contain health care costs by providing
more predictability in noneconomic damage awards in
order to protect the financial integrity of the fund
and allow the fund's board of governors to approve
reasonable assessments for health care providers, as
recognized by a 2005 legislative fiscal bureau memo, a
2001 legislative audit bureau report, and a 2005
office of commissioner of insurance report.
Wis. Stat. § 893.55(1)(d).

¶15 Act 183 also said that "the limitation of $750,000
represents an appropriate balance between providing reasonable

8
 No. 2014AP2812

compensation for noneconomic damages associated with medical

malpractice and ensuring affordable and accessible health care,"

and that "[t]his finding is based on actuarial studies provided

to the legislature, the experiences of other states with and

without limitations on noneconomic damages associated with

medical malpractice, the testimony of experts, and other

documentary evidence presented to the legislature." 2005 Wis.

Act 183, § 3. Finally, the legislature noted that "the number

chosen is neither too high nor too low to accomplish the goals

of affordable and accessible health care, is a reasonable and

rational[] response to the current medical liability situation,

and is reasonably and rationally supported by the legislative

record." Id.

¶16 The $750,000 cap remained in effect until the court of

appeals held it unconstitutional in this action.

B. The Mayos

¶17 This action arose after Ascaris Mayo made two trips to

two emergency rooms in May 2011. On the first occasion, she
visited the emergency room at Columbia St. Mary's Hospital in

Milwaukee after experiencing abdominal pain and a high fever.

She was seen by a physician and a physician's assistant and was

advised to follow up with her gynecologist because she had a

history of uterine fibroids. The next day, Ascaris Mayo went to

a different emergency room where she was diagnosed with sepsis

that was caused by an untreated infection. As the result of

sepsis, many of her organs failed and all four of her limbs
developed dry gangrene, necessitating amputation.

9
 No. 2014AP2812

¶18 In June of 2012, the Mayos sued in Milwaukee County

Circuit Court alleging medical malpractice and failure to

provide proper information. Their claims were tried to a jury.

Neither the physician nor the physician's assistant who saw

Ascaris Mayo at Columbia St. Mary's emergency room was found to

have been negligent. The jury did find, however, that neither

provider gave Ascaris Mayo adequate information regarding

alternate diagnoses and options for treatment of the alternate

diagnoses. In addition to economic damages totaling

$8,842,096,10 the jury awarded noneconomic damages of $15,000,000

to Ascaris Mayo11 and $1,500,000 to her husband.12

¶19 After the verdict was issued, the Fund moved to reduce

the jury's noneconomic damage award to $750,000 as required by

the cap. The Mayos also made motions after verdict, moving for

entry of judgment on the verdict, as well as for declaratory

10
This sum included $1,142,096 for past health care
services; $7,100,000 for future health care services; $100,000
for past loss of earning capacity; and $500,000 for future loss
of earning capacity.
11
These damages were for "pain, suffering, disability, and
disfigurement."
12
The compensation for Mayo's husband was for "the loss of
society and companionship of his wife."

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 No. 2014AP2812

judgment that Wis. Stat. §§ 655.017 and 893.55(4) are

unconstitutional facially and as applied to the Mayos.13

¶20 The circuit court held that the cap was not facially

unconstitutional, but concluded that it was unconstitutional as

applied to the Mayos on equal protection and due process

grounds. In reaching its conclusion, the circuit court relied

on the court's decision in Ferdon.

¶21 The court of appeals, in a published opinion, affirmed

the jury's noneconomic damage award, but on a different basis.

The court of appeals "conclude[d] that the statutory cap on

noneconomic damages is unconstitutional on its face because it

violates the same principles our supreme court articulated in

[Ferdon], by imposing an unfair and illogical burden only on

catastrophically injured patients, thus denying them the equal

protection of the laws." Mayo v. Wis. Injured Patients and

Families Comp. Fund, 2017 WI App 52, ¶1, 377 Wis. 2d 566, 901

N.W.2d 782. For the reasons stated below, we reverse the court

of appeals decision, and conclude that the $750,000 cap on
noneconomic damages in medical malpractice judgments and

settlements is constitutional both facially and as applied to

the Mayos.

13
As basis for their claims of unconstitutionality, the
Mayos said that the statutes "violate [their] right to a jury
trial, their right to a certain remedy, the separation of powers
doctrine, and the due process and equal protection clauses of
the Wisconsin Constitution."

11
 No. 2014AP2812

II. DISCUSSION

¶22 The Mayos challenge the facial constitutionality of

the cap and as the cap is applied to them. They claim that the

classification for those who suffer noneconomic damages in

excess of the cap violates their right to due process and equal

protection. The Mayos also argue that the cap is

unconstitutional as applied to them because of the dramatic

decrease to their noneconomic damages award. The Fund, however,

contends that under a rational basis review, the $750,000 cap

survives constitutional scrutiny.

A. Standard of Review

¶23 A facial challenge to the constitutionality of a

statute presents a question of law that we review independently,

while benefitting from the court of appeals' and the circuit

court's discussions. Milwaukee Branch of NAACP v. Walker, 2014

WI 98, ¶21, 357 Wis. 2d 469, 851 N.W.2d 262. An as-applied

constitutional challenge also is subject to our independent

review. Society Ins. v. LIRC, 2010 WI 68, ¶13, 326 Wis. 2d 444,
786 N.W.2d 385. Although we uphold historical factual findings

of the circuit court unless they are clearly erroneous, id.,

there is no contest about the relevant facts in the case before

us.

B. General Principles of Constitutional Review

¶24 There are two general types of constitutional

challenges to statutes: facial and as-applied. League of Women

Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, ¶13,

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 No. 2014AP2812

357 Wis. 2d 360, 851 N.W.2d 302. We previously have explained

that:

A party may challenge a law . . . as being
unconstitutional on its face. Under such a challenge,
the challenger must show that the law cannot be
enforced "under any circumstances." . . . In
contrast, in an as-applied challenge, we assess the
merits of the challenge by considering the facts of
the particular case in front of us, "not hypothetical
facts in other situations." Under such a challenge,
the challenger must show that his or her
constitutional rights were actually violated.
Id. (quoting State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321,

780 N.W.2d 63).

¶25 In either type of constitutional challenge, we presume

that the statute is constitutional. League of Women Voters, 357

Wis. 2d 360, ¶16; State v. McKellips, 2016 WI 51, ¶29, 369 Wis.

2d 437, 881 N.W.2d 258; Madison Metro. Sewerage Dist. v. Stein,

47 Wis. 2d 349, 357, 177 N.W.2d 131 (1970); Town of Beloit v.

City of Beloit, 37 Wis. 2d 637, 643, 155 N.W.2d 633 (1968).

¶26 Our presumption of constitutionality is based on

respect for a co-equal branch of government and its legislative

acts. Dane Cty. Dep't of Human Servs. v. Ponn P., 2005 WI 32,

¶16, 279 Wis. 2d 169, 694 N.W.2d 344. If any doubt persists

about whether a statute is constitutional, we resolve doubt in

favor of concluding that the statute is constitutional.

McKellips, 369 Wis. 2d 437, ¶29; Aicher v. Wis. Patients Comp.

Fund, 2000 WI 98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849. In our

analysis, we do not reweigh the policy choices of the
legislature.

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 No. 2014AP2812

¶27 A party challenging the constitutionality of a statute

bears a very heavy burden in overcoming the presumption of

constitutionality. League of Women Voters, 357 Wis. 2d 360,

¶17. In order to be successful, the challenger must prove that

the statute is unconstitutional "beyond a reasonable doubt."

Id. In the context of a challenge to a statute's

constitutionality, "beyond a reasonable doubt" "expresses the

'force or conviction with which a court must conclude, as a

matter of law, that a statute is unconstitutional before the

statute . . . can be set aside.'" Id. (quoting Ponn P., 279

Wis. 2d 169, ¶18).

¶28 Generally, Wisconsin courts have employed two levels

of scrutiny when addressing equal protection challenges. Thorp

v. Town of Lebanon, 2000 WI 60, ¶38, 235 Wis. 2d 610, 612 N.W.2d

59. Strict scrutiny is applied to statutes that restrict a

fundamental right. League of Women Voters, 357 Wis. 2d 360,

¶¶139-40 (concluding that the right to vote is fundamental).

Strict scrutiny is also applied to the regulation of protected
classes. Thorp, 235 Wis. 2d 610, ¶38. When strict scrutiny is

applied, the statute must serve a compelling state interest; the

statute must be necessary to serving that interest; and the

statute must be narrowly tailored toward furthering that

compelling state interest. Id. There has been no contention

that the Mayos have a fundamental right to payment of all

damages awarded by the jury nor that the $750,000 cap on

noneconomic damages discriminates against a suspect class.
Therefore, strict scrutiny does not apply. Bostco LLC v. Milw.

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 No. 2014AP2812

Metro. Sewerage Dist., 2013 WI 78, ¶76, 350 Wis. 2d 554, 835

N.W.2d 160.

¶29 The more common level of statutory scrutiny is

rational basis scrutiny, where statutes are upheld if there is

any rational basis for the legislation. Id. "The basic test is

not whether some inequality results from the classification, but

whether there exists any reasonable basis to justify the

classification." Id. (citing Sambs v. City of Brookfield, 97

Wis. 2d 356, 293 N.W.2d 504 (1980)). In an as-applied challenge

to the damages limited by Wis. Stat. § 893.80(3), we concluded

that not all disparities are sufficient to sustain the

contention of unconstitutionally disparate treatment. Bostco

LLC, 350 Wis. 2d 554, ¶79.

¶30 In Ferdon, the majority opinion spent many paragraphs

discussing rational basis and concluding that strict scrutiny

was not appropriate in assessing the then $350,000 cap on

noneconomic damages. Ferdon, 284 Wis. 2d 573, ¶¶59-96. Its

discussion recited the usual rules applicable to a rational
basis review. However, after its thorough discussion, the court

threw all of the principles of rational basis aside. It created

an intermediate level of review that it called "rational basis

with teeth, or meaningful rational basis." Id.

¶31 The court gave this new level of scrutiny no standards

by which to determine whether it should be applied; but instead,

overturned the then existing cap on noneconomic damages through

application of the majority's policy choice for Wisconsin. For
example, the court opined that "[a] cap on noneconomic damages

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 No. 2014AP2812

diminishes tort liability for health care providers and

diminishes the deterrent effect of tort law." Id., ¶89. In

concluding that the legislature's policy choice was

constitutionally flawed, the majority opinion said, "[t]he

legislature enjoys wide latitude in economic regulation. But

when the legislature shifts the economic burden of medical

malpractice from insurance companies and negligent health care

providers to a small group of vulnerable, injured patients, the

legislative action does not appear rational." Id., ¶101. The

majority did not consider that part of the legislative plan that

guaranteed 100 percent payment of all other damages, a benefit

that no other tort carries. Accordingly, the test for rational

basis with teeth is whether the petitioner's claim is in line

with the Ferdon majority's policy choice for Wisconsin.

¶32 We hereby overrule Ferdon. Rational basis with teeth

has no standards for application, usurps the policy forming role

of the legislature and creates uncertainty under the law.

Ferdon also creates new doctrine when it holds that "[a] statute
may be constitutionally valid when enacted but may become

constitutionally invalid because of changes in the conditions to

which the statute applies. A past crisis does not forever

render a law valid." Id., ¶114. There is no law to support

this extraordinary declaration and we overrule it as well as

"rational basis with teeth."

C. Facial Challenge

¶33 When a party challenges a law as being
unconstitutional on its face, he or she must show that the law

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 No. 2014AP2812

cannot be enforced "under any circumstances." Wood, 323

Wis. 2d 321, ¶13. A challenger must meet the highest level of

proof, beyond a reasonable doubt, if he or she is to succeed.

League of Women Voters, 357 Wis. 2d 360, ¶17.

¶34 The Mayos argue that the cap on noneconomic damages in

the context of medical malpractice "attempt[s] to resolve a

perceived societal problem on the backs of the few, most

severely injured, victims of medical malpractice." Because of

this alleged disparate treatment under the cap, the Mayos say

that their rights to equal protection and due process have been

violated.

¶35 Article I, Section 1 of the Wisconsin Constitution

provides that:

All people are born equally free and independent, and
have certain inherent rights; among these are life,
liberty and the pursuit of happiness; to secure these
rights, governments are instituted, deriving their
just powers from the consent of the governed.
Article I, Section 1 has been interpreted as providing the same

equal protection and due process rights afforded by the

Fourteenth Amendment to the United States Constitution.14 State

14
The text of the Fourteenth Amendment states, in relevant
part:

nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.

U.S. Const. amend XIV, § 1.

17
 No. 2014AP2812

ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 49, 132 N.W.2d

249 (1965).

¶36 When a party makes a facial challenge, he or she bears

a heavy burden because "legislative enactments are presumed

constitutional, and we will resolve any reasonable doubt in

favor of upholding the provision as constitutional." Bostco

LLC, 350 Wis. 2d 554, ¶76. This presumption is grounded in our

understanding and respect for the differing roles of the

legislature and the judiciary. Vincent v. Voight, 2000 WI 93,

¶52 n.22, 236 Wis. 2d 588, 614 N.W.2d 388. "In the context of

an equal protection challenge, we will sustain a legislative

enactment that creates a distinction between treatment of

different groups, if there exists a rational basis to support

that distinction, provided that the distinction does not

implicate a suspect class or impinge upon a fundamental right."

Bostco LLC, 350 Wis. 2d 554, ¶76. Because, as we have said

previously, the cap does not deny any fundamental right or

implicate any suspect class, we apply rational basis review.
State v. Smith, 2010 WI 16, ¶12, 323 Wis. 2d 377, 780 N.W.2d 90.

¶37 In bringing an equal protection challenge, the

challenging party must show that the statute "treats members of

similarly situated classes differently." Tomczak v. Bailey, 218

Wis. 2d 245, 261, 578 N.W.2d 166 (1998). In their facial

challenge, the Mayos allege that the cap creates two classes:

medical malpractice claimants who are fully compensated for

noneconomic damages (noneconomic damages of $750,000 or less),
and those who are not fully compensated (noneconomic damages

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 No. 2014AP2812

greater than $750,000). Because the parties agree to employ

this classification for purposes of the facial, equal protection

challenge, we accept it too.

¶38 With regard to due process, "[t]he touchstone of due

process is protection of the individual against arbitrary action

of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974).

Due process "bars certain arbitrary, wrongful government

actions." State v. Radke, 2003 WI 7, ¶12, 259 Wis. 2d 13, 657

N.W.2d 66.

¶39 While equal protection and due process challenges may

have different implications, "[t]he analysis under both the due

process and equal protection clauses is largely the same."

State v. Quintana, 2008 WI 33, ¶78, 308 Wis. 2d 615, 748

N.W.2d 447. Therefore, as a practical matter, the rational

basis analysis for the Mayos' facial, equal protection challenge

will be relevant to their due process claim as well. See Smith,

323 Wis. 2d 377, ¶16.

¶40 Having determined that we apply rational basis review,
we must now determine whether the legislature had a rational

basis for enacting the cap. In our rational basis review, we

consider not "whether some inequality results from the

classification, but whether there exists any reasonable basis to

justify the classification." Bostco LLC, 350 Wis. 2d 554, ¶76

(quoting Sambs, 97 Wis. 2d at 371). When, as in the case before

us, there is no fundamental right or suspect class implicated by

the legislative enactment, the statute "must be sustained unless
it is 'patently arbitrary' and bears no rational relationship to

19
 No. 2014AP2812

a legitimate government interest." Smith, 323 Wis. 2d 377, ¶12

(quoting Frontiero v. Richardson, 411 U.S. 677, 683 (1973)). We

will not reweigh the policy choices of the legislature, State ex

rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 506, 261 N.W.2d 434

(1978), because "[r]ational basis review does not 'allow us to

substitute our personal notions of good public policy for those

of' the legislature," Blake v. Jossart, 2016 WI 57, ¶32 n.16,

370 Wis. 2d 1, 884 N.W.2d 484, cert. denied, 137 S. Ct. 669

(2017) (quoting Schweiker v. Wilson, 450 U.S. 221, 234 (1981)).

¶41 A statute is unconstitutional under rational basis

scrutiny if the legislature "applied an irrational or arbitrary

classification when it enacted the provision." Aicher, 237

Wis. 2d 99, ¶57. "It is not our role to determine the wisdom or

rationale underpinning a particular legislative pronouncement."

Id.; see also FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313

(1993) ("[E]qual protection is not a license for courts to judge

the wisdom, fairness, or logic of legislative choices."). While

we recognize that legislative enactments can be imperfect and
result in inequities, "our goal is to determine whether a

classification [] rationally advances a legislative objective."

Aicher, 237 Wis. 2d 99, ¶57.

¶42 A classification created by legislative enactment will

survive rational basis scrutiny upon meeting five criteria:

(1) All classification[s] must be based upon
substantial distinctions which make one class really
different from another.

(2) The classification adopted must be germane to the
purpose of the law.

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 No. 2014AP2812

(3) The classification must not be based upon existing
circumstances only. [It must not be so constituted as
to preclude addition to the numbers included within a
class.]

(4) To whatever class a law may apply, it must apply
equally to each member thereof.

(5) That the characteristics of each class should be
so far different from those of other classes as to
reasonably suggest at least the propriety, having
regard to the public good, of substantially different
legislation.

Id., ¶58 (quoting Dane Cty. v. McManus, 55 Wis. 2d 413, 423, 198

N.W.2d 667 (1972)).

¶43 When we apply five-step rational basis scrutiny, as we

explain further below, we conclude that the legislature's

comprehensive plan that guarantees payment while controlling

liability for medical malpractice through the use of insurance,

contributions to the Fund and a cap on noneconomic damages has a

rational basis. Therefore, it is not facially unconstitutional.

¶44 First, we determine whether the classification of

those who have greater than $750,000 in noneconomic damages is
substantially different from the class of injured patients who

have less than $750,000 of noneconomic damages. Aicher, 237

Wis. 2d 99, ¶58. This distinction is obviously "real" as a

person who fits into the former category cannot also be part of

the latter. The first step of rational basis scrutiny is

satisfied.

¶45 Second, Chapter 655 of the Wisconsin Statutes creates

a comprehensive plan for claims of medical malpractice in
Wisconsin. Included in this plan is the right to guaranteed

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 No. 2014AP2812

payment of unlimited damages for economic losses, as well as

past and future health care costs. Wis. Stat. § 655.23;

Wis. Stat. § 655.27. Payment of noneconomic damages up to, and

including, $750,000 also is guaranteed. Wis. Stat. § 655.017;

Wis. Stat. § 893.55(1d)(b).

¶46 When the legislature enacted Chapter 655 in 1975, it

also made a number of legislative findings. We will not relate

them here because the legislature took a fresh look at medical

malpractice damages in amending Chapter 655 after this court's

decision in Ferdon. In so doing, the legislature placed its

policy rationale within the statutes so that it would be clearly

understood.

¶47 The legislature stated that the fund was "established

to curb the rising costs of health care by financing part of the

liability incurred by health care providers as a result of

medical malpractice claims and to ensure that proper claims are

satisfied." Wis. Stat. § 655.27(6). Additionally, with regard

to the cap itself, the legislature explicitly laid out its
objectives and support for the cap:

The objective of the treatment of this section is to
ensure affordable and accessible health care for all
of the citizens of Wisconsin while providing adequate
compensation to the victims of medical malpractice.
Achieving this objective requires a balancing of many
interests. Based upon documentary evidence, testimony
received at legislative hearings, and other relevant
information, the legislature finds that a limitation
on the amount of noneconomic damages recoverable by a
claimant or plaintiff for acts or omissions of a
health care provider, together with mandatory
liability coverage for health care providers and
mandatory participation in the injured patients and

22
 No. 2014AP2812

families compensation fund by health care providers,
while compensating victims of medical malpractice in
appropriate circumstances by the availability of
unlimited economic damages, ensures that these
objectives are achieved. Establishing a limitation on
noneconomic damage awards accomplishes the objective
by doing all of the following:

1. Protecting access to health care services
across the state and across medical specialties by
limiting the disincentives for physicians to practice
medicine in Wisconsin, such as the unavailability of
professional liability insurance coverage, the high
cost of insurance premiums, large fund assessments,
and unpredictable or large noneconomic damage awards,
as recognized by a 2003 U.S. congress joint economic
committee report, a 2003 federal department of health
and human services study, and a 2004 office of the
commissioner of insurance report.

2. Helping contain health care costs by limiting
the incentive to practice defensive medicine, which
increases the cost of patient care, as recognized by a
2002 federal department of health and human services
study, a 2003 U.S. congress joint economic committee
report, a 2003 federal government accounting office
study, and a 2005 office of the commissioner of
insurance report.

3. Helping contain health care costs by providing
more predictability in noneconomic damage awards,
allowing insurers to set insurance premiums that
better reflect such insurers' financial risk, as
recognized by a 2003 federal department of health and
human services study.

4. Helping contain health care costs by providing
more predictability in noneconomic damage awards in
order to protect the financial integrity of the fund
and allow the fund's board of governors to approve
reasonable assessments for health care providers, as
recognized by a 2005 legislative fiscal bureau memo, a
2001 legislative audit bureau report, and a 2005
office of commissioner of insurance report.

23
 No. 2014AP2812

Wis. Stat. § 893.55(1d)(a). The legislature also stated further

reasoning for the choice of $750,000 as a cap on noneconomic

damages when it explained:

Based on actuarial studies, documentary evidence,
testimony, and the experiences of other states, the
legislature concludes there is a dollar figure so low
as to deprive the injured victim of reasonable
noneconomic damages, and there is a dollar figure at
which the cap number is so high that it fails to
accomplish the goals of affordable and accessible
health care. The legislature concludes that the
number chosen is neither too high nor too low to
accomplish the goals of affordable and accessible
health care, is a reasonable and rational response to
the current medical liability situation, and is
reasonably and rationally supported by the legislative
record.
§ 893.55(1d)(c).

¶48 The cap on noneconomic damages was driven by a number

of legislative goals that were advanced by the classification:

(a) lowering health care costs and insurance rates,

(b) incentivizing physicians to practice in Wisconsin,

(c) limiting the amount of defensive medicine practiced thereby

reducing costs to patients, (d) making noneconomic damage

payments to claimants more predictable thereby controlling

premium adjustments to health care providers and (e) protecting

the integrity of the Fund. Under a rational basis review, we do

not consider whether the legislature achieved its goals.

Rather, we recognize that the legislature had ample testimony

before it to support its policy choices, and we will not reweigh

legislative choices. See Wilkie, 81 Wis. 2d at 506.

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 No. 2014AP2812

¶49 By enacting the cap, the legislature made a legitimate

policy choice, knowing that there could be some harsh results

for those who suffered medical malpractice and would not be able

to recover the full amount of their noneconomic damages.

However, any cap, by its very nature, will limit the amount that

some people will be able to recover. If the cap did not do so,

it would have no economic effect.

¶50 It must also be noted, however, that while there is a

cap on noneconomic damages, there also is a guarantee of payment

for all other categories of damages that a victim of medical

malpractice may be awarded. No other tort has a guarantee of

unlimited payment for a jury's award of economic damages.

¶51 Because the classification created by the cap supports

the purpose of the law and the legislature's overarching goal of

"ensur[ing] affordable and accessible health care for all of the

citizens of Wisconsin while providing adequate compensation to

the victims of medical malpractice, Wis. Stat. § 893.55(1d)(a),

we continue to the third step of our rational basis review.
¶52 The legislative classification must not be based

solely upon existing circumstances. Aicher, 237 Wis. 2d 99,

¶58. Here, the law does nothing to "preclude addition to the

numbers included within a class," and "allow[s] expansion of the

class" to include additional members in the future. Id., ¶69.

Therefore, the third factor is satisfied.

¶53 Fourth, we consider whether the cap applies equally to

the members of each class created. Id., ¶58. The Mayos argue
that the cap does not apply equally to all members of the class

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 No. 2014AP2812

whose noneconomic damages exceed $750,000 because the greater

the award given, the smaller the percentage of that award that

is recovered. However, contrary to the Mayos' argument, the cap

on noneconomic damages remains at $750,000 regardless of whether

an individual is awarded $750,000 or $15 million. Therefore

each person for whom the cap is a factor in recovery is treated

exactly the same. Their noneconomic damages will be capped at

$750,000. Because each member of the class is treated precisely

the same under the cap, the fourth Aicher factor is met.

¶54 Fifth, and finally, we must determine whether the

characteristics of each class are so different from those of the

other class to "reasonably suggest" legislation that is for the

public good. Id., ¶58. The legislature was concerned with

massive noneconomic damage awards because they are unpredictable

and often based on emotion. The legislature wanted to plan for

accessible health care while providing reasonable compensation

for those who are injured. The legislature chose to provide a

mechanism to pay 100 percent of all damages arising from medical
malpractice except for noneconomic damages, on which it placed a

$750,000 cap. The legislature made a rational policy choice by

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 No. 2014AP2812

limiting noneconomic damages; therefore, we conclude that the

fifth part of the Aicher rational basis review is satisfied.15

¶55 The party who challenges the constitutionality of a

statute bears a very heavy burden in overcoming the presumption

of constitutionality. The challenging party must prove that the

statute is unconstitutional "beyond a reasonable doubt." League

of Women Voters, 357 Wis. 2d 360, ¶17. All steps of the Aicher

rational basis test have been fully satisfied; accordingly, we

conclude that the Mayos have failed to show the cap on

noneconomic damages is unconstitutional beyond a reasonable

doubt. As a result, their facial challenge fails. However,

because the Mayos also challenge the constitutionality of the

cap on noneconomic damages as applied to them, our discussion

continues.

D. As-applied Challenge

¶56 As-applied challenges question the constitutionality

of a statute "on the facts of a particular case or [as applied]

to a particular party." Smith, 323 Wis. 2d 377, ¶10 n.9.
(quoting Challenge, Black's Law Dictionary 223 (7th Ed. 1999)).

"In an as-applied challenge, the constitutionality of the

statute itself is not attacked; accordingly, the presumption

15
The legislature has made similar policy choices that have
limited damages for medical malpractice in other circumstances.
For example, if the healthcare providers who interacted with
Ascaris Mayo had been employees of a state hospital, the Mayos'
damages for economic and noneconomic damages would have been
limited to a total of $250,000. Wis. Stat. § 655.003(1); Wis.
Stat. § 893.82(6).

27
 No. 2014AP2812

that the statute is constitutional applies, just as it does in a

facial challenge." In re Gwenevere T., 2011 WI 30, ¶47, 333

Wis. 2d 273, 797 N.W.2d 854. However, while we presume the

statute is constitutional, "we do not presume that the State

applies statutes in a constitutional manner." Id., ¶48 (quoting

Society Ins., 326 Wis. 2d 444, ¶27).

¶57 Because as-applied challenges turn on their facts,

each one is different. Accordingly, we determine on a case-by-

case basis whether a petitioner's constitutional rights have

been transgressed. In re Gwenevere T., 333 Wis. 2d 273, ¶49.

¶58 As we have mentioned above in discussing the facial

constitutionality of the cap, because no fundamental right or

suspect class is at issue here, we apply a rational basis

review. Smith, 323 Wis. 2d 377, ¶12. In an as-applied

challenge, the challenger must prove beyond a reasonable doubt

that as applied to him or her the statute is unconstitutional.

Id. We will conclude that a statute has been applied in a

constitutional manner "if the application of the statute bears a
rational relation to a legitimate legislative objective." In re

Gwenevere T., 333 Wis. 2d 273, ¶53.

¶59 Prior to considering the Mayos' circumstances, it is

helpful to examine another as-applied challenge to the

constitutionality of a statute that came before us in Blake, 370

Wis. 2d 1. In Blake, the plaintiff's childcare provider license

was revoked due to legislation that required lifetime

prohibition on granting a childcare license to persons convicted
of certain criminal offenses. The plaintiff's license was

28
 No. 2014AP2812

revoked because of her conviction for welfare fraud, an offense

coming within the statutory proscription against licensing for

childcare. Blake challenged the statute's constitutionality

both facially and as applied to her.

¶60 We held that neither Blake's facial nor her as-applied

challenge had merit. Blake asserted her right to equal

protection was denied because of disparate treatment, in that

others convicted of "dishonesty related offenses" did not suffer

permanent denial of childcare licensure. Id., ¶46. We

concluded, however, that Blake had "misidentifie[d] the proper

scope for evaluating the classification." Id. Referring to a

prior court of appeals case, we explained that the plaintiff

identified "no evidence that she was treated differently from

any similarly-situated childcare provider whose license was

revoked under the new law." Id. (quoting Brown v. DCF, 2012

WI App 61, ¶43, 341 Wis. 2d 449, 819 N.W.2d 827). We concluded

that because Blake was treated "in a manner consistent with the

treatment of similarly situated providers . . . and [the
plaintiff] has not presented evidence to the contrary, her as-

applied equal protection claim fails." Blake, 370 Wis. 2d 1,

¶46.

¶61 As with the plaintiff in Blake, the Mayos have not

presented any evidence that they were treated differently than

others who are similarly situated. The Mayos argue that their

noneconomic damages award is reduced by 95.46 percent when the

cap is applied. However, as with the plaintiff in Blake, the
Mayos focus their attention on themselves as opposed to

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 No. 2014AP2812

analyzing whether they are treated differently than other

similarly-situated persons.

¶62 The Mayos were treated the same under the cap as any

other persons for whom the jury has awarded noneconomic damages

in excess of $750,000. The cap applies regardless of how much

in excess of $750,000 the award; how drastic the injury

suffered; the gender, age, or race of the plaintiff; or the

extent of a health care provider's culpability. The Mayos

certainly are very sympathetic plaintiffs because of the severe

injuries that Ascaris Mayo has suffered. However, were we to

construe the cap based on our emotional response to her injury,

we would be substituting our policy choice for that of the

legislature.

¶63 Further, the Mayos have not shown that the cap as

applied to them is "arbitrary and not rationally related to a

legitimate government interest." Smith, 323 Wis. 2d 377, ¶28.

A continued point of contention in the Mayos' brief, as well as

at oral argument, was that the Fund has very significant assets
and, therefore, paying the Mayos would not endanger its

solvency. However, the size of the noneconomic damages award as

compared with the balance in the Fund from which the Mayos seek

an additional $15 million in compensation is not relevant to

their constitutional challenge.16 The financial planning and

maintenance of the Fund does not fall within the duties of the

16
The Fund has already paid more than $7 million dollars in
economic damages to the Mayos.

30
 No. 2014AP2812

judiciary; we do not set premiums or choose the Fund's

investments; we do not set the amount that the Fund must contain

to meet potential expenditures for pending claims. Rather, we

consider the legislature's creation of the Fund, the language of

the enactment, the purposes it serves and whether it was applied

consistent with those purposes in determining its validity.

¶64 Furthermore, the Wisconsin Constitution permits the

legislature to eliminate common law causes of action altogether.

Under Article XIV, Section 13 of the Wisconsin Constitution, the

common law may be "altered or suspended by the legislature." A

prominent example is worker's compensation, where the

legislature has eliminated claims for noneconomic damages by

workers against their employers. See Wis. Stat. § 102.03(2).

However, in medical malpractice, the legislature chose to

continue to allow medical malpractice plaintiffs to recover

noneconomic damages, but limited the amount to $750,000.

¶65 Because we conclude that the $750,000 cap on

noneconomic damages established by Wis. Stat. § 893.55 has been
applied in rational relation to legitimate legislative

objectives, § 893.55 is not unconstitutional as applied to the

Mayos.

III. CONCLUSION

¶66 We conclude that rational basis is the proper standard

by which to judge the constitutionality of Wis. Stat. § 893.55;

that § 893.55 is facially constitutional and constitutional as

applied to the Mayos; and that Ferdon erroneously invaded the
province of the legislature and applied an erroneous standard of

31
 No. 2014AP2812

review. Accordingly, we reverse the court of appeals' decision,

overrule Ferdon, and conclude that the $750,000 cap on

noneconomic damages in medical malpractice judgments and

settlements is constitutional both facially and as applied to

the Mayos.

¶67 Therefore, we reverse the court of appeals and remand

to the circuit court to impose the $750,000 cap on noneconomic

damages.

By the Court.—The decision of the court of appeals is

reversed and the cause is remanded to the circuit court.

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¶68 REBECCA GRASSL BRADLEY, J. (concurring). I join the

majority opinion. I write separately, however, to address the

presumptions afforded a statute undergoing a constitutional

challenge and the challenger's burden of proof. The Mayos bring

both facial and as-applied challenges to the $750,000 cap on

noneconomic damages for medical malpractice claimants prescribed

by Wis. Stat. § 893.55 (2015-2016); that is, the Mayos assert

the statute is unconstitutional in every circumstance and as

applied specifically to them. See State v. Smith, 2010 WI 16,

¶10 n.9, 323 Wis. 2d 377, 780 N.W.2d 90 (discussing difference

between facial and as-applied constitutional challenges). The

burden to prove a statute unconstitutional rests with the party

challenging it. For many years, this court has described that

burden as a "heavy" one because the court presumes the

legislation is constitutional, engages in every attempt to

uphold it, and in a facial challenge, requires a party

challenging a law to prove it "is unconstitutional beyond a
reasonable doubt." Id., ¶8. To succeed in a facial challenge,

a party must also show the law cannot be enforced under any

circumstances. State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321,

780 N.W.2d 63. I refer to these elements of the burden

collectively as "the rule" and because it constitutes the

current state of the law, I am bound to apply it.

¶69 Regardless of the hurdles the court compels

challengers to surmount, a statute either comports with the
constitution or it does not. Requiring a court to lend almost

1
 No. 2014AP2812.rgb

unfettered deference to the legislature seems incompatible with

our duty of ensuring the legislature does not exceed its

constitutional powers. Indeed, imposing a burden of proof

heavily weighted in favor of the legislature on matters of

constitutional interpretation is an abdication of our core

judicial powers to exercise impartial judgment in cases and

controversies and to say what the law is. See generally Gabler

v. Crime Victims Rights Board, 2017 WI 67, ¶37, 376 Wis. 2d 147,

897 N.W.2d 384 (2017). "[T]he judiciary are to declare a

legislative Act void which conflicts with the constitution, or

else that instrument is reduced to nothing." James B. Thayer,

The Origin and Scope of the American Doctrine of Constitutional

Law, 7 Harvard L. Rev. 129, 139 (1893) (citing Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 178 (1803)).

¶70 Although I join the majority, I write separately to

question the court's continued adherence to an evidentiary

burden of proof when deciding a statute's constitutionality.

Additionally, I write to clarify that the court's elimination of
rational basis with bite as a standard of review should not be

interpreted as relaxing the level of review applied to statutes

implicating fundamental constitutional rights. I agree that it

would be inappropriate to apply rational basis with bite in

reviewing the statutory cap on non-economic damages, but I would

preserve a meaningful standard of judicial review for laws

encroaching on fundamental constitutional rights.

I

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¶71 Under current law, we presume the statute in question

is constitutional. Aicher v. Wis. Patients Comp. Fund, 2000 WI

98, ¶18, 237 Wis. 2d 99, 613 N.W.2d 849. We will decide

otherwise only if a challenger proves the statute is

unconstitutional beyond a reasonable doubt. Id., ¶19. A

showing that the statute is "probably unconstitutional" or that

its constitutionality is "doubtful" is insufficient to overcome

the presumption. State v. Cole, 2003 WI 112, ¶11, 264

Wis. 2d 520, 665 N.W.2d 328.

¶72 A facial challenge requires near-absolute proof that

any application of the statute is unconstitutional. But the

"proof" required in such challenges is assuredly not evidentiary

proof——it is a rather mixed bag of concrete and hypothetical

proof sufficient to "establish[] the force or conviction with

which a court must conclude, as a matter of law, that a statute

is unconstitutional." Dane Cty. Dep't of Human Services v. Ponn

P., 2005 WI 32, ¶18, 279 Wis. 2d 169, 694 N.W.2d 344.

II
¶73 Debate about the propriety of the presumption and

burden traces back centuries, indeed to our nation's founding.

See generally Thayer, supra ¶2, at 140 ("When did this rule of

administration begin? Very early.") (tracing the history of

heightened deference to legislative acts in the states and the

federal system to the American Revolution). In the late 18th

century through the 19th century, both federal and state courts

grounded their approach to determining the constitutionality of
a statute in deference to the legislature. Id. at 142-43 n.1

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 No. 2014AP2812.rgb

(collecting examples of this rule's application by the United

States Supreme Court and state courts in Massachusetts, New

York, New Hampshire, Ohio, Louisiana, and Florida). Among the

expressed rationales for such deference, courts uniformly agreed

that heightened deference preserved the essential balance

between the legislature's law-creating function and the

judiciary's duty to "say what the law is." See id.

¶74 Arguing a case in a Massachusetts court, Daniel

Webster identified a principal weakness of the rule, an argument

that persists today:

[M]embers of the legislature sometimes vote for a law,
of the constitutionality of which they doubt, on the
consideration that the question may be determined by
the judges. . . . If . . . the judge is to hold it
valid because its unconstitutionality is doubtful, in
what a predicament is the citizen placed! . . . [I]f
the question is not met and decided here [by the
court] on principle, responsibility rests
nowhere. . . . Judicial tribunals are the only ones
suitable for the investigation of difficult questions
of private right.[1]
Such "double deference" threatens the Constitution because both

branches punt the issue to the other: "While the courts are

deferring to the legislature, the legislature in turn is

deferring to the courts. By this ruse, any scrutiny of

legislation to ensure it is within the just powers of a

legislature is avoided." Randy E. Barnett, Our Republican

1
James B. Thayer, The Origin and Scope of the American
Doctrine of Constitutional Law, 7 Harvard L. Rev. 129, 146
(1893).

4
 No. 2014AP2812.rgb

Constitution: Securing the Liberty and Sovereignty of We the

People 128 (2016).

¶75 Like many other states, Wisconsin courts employed the

rule, although the rationale for its adoption was never fully

articulated. As early as 1842, when Wisconsin remained a

territory, the precursor to this court applied a different

variation of the rule whereby "[t]o justify a court in declaring

a law of the legislature unconstitutional, the case must be

clear and manifest." Norton v. Rooker, 1 Pin. 195, 204 (1842)

(emphasis added); see also Dickson v. State, 1 Wis. 122, 126

(1853) ("clearly"). Courts sometimes equivocated between

requiring proof that was "clear and manifest" and today's rule

requiring proof "beyond a reasonable doubt," often resulting in

the two standards being equated. See, e.g., Smith v. Odell, 1

Pin. 449, 455 (1844) ("The judiciary is a co-ordinate branch of

the government, and has a right to declare an act of the

legislature void, when repugnant to the constitution, but it

must be a very clear and unequivocal case to induce a court to
pronounce an act of the legislature unconstitutional. When a

judge is convinced that an act is unconstitutional, it is his

duty to set it aside, but he must examine it with every legal

intendment and presumption in favor of its validity. He is not

to resort to a forced, rigid or doubtful construction of an act

for the purpose of determining its unconstitutionality. Before

the court will declare an act of the legislature

unconstitutional, a case should be presented in which there is
no rational doubt." (emphasis added) (citations omitted)); see

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also Christopher R. Green, Clarity and Reasonable Doubt in Early

State-Constitutional Judicial Review, 57 S. Tex. L. Rev. 169,

171 (2015) (suggesting that, in some instances, courts took the

two standards and equated them "as alternative verbal

formulations of the same rule").

¶76 In 1861, this court borrowed from the Michigan Supreme

Court in expressing the rule as follows: "that to warrant us in

declaring a statute unconstitutional, we should be able to lay

our finger on the part of the constitution violated, and that

the infraction should be clear and free from a reasonable

doubt." State ex rel. Chandler v. Main, 16 Wis. 398, 415 (1863)

(quoting Tyler v. The People, 8 Mich. 320, 333 (1860)). The

precursor to "beyond a reasonable doubt" of "clear and free from

a reasonable doubt" apparently was imported from a foreign

jurisdiction.

¶77 In Wisconsin's early history, the presumption of

constitutionality could, in theory at least, be rebutted. For

example, this court opined that "[i]t follows, logically, that
the legitimacy of legislative regulation . . . must be tested

with reference to appropriateness of ends sought to be attained

and also of means to such ends." State ex rel. McGrael v.

Phelps, 144 Wis. 1, 22, 128 N.W. 1041 (1910). In practice,

successful rebuttal of the presumption is rare, particularly in

facial challenges, which require the challenger to identify an

unlimited number of circumstances to which the statute may apply

and successfully show the law cannot be enforced in any of them.

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¶78 In federal courts, judicial deference has waned in

recent decades. "[T]he strength of the presumption [of

constitutionality] has weakened. This weakening is suggested

both by shifts in the language that the Court has used to

describe the presumption and by the significant modern increase

in the rate at which the Court has invalidated federal

statutes." Edward C. Dawson, Adjusting the Presumption of

Constitutionality Based on Margin of Statutory Passage, 16 U.

Pa. J. Const. L. 97, 108 (2013). No United States Supreme Court

case since 1984 has applied a strong presumption of

constitutionality in challenges to federal statutes. Id. at

109, n.43 ("[W]hile there are nine majority decisions between

1931 and 1984 describing the presumption of constitutionality

afforded federal statutes as 'strong,' . . . no majority

decisions since 1984 mention a 'strong' presumption of

constitutionality").2 The rule seems to have essentially

disappeared from United States Supreme Court jurisprudence. Id.

("The 'beyond a reasonable doubt' formulation has
disappeared."). Our court of appeals noted this in Guzman v.

St. Francis Hosp., Inc., 2001 WI App 21, ¶4 n.3, 240

Wis. 2d 559, 568, 623 N.W.2d 776, but lacking the power to

overrule this court's precedent, it was compelled to apply the

rule.

2
The strong presumption of constitutionality has not
reappeared in any United States Supreme Court decision published
in 2013 or thereafter.

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¶79 In its place, the United States Supreme Court

sometimes employs a "plain showing" standard of review: "Due

respect for the decisions of a coordinate branch of Government

demands that we invalidate a congressional enactment only upon a

plain showing that Congress has exceeded its constitutional

bounds." United States v. Morrison, 529 U.S. 598, 607 (2000).

Even more recently, the United States Supreme Court harkened

back to a 19th century expression of the standard: "'Proper

respect for a co-ordinate branch of the government' requires

that we strike down an Act of Congress only if 'the lack of

constitutional authority to pass [the] act in question is

clearly demonstrated.'" Nat'l Fed'n of Indep. Bus. v. Sebelius,

567 U.S. 519, 538 (2012) (citing United States v. Harris, 106

U.S. 629, 635 (1883)).

¶80 This court continues to reflexively apply the rule

without any acknowledgement of the United States Supreme Court's

reformulation of the standard. See, e.g., Voters with Facts v.

City of Eau Claire, 2018 WI 63, ¶65, ___ Wis. 2d ___, ___
N.W.2d ___ ("All legislative acts are presumed constitutional

and we must indulge every presumption to sustain the law."

(quoting Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶13, 358

Wis. 2d 1, 851 N.W.2d 337)); State v. Grandberry, 2018 WI 29,

¶12, 380 Wis. 2d 541, 910 N.W.2d 214; Blake v. Jossart, 2016 WI

57, ¶27, 370 Wis. 2d 1, 884 N.W.2d 484, cert. denied, 137 S. Ct.

669 (2017) ("A party challenging a statute overcomes the strong

presumption of constitutionality only by demonstrating that the
statute is unconstitutional beyond a reasonable doubt." (citing

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Aicher, 237 Wis. 2d 99, ¶18)); Winnebago Cty. v. Christopher S.,

2016 WI 1, ¶33, 366 Wis. 2d 1, 878 N.W.2d 109, cert. denied sub

nom., Christopher S. v. Winnebago Cty., 136 S. Ct. 2464 (2016)

("Every presumption must be indulged to sustain the law if at

all possible and, wherever doubt exists as to a legislative

enactment's constitutionality, it must be resolved in favor of

constitutionality." (quoting State v. Dennis H., 2002 WI 104,

¶12, 255 Wis. 2d 359, 647 N.W.2d 851)). The United States

Supreme Court will strike down statutes upon a "plain showing"

of their unconstitutionality, or when their unconstitutionality

is "clearly demonstrated." The latter wording is strikingly

similar to the "clear and manifest" standard applied in very

early Wisconsin case law.

¶81 Legal scholarship advocating for a weaker presumption

of constitutionality (or its elimination altogether) sustains

the ongoing debate over the proper balance of constitutional

powers between the legislature and the judiciary. See, e.g.,

Randy Barnett, Restoring the Lost Constitution: The Presumption
of Liberty 273 (2003) (arguing that courts should change the

standard from a "presumption of constitutionality" to a

"presumption of liberty" wherein the government, not the

challenger, must prove the "necessity and propriety of its

restrictions on liberty"); Green, supra ¶8, at 171 (suggesting

that the "the middle requirement, clarity, has the best

historical pedigree" and should be the standard). They present

many logical, practical, and, of greatest importance,

9
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constitutional reasons for altering the burden of proof in

constitutional challenges to statutes.

¶82 To begin with, the current standard in Wisconsin is

unworkable, given that a party not only must challenge the

legislature's expressed reasoning behind implementing a statute,

but must also disprove any rational speculation that could be

invoked to support the statute's constitutionality——regardless

of whether the legislature actually relied upon that rationale

in adopting it. See David M. Burke, The Presumption of

Constitutionality Doctrine and the Rehnquist Court: A Lethal

Combination for Individual Liberty, 18 Harv. J. L. & Pub. Pol'y

73, 86 (1994-95) (a petitioner must show there is no conceivable

interpretation of the Constitution that could support the

statute); id. ("'[I]f any state of facts reasonably may be

conceived to justify' a legislative determination, then it is

'constitutionally irrelevant whether this reasoning in fact

underlay the legislative decision.'" (first quoting McGowan v.

Maryland, 366 U.S. 420, 426 (1961); then quoting Flemming v.
Nestor, 363 U.S. 603, 612 (1960) (footnotes omitted))); see also

Barnett, supra ¶14, at 228 (asking rhetorically, "who

'realistically' is in the best position to present a court with

empirical information for or against the necessity" and

answering implicitly, the government). If the justifications

available for a challenged law are not tied to the actual

reasons the law was passed, then the constitutional validity of

a statute rests on the imagination of the State's lawyers.

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¶83 It has never been clear why courts choose to apply an

evidentiary burden of proof for establishing guilt in criminal

cases in assessing the constitutionality of a statute. This

court previously explained away this concern:

While this burden of proof is often associated with
the requisite proof of guilt in a criminal case, in
the context of a challenge to the constitutionality of
a statute, the phrase "beyond a reasonable doubt"
expresses the "force or conviction with which a court
must conclude, as a matter of law, that a statute is
unconstitutional before the statute or its application
can be set aside."
League of Women Voters of Wis. Educ. Network, Inc. v. Walker,

2014 WI 97, ¶17, 357 Wis. 2d 360, 851 N.W.2d 382 (emphasis

added) (quoting Ponn P., 279 Wis. 2d 169, ¶18). If "beyond a

reasonable doubt" means something different in assessing the

constitutionality of statutes, we should not transfer the exact

same words from a criminal evidentiary standard applied to facts

into an analysis of the law. See Island Cty. v. State, 955 P.2d

377, 386 (Wash. 1998) (Sanders, J., concurring) ("[L]egal

questions are not ordinarily presumptive candidates because the

law is at hand. Thus, all courts determine legal issues de

novo." (citations omitted)). In assessing the constitutionality

of a law, the court examines just that: the law. See Appling

v. Walker, 2014 WI 96, ¶18, 358 Wis. 2d 132, 853 N.W.2d 888. It

does not examine the law in the same way the finder of fact in a

criminal trial evaluates witness' factual testimony for

credibility or reliability in order to ascertain the defendant's

guilt or innocence.

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¶84 Rather, as the constitutional body vested with the

power to say "what the law is," the judiciary evaluates a

statute for its fidelity to the constitution, and "an act of the

legislature, repugnant to the constitution, is void." Marbury,

5 U.S. (1 Cranch) at 177. When a law contravenes the

constitution, it is our duty to say so. The "beyond a

reasonable doubt" standard interferes with this judicial

responsibility. Applying this standard places courts in an

absurd position: We could determine a law is more likely than

not unconstitutional, and we would still uphold it.3 We could

even conclude a party has shown clearly and convincingly that a

law is unconstitutional, and still we would sustain it.4 This

scheme of review scrambles the constitutional roles of the

judiciary and the legislature, making legislators the judges of

their own laws. "If it be said that the legislative body are

themselves the constitutional judges of their own powers, and

that the construction they put upon them is conclusive upon the

other departments, it may be answered, that this cannot be the

3
Reviewing an issue for "proof by a preponderance of the
evidence," i.e., proof that is "more likely than not" true,
encompasses the lowest burden of proof used in ordinary civil
cases. See Kruse v. Horlamus Indus., Inc., 130 Wis. 2d 357,
362–63, 387 N.W.2d 64 (1986); State v. Wanta, 224 Wis. 2d 679,
693, 592 N.W.2d 645 (Ct. App. 1999). It requires the trier of
fact to determine the existence of a fact "to a reasonable
certainty by the greater weight of the credible evidence."
Kruse, 130 Wis. 2d at 362–63.
4
"This burden, while greater than required in ordinary
civil cases, is not as great as 'beyond a reasonable doubt' used
in criminal cases." City of Madison v. Geier, 27 Wis. 2d 687,
691, 135 N.W.2d 761 (1965).

12
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natural presumption, where it is not to be collected from any

particular provisions in the Constitution." The Federalist No.

78 at 467 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

The "beyond a reasonable doubt" standard also disrupts the

hierarchy of laws by making statutes superior to the

constitution.

The Constitution is either a superior, paramount law,
unchangeable by ordinary means, or it is on a level
with ordinary legislative acts, and, like other acts,
is alterable when the legislature shall please to
alter it. If the former part of the alternative be
true, then a legislative act contrary to the
Constitution is not law; if the latter part be true,
then written Constitutions are absurd attempts on the
part of the people to limit a power in its own nature
illimitable.
Marbury, 5 U.S. (1 Cranch) at 177. Judicial respect for its co-

equal branch, the legislature, cannot amount to surrender of

judicial power or abdication of judicial duty.

¶85 The burden of proof in criminal cases purportedly is

rooted in Blackstone's observation that "it is better that ten

guilty persons escape than one innocent suffer." 4 William
Blackstone, Commentaries *358. This precept does not translate

in the context of examining a statute's constitutionality: Is

it better that the constitution be violated ten times lest one

constitutional law be struck down? Is it better that we deny

the people's constitutional rights ten times to avoid mistakenly

striking down a single constitutional law? Notably, the

consequences of upholding unconstitutional laws are not confined

to a single party in a single case. Rather, failure to strike

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down an unconstitutional law harms all of the people of this

state in potential perpetuity.

¶86 Employing the "beyond a reasonable doubt" burden of

proof in judging a statute's constitutionality substantiates one

of the Framers' chief concerns: that Legislatures should not be

the "constitutional judges of their own powers." Burke, supra

¶15, at 90 ("[I]n a constitutional system of delegated authority

it 'cannot be the natural presumption' that the members of

Congress are to be regarded as 'the constitutional judges of

their own powers . . . .'" (citing The Federalist No. 78, supra

¶17, at 467 (Alexander Hamilton)).

¶87 Under the current framework, in contrast to the

structural separation of powers our framers envisioned, judicial

deference gives the legislature both the pen and the gavel over

their own laws, and imposes a "tremendous burden" on individuals

attempting to limit the constitutional overreach of legislative

power. Burke, supra ¶15, at 90. Imposing a "beyond a

reasonable doubt" standard is currently at odds with the
constitutional principle that the legislature, not the people,

should be the one to identify the legislature's source of power.

Id. at 84 ("The powers of Congress . . . have as their sole

origin a Constitution which delegates and limits powers. It

necessarily follows, then, that the burden lies with Congress to

point to its source of power.").

¶88 This court recently reiterated the importance of the

separation of powers in establishing and preserving a government
of, by, and for the people. Gabler, 376 Wis. 2d 147, ¶39 ("If

14
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the judiciary passively permits another branch to arrogate

judicial power unto itself, however estimable the professed

purpose for asserting this prerogative, the people inevitably

suffer. . . . [T]he people lose their independent arbiters of

the law, the balance of powers tips, and the republican form of

government is lost."). We recently jettisoned judicial

deference long afforded to interpretations of law by

administrative agencies. Tetra Tech EC, Inc. v. DOR, 2018 WI

75, ___ Wis. 2d ___, ___ N.W.2d __. The time is ripe for this

court to embrace its constitutional duty to protect the people

from encroachments by the legislature on constitutional rights.

¶89 A strong presumption of constitutionality empowers

legislators to serve as "judges in their own case when a citizen

claims that a law restricting his or her liberty is irrational

or arbitrary." Barnett, supra ¶7, at 245. In Federalist 10,

James Madison warned that "a body of men are unfit to be both

judges and parties at the same time," recognizing that "many of

the most important acts of legislation" are "judicial
determinations." The Federalist No. 10, supra ¶17, at 79 (James

Madison). Serving as the protector of constitutional rights

ultimately rests with "courts of justice, whose duty it must be

to declare all acts contrary to the manifest tenor of the

Constitution void. Without this, all the reservations of

particular rights or privileges would amount to nothing." The

Federalist No. 78, supra ¶17, at 466 (Alexander Hamilton)

(emphasis added).

15
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¶90 Replacing the "beyond a reasonable doubt" burden with

one requiring a "plain showing" or simply clarity in

establishing the unconstitutionality of a statute, as the United

States Supreme Court did decades ago, would restore the balance

of power between the judiciary and the legislature in Wisconsin.

Such a standard of review would conserve the legislature's

constitutional lawmaking function while reinstating the courts'

role as the "bulwarks of a limited Constitution against

legislative encroachments . . . ." The Federalist No. 78, supra

¶17, at 469 (Alexander Hamilton).

¶91 The Constitution's supremacy over legislation bears

repeating: "the Constitution is to be considered in court as a

paramount law" and "a law repugnant to the Constitution is void,

and. . . courts, as well as other departments, are bound by that

instrument." See Marbury, 5 U.S. (1 Cranch) at 178, 180.

III

¶92 The majority aptly criticizes the Ferdon court's

application of "rational basis with teeth" to strike the prior
cap on noneconomic damages for usurping the legislature's

policymaking role. Majority op., ¶32. As the State accurately

argued in its amicus brief, "the cap's level is a

quintessentially legislative judgment" which makes it the

prerogative of the legislature to set. The cap implicates no

constitutional rights whatsoever; as plaintiffs' counsel

conceded at oral argument, the legislature could set the cap at

zero——thereby eliminating the recovery of noneconomic damages
altogether——without offending the constitution. Recovery of

16
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such damages is a matter of common law, not constitutional law.

The legislature retains full authority to define, limit, or

abrogate common law causes of action. Aicher, 237 Wis. 2d 99,

¶51. The Wisconsin Constitution expressly permits this.

Majority op., ¶64. And because the cap treats all medical

malpractice plaintiffs exactly the same, no equal protection or

due process inquiry is necessary.

¶93 Because the majority opts to apply rational basis

review in this case, I would clarify that this lower level of

review is appropriate for laws that confer a benefit, such as

the system of guaranteed recovery for medical malpractice

claimants we consider here. However, when laws are alleged to

impair fundamental constitutional rights, courts must apply a

higher level of scrutiny. Porter v. State, 2018 WI 79, ___ Wis.

2d ___, ___ N.W.2d __ (R. Grassl Bradley, J., and Kelly, J.,

dissenting).

IV

¶94 Wisconsin courts must afford appropriate deference to
legislatures in their lawmaking function. Legislators are the

people's representatives, elected to enact laws that reflect the

policy preferences of the people. However, the constitution

imposes limits on that broad power; the legislature may not

enact laws that infringe constitutional rights. Under our

structural separation of powers, the people task the judiciary

with the ultimate authority to declare legislative acts

unconstitutional. The judiciary does not fulfill this duty if
it subordinates its independent judgment to the legislature's by

17
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making legislative acts superior to the constitution. "[T]here

is no liberty, if the judiciary power be not separate from the

legislative." 7 B. De Montesquieu, Spirit of the Laws 152

(Nugent ed., 1823).

¶95 I join the majority in upholding the statutory cap on

noneconomic damages in medical malpractice actions set forth in

Wis. Stat. § 893.55, which does not implicate or offend any

constitutional right. I write separately to urge this court to

reconsider its application of the "beyond a reasonable doubt"

standard in cases that present constitutional challenges.

¶96 I respectfully concur.

¶97 I am authorized to state that Justice DANIEL KELLY

joins this concurrence.

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¶98 ANN WALSH BRADLEY, J. (dissenting). After a

harrowing and unimaginable ordeal that resulted in the

amputation of all four of Ascaris Mayo's extremities, the

majority denies Ascaris and Antonio Mayo 95 percent of the

recovery to which a jury determined they are entitled. The

majority restricts the Mayos' recovery based on Wisconsin's

statutory cap on noneconomic damages in medical malpractice

cases, which it now declares to be constitutional. See Wis.

Stat. § 893.55.

¶99 This is not the first time this court has addressed

the constitutionality of a cap on noneconomic damages in medical

malpractice actions. In Ferdon ex rel. Petrucelli v. Wisconsin

Patients Comp. Fund, the court determined that a medical

malpractice noneconomic damages cap of $350,000 violated the

constitutional guarantee of equal protection. 2005 WI 125, ¶10,

284 Wis. 2d 573, 701 N.W.2d 440.

¶100 Ferdon exhaustively, and correctly, analyzed the

constitutional infirmities of a damage cap of $350,000. The
only difference between this case and Ferdon is that the medical

malpractice noneconomic damages cap is set at $750,000 rather

than $350,000.

¶101 Raising the cap by $400,000 does not fix the

fundamental constitutional problems with the damage cap that the

Ferdon court identified. The cap still makes the most severely

injured bear the greatest burden in violation of equal

protection.

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¶102 I agree with a unanimous court of appeals that

determined that the statutory cap on noneconomic damages remains

unconstitutional.1 The cap imposes "an unfair and illogical

burden only on catastrophically injured patients, thus denying

them the equal protection of the laws." Mayo v. Wis. Injured

Patients and Families Compensation Fund, 2017 WI App 52, ¶1, 377

Wis. 2d 566, 901 N.W.2d 782.

¶103 Ferdon identified several areas of constitutional

infirmity with regard to the $350,000 cap at issue. As the

court of appeals in this case explained, the Ferdon court

concluded that the $350,000 damages cap then at issue lacked a

rational basis because: (1) the existence or nonexistence of

noneconomic damages caps does not affect doctors' migration; (2)

defensive medicine is not susceptible to accurate measurement

and does not contribute significantly to the cost of health

care; (3) the correlation between noneconomic damages caps and

lower medical malpractice premiums or overall health care costs

is weak; and (4) the cap was unnecessary to the financial
integrity of the Fund. Mayo, 377 Wis. 2d 566, ¶20 (citing

Ferdon, 284 Wis. 2d 573, ¶¶168, 174, 166, 158).

¶104 Simply raising the cap from $350,000 to $750,000 does

not magically transform any of these considerations into

1
Although Judge Brash concurred, taking the position that
the damages cap is unconstitutional as applied to the Mayos
rather than facially unconstitutional, the court of appeals was
unanimous that the damages cap violates the constitutional
guarantee of equal protection.

2
 No. 2014AP2812.awb

rational bases for the legislature's action.2 I agree with the

court of appeals' analysis on each point.
2
The legislature sets forth the damage cap's objectives in
Wis. Stat. § 893.55(1d)(a). The four bases advanced are:

1. Protecting access to health care services across
the state and across medical specialties by limiting
the disincentives for physicians to practice medicine
in Wisconsin, such as the unavailability of
professional liability insurance coverage, the high
cost of insurance premiums, large fund assessments,
and unpredictable or large noneconomic damage awards,
as recognized by a 2003 U.S. [C]ongress joint economic
committee report, a 2003 federal department of health
and human services study, and a 2004 office of the
commissioner of insurance report.

2. Helping contain health care costs by limiting the
incentive to practice defensive medicine, which
increases the cost of patient care, as recognized by a
2002 federal department of health and human services
study, a 2003 U.S. [C]ongress joint economic committee
report, a 2003 federal government accounting office
study, and a 2005 office of the commissioner of
insurance report.

3. Helping contain health care costs by providing more
predictability in noneconomic damage awards, allowing
insurers to set insurance premiums that better reflect
such insurers' financial risk, as recognized by a 2003
federal department of health and human services study.

4. Helping contain health care costs by providing more
predictability in noneconomic damage awards in order
to protect the financial integrity of the fund and
allow the fund's board of governors to approve
reasonable assessments for health care providers, as
recognized by a 2005 legislative fiscal bureau memo, a
2001 legislative audit bureau report, and a 2005
office of commissioner of insurance report.

Wis. Stat. § 893.55(1d)(a)1.-4. Although these four reasons are
more detailed, they essentially present the same justifications
that were tested and rejected in Ferdon. See Mayo v. Wis.
Injured Patients and Families Comp. Fund, 2017 WI App 52, ¶27,
377 Wis. 2d 566, 901 N.W.2d 782.

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¶105 First, as did the Ferdon court, the court of appeals

here concluded that the "current noneconomic damages cap is not

rationally related to the legislative objective of retaining

physicians in Wisconsin." Mayo, 377 Wis. 2d 566, ¶21. It

reached this conclusion because data demonstrates that the

number of physicians participating in the Fund has increased

each year since Ferdon, and that many states with no damages cap

at all "actually have higher physician retention rates than

Wisconsin."3 Id.

¶106 Second, in accord with the Ferdon court, the court of

appeals here determined that the damages cap is "not rationally

related to the legislative objective of curtailing the practice

of defensive medicine." Id., ¶22. Rather, the record

demonstrates that the financial impact of defensive medicine is

not readily measurable, and this has not changed in the time

since Ferdon was decided. Id. Further, the requirements that

doctors have primary medical malpractice coverage and make

contributions to the Fund mean that there is no risk of a doctor
facing personal liability for a judgment. Id. As the court of

appeals stated, "[t]his lack of uninsured personal liability

would logically appear to remove any incentive to practice

'defensive medicine.'" Id.

3
For example, our neighboring state of Minnesota, which has
no damage cap, retains its physicians at a higher rate than does
Wisconsin. See Ass'n of American Medical Colleges, 2011 State
Physician Workforce Data Book 54-55 (Nov. 2011),
https://www.aamc.org/download/263512/data/statedata2011.pdf.

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¶107 Third, the court of appeals concluded that, as in

Ferdon, "the record before us does not demonstrate any

correlation between medical malpractice premiums and caps on

noneconomic damages." Id., ¶24. Other jurisdictions, and even

medical malpractice insurers, have also failed to establish such

a connection. Id.

¶108 Finally, as the court of appeals determined, the

record does not demonstrate that the integrity of the Fund rises

and falls based on the damages cap. The Ferdon court observed

that "the Fund has flourished both with and without a cap."

Ferdon, 284 Wis. 2d 573, ¶158. This remains true today. The

Fund's assets have grown, while both claims and payments have

decreased. As the court of appeals concluded, "[i]t is obvious

that the Fund's financial solvency has not been negatively

impacted by claims when, in fact, the Fund's assets have grown."4

Mayo, 377 Wis. 2d 566, ¶25.

¶109 Before concluding, I observe that the majority's

analysis and its overruling of Ferdon depart from the time-
honored principle of stare decisis. We decided Ferdon only

thirteen years ago. "[R]espect for prior decisions is

fundamental to the rule of law." Johnson Controls, Inc. v.

4
According to the Fund's 2016 Functional and Progress
Report, as of June 30, 2016, the assets of the Fund totaled over
$1.3 billion, over $878 million of which is surplus. Wisconsin
Injured Patients and Families Compensation Fund, Office of the
Commissioner of Insurance (OCI), 2016 Functional and Progress
Report 13-14,
https://oci.wi.gov/Documents/Funds/IPFCFANNRPT16.pdf. This is
more than ample to cover the Fund's obligations.

5
 No. 2014AP2812.awb

Emp'rs Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665

N.W.2d 257 (2003).

¶110 "Stare decisis is the preferred course of judicial

action because it promotes evenhanded, predictable, and

consistent development of legal principles . . . and contributes

to the actual and perceived integrity of the judicial process."

Id., ¶95. "The decision to overturn a prior case must not be

undertaken merely because the composition of the court has

changed." Id.; see also Bartholomew v. Wisconsin Patients Comp.

Fund and Compcare Health Servs. Ins. Corp., 2006 WI 91, ¶32, 293

Wis. 2d 38, 717 N.W.2d 216 ("No change in the law is justified

by a change in the membership of the court[.]").

¶111 Equal protection guarantees that people similarly

situated are treated similarly. State ex rel. Harr v. Berge,

2004 WI App 105, ¶5, 273 Wis. 2d 481, 681 N.W.2d 282. Yet, the

$750,000 damage cap singles out the most severely injured and

treats them differently. It places the largest burden on them

and guarantees that this specific, vulnerable class of injured
patients will receive but a tiny fraction of the compensation

due.

¶112 Only those with the most catastrophic injuries will be

denied a full and fair damages award. Under the majority's

analysis, the Mayos will receive merely five percent of what a

jury assessed was due for their noneconomic damages, while those

less severely injured will get 100 percent. It makes no sense

that those who are injured most get the least. This senseless

6
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and unequal result is compounded by the lack of a rational basis

for the cap, rendering it unconstitutional.

¶113 This court got it right in Ferdon, as did the

unanimous court of appeals in this case.

¶114 For the reasons set forth above, I respectfully

dissent.

¶115 I am authorized to state that Justice SHIRLEY S.

ABRAHAMSON joins this dissent.

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1