Smith v. Hawthorne

LEVY, J.,

with whom SAUFLEY, C.J., and CLIFFORD, J. join, dissenting.

[¶36] Today, the Court extends our holding in Irish v. Gimbel, 1997 ME 50, 691 A.2d 664 (Irish I), beyond the scope of article I, section 20 of the Maine Constitution, and, in so doing, invalidates 24 M.R.S. § 2857(1)(C) (2005), a key provision of the Maine Health Security Act. Although the concluding paragraph of the Court’s decision appears to state that section 2857(1)(C) is only unconstitutional as applied by the trial court, the net effect of the decision is to treat the section as unconstitutional as written because the result will compel the trial court to ignore the plain language of the statute. Because I conclude that the Court’s constitutional analysis is contrary to the scope and purpose of article I, section 20, and that section 2857(1)(C) is a proper exercise of legislative authority, I respectfully dissent.

*442I. DISCUSSION

[¶37] I -will address, in order, (A) the Legislature’s purpose in enacting section 2857(1)(C); (B) the constitutional guarantee of the right to a civil jury trial embodied in article I, section 20 of the Maine Constitution; and (C) the application of article I, section 20 to section 2857(1)(C) and the circumstances of this case.

A. The Legislative Purpose of 24 M.R.S. § 2857(1)(C)

[¶ 38] The Court elects to take its cue from the absence of a similar “asymmetrical” statutory structure in other states, as opposed to examining the Legislature’s specific, articulated purpose behind section 2857(1)(C). However, as Justice Brandéis observed, “[i]t is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 76 L.Ed. 747 (1932) (Brandéis, J., dissenting). That other states have not chosen to adopt a similar standard should not bear on our consideration of the statute’s constitutionality.

[¶ 39] The regime governing the admission of the findings of the prelitigation screening and mediation panels in subsequent court actions set forth in section 2857 is designed to “encourage [both] early resolution of [meritorious] claims prior to commencement of a lawsuit ... and ... early withdrawal or dismissal of nonmeri-torious claims.” 24 M.R.S. § 2851(A), (B) (2005). This case concerns panel findings that fall within the ambit of section 2857(1)(C). With respect to claims that a panel has found to be nonmeritorious, section 2857(1)(C) restricts admission of the panel’s findings in any subsequent court action to “findings as to any question under section 2855 [that] are unanimous and unfavorable to the claimant.”

[¶40] In Sullivan v. Johnson, we explained that section 2857 is the means by which the Legislature seeks to advance a public policy that encourages the early resolution of medical malpractice claims:

The explicit purpose for the mandatory prelitigation screening and mediation panels is to identify claims of professional negligence that merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit or to encourage early withdrawal or dismissal of claims without merit. The statutory mechanism for encouraging the settlement, withdrawal or dismissal of claims is set forth in 24 M.R.S.A. § 2857 (1990) which provides for the admission in evidence ... of unanimous panel findings as to the issues of negligence and causation. Only when a litigant insists on proceeding to trial in the face of a unanimous and unfavorable panel finding does the statute contemplate the admission of the panel finding against a defendant who refuses to settle a meritorious claim or against a plaintiff who refuses to withdraw a claim without merit. The legislature’s intent to force final disposition of these claims short of trial is apparent on the face of this statute ....

628 A.2d 653, 656 (Me.1993) (internal citations omitted). On a micro level, section 2857(1) encourages parties to settle claims in order to reduce costly medical malpractice litigation, and on a macro level, section 2857(1) is intended to mitigate the larger social and economic consequences of such litigation. Barring the admission of a favorable panel finding in a split findings case is a key instrument of the Legislature’s effort to implement these policies.

[¶ 41] Notwithstanding the clear legislative policy embodied in section 2857(1) and, *443in particular, subsection (C)’s express reference to “panel findings as to any question under section 2855 [that] are unanimous and unfavorable to the claimant,” the Court’s constitutional analysis effectively rewrites section 2857(1)(C). As revised by the Court, section 2857(1)(C) requires the admission into evidence of both favorable and unfavorable panel findings in cases involving split findings. A claimant is therefore less prone to opt to “release the claim or claims based on the [panel’s] findings without payment,” 24 M.R.S. § 2858(2) (2005), knowing that the negative effect of the jury’s receipt of an unfavorable finding will be mitigated by the favorable finding that accompanies it. This reworking of section 2857(1)(C) undermines the inducement to settle nonmer-itorious medical malpractice claims that the statute was intended to achieve.

[¶42] The Court’s analysis of section 2857(1)(C) occurs in a vacuum, divorced from any consideration of the statute’s legislative purpose. This approach is perilous for several reasons. First, legislative power rests exclusively within the Legislative Branch, and that power is absolute except as limited by other provisions of the United States or Maine Constitutions. ME. CONST. art. IV, pt. 3, § 1; see SC Testing Tech., Inc. v. Dep’t of Envtl. Prot., 688 A.2d 421, 424 (Me.1996). We risk overstepping our institutional bounds as a coordinate branch of government when we invalidate an act of the Legislature without having weighed and accounted for the public policy the Legislature has sought to advance. Second, the Constitution entruts the exclusive authority for the adoption of statutory law with the Legislature because it is the branch of government best suited to undertake the investigation, fact-finding, and analysis needed to establish policies that account for social interests that are much broader than the narrow, personal interests of the parties to a lawsuit. Accordingly, the Legislature’s determination of public policy is binding on the courts so long as it is within constitutional limits. City of Belfast v. Belfast Water Co., 115 Me. 234, 241, 98 A. 738, 741 (1916). Finally, for the foregoing reasons, we exercise restraint in matters of public policy, and we invalidate acts of the Legislature only where a solid constitutional footing to do so exists.

[¶ 43] Accordingly, the question presented is whether the result reached by the Court — the invalidation of the plain language of a statute and the frustration of the legislatively-formulated public policy the statute is designed to implement — is compelled by article I, section 20, of the Maine Constitution. I believe that it is not.

B. The Right to a Jury Trial Guaranteed by Article I, Section 20 of the Maine Constitution

[¶ 44] The right to a jury trial in civil cases is expressed in article I, section 20, of the Maine Constitution:

In all civil suits, and in all controversies concerning property, the parties shall have a right to a trial by jury, except in cases where it has heretofore been otherwise practiced; the party claiming the right may be heard by himself or herself and with counsel, or either, at the election of the party.

ME. CONST, art. I, § 20 (emphasis added). The emphasized language contained in the first clause of article I, section 20, is descended from and similar to the corresponding provision in the Massachusetts Constitution:

In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right *444to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners’ wages, the legislature shall hereafter find it necessary to alter it.

MASS. CONST. pt. 1, art. XV (emphasis added).

[¶ 45] The Maine and Massachusetts constitutional provisions have historically been construed as guaranteeing the right to a trial by jury in civil cases unless it is demonstrated that such a right did not exist at the time of the adoption of each Constitution. See N. Sch. Congregate Hous. v. Merrithew, 558 A.2d 1189, 1190 (Me.1989) (stating that “our practice ... is to find that there is such a right unless it is affirmatively shown that a jury trial was unavailable in such a case in 1820”); Curcuru v. Rose’s Oil Serv., Inc., 441 Mass. 12, 802 N.E.2d 1032, 1036-37 (2004) (recognizing a right to a jury trial corresponding to that extant in 1780 at the time of the adoption of the Massachusetts Constitution). Thus, Maine and Massachusetts’s constitutional guarantees control the types of civil actions to which the right to a jury trial attaches.

[¶ 46] Except for our decision in Irish I, I have found no Maine or Massachusetts authority that suggests that either state’s constitutional guarantee restricts the Legislature’s power to control the mode of jury trials or the procedures that must be afforded once the right to a jury trial has been established. This absence of authority is consistent with the federal constitutional analogue contained in the Seventh Amendment. The Supreme Court- has stated that:

The Seventh Amendment, indeed, does not attempt to regulate matters of pleading or practice, or to determine in what way issues shall be framed by which questions of fact are to be submitted to a jury. Its aim is not to preserve mere matters of form and procedure but substance of right. This requires that questions of fact in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury or to itself such prerogative. So long as this substance of right is preserved the procedure by which this result shall be reached is wholly within the discretion of the legislature ....

Walker v. New Mexico & S. Pac. R.R. Co., 165 U.S. 593, 596, 17 S.Ct. 421, 41 L.Ed. 837 (1897) (emphasis added).9

[¶ 47] The Supreme Court has continued to adhere to the understanding of the purpose and limits of the Seventh Amendment expressed in Walker. For example, in upholding the authority of the federal district courts to reduce the number of jurors in civil actions from twelve to six, the Court recognized in Colgrove v. Battin that the right to a jury trial guaranteed by the Seventh Amendment relates to “the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure,” and is not binding as to “the exact procedural incidents or details of jury trial according to the common law” when the Seventh Amendment was adopted in 1791. 413 U.S. 149, 156, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973) (quotation marks omitted). More recently, the Court reiterated that “[o]nly those incidents which are regarded as fundamental, as inherent in and of the essence of the *445system of trial by jury, are placed beyond the reach of the legislature” by the Seventh Amendment. Tull v. United States, 481 U.S. 412, 426, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987) (quotation marks omitted); see also 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 3-32, at 619 (3d ed.2000).

[¶ 48] In Irish I we considered a constitutional challenge to the statute’s requirement, since eliminated by legislative amendment, that the findings of the preli-tigation screening and mediation panels be admitted at trial “without explanation.” 1997 ME 50, ¶ 1, 691 A.2d at 667. We determined that this proscription on any explanation infringed on the right to a jury trial guaranteed by article I, section 20 of the Maine Constitution, because it would prevent the jury from receiving “information that is essential to the jury’s fact-finding role,” and that “[t]he total absence of information and the unexplained silence of plaintiffs’ counsel in the face of the highly prejudicial findings invite[ ] unprincipled evaluation and can only result in juror confusion.” Id. ¶ 11, 691 A.2d at 670. Accordingly, we preserved the statute’s constitutionality by construing it as permitting “the disclosure of information about the prelitigation screening process sufficient to provide a rational basis for evaluation of the findings and to ensure the jury’s role as the final arbiter of the facts.” Id. ¶ 13, 691 A.2d at 671. We also noted that section 2857 “is a legitimate exercise of legislative power consistent with the constitutional right of a trial by a jury,” so long as the jury is informed as to how the panel arrived at its finding, the nonbinding nature of the finding, and the privileged and confidential nature of panel proceedings.10 Id.

[¶ 49] Although our application of article I, section 20 of the Maine Constitution in Irish I may be viewed by some as a departure from the traditional understanding of the limited focus of the federal and state constitutional provisions guaranteeing the right to a jury trial, I do not. The decision can be reconciled with the traditional view that only the fundamental incidents of jury trials as they existed in 1820, in Maine’s case, are beyond the reach of the Legislature because we determined in Irish I that the contextual information at issue was so “essential” to the jury performing its function, that absent the information juries would necessarily engage in “unprincipled evaluation” of evidence that “can only result in juror confusion.” Id. ¶ 11, 691 A.2d at 670. In other words, the burden on the right to a jury trial imposed by the statute considered in Irish I was so severe that it *446undermined “the essence of the system of trial by jury” and was therefore “beyond the reach of the legislature.” Tull, 481 U.S. at 426, 107 S.Ct. 1881 (quotation marks omitted).

[¶ 50] In Irish I and again today, the Court has applied article I, section 20 without any weighing of the public interests at stake. This approach, in effect, vaults the right to a jury trial over all other constitutional rights and interests, and deviates substantially from our application of the constitutional guarantees of due process and equal protection, both of which compel us to consider and weigh the competing private and public interests at stake whenever the constitutionality of a legislative act is challenged. See State v. Stade, 683 A.2d 164, 166 (Me.1996). To the extent we construe article I, section 20 as imposing limits on legislative power, the limits must be reserved for those truly exceptional situations where it has been clearly demonstrated that the statute substantially undermines a fundamental and essential aspect of the system of trial by jury. For the reasons that follow, I conclude that this case does not present such an exceptional situation.

C. The Application of Article I, Section 20 of the Maine Constitution to 24 M.R.S. § 2867(1)(C) (2005)

[¶ 51] The favorable panel finding regarding negligence that Smith wished to bring to the jury’s attention is not in the nature of the contextual information at issue in Irish I that we found to be essential for a jury to perform its function. The Legislature’s decision, embodied in section 2857(1)(C), to restrict the admission of findings to a panel’s unfavorable finding in split-finding cases such as this does not burden a claimant’s right to a jury trial so severely as to undermine the essence of the system of trial by jury. “It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury.” Irish, 1997 ME 50, ¶ 9, 691 A.2d at 670 (quoting Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 59 L.Ed. 644 (1915)). It is substantially similar, in effect, to the discretion judges exercise to exclude from evidence what otherwise might be relevant findings of an administrative agency where “all the evidentiary matter before the [state agency] could be presented to the jury .... ” Hall v. W. Prod. Co., 988 F.2d 1050, 1058 (10th Cir.1993); see also Tiemann v. Santarelli Enters., Inc., 486 A.2d 126, 130-31 (Me.1984) (affirming trial court’s exclusion from evidence of relevant investigative report pursuant to confidentiality provision of Maine Human Rights Act); Paolitto v. John Brown E. & C., Inc., 151 F.3d 60, 65 (2nd Cir.1998); Denny v. Hutchinson Sales Corp., 649 F.2d 816, 821-22 (10th Cir.1981).

[¶ 52] I am not persuaded that the burden on the right to a jury trial from the exclusion of the favorable panel finding in this case approaches the severity of that considered in Irish I. Unlike Irish I, where the excluded information was described as “essential” to jury performance and necessarily results in “unprincipled evaluation” of evidence that “can only result in juror confusion,” here the Court describes the favorable panel finding as “relevant to the jury’s deliberations,” and states that the jury “could have been misled into believing that the panel found that Hawthorne was not negligent even though the panel unanimously found that she was.” Supra ¶24. The Court’s less-certain tone in this ease about the potential that jurors will be misled is apt because unlike the complete bar to the introduction of contextual information at issue in Irish I, here, section 2857(1)(C) does not impose a complete bar to the introduction of evi*447dence on the issue of the physician’s negligence. The jury received substantial evidence from both parties regarding the negligence issue. As measured by the length and complexity of the comprehensive evidence the parties introduced at trial on the issue of whether Hawthorne was negligent, the jury’s receipt of the unfavorable panel finding on proximate cause— encompassing a minute or two of a four day trial — does not stand out as a prominent facet of the body of evidence the jury evaluated. One is hard-pressed to deduce from this record that the jury was misled by the court’s exclusion of the favorable panel finding pursuant to section 2857(1)(C).

II. CONCLUSION

[¶ 58] It is not within our prerogative to judge the wisdom of the statute or the public policy that underlies it absent a violation of the United States or Maine Constitutions. The Legislature’s decision to bar the introduction into evidence of a favorable panel finding in a split finding case is supported by a determination of public policy involving a subject of great public concern. See Gafner v. Down East Comty. Hosp., 1999 ME 180, ¶ 42, 735 A.2d 969, 979. Because this legislated decision does not substantially undermine a fundamental and essential aspect of the jury trial process, it has not been demonstrated that the Legislature has acted beyond its reach in violation of article I, section 20.

[¶54] We should defer to the Legislature’s judgment in this case, and adhere to the admonition that “[w]hether wisdom or unwisdom resides in the [legislative] scheme ... is not for us to say.... Our concern here, as often, is with power, not with wisdom.” Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 81 L.Ed. 1307 (1937). Based on the plain language of section 2857(1)(C) and the public policy it represents, the Superior Court’s judgment should be affirmed.

. This view is more fully expressed in Austin W. Scott, Trial by Jury and the. Reform of Civil Procedure, 31 HARV. L. REV. 669, 671 (1918), which was quoted approvingly by the Supreme Court in Colgrove v. Battin, 413 U.S. 149, 156 n. 11, 93 S.Ct 2448, 37 L.Ed.2d 522 (1973).

. We explained in Irish I:

The constitutional deficiency lies in the lack of relevant neutral information, not the restriction on skillful advocacy. We determine that a jury will be able to perform its function if the court makes preliminary comments and final instructions that provide the following information:
1) the panel process is merely a preliminary procedural step through which malpractice claims proceed;
2) the panel in this case consisted of (the name and identity of the members);
3) the panel conducts a summary hearing and is not bound by the Rules of Evidence;
4) the hearing is not a substitute for a full trial and may or may not have included all of the same evidence that is presented at the trial;
5) the jury is not bound by the finding(s) and it is the jurors’ duty to reach their own conclusions based on all of the evidence presented to them; and
6) the panel proceedings are privileged and confidential. Consequently, the parties may not introduce panel documents of present witnesses to testify about, the panel proceedings, and they may not comment on the panel finding(s) or proceedings except to reiterate the information in 1 through 6.

1997 ME 50, ¶ 12, 691 A.2d at 671.