dissenting: I respectfully disagree with the filing procedure and with the majority opinion. The procedure of filing *365a brief opinion on March 30, 1989, with a formal opinion to follow was bad practice in this case. At the time the brief opinion was filed, the legislature was in session discussing the need for a constitutional amendment to effect tort reform. The timing of the opinion thrust this court into the legislative debate and left an indication the decision was politically motivated. This undermines public confidence in the independence and neutrality of the judiciary. I would have treated this opinion as other opinions and filed it in the ordinary course of Supreme Court work.
We now turn to the majority formal opinion. The statute in question is the most recent of many efforts by the legislature to accomplish “tort reform.” The name is a misnomer. The effort has not been to reform torts but to restrict the recovery of damages by the victim of a wrongdoer. The impetus to change the methods of determining liability and damages for the negligent injury to persons was brought about by the increase in the size and frequency of judgments in tort actions in the past twenty years. The increase is largely attributable to the following changes, most of which are the result of a reform movement of the 1960s and 1970s:
1. Abolition of contributory negligence as a defense.
2. Comparative negligence.
3. Adoption of strict liability in tort.
4. Abolition of the guest statute.
5. Abolition of governmental immunity.
6. Authorization of class actions.
7. Availability of expert witnesses.
8. Making juries representative of communities.
9. Public sensitivity to human rights.
10. Better trial techniques through use of demonstrative evidence.
11. Abolition of assumption of risk as a defense.
12. Inflation.
The proponents of “tort reform” actively opposed most of those reforms even though they are considered to have promoted substantial justice. There has been great pressure on the legislature for tort reform over the past several years. The legislature has responded quite readily by enacting the Kansas Automobile Injury Reparations Act (No Fault), K.S.A. 40-3101 et seq., in 1974; and *366by implementing in 1976 the Health Care Stabilization Fund, K.S.A. 40-3401 et seq., the Medical Screening Panels, K.S.A. 65-4901 et seq., and the shortened statute of limitations in medical malpractice cases, K.S.A. 60-513. Also in 1976 the legislature modified the collateral source rule for medical malpractice cases, K.S.A. 60-471; this statute was struck down in 1985. In 1985, a cap was placed on punitive damages, K.S.A. 1985 Supp. 60-3402, and another modification of the collateral source rule in medical malpractice cases was passed, K.S.A. 1985 Supp. 60-3403. The collateral source modification was again struck down. In 1986, the legislature passed House Bill 2661, L. 1986, ch. 299, § 13, which placed a total cap on recovery for medical malpractice at $1,000,000 and a cap of $250,000 on recovery for noneconomic loss. This cap was struck down in 1987. K.S.A. 1987 Supp. 60-19a01 was then passed, placing a cap on damages for pain and suffering. In 1988, the cap was extended to all noneconomic loss, K.S.A. 1988 Supp. 60-19a02. The latter two statutes are the subject of this opinion. As was well described in our opinion in Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988), none of these valiant efforts have produced the desired results. This is true because the statutes cannot attack the cause of the judgments. The cause is negligent injury of people. Wrongfully injured people are entitled to be adequately compensated by the wrongdoer for their injury.
In Malpractice Victims, we held that a $1,000,000 limit on total recovery and a limit of $250,000 on recovery for noneconomic loss in medical malpractice lawsuits violated §§ 5 and 18 of the Bill of Rights of the Kansas Constitution. In Malpractice Victims, we recognized that the legislature’s limited power to modify the constitutional guarantees of a jury trial and a remedy by due course of law in actions recognized in the common law is tempered by due process requirements. We held the due process requirements could be met by substituting a viable statutory remedy for the constitutionally guaranteed plaintiffs right. 243 Kan. at 343-44. This is denominated a quid pro quo (this for that). We held K.S.A. 1987 Supp. 60-3407 failed to meet such requirement because medical malpractice plaintiffs did not receive anything in return for the statutory limitation on their right to a jury and a remedy by due course of law. We specifically rejected *367the argument that a quid pro quo existed for the reason that medical malpractice plaintiffs were guaranteed recovery of their judgment due to the health care providers’ required insurance coverage. Thus, the statutory requirement that the trial court enter judgment for $250,000, if the jury returned a verdict higher than that, offered nothing in exchange for taking away the constitutional guarantees.
It is axiomatic that, to satisfy the constitutional requirements in the present case, it must be shown that a substitute remedy is provided by K.S.A. 1988 Supp. 60-19a02 of sufficient benefit to plaintiff to balance the loss of plaintiffs constitutional rights. The majority accepts the defendant’s argument that a sufficient quid pro quo is provided by what is claimed to be a restriction on the trial court’s power to grant remittitur or a new trial even if the trial court believes the verdict is excessive or not supported by the evidence. This conclusion is erroneous.
Under the United States Constitution and the Kansas Constitution, interpreted by a long fine of cases, the right to trial by jury includes the presence of a judge to determine the law of the case which carries with it the power to set aside a jury’s verdict if it is not supported by the evidence. See Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 43 L. Ed. 873, 19 S. Ct. 580 (1899); Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 299, 672 P.2d 1083 (1983); Kirk v. Beachner Construction Co., Inc., 214 Kan. 733, 736, 522 P.2d 176 (1974). This is basic to a jury trial and any interference with such judicial function is a violation of the separation of powers. A trial judge, inherently, has wide discretion in granting a new trial or setting aside a verdict when the jury verdict is excessive or so inadequate as to indicate passion and prejudice by the jury. Smith v. Newell, 210 Kan. 114, 117, 499 P.2d 1112 (1972).
Nowhere in K.S.A. 1988 Supp. 60-19a02 is there an indication of an intent by the legislature to attempt to eliminate a trial court’s inherent right to order remittitur or grant a new trial. Placing a statutory limit on the amount of damages a personal injury victim may recover in no way affects the trial court’s power to review the evidence in fight of the jury verdict and determine whether the verdict is excessive or inadequate. If there were such legislative intent shown, it would be an unconstitutional *368usurpation of the judicial function by the legislature and a violation of the separation of powers.
Now let us compare K.S.A. 1987 Supp. 60-3407, the statute we held unconstitutional in Malpractice Victims, with K.S.A. 1988 Supp. 60-19a02. Both statutes forbid the trial court to instruct the jury on the statutory limitations on recovery and each requires the court to enter a judgment of $250,000 for noneconomic loss when the jury verdict exceeds the limitation. The language in the two statutes is identical in this regard. Thus, the issue asserted here was present in Malpractice Victims and rejected. The issue in this case is indistinguishable from the issue in Malpractice Victims.
In Malpractice Victims, we stated a statutory cap limiting recovery in an action for personal injuries without an adequate substitute remedy acts as a compulsory, pre-established remittitur which forces a successful victim of negligent injury to bear part of this loss by having to forgo part of his jury award without his or her consent. 243 Kan. at 345. The result is the same in the present case. No matter how serious the jury determines the personal injury victim’s noneconomic loss to be, the successful plaintiff may receive only a portion of the damage award. In weighing this issue, it is well to remember that defamation of character and disfigurement are good examples of noneconomic damages and that, if the legislature is granted authority to limit damages with no quid pro quo, it has the power to reduce them to $1.00 and its power is not restricted to noneconomic damages. The majority is drastically changing the constitutional scheme of due process by turning the trial of damage suits over to the legislative branch of government. Kansas Bill of Rights, § 5 provides: “The right to trial by jury shall be inviolate.” According to Webster’s New International Dictionary 1306 (2d ed. 1935), “inviolate” is defined as: “Not violated; unimpaired; unbroken; unprofaned.”
K.S.A. 1988 Supp. 60-19a02 violates the Kansas Bill of Rights on the same rationale as we stated in Malpractice Victims. The majority should adhere to its noble words about stare decisis and follow the precedent of Malpractice Victims.
After conjuring up a fictitious quid pro quo for compromising both § 5 and § 18 of the Kansas Bill of Rights, the majority *369opinion then abandons that theory and holds that a quid pro quo is unnecessary, stating: “The majority of this court recognizes that the legislature’s decision to modify the common law, by setting a limit on noneconomic damages, is a legislative decision that does not violate our state constitution.” This is an incorrect statement of the law, if followed it eliminates the judiciary’s constitutional responsibility for due process in personal injury actions.
In Kimball, et al, v. Connor, Starks, et al, 3 Kan. 414, 432 (1866), we held the right to trial by jury applied only to cases triable at common law. The Kansas Constitution was adopted and ratified in 1859. Suits for damages for negligent personal injury were triable by jury at common law at that time. See Tefft v. Wilcox, 6 Kan. *46 (1870). Thus, the cases to which jury trials applied were fixed in 1859. Giving the legislature the authority to limit damages by changing the common law, or otherwise, violates § 5 of the Kansas Bill of Rights by taking the damage question away from the jury. A written constitution is adopted for the purpose of limiting the power of government. Providing that trial by jury shall be inviolate is a limitation on government as a protection of individual rights. There is no question the legislature has the power to change or abolish the common law. That, however, does not change the Kansas Constitution. A later change in the common law does not affect the meaning of § 5. Its meaning was fixed in 1859. The proper method of constitutional change is by amendment, not legislation. In Marbury v. Madison, 5 U.S. (1 Cranch) 49, 69 (1803), Chief Justice Marshall explained this issue well:
“The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
“Between these alternatives there is no middle ground. 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.
*370“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.
“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.
“This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society.”
It is improper for an appellate court to permit a legislature to change the Constitution based on emergency or expediency. Prof. Bernard Schwartz, of New York University School of Law, in The Supreme Court 307 (1957), comments on this issue:
“A tribunal that molds its law only to fit the immediate demands of public sentiment is hardly fulfilling the role proper to the supreme bench in a system such as ours: ‘The Court has no reason for existence if it merely reflects the pressures of the day,’ ” quoting from Board of Education v. Barrette, 319 U.S. 624, 665, 87 L. Ed. 1628, 63 S. Ct. 1178 (1943) (Frankfurter, J., dissenting).
16 Am. Jur. 2d, Constitutional Law § 96, p. 429, states:
“A state constitution has been described as a fundamental instrument, not to be stretched and strained to meet the exigencies and necessities of the moment, and as a basic instrument which is rigid and firm and will withstand the emotional upheavals of the time, in the interest of protecting continually the rights it guarantees.”
The majority opinion amends the constitution and grants the legislature the power to determine damages in all personal injury actions. It is not limited to the facts in this case. We are making a grant of power without restriction. This is a major change of policy and should be approached with caution.
It has been often said that expediency is the worst enemy of a written constitution. In fact, written constitutions were conceived to avoid changing fundamental principles under the emotional upheavals of the time (expedient circumstances). Our action here is obviously in response to just such an emotional upheaval.
I would hold K.S.A. 1988 Supp. 60-19a01 and -19a02 unconstitutional.
Allegrucci, J., dissenting.