¶ 33. (dissenting). St. Francis Hospital and its insurer, American Continental Insurance Company, Dr. James Sullivan, Dr. Richard Fitzpatrick, Southeastern Emergency Medical Services, S.C., and their insurer, Physicians Insurance Company of Wisconsin, and the Wisconsin Patients Compensation Fund (collectively, "the Fund") appeal from the circuit court's nonfinal order declaring that "the provisions of WlS. STAT.§§ 655.017 and 893.55(4) imposing a $350,000 recovery cap [on noneconomic damages] in medical malpractice cases are unconstitutional."1 Because the challenged statutes violate the constitutional right to a jury trial, we must affirm.
I. BACKGROUND
¶ 34. In June 1997, Audrey Guzman received treatment at St. Francis Hospital for a cervical spine fracture. She alleged that due to the negligence of St. Francis and several health care providers in diagnosing and treating her, she had suffered spinal cord *592injuries and become "an incomplete quadriplegic who will spend the rest other life being unable to work, use her arms completely, or have neurological control or sensation over the majority of her body."
¶ 35. Guzman, her husband and their two children brought the underlying action seeking damages for, among other things, pain, suffering, loss of consortium, and loss of society and companionship. They also asked the circuit court to declare that WlS. STAT. §§ 655.017 and 893.55(4), limiting their potential recovery of noneconomic damages to $350,000, were unconstitutional.2 The circuit court agreed, concluding that the statutory limit on recovery of noneconomic damages in medical malpractice cases was unconstitutional.
II. DISCUSSION
A. The Challenged Statutes
¶ 36. The challenged statutes provide for what is commonly called the "cap" on recovery of noneconomic damages in medical malpractice cases. Wisconsin Stat. § 655.017 (1997-98),3 in relevant part, provides:
Limitation on noneconomic damages. The amount of noneconomic damages recoverable by a claimant or plaintiff under this chapter for acts or omissions of a health care provider if the act or omission occurs on or after May 25, 1995, and for *593acts or omissions of an employe of a health care provider, acting within the scope of his or her employment and providing health care services, for acts or omissions occurring on or after May 25, 1995, is subject to the limits -under s. 893.55(4)(d)
WISCONSIN Stat. § 893.55(4), in relevant part, provides:
(a) In this subsection, "noneconomic damages" means 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.
(b) The total noneconomic damages recoverable for bodily injury or death, including any action or proceeding based on contribution or indemnification, may not exceed the limit under par. (d) for each occurrence on or after May 25,1995, from all health care providers and all employes of health care providers acting within the scope of their employment and providing health care services who are found negligent and from the patients compensation fund.
(c) A court in an action tried without a jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If noneconomic damages in excess of the limit are found, the court shall make any reduction required under s. 895.045 [relating to contributory negligence] and shall award as noneconomic damages the lesser of the reduced amount or the limit. If an action is before a jury, the jury shall make a finding as to noneconomic damages without regard to the limit under par. (d). If the jury finds that noneconomic damages exceed the limit, the jury *594shall make any reduction required under s. 895.045 and the court shall award as noneconomic damages the lesser of the reduced amount or the limit.
(d) The limit on total noneconomic damages for each occurrence under par. (b) on or after May 25,1995, shall be $350,000 and shall be adjusted by the director of state courts to reflect changes in the consumer price index for all urban consumers, U.S. city average, as determined by the U.S. department of labor, at least annually thereafter, with the adjusted limit to apply to awards subsequent to such adjustments.
B. The Standards of Review
¶ 37. The interpretation of a statute presents a question of law, which we review de novo. Burks v. St Joseph’s Hosp., 227 Wis. 2d 811, 824, 596 N.W.2d 391 (1999). We generally will not engage in statutory construction unless a statute is ambiguous. Harris v. Kelley, 70 Wis. 2d 242, 249, 234 N.W.2d 628 (1975). Here, no party suggests that the challenged statutes are ambiguous.
¶ 38. The constitutionality of a statute also presents a question of law, which we review de novo. Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 119, 595 N.W.2d 392 (1999). Statutes are presumed to be constitutional. Id. As the supreme court has explained:
One who challenges a statute's constitutionality carries a heavy burden of persuasion. He [or she] must overcome the presumption of constitutionality described in State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46, 205 N.W.2d 784 (1973):
". . . It is not enough that respondent establish doubt as to the act's constitutionality nor is it sufficient that respondent *595establish the unconstitutionality of the act as a probability. Unconstitutionality of the act must be demonstrated beyond a reasonable doubt. 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. This court has often affirmed the well-established presumption of constitutionality that attaches itself to all legislative acts...."
The court cannot reweigh the facts as found by the legislature. If the court can conceive any facts on which the legislation could reasonably be based, it must hold the legislation constitutional.
State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 506, 261 N.W.2d 434 (1978).
¶ 39. "The presumption of statutory constitutionality is the product of our recognition that the judiciary is not positioned to make the economic, social, and political decisions that fall within the province of the legislature." Aicher v. Wisconsin Patients Compensation Fund, 2000 WI 98, ¶ 20, 237 Wis. 2d 99, 613 N.W.2d 849. Still, neither our respect for the legislature nor the presumption of constitutionality allows for absolute judicial acquiescence to the legislature's statutory enactments. Indeed, as the supreme court has emphasized, "Since Marbury v. Madison, it has been recognized that it is peculiarly the province of the judiciary to interpret the constitution and say what the law is." State ex rel. Wisconsin Senate v. Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988) (citation omit*596ted).4 Faithful to these standards, we now must determine the constitutionality of the statutory cap on recovery of noneconomic damages in medical malpractice actions, as provided in WlS. STAT. §§ 655.017 and 893.55(4)(a)-(d).5 Unfortunately, the majority's determination is mistaken.
*597C. The Circuit Court Decision
¶ 40. Granting the Guzmans' motion for declaratory judgment, the circuit court concluded that WlS. *598STAT. §§ 655.017 and 893.55(4) were unconstitutional because they violated the right to a jury trial guaranteed by art. I, § 5 of the Wisconsin Constitution. The court explained:
For defendants' argument [that once the jury has ascertained the facts and assessed damages, the jury trial right has been satisfied, notwithstanding the trial court's reduction of the damages award to the statutory limit] to stand, plaintiffs' guaranteed day in court would be merely going through the motions after which the trial court would disregard the jury's assessment of damages.
Moreover, as defendants conceded in oral argument, under their interpretation of the power of the legislature, the cap could be reduced to $10 without violating the right to a jury trial because the legislature has the right to change common law rights. Such power would render the constitutional right to a jury trial illusory.
Constitutional protections such as the right to a jury trial are too important and too ingrained into the fabric of our system of justice to be so easily shredded.
¶ 41. The circuit court also concluded that the statutes were an unconstitutional "usurpation of the judiciary's exclusive remittitur role in violation of constitutional separation of powers." The court reasoned:
*599Because the legislature mandates that trial courts reduce a jury's noneconomic damage award to $350,000, there is a conflict with the judiciary's exclusive remittitur role in contravention of the Wisconsin separation of powers doctrine.
The doctrine of remittitur of an excessive jury verdict is never compulsory and should only be used upon a clear showing on a case-by-case basis that the evidence of a particular case viewed in the light most favorable to the verdict does not support an award.
This power is, therefore, an essential role exclusively within the judicial province. These provisions invade this role by requiring the reduction -without any review of the facts of a particular case.
(Citation omitted.) Although we rewiew the issues in this appeal de novo, we should value the circuit court's analysis. See State v. Hansford, 219 Wis. 2d 226, 234, 580 N.W.2d 171 (1998).
D. The Right of Trial by Jury
¶ 42. Article I, § 5 of the Wisconsin Constitution provides, in relevant part, "The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy ...."
¶ 43. The Fund argues that the circuit court erred in concluding that the challenged statutes violate the Guzmans' right to a jury trial. The Fund asserts that the statutory cap on recovery of noneconomic damages in medical malpractice cases is not only constitutional, but "unremarkable.'' After all, the Fund contends:
The "cap" now at issue is only a relatively minor modification to a field occupied 25 years ago as a *600way of regulating the economics of medical malpractice.
Even a cursory review of the Wisconsin Statutes will reveal countless examples of instances in which the Wisconsin Legislature has altered the common law substantially. It has eliminated remedies; it has codified, then modified, a negligent plaintiffs right to recover from negligent defendants, as well as those defendants' rights of contribution inter se; it has immunized entire classes of individuals from the proximate consequences of their negligence; it has limited the amount of recovery, regardless of the amount of actual damages incurred [in claims for wrongful death, claims against governmental bodies, and claims against state employees]; it has preempted entire fields formerly governed by common law; and it has abolished common law actions or claims in their entirety.
In short, there is nothing unusual about the Legislature's decision to cap liability for noneconomic damages in medical malpractice cases. It is simply one example of the Legislature's continuing attempt to balance competing economic interests in a world of finite resources.
(Footnotes and citations omitted.)
¶ 44. Notably, however, the Fund points to no examples of the legislature's curtailment of the right of trial by jury in the arena of medical malpractice cases. See Aicher, 2000 WI98 at ¶ 60 ("[T]he distinct nature of the medical malpractice arena itself sets it apart from other forms of litigation."). I conclude that, under the uncompromising declaration of art. I, § 5 of the Wisconsin Constitution, and under the unyielding words of the Wisconsin Supreme Court, WlS. Stat. §§ 655.017 and *601893.55(4) infringe upon and impair the jury's ultimate determination of economic damages and, therefore, violate the right of trial by jury.
¶ 45. "One of the common-law rights recognized by the legislature is the right to bring a medical malpractice claim." Aicher, 2000 WI 98 at ¶ 44. "The parties to an action are entitled to a jury trial on all issues of fact, including that of damages." Jennings v. Safeguard Ins. Co., 13 Wis. 2d 427, 431, 109 N.W.2d 90 (1961) (emphasis added). Noneconomic damages often are "hard to measure, and must rest in the discretion of the jury, guided by common sense." Butts v. Ward, 227 Wis. 387, 404, 279 N.W. 6 (1938).
¶ 46. Almost a century ago, the supreme court declared, "It would be inconceivable that the people of Wisconsin, in establishing a government to secure the rights of life, liberty, and the pursuit of happiness, should by general grant of legislative power have intended to confer upon that government authority to wholly subvert those primary rights . . . ." State ex rel. Zillmer v. Kreutzberg, 114 Wis. 530, 532-33, 90 N.W.2d 1098 (1902). Unquestionably, the right of trial by jury is among those "primary rights." See Wis. CONST, art. I, § 5; see also La Bowe v. Balthazor, 180 Wis. 419, 423, 193 N.W. 244 (1923) ("The public policy of the state ... is determined by the constitution so far as jury trials are concerned, and the legislature is not permitted to circumvent the constitutional provision in order to even secure a better public policy. That can only be done by constitutional amendment.") (emphasis added). Thus, as the supreme court recently reiterated, "Although the legislature has the authority to alter Wisconsin's common law, it may not do so contrary to the provisions set forth in the Wisconsin Constitution." Hansford, 219 Wis. 2d at 235 n.10.
*602¶ 47. The majority ignores these emphatic declarations. Instead, the majority attempts to recast this case by pursuing a non-issue: whether the legislature has authority to modify the common law. Of course it does. After all, as the majority notes, WlS. CONST, art. XIV, § 13 provides: "Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature." Majority at ¶ 7. But, as the supreme court has repeatedly and emphatically declared in countless cases including Zillmer, La Bowe, and Hansford, the legislature may not do so in violation of the constitution.
¶ 48. "The right of trial by jury shall remain inviolate . . . ." WlS. CONST, art. I, § 5. "Inviolate" means "[flree from violation; not broken, infringed, or impaired." Black's Law Dictionary 832 (7th ed. 1999). Further, the right "shall extend to all cases at law without regard to the amount in controversy." WlS. Const, art. I, § 5.
¶ 49. Clearly, and beyond all doubt, the cap violates an individual’s right to a jury trial by infringing upon and impairing the jury's authority with regard to the amount in controversy. As Guzman argues:
The legislature has mandated that the circuit court and medical malpractice litigants engage in a charade in which the jurors are given the illusion of decision making. The jury is instructed on the law, renders a verdict based on all of the evidence presented, and, then, after it is discharged, the trial court is required to disregard its verdict if it awards more than $350,000 in noneconomic damages.
*603Guzman is correct. By mandating a cap on noneconomic damages, without regard to the facts of a case or the findings of a jury, the legislature has infringed upon and impaired the right of trial by jury.
¶ 50. Although, as noted, the supreme court has not directly addressed the issue in this appeal, see n.5 above, the court, in Strykowski, in the context of challenges to the constitutionality of statutes allegedly affecting the right to a jury trial in medical malpractice cases, commented extensively in ways that clearly counter the majority's conclusion. See Strykowski, 81 Wis. 2d at 522-31. In Strykowski, the petitioners argued, among other things, that the patients' compensation panel process of the original version of WlS. STAT. ch. 655 violated their right of trial by jury in two respects: first, "that the expense inherent in panel proceedings," required as a prerequisite to a court action, limited "the accessibility of a subsequent trial," and second, "that the admissibility of panel findings undercut[ ] their right to have a jury determine the facts." See Strykowski, 81 Wis. 2d at 522-23. Rejecting their argument, the supreme court declared, "The legislature may modify old procedures, or create new ones, if the substantive right to jury trial is preserved." Id. at 523 (emphasis added).
¶ 51. The supreme court explained that the patients' compensation panel process consisted of "proceedings preliminary to trial." See id. at 524 (emphasis added). Significantly, however, the court rejected the argument that the panel process infringed upon the right of trial by jury for a simple reason: "The medical review panel does not decide the case; the ultimate arbiter of all questions of fact is the jury." Id. at 526 (emphasis added). Further, precisely because WlS. Stat. ch. 655 "provide[d] adequate opportunity to chal*604lenge the findings and order of the panel" in a subsequent jury trial at which the ultimate arbiter of all questions of fact would be the jury, "there [would] be no constitutional infirmity to contaminate the exclusive prerogatives of the jury." See id. at 526-29 (emphasis added).
¶ 52. In Strykowski, the supreme court invoked the words of Justice Brandéis, writing for the United States Supreme Court in In re Peterson, 253 U.S. 300, 309-10 (1920):
". . . The command of the Seventh Amendment that 'the right of trial by jury shall be preserved' does not require that old forms of practice and procedure be retained. It does not prohibit the introduction of new methods for determining what facts are actually in issue, nor does it prohibit the introduction of new rules of evidence. Changes in these may be made. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right. The limitation imposed by the Amendment is merely that enjoyment of the right of trial by jury be not obstructed, and that the ultimate determination of issues of fact by the jury be not interfered with."
Strykowski, 81 Wis. 2d at 529-30 (citations omitted; emphasis added). And later in its opinion, the supreme court again invoked the United States Supreme Court's powerful words, this time from Meeker v. Lehigh Valley Railroad Co., 236 U.S. 412, 430 (1915), in which the Court rejected a constitutional challenge to another alleged denial of the right of trial by jury precisely because the challenged rule " 'cuts off no defense, interposes no obstacle to a full contestation of *605all the issues, and takes no question of fact from either court or jury.'" Strykowski, 81 Wis. 2d at 531 (quoting Meeker) (emphasis added).
¶ 53. Thus, both the Wisconsin Supreme Court and the United States Supreme Court have held true to the authority of the jury as the "ultimate arbiter of all questions of fact," see id. at 526, or, at the very least, to the authority of the jury, as reviewed by the trial judge, to make those "ultimate" determinations of all questions of fact, including damages, with respect to the specific facts of each case.6
¶ 54. In this respect, the majority's reliance on comparative negligence law is completely misplaced. When, in a case involving comparative negligence, the *606jury has allocated negligence according to the specific facts of the case, the trial court's computation of the award, consistent with the jury's factual determination, certainly does not diminish the jury's role as "the ultimate arbiter of all questions of fact." See Strykowski, 81 Wis. 2d at 526. And even when, in such a case, a trial court ultimately awards nothing, it does so consistent with the jury's determination that one party was more negligent than the other. The cap on noneconomic damages in a medical malpractice case, however, applies without regard to the specific facts found by the jury.
¶ 55. The Wisconsin Supreme Court, throughout Wisconsin's history, has "rigidly maintain[ed], inviolably, the right of trial by jury." Finkelston v. Chicago, Milwaukee & St. Paul Ry. Co., 94 Wis. 270, 278, 68 N.W. 1005 (1896). Indeed, our supreme court has declared that "[n]o court has stood more steadfastly and consistently for an unimpaired right of jury trial." Thoe v. Chicago, Milwaukee & St. Paul Ry. Co., 181 Wis. 456, 466, 195 N.W. 407 (1923).
¶ 56. This court must do no less. See State v. Clark, 179 Wis. 2d 484, 493, 507 N.W.2d 172 (Ct. App. 1993) (court of appeals bound by supreme court decisions). Article I, § 5 of the Wisconsin Constitution lists no exception to the right of trial by jury for medical malpractice actions; it lists no exception for noneconomic damages. "Rigidly maintain[ing]" the inviolate right of trial by jury, see Finkelston, 94 Wis. at 278, I conclude that, unquestionably, the challenged statutes do exactly what art. I, § 5 prohibits: they infringe upon and impair the inviolate right to a jury trial by substituting the legislature for the jury as the *607"ultimate arbiter" of noneconomic damages in medical malpractice cases. Accordingly, I respectfully dissent.
The circuit court also declared that "the provisions of Wis. Stat. § 655.015 relating to damages for future medical expenses in excess of $100,000 in medical malpractice cases are constitutional." Guzman does not challenge that portion of the order.
In an order dated May 17,1999, we granted leave to appeal from the circuit court's nonfinal order because, we concluded, interlocutory review would "clarify further proceedings and, more importantly, clarify an issue of general importance for the administration of justice." The supreme court, after granting a petition to bypass, divided three to three (Justice Prosser not participating) on whether to affirm or reverse the circuit court's nonfinal order. Guzman v. St. Francis Hosp., Inc., 2000 WI 34, ¶ 1, 234 Wis. 2d 170, 609 N.W.2d 166. Consequently, the supreme court vacated its order granting the petition to bypass and remanded the case to this court. Id. at ¶ 3.
While not conceding liability, the appellants do not dispute that Guzman's noneconomic damages exceed $350,000 and, therefore, that the determination of the constitutionality of the challenged statutes will directly affect the amount of Guzman's potential recovery.
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
As eloquently expressed by Alexander Hamilton in The Federalist No. 78:
It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Although no Wisconsin appellate decision has determined the constitutionality of the cap on recovery of noneconomic damages in medical malpractice cases, several have approached the area.
In State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 261 N.W.2d 434 (1978), certain of the original 1975 enactments of WlS. STAT. ch. 655 survived constitutional challenges. The supreme court, however, in the context of an equal protection challenge, declined to address the constitutionality of the cap then encompassing awards for noneconomic damages in medical malpractice actions because it could not have affected the plaintiffs' recoveries in that case. See id. at 511. But, as I shall discuss in this dissenting opinion, the court did address *597whether certain provisions of ch. 655 violated the right to a jury trial.
In Rineck v. Johnson, 155 Wis. 2d 659, 456 N.W.2d 336 (1990), overruled, in part, on other grounds by Chang v. State Farm Mutual Automobile Insurance Co., 182 Wis. 2d 549, 566, 514 N.W.2d 399 (1994), the supreme court concluded that the cap on recovery of noneconomic damages in medical malpractice actions, then $1 million under the 1985 amendments to WlS. STAT. chs. 655 and 893, superseded the lower cap in the wrongful death statute where the death resulted from medical malpractice. See Rineck, 155 Wis. 2d at 666-68. The court, however, did not address the constitutionality of the medical malpractice cap.
In Jelinek v. St. Paul Fire & Casualty Insurance Co., 182 Wis. 2d 1, 512 N.W.2d 764 (1994), superseded by statute as stated in Czapinski v. St. Francis Hospital, Inc., 2000 WI 80, 236 Wis. 2d 316, 613 N.W.2d 120, the supreme court held that, after the expiration of the cap contained in the 1985 amendments, recovery of noneconomic damages in medical malpractice actions involving death was unlimited. See Jelinek, 182 Wis. 2d at 12. Again, however, the court did not determine the constitutionality of the cap.
In Martin v. Richards, 192 Wis. 2d 156, 531 N.W.2d 70 (1995), the supreme court concluded that retroactive application of the cap on recovery of noneconomic damages in medical malpractice cases violated substantive due process and, therefore, that it would be unconstitutional to apply the cap to a cause of action that accrued prior to the cap's effective date. See id. at 212. Once again, the court did not determine the constitutionality of the cap.
In Czapinski, the supreme court examined WlS. STAT. § 893.55(4)(f), relating to damages for wrongful death resulting from medical malpractice, and held that "§ 893.55(4)(i) makes applicable to medical malpractice death cases only the limit on *598damages [under Wis. STAT. § 895.04], and does not incorporate the wrongful death classification of claimants entitled to bring such an action," and that "§ 893.55(4)(f) does not violate the equal protection clause of the Wisconsin Constitution." Czapinski, 2000 WI 80 at ¶ 2. The court, however, did not address the constitutional challenges to the statutory subsections presented in this appeal.
Therefore, while the Guzmans' arguments, and the circuit court's decision, regarding remittitur and additur are persuasive, we need not address their separate theory that the challenged statutes violate the separation of powers. While one might view the statutes that way, one may more clearly see that, because of the inextricable link between the jury trial and the judicial authority to review the reasonableness of the jury's determination on a case-specific basis, the statutory cap also infringes upon the right to a jury trial by restricting remittitur and additur. As the supreme court explained:
[Parties have the right] to have the amount of the verdict fixed by the jury, but subject always to the control over the amount which the court possessed at the time that the constitution was framed. This exercise by the court of the power to limit the amount of damages that may be assessed by a jury is not an invasion of the constitutional right to trial by jury because that power on the part of the court was a part of the trial by jury which the constitution declared shall remain inviolate. Indeed it may be doubted if trial by jury would have survived the centuries if it had not been subject to such control by the coruts.
Campbell v. Sutliff, 193 Wis. 370, 378, 214 N.W. 374 (1927), overruled on other grounds by Powers v. Allstate Ins. Co., 10 Wis. 2d 78, 102 N.W.2d 393 (1960).