¶ 86. (dissenting). The doors of the courthouse have again been closed — this time to children. The result of the majority's decision is to deny children such as Arne Aicher the opportunity to have their day in court. This result is untenable. I conclude that the statutes at issue are unconstitutional as applied to the facts of this case. Accordingly, I would affirm the circuit court's decision.
*145¶ 87. Wisconsin Stat. § 893.55(l)(b) is, in part, a statute of repose that extends the deadline for filing a medical malpractice action to one year from the date of the injury's discovery, but no later than five years after the date of the act or omission. Wisconsin Stat. § 893.56 is a statute of repose extending the time for minors to initiate a medical malpractice claim until they are 10 years old. The majority holds that these two statutes are constitutional because they do not violate the right-to-remedy provision of Wis. Const, art. I, § 9. Majority op. at ¶ 6. The majority also concludes that the statutes do not violate equal protection or procedural due process. Id. I disagree with the majority's conclusion that the statutes are constitutional under art. I, § 9.
¶ 88. In Estate of Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d 41, 67, 564 N.W.2d 662 (1997) (Crooks, J., concurring), a case presenting an almost identical situation, I suggested three principles that I believe a court should consider when deciding if a person has been denied the right to a remedy, contrary to Wis. Const, art. I, § 9:
(1) whether the legislature modified, reduced, or eliminated a post-constitutional cause of action created by the legislature itself; (2) whether the legislature modified, reduced, or eliminated a common law or pre-constitutional statutory cause of action and provided a reasonable alternative; and (3) whether, if the legislature did not provide a reasonable alternative, it has established that an overpowering public necessity for the abolishment of such right exists, and that no reasonable alternative exists.
I concluded in Makos that under these principles, and taking into consideration "the unique nature of medical malpractice actions," § 893.55(l)(b) violated art. I, § 9. *146Id. Cheryl Makos, the plaintiff in that case, filed her medical malpractice action within § 893.55(l)(b)'s one-year discovery rule, but after the expiration of the five-year statute of repose in § 893.55(l)(b). Id. at 45. I joined in the lead opinion's conclusion that the statute, as applied in the Makos case, violated the right-to-remedy provision in art. I, § 9. Makos did not discover her injury, nor could she have done so, until after the statute of repose had run. Id. at 59. The right to bring a medical malpractice claim was present at common law. The legislature, therefore, could not freely eliminate the right to bring such a claim. Id. at 64. Further, the legislature did not provide a reasonable alternative, but completely barred her from a remedy. Id. at 65. Finally, because the legislature had already addressed the "medical malpractice crisis" of the 1970s with the enactment of Wis. Stat. ch. 655, there was no need to eliminate Makos' right to remedy through § 893.55(l)(b). Id. I "concluded that there are circumstances under which the legislature cannot eliminate a plaintiffs right to bring a cause of action pursuant to a statute of repose without violating Wis. Const. art. I, § 9." Tomczak v. Bailey, 218 Wis. 2d 245, 282, 578 N.W.2d 166 (1998) (Crooks, J., concurring) (citing Makos).
¶ 89. Other jurisdictions have examined this issue and concluded that the harm to children outweighs any legislative interest in reining in economic and social costs associated with medical malpractice. The Missouri Supreme Court invalidated a statute requiring plaintiffs in medical malpractice cases to bring a claim within two years of the injury, unless the plaintiff was less than 10 years old, in which case the plaintiff had until his or her twelfth birthday to bring a claim. Strahler v. St. Luke's Hosp., 706 S.W.2d 7, 8 (Mo. *1471986) (citing §516.105, RSMo 1978)). The Missouri court found that the statute violated Mo. Const. art. I, § 14, which is an analogous provision to Wis. Const, art. I, § 9.1 The court explained that putting such limitations on the ability of children to bring claims "plainly ignores the disabilities and limitations that childhood, familial relationships, and our legal system place upon a minor of tender years — who has little if any understanding of the complexities of our legal system." Id. at 10. Faced with a similar statutory provision and state constitution, the Texas Supreme Court also concluded that the limitations period violated the Texas Constitution's right to redress provision. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983).
¶ 90. In this case Aicher did not discover her eye condition until after her tenth birthday, and did not file a claim through her guardian ad litem until she was 13, after the time periods in Wis. Stat. § 893.55(l)(b) and Wis. Stat. § 893.56 had expired. For the same reasons as I found the application of Wis. Stat. § 893.55(l)(b) to be unconstitutional in Makos, I find the application of the statutes to be unconstitutional here. The statutes are unconstitutional as applied to Arne Aicher because the time for filing an action on her behalf expired before she even discovered her injury. The courthouse door has been closed to her completely, and she has been denied her right to a remedy in violation of art. I, § 9.
¶ 91. I also address the majority's summary conclusion that Makos carries no precedential weight, and the majority's subsequent reliance on the Makos dis*148sent.2 Majority op. at ¶ 40. This court has already adopted the United State Supreme Court's treatment of plurality opinions in applying the holdings of that Court. Lounge Management v. Town of Trenton, 219 Wis. 2d 13, 21-22, 580 N.W.2d 156 (1998). In a plurality " 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" Id. (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 [] (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). See also Marks v. United States, 430 U.S. 188, 193 (1977). This court should apply the plurality decision in Makos to this case and should continue to acknowledge its prece-dential weight.
¶ 92. In sum, I would apply the three-part test I discussed in Makos and reiterated in Tomczak to the facts of this case and hold that the statutes of repose involved — §§ 893.55(l)(b) and 893.56 — are unconstitutional as applied to Arne Aicher. To do otherwise closes the door of the courthouse to young children such as Arne Aicher and denies them the right to a remedy in violation of Wis. Const, art. I, § 9. For these reasons, I respectfully dissent.
¶ 93. I am authorized to state that Justice WILLIAM A. BABLITCH joins this dissent.
Missouri Const. art. I, § 14 states "that the courts of justice shall be open to every person, and certain remedy afforded for every injury to person...." Strahler v. St. Luke's Hosp., 706 S.W.2d 7, 8-9 (Mo. 1986).
I further note the majority's inconsistency in finding that the Makos decision has no precedential value, and then repeatedly seeming to refer to the Makos dissent as precedent. One wonders why the majority finds it necessary to overrule Makos if indeed it has no precedential value. Majority op. at ¶ 40.