Evans Ex Rel. Kutch v. State

BRYNER, Justice,

with whom CARPENETI, Justice, joins, dissenting in part. -

I disagree with those parts of the plurality opinion that would uphold the 1997 tort reform act's noneconomic damages cap and punitive damages forfeiture provision. In my view, the cap on noneconomic «damages violates Alaska's jury trial and equal protection clauses, and the provision requiring plaintiffs to forfeit half their awards of punitive damages to the state violates substantive due process and the takings clause. Although the plurality opinion has limited impact and leaves these points open to future consideration,1 I think that they are sufficiently important to require me to explain my reasons for disagreeing.

The Noneconomic Damages Cap Is Unconstitutional.

Jury Trial

Although cases from other states are split on the issue,2 I think that the better-rea*1071soned cases support the conclusion that AS 09.17.010’s cap on noneconomic damages violates the right to a jury trial under the Alaska Constitution.3 Construing constitutional provisions that are textually and historically similar to Alaska’s, courts in Kansas, Oregon, Washington, and Alabama have held that noneconomic damages caps violate a plaintiffs right to a jury trial.4 These courts observe that the jury’s function has traditionally included determining the amount of damages a plaintiff should actually receive; and since the demand for damages itself triggers the right to a jury trial under their constitutional provisions, these courts reason that, regardless of whether the jury’s decision is technically characterized as a finding of fact or conclusion of law, “[i]t would be illogical ... to find that a jury, empaneled because monetary damages are sought, could not then fully determine the amount of damages suffered.”5

In contrast, the eases relied on by the plurality opinion—chiefly Davis,6 Pulliam,7 and Etheridge,8—are readily distinguishable. The two Virginia opinions—Pulliam and Etheridge—interpret a unique provision of the Virginia constitution stating that a “trial by jury is preferable to any other”;9 moreover, they draw heavily on the status of the right to a jury trial under Virginia law when that state adopted its constitution in the late 1700s.10 And the federal case—Davis—bases its decision on the Seventh Amendment’s reexamination clause;11 yet the Alaska Constitution’s jury trial provision contains no reexamination clause, and the Seventh Amendment has no application in state-court civil jury cases.

Accordingly, I would follow the well-reasoned decisions in Kansas, Oregon, Washington, and Alabama and would hold that Alaska’s noneconomic damages cap violates the Alaska Constitution’s guarantee of a jury trial.

Equal Protection

Despite the strength of the plaintiffs’ argument that the damages cap deprives them of their constitutional right to a jury trial, it seems to me that their argument under Alaska’s equal protection clause12 provides an even more compelling basis for holding the damages cap unconstitutional.

Many state cases addressing challenges to damages caps have considered equal protection arguments; these cases are about evenly split, and their outcome usually centers on what level of equal protection scrutiny the court chooses to apply to the issue. Almost all courts that have upheld damages caps against equal protection challenges have done so under the lowest level of scrutiny: the “rational basis” test, which asks only if the legislature might have had any logical reason for adopting the cap.13 Conversely, cases that have applied heightened, mid-level equal protection scrutiny have uniformly de*1072clared noneconomic damages caps invalid, concluding that the caps run aground on the mid-level scrutiny test's means-to-end-fit requirement; these cases typically ask whether a substantial or legitimate legislative reason actually existed for adopting a cap and whether the adopted cap actually bears a close and substantial relationship to the legislature's underlying interest.14

In the present case, the plurality opinion describes the interest asserted by the plaintiffs as an interest in "unlimited damages"; the plurality then dismisses this interest as "merely economic"-too trifling to deserve anything but the lowest level of constitutional serutiny.15

But in truth the plaintiffs assert a considerably more fundamental and focused interest: their interest in a civil justice system that affords all similarly situated negligence victims an equal opportunity to seek full compensation for their injuries. To be sure, this interest can be characterized as economic. Yet it is hardly the selfish and unbounded interest in "unlimited damages" that the plurality opinion aseribes to the plaintiffs. Rather, the asserted interest is properly limited to personal injuries that the legislature has expressly recognized to be real and that plaintiffs can prove that they actually suffered.

Furthermore, despite the plurality opinion's contrary assumption, Alaska's test of equal protection does not automatically relegate all economic interests to low-level seruti-ny.16 Instead, because it incorporates a pure sliding-seale approach, Alaska's equal protection test eschews such rigid categories and recognizes "a continuum of available levels of serutiny." In this continuum, the importance of any particular interest-whether economic or not-is a relative matter to be judged by realistically applying "an adjustable 'uniform-balancing' test" that considers the overall importance of the specific interest at issue in relation to other societal interests.17 And notably, in applying this test on prior occasions, this court has not hesitated to identify some economic interests as ranking sufficiently high in the continuum of societal interests to deserve close serutiny.18

Here, when considered against a backdrop of other imaginable economic interests, the plaintiffs' specific interest in access to the courts to seek full recovery for their actual injuries easily qualifies as an important economic interest. Whether labeled "a mere economic interest" or an interest implicating plaintiffs' constitutional right of access to the courts, then, this interest deserves considerably more serutiny under Alaska's sliding seale test than the minimal glance that the plurality chooses to give it.19

*1073Persuasive decisions from other states strongly support this conclusion. Courts considering equal protection challenges to damages caps often identify two offensive features-one involving disparate treatment of tortfeasors and the other involving disparate treatment of negligence victims. First, a noneconomic damages cap like Alaska's treats wrongdoers disparately by requiring those who negligently cause minor or modest injuries to pay fully, while allowing those who inflict the most serious injuries to pay only partial damages.20 Second-and worse, I submit-the cap treats victims of negligence disparately by allowing those who suffer slight or modest personal injuries to recover their full measure of damages, while forcing those who suffer the most serious injuries to accept only partial damages and to absorb the rest of the loss themselves.21

In finding that this form of disparity compels heightened scrutiny, the Utah Supreme Court stressed that low-level equal protection review is particularly "inappropriate when dealing with a fundamental principle of American law that victims of wrongful or negligent acts should be compensated to the extent that they have been harmed."22 Similarly, in deciding to use mid-level serutiny to review a damages cap challenged under the New Mexico constitution's equal protection clause, the New Mexico Supreme Court explained,

these classifications effect a substantial injustice in this case. The classifications infringe an individual's important interest to be compensated fully for his injuries, especially when, as is alleged in the instant case, they are a result of no fault of his own. This interest, in our view, certainly is amply important and substantial to justify the invocation of at least the heightened, intermediate test instead of the minimum rationality test. We are persuaded also that the class of tort victims affected by the damage cap is "sensitive" enough to the injustice wrought to warrant applying the heightened test. Consequently, we take the intermediate approach and analyze the constitutional challenge in this case under heightened scrutiny.23

Yet even if we reject these thoughtful assessments and choose to apply the lowest level of serutiny permitted under Alaska's equal protection clause, a correct application of Alaska's sliding-seale test would still compel the conclusion that the plaintiffs' equal protection challenge is meritorious.

As already noted, other courts that have rejected equal protection challenges to damages caps have invariably used the highly deferential "rational basis" test. This test asks a single hypothetical question: whether the legislature might have had any legitimate reason to act; if any legitimate interest is conceivable, the challenged statute is valid.24 But in Isakson v. Rickey,25 Alaska expressly repudiated this formulation of the rational basis standard, choosing to replace its single hypothetical question with a twofold inquiry that requires courts to determine, first, whether a legitimate objective for legislative action actually existed and, second, whether the specific legislation adopted bears a close and substantial relationship to the underlying state interest.26

In State v. Erickson, we expressly incorporated Isakson's standard as the test that defines the lowest level of serutiny permissible under Alaska's sliding-seale equal protection analysis,27 Thus, even assuming that the plaintiffs' economic interests in this case implicate only the lowest possible level of *1074scrutiny on Alaska's sliding scale, our equal protection standard still requires us to consider two issues: First we must ask whether the legislature actually sought to further a legitimate goal in adopting a noneconomic damages cap; second, if we decide that it did, we then must determine whether the legislature's chosen means-the statute at issue-bears a substantial relationship to its ostensible purpose. This latter determination requires us to undertake a narrow evaluation of "the state's interest in the particular means employed to further its goals."28 Thus, as Justice Rabinowitz emphasized in Kenai Peninsula Borough v. State, Alaska's sliding-scale test is especially demanding in cases at the lower end of the equal protection spectrum: "On several occasions we have ... explained that where there is no fundamental right at stake, the equal protection clause of the Alaska Constitution imposes a stricter standard than its federal counterpart."29

In the present case, the plurality opinion fails to apply this more rigorous test. While acknowledging the correct standard, the plurality effectively applies a rational basis test, finding that the damages cap passes both parts of Alaska's equal protection test-the legitimate state interest requirement and the substantial relationship requirement-solely because the damages cap might serve the legislature's general tort reform goals: "The record indicates that the legislature considered at least some evidence tending to show that damages caps ... could have a positive effect on the legislature's objectives." 30

Although the plurality's rational basis analysis certainly identifies a potentially legitimate state interest, it falls short of complying with Alaska's low-level scrutiny test in two ways: by neglecting to ask whether the rational purpose that the plurality has identified was a goal that the legislature actually sought to advance by enacting the damages cap and, more important, by neglecting to look for a fair and substantial means-to-end fit between the damages cap and the legislature's ostensible goal-that is, by failing to examine "the state's interest in the particular means employed to further its goals."31

The plurality opinion likewise ignores the case law of other states: virtually every case that kas applied this narrower means-to-end-fit test has concluded that damages caps are unconstitutional. Almost all states besides Alaska use a conventional, three-tier equal protection analysis. Because that analysis applies the deferential, rational basis test at the lowest level of scrutiny, the means-to-end-fit test these other states use for mid-level scrutiny is functionally identical to the standard required under Alaska's sliding seale test for low-level serutiny. As the plurality opinion itself acknowledges in describing Alaska's test, "(alt the low end of the sliding scale, we have held that a substantial relationship between means and ends is constitutionally adequate."32 Compare this, for example, to the mid-level standard of seruti-ny described by the New Mexico Supreme Court in requiring the state to demonstrate that a challenged damages cap had "a substantial relationship to a legitimate or important governmental purpose."33 Applying this standard to a noneconomic damages cap that was similar to Alaska's, the New Mexico court found itself "unable to fathom" a substantial relationship between the cap and any conceivably legitimate or important purpose.34

New Mexico's description of the applicable standard typifies the formulation of mid-level serutiny applied by other courts using a conventional three-tier approach to equal protection review. And as already noted, courts that have applied mid-level serutiny instead of the rational basis test have almost invariably concluded that damages caps violate the test's means-to-end-fit requirement.

*1075Because these cases apply a standard identical to Alaska's lowest level of constitutional scrutiny, they should guide our decision in the present case. As they explain, the arbitrary nature of the means-to-end fit under this test is apparent:

[It is not enough that the statute as a whole might tend to serve the asserted purpose. Each statutory classification "'must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly cireumstanced shall be treated alike. "
There is no logically supportable reason why the most severely injured malpractice victims should be singled out to pay for special relief to medical tortfeasors and their insurers. The idea of preserving insurance by imposing huge sacrifices on a few victims is logically perverse. Insurance is a device for spreading risks and costs among large numbers of people so that no one person is crushed by misfortune. In a strange reversal of this principle, the statute concentrates the costs of the worst injuries on a few individuals.
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Such arbitrary treatment cannot be justified with reference to the purpose of the statute. Without speculating on the wisdom of the possible alternatives, it is plain that the Legislature could have provided special relief to health care providers and insurers without imposing these crushing burdens on a few arbitrarily selected vice-tims.35

In the present case, the state offers nothing to justify the seemingly absolute disconnect between the legislature's stated tort reform goals-reducing insurance costs, discouraging frivolous claims, and preventing excessive verdicts-and the particular means it chose to attain those goals when it enacted the damages cap. Nor does the plurality opinion diseuss-or even acknowledge-this breach of Alaska's particularized nexus requirement.

Because I see no substantial relation between the specific means chosen by the legislature and the legitimate ends it ostensibly sought to achieve, I would conclude that the noneconomic damages cap violates Alaska's equal protection clause-even assuming that the plaintiffs' economie interests are so unimportant as to qualify only for the lowest allowable level of scrutiny under the Alaska Constitution.36

The Punitive Damages Forfeiture Statute Is Invalid.

I further believe that the plurality opinion fails to make a persuasive case for upholding AS 09.17.020(j)'s punitive damages forfeiture requirement.

Substantive Due Process

The plurality opinion accepts without any meaningful analysis the state's position that the forfeiture statute is minimally rational- and thus passes muster under the substantive due process requirement-because it serves as a general "deterrent to prevent future harm."37 But the state's general deterrence goal fails to withstand even minimal, rational basis scrutiny.

Of course nobody questions the truth of the general proposition that punitive damages do in fact deter future public harm. But this undisputed deterrent effect cannot itself justify the challenged forfeiture provision, for an award of full punitive damages to the plaintiff serves to deter future harm as fully as an award that splits the punitive damages between the state and the plaintiff. The legislature's mandate to award half the jury's verdict to the state thus results in no greater deterrence than awarding the entire *1076verdict to the plaintiff. (In fact, as discussed more fully below, the forfeiture provision results in less deterrence by discouraging future punitive damages claims.) Because the deterrent effect of punitive damages flows from taking money away from wrongdoing defendants, a statute designating who gets that money bears no logical relation to the stated goal of enhanced deterrence.

The plurality's reliance on general deterrence of public harm thus begs the key question: What legitimate objective did the legislature have for replacing the existing law, which achieved general deterrence by awarding full punitive damages to the plaintiff, with a forfeiture provision that achieved no greater deterrence but required the plaintiff to surrender half the award to the state? The plurality opinion offers no answer to this question. The legislature, however, did suggest another objective as being legitimate: Its statement of purposes in the 1997 tort reform act incorporates as a goal the need to discourage frivolous claims.38 The state tacitly espouses this goal by citing cases from other jurisdictions that cite the discouragement of frivolous claims as a justification for similar forfeiture statutes.39 But this goal fares even worse under serutiny than the goal of general deterrence.

Because the state receives its fifty-percent share of punitive damages under AS 09.17.020(J) only if the jury's award of punitive damages withstands serutiny by the trial judge and is upheld on appeal, the actual source of forfeiture under the statute will always consist of punitive damages that have been conclusively established to be factually and legally justified. While purporting to target frivolous and excessive claims, then, the forfeiture statute paradoxically does just the opposite: it attacks only meritorious judgments, supposedly deterring abusers of the punitive damages system solely by punishing legitimate users. As a deterrent to frivolous claims, then, this regime is worse than irrational; it is perverse.

Alaska's Takings Clause

The apparent lack of a tenable purpose underlying the forfeiture statute feeds directly into the issue of taking. Alaska's "takings clause" prohibits the taking of private property for public purposes without fair compensation: "Private property shall not be taken or damaged for public use without just compensation." 40

The forfeiture statute's tacit premise seems to be that the state has an automatic stake in all punitive damages awards because those awards serve the public interest. But this premise is staggeringly overbroad, for it essentially posits that plaintiffs who sue individually for punitive damages become de fac-to public servants who donate their efforts and half their causes of action to the state. Yet Alaska's constitution forbids state government from wielding this kind of absolute power over its citizens: whether its actions affect property in the form of land, money, a legal cause of action, or personal services, the state may not confiscate private property without notice, due process, and just compensation.41

And under AS 09.17.020(J), the state's fifty-percent share of a punitive damages award is undeniably somebody's property-property that the state obtains by legislative compulsion. It seems necessary to ask, then, where the legislature derives this power to authorize state confiscation of judgments awarding punitive damages in civil actions between private parties.

The plurality opinion tries to duck the issue of confiscation by proclaiming subsection .020(J) to be merely a "cap" that limits damages "before" they are awarded-an ap*1077proach evidently premised on the tacit assumption that a punitive damages "cap" of this kind would raise no constitutional problems.42 Yet the plurality's approach generates more problems than it resolves.

To begin with, it is unrealistic to characterize subsection .020(J) as a provision that simply creates a punitive damages cap. An ordinary damages "cap" merely limits a plaintiff's recovery: it neither takes from the defendant nor gives to the state, as does subsection .020(j). Moreover, in AS 09.17.020(f)-a provision that appears shortly before subsection .020()-the tort reform act already imposes an express cap on punitive damages;43 to read subsection (J) as placing a second cap on top of the first cap thus carries us into a Seussian realm.44

And to construe subsection .020(J) as a cap that occurs before the plaintiff receives an award of damages flies in the face of the subsection's plain language. Alaska Statute 09.17.020(j) allows a forfeiture to occur only when "a person receives an award" and further commands that "50 percent of the award be deposited into the general fund."45 By specifying the source of forfeiture as "the award" and by defining an award to be both something that "a person receives" and something that can be "deposited into the general fund," the statute's language unequivocally contemplates a transfer of funds to the state that will occur only when the defendant becomes obliged to make actual payment to the plaintiff-an event that nee-essarily follows entry of judgment in the plaintiff's favor.

Although these arguments identify important textual flaws in the plurality opinion's attempt to characterize subsection .020(G) as a mere damages cap, those flaws pale in comparison to the opinion's flawed premise that a cap of this kind would avoid constitutional problems. For even if we conceptualize the statutory forfeiture of punitive damages as an event that merely caps the plaintiff's recovery because it occurs before money changes hands from the defendant to the plaintiff, the forfeiture still is a taking.

In approving the punitive damages forfeiture statute, the plurality opinion essentially adopts the state's reasoning that a jury's award of punitive damages is merely a factual finding that has no actual significance until a court order gives it legal effect.46 This reasoning splits an award into two separate components, both of which are necessary before the award becomes binding: a finding of fact, which ordinarily falls within the province of the jury, and a formal order by the court that implements the jury's factual finding and gives it significance as a matter of law.

But this dichotomy fails to avoid the forfeiture statute's basic takings problem: while the dichotomy changes the identity of the owner whose property is taken, it does nothing to alter the fact that the statute authorizes an uncompensated state taking of private property. For if the jury's verdict is merely a factual finding that cannot by itself "vest" damages in the plaintiff, then neither can it legally "divest" the defendant of any property interest. And while courts may have authority to negate improper factual findings by declining to implement any legally impermissible aspect of a jury's verdict, they surely have no raw legal power to dispose of property without a proper factual basis-that is, when the jury returns a partly unauthorized verdict, courts have no authority to preempt the jury's factfinding role by commanding a disposition of property that the jury has neither specifically addressed nor authorized as a matter of fact in its verdict.

Nor can a punitive damages verdict in a dispute between private litigants properly be characterized as a general finding of fact that broadly authorizes a defendant's punish ment-the kind of finding that might enable a judge to divest the defendant of property *1078without heeding the jury's desire to award it to the plaintiff. A verdict awarding punitive damages is personalized: it is the product of a deliberative process that translates the seriousness of a particular plaintiff's injuries and the outrageousness of a specific defendant's conduct into a monetary sum that reflects the jury's felt need both to reward and to punish.

Under subsection .020(j), the jury is not asked to award anything to the state; nor does it determine how much the state might deserve. Its verdict takes money from a particular defendant and gives it to a specific plaintiff; it settles each party's private rights and responsibilities only in relation to the other's. It no more obliges the defendant to pay money to anyone but the plaintiff than it entitles the plaintiff to receive money from anyone but the defendant. And the private process that leads to this verdict requires neither participating party to surrender its rights against other parties.

It follows that if a court declines to give part of a verdict for punitive damages legal effect for extrinsic policy reasons, the una-warded part of the money must remain the defendant's. If the jury finds as a matter of fact that the plaintiff deserves a certain sum as punitive damages, a law may properly allow the court to effectuate only part of this finding. But if the verdict includes no express finding that the state deserves part of the money, there is no factual predicate that allows the court to go beyond declining to implement the impermissible part of the jury's verdict and that enables it instead to divert half the plaintiff's award to the state. Regardless of whether we conceptualize a verdict as vesting a property interest in the plaintiff or leaving it in the defendant, then, an order awarding half the verdict to the state necessarily results in an impermissible taking. After all, the state has no greater authority to summarily confiscate a defendant's money than a plaintiff's.

Neither the state nor the plurality opinion suggests a plausible way around this conceptual problem, and none is readily apparent. Indeed, AS 09.17.020(J)'s theoretical underpinnings seem impossible to square with our traditional system of justice. Alaska's courts offer a public forum for resolving a vast array of private and public disputes. Within this forum, the tort system allows individual litigants to resolve disputes involving private harms between themselves, without calling on the state to intervene on behalf of either party. Most of these private disputes raise few if any issues of substantial concern to state government. Even when these cases include claims for punitive damages, the conduct at issue typically falls below prevailing thresholds for state regulation or is subject to government regulation through separate administrative, civil, or eriminal channels. For this reason, even though all awards of punitive damages involve a theoretical element of public harm and serve to protect the general welfare, few will implicate the kind of particularized governmental concerns that are needed to trigger a participatory state interest or to support a formal state claim to the proceeds at issue.

Indeed, it is precisely because our system invites individual litigants to advance the common good through private initiative that the state can have no automatic or presumptive claim to the pot when a civil judgment for punitive damages is entered between private parties. To be sure, the state does have a compelling interest in the system of punitive damages as a whole; and to that extent the legislature unquestionably has broad power to define and limit both the cireum-stances under which punitive damages can be awarded and the amounts of damages that can be recovered. But this systemic interest alone gives the state no legitimate stake in any part of a specific award that falls within established legal limits and issues from a lawful judicial proceeding between private litigants.

Moreover, though the legislature may have plenary authority to regulate punitive damages,47 that authority alone cannot justify AS 09.17.020()'s deeply flawed summary forfeiture mechanism. While the legislature may choose to reduce or completely eliminate a plaintiff's right to collect punitive damages from a defendant through a civil proceeding, *1079it may not exercise this zero-sum power in a one-sided manner: that is, it may not reduce the plaintiffs right to collect punitive damages without correspondingly expanding the defendant's right not to pay; it may not substitute the state for the plaintiff who recovers the verdict, while leaving intact the defendant's duty to pay. Because this effectively adds a new party to the action and creates a new right of recovery, the affected parties are entitled to notice, due process, and an opportunity to defend against the state's claim.

It seems to me, then, that AS 09.17.020()'s forfeiture provision necessarily takes money without just compensation. There is simply no room in between a jury's verdict for a particular plaintiff and a court's entry of judgment on that verdict where the state can receive without taking-no such thing as an immaculate reception. Either the state confiscates the defendant's money while it still belongs to the defendant or it usurps the plaintiffs cause of action by taking from the award after it vests in the plaintiff. One way or the other, the automatic forfeiture works an impermissible taking.

Because no interest asserted by the state justifies summary state forfeiture of either party's property, I would hold that AS 09.17.020(j) is invalid.48

I therefore dissent.

. Because we are equally divided on these points, the decision favoring affirmance has the effect of a plurality opinion: it will affirm the superior court's ruling in the present case but will not be binding in future cases. Our case law establishes that "[a]) decision by an evenly divided court results in an affirmance." Ward v. Lutheran Hosps. & Homes Soc'y of America, Inc., 963 P.2d 1031, 1037 n. 11 (Alaska 1998) (quoting Thoma v. Hickel, 947 P.2d 816, 824 (Alaska 1997)). Moreover, "an affirmance by an equally divided court is not precedent." City of Kenai v. Burnett, 860 P.2d 1233, 1239 n. 11, 1246 (Alaska 1993) (Compton, J., concurring).

. Compare Moore v. Mobile Infirmary Ass'n, 592 S$o.2d 156, 159-65 (Ala.1991){holding that damage cap statute violated state constitutional right to trial by jury), Smith v. Dep't of Ins., 507 So.2d 1080, 1088-89 (Fla.1987) (same), Kansas Mail-practice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251, 258-60 (1988) (same), Lakin v. Senco Prods., Inc., 329 Or. 62, 987 P.2d 463, 469-75 (1999) (same), and Sofie v. Fibreboard Corp., 112 Wash.2d 636, 771 P.2d 711, 719-23 (1989) (same), with Davis v. Omitowoju, 883 F.2d 1155, 1159-65 (3d Cir.1989) (holding that damage caps did not violate the Seventh Amendment), Kirkland v. Blaine County Med. Ctr., 134 Idaho 464, 4 P.3d 1115, 1119-20 (2000) (holding that damage caps did not violate the state's constitutional right to trial by jury), Peters v. Saft, 597 A.2d 50, 53-54 (Me.1991) (same), Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102, 116-18 (App.1992) (same), English v. New England Med. Cir., Inc., 405 Mass. 423, 541 N.E.2d 329, 331-32 (1989) (same), Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 906-07 (Mo.1992) (same), Wright v. Colleton County Sch. Dist., 301 S.C. 282, 391 S.B.2d 564, 569-70 (1990) (same), Pul-liam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1, 509 $.E.2d 307, 314-315 (1999) (same), Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 376 $.E.2d 525, 528-29 (1989) (same), Robinson v. Charleston Area Med. Cir., 186 W.Va. 720, 414 S$.E.2d 877, 887-88 (1991) (same), and Guzman *1071v. St. Francis Hosp., Inc., 240 Wis.2d 559, 623 N.W.2d 776, 783-85 (App.2000) (same), rev. denied, 242 Wis.2d 543, 629 N.W.2d 783 (2001).

. The right to trial by jury in Alaska is secured by article I, section 16 of the Alaska Constitution: “In civil cases where the amount in controversy exceeds two hundred fifty dollars, the right of trial by a jury of twelve is preserved to the same extent as it existed at common law.”

. See Moore, 592 So.2d at 159-65; Bell, 757 P.2d at 258; Lakin, 987 P.2d at 473-74; Sofie, 111 P.2d at 721-22.

. Bell, 757 P.2d at 258.

. 883 F.2d at 1159-65.

. 509 S.E.2d at 314-15.

.376 S.E.2d at 529.

. Va. Const, art. I, § 11 (emphasis added).

. 'See 509 S.E.2d at 314, 376 S.E.2d at 528-29.

. 883 F.2d at 1159-65.

. Alaska Const, art. I, § 1.

. See, e.g., Peters v. Soft, 597 A.2d 50, 53 (Me. 1991); Murphy v. Edmonds, 325 Md. 342, 601 A.2d 102, 111-12 (1992); English v. New England Med. Ctr., 405 Mass. 423, 541'N.E.2d ⅛9, 333 (1989); Adams v. Children's Mercy Hosp., 832 S.W.2d 898, 903-05 (Mo.1992); Wright v. Colleton County Sch. Dist., 301 S.C. 282, 391 S.E.2d 564, 570 (1990); Pulliam, 509 S.E.2d at 317; Etheridge, 376 S.E.2d at 533; Robinson v. Charleston Area Med. Ctr., 186 W.Va. 720, 414 S.E.2d 877, 886-88 (1991); Guzman v. St. Francis Hosp., Inc., 240 Wis.2d 559, 623 N.W.2d 776, 788 (App.2000).

. See, eg., Moore v. Mobile Infirmary Ass'n, 592 So.2d 156, 166-70 (Ala.1991); Wright v. Central Du Page Hosp. Assoc., 63 IIl.2d 313, 347 N.E.2d 736, 743-44 (1976); Sibley v. Bd. of Superiors of La. State Univ., 477 So.2d 1094, 1107-09 (La. 1985); Brannigan v. Usitalo, 134 NH. 50, 587 A.2d 1232, 1233-36 (1991); Carson v. Maurer, 120 NH. 925, 424 A.2d 825, 831, 835-36 (1980); Richardson v. Carnegie Library Rest., Inc., 107 NM. 688, 763 P.2d 1153, 1163-65 (1988); Arne-son v. Olson, 270 N.W.2d 125, 132-33 (ND. 1978); Condemarin v. Univ. Hosp., T75 P.2d 348, 353-56 (Utah 1989). In addition, some cases have invalidated caps under state constitutional provisions other than equal protection that impose essentially identical means-to-end tests. See, e.g., Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251, 259 (1988)("Due process requires that legislative means selected have a real and substantial relation to the objective sought."); Best v. Taylor Mach. Works, 179 IIL2d 367, 228 IllDec. 636, 689 N.E.2d 1057, 1076 (1997) (special legislation clause); Ohio Acad. of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062, 1089-90 (1999)(due process); Morris v. Savoy, 61 Ohio St.3d 684, 576 N.E.2d 765, 770-71 (1991)(same).

. See Plurality Opinion at 13-14.

. See Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269 (Alaska 1984).

. Id.

. See, eg., State, Dep't of Labor v. Enserch Alaska Const., Inc., 787 P.2d 624, 632-33 (Alaska 1989).

. See id. at 633 n. 17:

We now state the proper inquiry for enactments impairing rights as important as the right to engage in economic endeavor. We do not question the fundamental nature of our state equal protection analysis: it remains a single, flexible test and not a rigid, tiered approach like that employed in interpreting the equal protection clause of the U.S. Constitution. Enactments impairing rights more or less important than the right to engage in *1073economic endeavor shall receive more or less scrutiny when challenged under the equal protection clause of the Alaska Constitution.

. See, eg., Richardson v. Carnegie Library Rest., 107 N.M. 688, 763 P.2d 1153, 1163 (1988).

. Id.; see also Carson v. Maurer, 120 NH. 925, 424 A.2d 825, 838 (1980).

. Copdemarinv. Univ. Hosp., 775 P.2d 348, 354 (Utah 1989).

. Richardson, 763 P.2d at 1163-64.

. See cases cited in footnote 13 above.

. 550 P.2d 359 (Alaska 1976).

. See id. at 362-63.

. 574 P.2d 1, 12 (Alaska 1978); see also Alaska Pac. Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984).

. Alaska Pac. Assurance Co., 687 P.2d at 269 (emphasis added).

. 743 P.2d 1352, 1371 (Alaska 1987).

. Plurality Opinion at 18.

. Alaska Pac. Assurance Co., 687 P.2d at 269 (emphasis added).

. Id. at 269-70.

. Richardson v. Carnegie Library Rest., 107 NM. 688, 763 P.2d 1153, 1164 (1988).

. Id.

. Fein v. Permanente Med. Group, 38 Cal.3d 137, 211 Cal.Rptr. 368, 695 P.2d 665, 690-91 (1985) (citations omitted)(Bird, C.J., writing in a dissent that unsuccessfully advocated a tiered equal protection standard that would have required-much like Alaska's sliding-scale standard does-a substantial relation between means and ends even in low-level review).

. Because punitive damages do not reflect reimbursement for injuries actually suffered by a plaintiff, I agree with the plurality opinion that the punitive damages cap is valid.

. Plurality Opinion at 1058.

. See ch. 26, § 1, SLA 1997.

. See, eg., Gordon v. State, 608 So.2d 800, 801-02 (Fla.1992)(holding that forfeiture provision "'discourage[s] punitive damages claims by making them less remunerative to the claimant and the claimant's attorney").

. Alaska Const. art. L, § 18.

. Cf. DeLisio v. Alaska Superior Court, 740 P.2d 437, 442 (Alaska 1987)(Imposing ... a requirement which would demand the rendering of personal services without just compensation would in itself be an impermissible infringement of Alaska's due process clause and, thus, may not serve as the basis for avoiding the provisions of the takings clause.").

. Plurality Opinion at --

. See AS 09.17.020(f).

. See Dr Seuss, THs 500 Hats or BartHoromew CursiNs (Reissue ed., Random House 1989).

. AS 09.17.020(G) (emphasis added).

. See Plurality Opinion at 1059.

. See Plurality Opinion at 1058.

. See Kirk v. Denver Publ'g Co., 818 P.2d 262 (Colo.1991).