*1 Betty EVANS, on her own behalf and on son, "Buddy"
behalf of her minor David KUTCH, Jr.; Cross, Sharon on her own her
behalf on behalf minor daughter, Cross; Raymond Laronsia Nealy, Sr.; Wood, Appel and Lillian A.
lants, Alaska, Appellee.
STATE No. S-9313. Supreme Court of Alaska.
Aug. Rehearing Denied Nov. *2 FABE, Justice,
Before: Chief EASTAUGH, BRYNER, CARPENETI, Justices.
OPINION
FABE, Chief Justice.
I. INTRODUCTION This appeal challenge is a to the 1997 tort reform legislation enacted the Alaska Legislature 26, in chapter SLA 1997. The plaintiffs, injured parties all contemplating actions, superior tort asked the court for a declaratory judgment legislation this Howey- void under the Alaska Constitution. er, superior granted summary judgment grant State and refused to sought by plaintiffs. the relief We affirm the trial court's legislation decision that facially constitutional. II. AND FACTS PROCEEDINGS Legislature 1997 the Alaska enacted legislation including provisions, tort reform 26, in chapter SLA 1997. legislation The was later codified into various sections of the Alaska Statutes and became effective on Au 7, gust 1997. It many included new tort law provisions, including caps on noneconomic punitive and damages,1 requirement punitive half of all paid awards be into treasury,2 ten-year the state "statute repose," tolling procedure modified H. for Wagstaff Robert and Wm. Grant Cal- low, the statute of applied limitations as min Anchorage, Appellants. for ors,4 comparative allocation of fault between Guarino, Gary M. Attorney Assistant Gen- parties non-parties,5 and a revised offer of eral, Botelho, Anchorage, Attorney Bruce M. judgment procedure,6 partial and immunity General, Juneau, and Ronald W. Lorensen hospitals for from liability vicarious for some Lowden, and L. Merrill Simpson, Tillinghast, physicians' actions.7 Sorensen, Longenbaugh, Lorensen & Ju- appellants, The allegedly injured all per- neau, Appellee. for sons who plan have filed or to file tort ac- Gurton, Amy Robertson, S. tions, Monagle & filed this action seeking a declaratory P.C., Juneau, Eastaugh, judgment 26, Amicus Curiae chapter that all of SLA 1997 is Hospital Alaska State Nursing Home void under the Alaska Constitution. The Holmes, Roger Association. F. Anchorage, assigned Superior case was Court Judge for Amicus Curiae Alaska State Chamber R. Pengilly. Charles The and the Commerce. State filed opposing motions for summary 09.17.010, .020; 26, 9-10, 09.17.080; 1. 26, 11-13, §§ See AS ch. SLA 5. §§ See AS ch. SLA 1997. 1997. 09.30.065; 16-17, 6. §§ See AS ch. SLA 1997. 26, 10, 09.17.020(); § SeeAS ch. SLA1997. 09.10.055; 5,§ 3. SeeAS ch. SLA1997. 09.65.096; § See AS ch. SLA 1997. 09.10.140; 7-8, §§ 4. SeeAS ch. SLA1997. infirmities are of these constitutional once all Alaska State Chamber judgment. chapter nothing in SLA Hospital exposed, Associa- the Alaska Commerce severable, therefore, support in remains amicus briefs filed oral court heard must be struck as unconstitutional. superior entire act legislation. motions, subsequent- issues will be addressed These two final argument on summary opinion. motion the State's Part IV.H of
ly granted motion denied the judgment and provisions are discussed Before these chapter SLA all of upholding respects, all turn, challenges. these are facial we note that decision. appeal this specific complain of plaintiffs do not challenged statutes to tort application of the OF REVIEW III. STANDARD *4 Instead, by plaintiffs. brought the actions us to review appeal requires This "in declaratory judgment plaintiffs seek a the is summary judgment; this review grant may how to better determine order judgment summary affirm novo.8 will de We contemplated tort ac- proceed" with their fact of material genuine no issues if there are opinion in this we reach tions. result judg party moving is entitled if the and presented were might different we be making this matter of law.9 When ment as a particu- in applied challenges to the law determination, all reasonable we will draw Therefore, ruling limited to our is lar case. non-movingparty.10 in favor of inferences challenged provisions import of the the facial issues, raises constitutional appeal This chapter SLA subject novo to de issues of law which are review.11 and Puni- Caps on Noneconomic A. The and Damages Under AS 09.17.010 tive DISCUSSION IV. Facially Are Constitutional. .020 challenge sev- appeal, the In this 1997:(1) chapter SLA provisions within
en 1997 modified AS Chapter SLA punitive dam- noneconomic and cap on cap on the amount place a 09.17.010 to (2) .020; AS 09.17.010 ages under awarded damages that be noneconomic damages punitive half of all requirement injury and personal in actions "for tort under AS paid to the State awards 09.17.010 The new AS wrongful death.12 (38) apportion- comparative 09.17.020(J); noneconomic specific claims for which lists (4) 09.17.080; damages under AS ment specifies recoverable damages shall be procedure under judgment offer of revised for each damage for awards financial limits (5) pro- 09.30.065; tolling limitations Availability noneconomic claim. 09.10.070(3)(2) .140; under AS cedure pain, "compensation for limited to is first hospitals under immunity for partial tort inconvenience, impair physical suffering, 09.65.096; repose" the "statute enjoyment of ment, loss of disfigurement, AS 09.10.055. under consortium, nonpecuni-ary life, and other loss further damages are mage.13 These challenges specific to the In addition da $8,000 $400,000 multi or in limited amount entire act above, claim that the expectancy life injured person's subject" plied by the the "one is unconstitutional single greater, for each years, whichever II, of the section 18 rule of article damages are When injury or death.14 that, plaintiffs also claim Constitution. legisla- Union, § The 1997 SLA 1997. 12. See ch. Civil Liberties State v. Alaska
8. See $500,000 cap, previous created tion revised (Alaska 597, 603 legislature former AS 09.17.010 in 1986. See Co., 995 P.2d v. Allstate Ins. constftutionality 9. See Moore (1986). We never addressed 56(c). 2000); Rule Alaska Civil $500,000 cap. former of the 10. Seeid. 09.17.010(a). 13. AS Union, Civil Liberties
11. See Alaska 09.17.010(b). permanent im physical domages caps awarded "severe 1. The infringe do not pairment disfigurement," cap or severe right by jury. on the to a trial $1,000,000 or, alternative, extended to argument first con $25,000 multiplied by injured person's life cerning damages caps caps is that expectancy years, greater.15 whichever is constitute a violation of the to trial I, jury granted by article section 16 of the Chapter SLA 1997 also modified AS Alaska Constitution and the Seventh Amend 09.17.020(f)-(h)1 puni to limit the amount of ment to the United States Constitution. The tive in most cases to three times plaintiffs argue that the calculation of dam compensatory $500,000, damages, or which ages province is the exclusive jury- of the greater.17 ever is If the knowing defendant subject judicial power of remittitur- ly injuries gain, caused for financial and that the has unconstitutional cap expanded compensatory to four times ly province by enacting invaded this the dam damages, four times the amount of financial ages caps. superior rejected $7,000,000, gain, greater.18 whichever is A plaintiffs' argument and held that the dam cap applies different when the action is ages caps province did not invade the against employer to recover Jury. employment practice prohibited an unlawful *5 18.80.220; by cap in that case the previously have not We examined the $200,000 employer if the has fewer than 100 scope right and extent of the by to a trial Alaska, employees $300,000 for 100-200 I, jury under article section 16 of the Alaska $400,000 employees, employees, for 200-500 However, Constitution.20 language the $500,000 employees.19 and for 500+ by jury provision Constitution's trial language mirrors the of the Seventh Amend caps claim that the on non- Constitution,21 ment to the United States punitive damages economic and violate six proposals to right by jury create a to trial (1) provisions of the Alaska Constitution: the language rejected with different were during (2) trial; right jury to a right the equal to the Alaska Constitutional Convention.22 (8) protection; right the to substantive due (4) process; separation powers; the agree the We reasoning employed by the courts; right of access to the the Appeals, ban the Third Cireuit Court of which "special legislation." on Each of argu- interpreted these the Seventh Amendment ments will be addressed turn. United States Constitution to allow damages 09.17.010(c). 15. AS I, 21. Article section 16 of the Alaska Constitution provides: 26, 10,§ 16. Seech. SLA1997. In civil cases where the amount in contro- 09.17.020(. 17. SeeAS dollars, versy fifty exceeds two hundred right by jury preserved of trial a of twelve is to 09.17.020(g). 18. SeeAS the same extent as it existed at common law. 09.17.020(b). 19. SeeAS The Seventh Amendment the United States provides: Constitution Protection, In Loomis Electronic Inc. v. Schae In suits at law, common where the value in fer, 1976), 549 P.2d 1343-45 we dollars, controversy twenty shall exceed interpreted provision law/equi to reflect the right by jury preserved, of trial shall be and no ty distinction found in the Seventh Amendment by jury, fact tried a shall be otherwise re- finding to the United States Constitution, States, any examined in court of the United seeking "compensatory punitive suits dam according than to the rules of the common ages" giving right are suits at law rise to the to a law. jury trial under the Alaska Constitution. v. Humana Alaska, Inc., Keyes Hospital 22. At the constitutional convention, there were (Alaska 1988), expert 346-48 we held that proposals right supe- to extend the to all suits in panels malpractice used in medical cases did not court, Proceedings rior or to all civil suits. See 2 jury violate the to a trial under the Alaska 1351-52, of the Alaska Constitutional Convention jury power Constitution because the retained the 6, 1956). However, (January propos- weigh presented and assess all of the evidence adopted. als were not it, including panel's conclusions. recovery available under the law permissible Omitowoju, court held eaps. In Davis placing cap on the a on the award available by not intrude damages cap did a up courts have plaintiff.27 Eight other function, cap fact-finding jury's applied after or similar damages caps using decision" the same "policy held was reasoning.28 determination, not constitute and did jury's question the factual
re-examination Pulliam, and the agree with We Davis damages.23 damages decisions have held other interpret similarly state courts Other right to caps not violate the constitutional do damages allow provisions to by jury ed trial jury.29 place cap The decision a trial Emergency Ser caps. In Pulliam v. Coastal policy is a choice and awarded Inc.,24 Richmond, Etheridge v. vices of question of the factual re-examination not a Virginia Hospitals,25the Su Medical Center jury. There damages determined between a distinction preme Court drew fore, damages caps under 09.17.010 fact-finding, and province of jury's exclusive I, section 16 of do not violate article and .020 alter the law that power to legislature's Alaska Constitution the Seventh jury's "Once determination: applied to to the United States Constituti Amendment and as the facts jury has ascertained on.30 the constitutional sessed the satisfied, duty of it is the [and] mandate is damages caps do not constitute 2. The to the facts.26 apply the law the court to equal protection. a denial of is, jury court held that Virginia That claim that plaintiff's power to determine has the equal protection caps constitute a violation may alter the damages, but (2001), (3d Cir.1989). held that the de novo in which the Court *6 1159-65 23. 883 F.2d applied appel when of review must be standard 1, (1999). constitutionality puni the 307 late courts review 24. 257 Va. 509 S.E.2d 436, damages 121 S.Ct. awards. See id. at tive 87, (1989). damages punitive S.E.2d 525 25. 237 Va. 376 noted that 1678. The Court fact, appel findings of and that are not awards Id. at 529. that of a trial court's determination review late process does not with due an award is consistent See id.; Pulliam, at 312-15. 509 S.E.2d id. at implicate the Seventh Amendment. See 437, S.Ct. 1678. 121 Ctr., County 134 Ida Med. 28. Kirkland v. Blaine (2000) (upholding 464, 1115, 4 1119-20 ho those state courts We decline to follow because, though fact-finding damages cap is even by analogous interpreted constitutional trial jury, province of the the court in the exclusive damages caps. provisions prohibit See jury to law, by apply formulated the the which is must 156, Ass'n, Infirmary So.2d 592 Moore v. Mobile by jury); Mur legislature, found the to the facts (Ala.1991) (holding calculation that the 159-65 342, 102, A.2d Edmonds, 325 Md. 601 v. phy province damages exclusive is within the (same); Saft, (App.1992) Peters v. 597 116-18 subject when the jury, to remittitur 50, (Me.1991) (same; noting that a A.2d 53-54 "flawed"; damages cap because a is calculation might right damages cap violate the to "drastic' absolutely, automatically with no applies effectively eliminate jury it would a trial because is not facts, and of the consideration particular English England remedy altogether); v. New verdict, damages a correct a "flawed" used to 329, N.E.2d 423, 405 Mass. 541 Cir., Inc., Med. unconstitutional); Malpractice Vic cap Kansas (1989) (same); Mercy v. Children's Adams 331-32 Bell, 333, 757 P.2d 243 Kan. Coalition v. tims (Mo.1992) 898, 906-07 832 S.W.2d Hosp., 251, (1988) (same); v. Lakin Senco 258-60 Dist., (same); County Wright Sch. 301 v. Colleton 463, 469-75 62, Or. 987 P.2d Prods., Inc., 329 (1990) (same); 569-70 282, 564, 391 S.E.2d S.C. (1999) (same); Corp., 112 v. Fibreboard Sofie W.Va. Ctr., Med. 186 v. Charleston Area Robinson 636, 711, (1989) 719-23 Wash.2d (1991) (same); 877, 414 S.E.2d 887-88 720, Guz (same); Ins., v. 507 also Smith see Department Inc., 240 Wis.2d v. St. Francis man Hosp., (without (Fla.1987) (same), analy 1088-89 So.2d (App.2000) rev. 783-85 623 N.W.2d sis, right damages cap holding violates the that a (2001). 543, 629 N.W.2d denied, 242 Wis.2d Academy by jury); rel. Ohio State ex to trial Sheward, Lawyers 86 Ohio St.3d Trial supported the Su is also 29. Our conclusion (1999) (holding that calcu 1090-91 Cooper N.E.2d in Indus preme recent decision Court's prov damages the exclusive is within lation of Inc., Tool tries, Inc. v. Leatherman Group, jury). ince of the 149 L.Ed.2d 121 S.Ct U.S. plain- merely
because two classes successful tort this fit must be "a substantial rela differently: ends"; however, tiffs are treated those who tionship means and between compensation, receive "full" those plaintiffs very important, interest not, compensation who do because "full" regulation must the least be restrictive caps. would in objective.32 means excess available achieve the apply steps We will each of the three of this analyze right equal protec To analysis in turn. I, article 1 of section the Alaska Constitution, apply three-part "sliding we a. The in interests unlim- scale" test: ited are economic inter- importance first determine the [Whe of the ests. impaired by individual interest the chal lenged enactment. We then examine the their interests characterize
importance
ways.
underlying
unlimited
in two different
of the state interest
enactment,
is,
purpose
of the
first claim that
have a
upon
enactment. Depending
impor
"right
right
to full redress"-the
to have
interest,
tance of the individual
equal
damages fully
jury,
their
determined
protection
requires
clause
the state's
impaired by
and that
artificial
interest
fall somewhere on a continuum
caps
impair
jury's ability
legitimacy
compelling
from mere
to a
in
Secondly,
do this.
claim that
Finally,
terest.
we examine the nexus be
damages caps
infringe
rights
on the
tween the state interest and the state's
damages caps
rural Alaskans-because
furthering
Again
means of
interest.
throughout
are uniform
the state and $1
depending upon
importance
of the indi
go
"does not
as far
rural
[in
Alaska] as
interest,
equal protection
vidual
clause
urban Alaska."
requires that the nexus fall somewhere on
characterization,
plain-
As for the first
a continuum from
relationship
substantial
tiffs claim that
interest
in unlimited
to least restrictive means.31
damages is related to their
interest
access
weigh
Under this test we must
courts,
important
and is therefore an
importance
plaintiff's
relative
interest
requiring
scrutiny," placing
interest
"strict
plaintiff's
and the State's interest.
If the
greater
justify
burden on the
State
its
*7
very important,
interest
is not
the State need
regulation.
objectives
show that
its
"legiti
were
right
The
of access to the courts is an
mate";
plaintiff's
important,
interest
important
requiring
interest
enhanced seruti-
the State must
a "compelling"
show
state
however,
ny;
right
impaired only by
interest.
If the State demonstrates a suffi
actually
state action that
limits or blocks
interest,
ciently strong
it must also show the
access to the
damages caps
courts.33 The
required "nexus" or
regula
"fit" between its
issue
actually
here do not
limit access to the
objectives. Depending
tions and its
on the
courts;
rather,
they simply
plaintiffs
limit a
importance
interest,
recovery in civil court.
degree
State
have to show a different
of
along
possibilities.
"fit"
continuum of
If
in
interests
unlimited dam-
economic,
ages
merely
superior
plaintiff's
are
as the
very important,
is not
interest
State, Dep't
in civil court "restricts access to Alaska courts"
31. Wilkerson v.
Health & Soc.
of
equal protection);
Servs., Div.
and violates
Servs.,
& Youth
Wilson v. Munici
993
Family
of
1018,
(Alaska 1999)
State,
(quoting
Dep'ts
1023
569,
pality
Anchorage,
669 P.2d
Constr., Inc.,
Transp. & Labor v. Enserch Alaska
1983) (holding
blocking recovery
that statute
624,
(Alaska 1989)).
787 P.2d
631-32
against government
infringe
did
tortfeasors
not
right
of access to courts because
could
Compensation
See Gilmore v. Alaska Workers'
tortfeasors);
against private
still recover
Bush v.
Bd.,
922,
(Alaska 1994).
882 P.2d
Reid,
(Alaska 1973)
1220-21
(holding
directly barring parolees'
statute
33. See Patrick v.
Inc., 765 P.2d
Lynden Transport,
(Alaska 1988)
infringed
(holding
access
civil courts
that statute
access to
courts).
requiring security
bond for nonresident
(3)
environment;39
con
"positive"
in
business
held
As we
correctly determined.
v. Alaska
liability
and Gilmore
insurance
trol
increase
Reid v. Williams34
0 (4)
Board,35
rates;4
restrictions
in
Compensation
encourage "self-reliance and
Workers'
by underscoring the need for
dependence
damages that a
types or amounts
on the
personal responsibility";
reduce
only infringe
in court
pursue
plaintiff can
professi
malpractice
in
insurance for
the cost of
economic
interests.
Such
upon economic
onals.42
"important" interests
do not count
terests
analysis.36
equal protection
under our
decisions,
accepted as
past
In our
we have
legislative goals.
legitimate very similar
objec-
"tort
The State's
b.
reform"
Hart,
McConkey
we considered the consti
v.
legitimate.
are
tives
ac
tutionality of a statute that
limited the
protection anal
step
equal
in our
The next
prejudgment
interest
for victims
crual
of the State's
adequacy
on the
ysis focuses
torts,
mal
including the medical
particular
regulation.
Since
pur
objectives underlying
plaintiff in that case.43 The
practice
plaintiffs' inter
that the
have determined
we
McConkey
very
in
were
poses of the statute
merely
damages are
eco
in unlimited
ests
legislature
expressed by the
similar to those
objectives
only be
nomic,
need
the State's
here,
legitimacy
noted the
such
and we
justify
"compelling"-to
"legitimate"-not
"Reducing
objectives:
health
"tort
reform"
held
superior court
action.37 The
the State's
provision of
encouraging the
care costs and
underlying
goals
stated
legislature's
that the
goals
legitimate
are
health care services
"plainly legitimate."
damages caps are
fur
reasonably
thought
be
to be
which can
of medical
objec-
by lowering the amount
the State's
thered
plaintiffs claim that
4 Similarly,
in
malpractice judgments.4
damages caps were not
enacting
tives
Williams,
noted that
the stated
we
Reid
1997 as
chapter
SLA
legitimate, because
"alleviat[ing]l medical mal
purpose of
problems
enacted to deal
a whole was
legitimate
was a
practice insurance crisis"
in-
actually
a dramatic
exist:
that do
legislative goal.45
malpractice
injury and
personal
crease
cases,
juries,"
out-of-control
"runaway
plaintiffs' invitation to see-
decline the
We
damages awards.
findings.
ond-guess
legislature's
factual
and testi
examining various evidence
After
goals underlying the dam
there were
mony,
found
chapter
as the rest
ages caps, as well
chapter
needed to
explicitlystated
litigation that
problems with tort
SLA
solved,
litigation, ex
including frivolous
1 Specifically, section
SLA 1997.
section
awards,
and increased
cessive
intended to
legislation
that the
was
states
liability ins
malpractice and other
costs for
litigation and decrease
discourage frivolous
38 (2)
pointing to other
plaintiffs,
stop
urance.46
"excessive"
litigation;
costs of
evidence,
independently
to foster a
in order
us to
punitive damages awards
contrary
ask
*8
26,
1(1),
453,
(Alaska 1998)
§
SLA 1997.
(holding
38. Ch.
34. 964 P.2d
damages
limiting
malpractice
af-
medical
statute
only
justifies
"economic"
interests
26,
fects
1(2),
§
39. Ch.
SLA 1997.
scrutiny).
equal protection
"minimal"
26,
1(3),
§
SLA
40. Ch.
1997.
1994)
922,
(Alaska
(holding
35. 882 P.2d
926-27
limiting
compensation in-
that statute
workers'
26,
1(4),
§
SLA 1997.
41. Ch.
fringed
which,
interest
like
economic
only
benefits,
"only
unemployment
enti-
interest
in
26,
1(5),
§
SLA 1997.
42. Ch.
scale").
at
the low end of
tled to review
(Alaska 1996).
43.
Second,
claim that
ance
rates.
apparently
the unifor-
mity of
damages caps
weighed
across the state
the competing evidence and decided
*9
26,
1(2),
47.
§
Concerned
South Kenai Peninsula
Citizens
ch.
SLA 1997.
Borough,
v. Kenai Peninsula
that objective. we found that Because caps. mate state the enacting justified caps damages relationship, a fair and substantial there was the evi- much of allege that The relationship necessarily a reasonable there is false was legislature the presented dence Therefore, damages caps do not the as well. us to examine they invite misleading and process. due deny substantive evi- impeachment contrasting evidence not should dence, legislature the that arguing the damages caps do not violate 4. The regard- it wishes "to do whatever allowed powers. separation of legislative action." factual basis of the less is a evidence However, weighing of the that that the dam plaintiffs also claim The legislature. the left to properly that separa task the principle the ages caps violate relationship" requirement The "substantial princi that powers, as governmental IV, 1 of the by article section in this case. ple is defined met was plaintiffs' argu The Constitution. plaintiffs' briefly the address must also We power of remittitur-the is that the ment uniformity of the the argument-that second jury's altering a damages by power to reduce unconstitutional, be state is caps across power of the an exclusive findings of fact-is fairly and sub uniformity not that cause legis usurped judiciary that cannot be goals of legislative stantially related usurp damages caps allegedly The lature. provide did not The tort reform. damages automati power by remitting this argument. their support authority any re superior The court fixed levels. cally to has re court However, one other at least "[this and stated that jected argument, this violation protection equal to find fused and more upon an even weaker relies claim econom has a different a law merely because the others that assumption than outlandish of a rural residents impact on urban ic reason, that, damages for some precede it: equal violation of is also no There state.54 court province of the the exclusive fall within caps damages merely because protection superior court noted The system." adjustments. living provide for cost not do characterized action was better legislature's limitation of causes the "modification infringe caps not damages do falls action," activity that which is "an rights. process due on substantive competence, legislature's squarely within argue that plaintiffs also for mem properly reserved one that due their substantive caps violate damages through public speaking voting of the bers However, argument fails rights. process legislators." the dam already found that we have because sepa caps cannot violate protection. As equal caps not violate ages do court, caps do our sub superior powers, because by the ration of recognized agree of remittitur. We a form constitute more deferen process test is a due stantive federal court reasoning of the test al with equal protection version tial Corp., in v. Mazda Motor Franklin v. decided explained in State ready We discussed. Franklin, Maryland law.56 terpreting process Niedermeyer "[slubstantive constitutionality of a considered has no enactment when is denied Mary cap under the noneconomic gov relationship legitimate to a reasonable protection land Constitution. court held equal purpose." Our ernmental separation cap did not violate because deferential: but less test is similar power economic, powers, interests "neces common law modify or abolish had a regulation had to show State 2000) (Alaska (quoting Con Weiner, 55. 14 P.3d Hosp. 569 F.2d Gen. 54. Massachusetts v. Kenai Peninsula S. Kenai cerned Cir.1978) (1st Citizens (holding denial of no Borough, 447, 452 where, setting Peninsula purposes of equal protection 1974)). *10 treatment of is uniform rates, there medicare hospitals). teaching hospitals and rural urban (D.Md.1989). F.Supp. 1325 704 1056
sarily
power
includes the
to set
arguments
reasonable
is similar to
made earlier in the
damages
protection
limits on recoverable
in
equal
process
causes of
and substantive due
legislature
action
recognize."
chooses
to
argument
contexts. Their
right
is that the
of
57
At least
other
six
courts have
meaningful
access
"right
includes a
to an
agree
reached similar conclusions.58
We
adequate
remedy,"
damages
that
authorities,
caps
with these
infringe upon
because,
and decline to follow
right
this
other
contrary
plaintiffs,
authorities that stand for
adequate compensation
some
would
proposition,59
legislature
because the
in
does
caps.
be an amount
in excess of the
power
fact
superior
rejected
have the
to alter common law
argument.
remedies,60
legislature
and that is what the
Reid,
In Bush
recognized
v.
we
a constitu
enacting
damages
has done in
caps.
This
"right
tional
of
process
access" under the due
alteration is not remittitur because it is a
I,
clause in article
section 7 of the Alaska
general
cases,
applied
alteration
to all
and is
K.A.H.,
Constitution.61 In In re
we stated
fact-specific
not case- and
like remittitur.
right
that
of
infringed
access is
when
impediments
there are "direct
to court acc
damages caps
5. The
infringe
do not
2
ess.6 We held in that case that Alaska
right
on the
access to the courts.
of
1.8(e),
Rule of Professional Conduct
which
argue
prohibits
also
that
lawyers
loaning money
from
damages caps infringe upon their constitu
their clients
living expenses,
does not
tional right
meaningful
access to the
infringe on
of access because this
courts,
guaranteed by
as
process
nothing
impede
rule does
actual access to
I,
clause in
1.8(e)
article
section 7 of the Alaska
"nothing
courts:
expressly
Rule
Constitution. The
argument
prohibits plaintiffs
here
filing
from
suit
re
or
Id. at 1336.
remittitur),
cial
denied,
rev.
242
power
Wis.2d
(2001).
543,
1057 63 relationship" legitimate state substantial access." pay for plaintiffs quires already that a con held Corp.,64we objectives.68 have We Progressive v. in Peter And relationship exists. substantial fair and fees imposition of the whether sidered right of the infringes on a master retain Payment Requiring The Provision B. fees imposition of access; that we stated Damages Award to Punitive a are if the fees access right of Half of the may violate State, Facially 09.17.020(j), Is fees that reasonable high," but "prohibitively Constitutional. of access.65 right infringe on the will not 09.17.020(j), plaintiffs successful Under re like the caps are not damages The damages any type punitive who receive and Peter be in K.A.H. considered straints to the state that award pay half of must actual access impede caps do not cause treasury.69 Moreover, caps do damages courts. they of access because right violate not 09.17.020(j) un- challenge AS plaintiffs The tort to eliminate so as not so drastic theories: constitutional three different der Therefore, the modify.66 they remedies (2) (1) takings process, due substantive right violate caps do not damages clause, jury Each right to a trial. courts. access in turn. be discussed these theories will violate the caps do not damages The 6. 09.17.020(G) does 1. Alaska Statute legislation." "special ban on substantive a violation constitute rights. process claim that also The "special on the ban caps violate provi argue that II, 19 of section under article legislation" punitive of half of a payment requiring sion II, 19 section Article Constitution. substan violates award to the State "(tlhe pass no shall legislature states that "cases will Arguing process. tive due act can be general if a special act local would conduct the State's which occur plaintiffs claim applicable." made half of the unjust to receive for it make prohibited a cap constitutes fol proffer the damages," punitive "special act." lowing: along with several fails, state is a defendant be contention plaintiffs' in a act parties. All defendants private provision vio for whether our test cause legal appropriate meets manner which legislation" is iden special lates the "ban punitive dam- award of for an standard already protection test equal tical and blame- florid Despite the state's ages. is, "special legislation" That discussed.67 behavior, from it benefits worthy "fair and long as it bears constitutional $450,000, recovery there constitutionally cap 63. Id. cap why it could not reason no discernible figure, perhaps ... even recovery other at some 1999). (Alaska 64. 986 $1."); 687, S.W.2d States, 757 v. United Lucas damages caps (Tex.1988) (holding that 691-92 872-73. Id. at though right even to redress violate right of of the abolition no "total there was (Me. Saft, 53-54 A.2d v. 66. See Peters Constitution). under the Texas access'" right 1991) (declining to find a violation damages cap not so drastic was access because State, Baxley v. 958 P.2d See remedies); v. Port Hale tort as to eliminate so 523-24, Or. Portland, (same). 514-15 Id. jurisdictions those to follow We decline right of damages caps violate the held that have person re- 09.17.020(j) provides: "If a 69. AS partial some merely access damages, the court an award "right See Smith ceives of redress." punitive on the effect percent of the award require that 50 Ins., shall 1088-89 So.2d Department general of the state." fund deposited into the damages cap (Fla.1987) (holding violated by chap- 09.17.020(j) to AS 09.17.020 was added Florida Constitu under the of access § that, SLA 1997. ter tion, noting "if *12 1058
wrongdoings ute, of its co-tortfeasors legislature may punitive further limit punitive extent of damages damages 50% through statute, awards another 09.17.020(G). award. superior 09.17.020(J) court held that AS 2. Alaska Statute does mot does not process violate substantive taking just a compen- without rights. effect sation under the United States and pro We have held that "[stubstantive due Alaska Constitutions. cess is denied when a enactment plaintiffs argue also that AS relationship has no reasonable legitimate to a 70 governmental 09.17.020(}) purpose. damages Punitive violates the federal and Alaska Takings plaintiffs Clauses. The claim that a are assessed as a prevent deterrent future public, harm to setting por aside a punitive damages judgment property is a tion of the damages public's collected for the subject interest Takings Clause, use reasonably subject related. to the deterrence cannot be to a "forced goal.71 contribution." Nevertheless, claim that it is 09.17.020(J) Alaska Statute does not effect "unjust" practical taking effect of AS a unless the property statute affects a punitive
is to cut in half all
punitive
dam
in
damages
interest
already
that has
ages
State,
against
awards assessed
09.17.020(j)
since
vested.
If AS
is construed as a
in all such
get
cases the State will
half of
cap
punitive
damages,
limiting them be
09.17.020(). However,
award back via AS
they are awarded to
plaintiffs,
successful
fore
09.17.020(J)
the effect of AS
is consistent
problem
with
no constitutional
exists. This con
"punitive
the rule that
damages may not
09.17.020(J)
struction of AS
is consistent with
against governmental
awarded
entities
the legislature's power
[in
to limit or abolish
cluding the
explicit
State]
the absence of
punitive damages,73 as well as with decisions
2
statutory
authorization.7
punitive
Since
from other courts that have considered the
construed,
damages
issue.74
09.17.020(j)
So
can
against
be awarded
does
specific
State
by
situations authorized
stat
not effect an
taking.
unconstitutional
264,
Niedermeyer,
(Alaska
70. State v.
14
267
(Fla.
74. Gordon v. State, 585
1033,
So.2d
1035
2000) (quoting Concerned
S.
Kenai
Citizens
App.1991),
(Fla.1992)
(hold
negligence statute
non-par-
1. The allocation
responsi
of fault
percentage share
assign a
fact to
vague-
not void
provision is
ties
party
responsible
damages to each
bility for
ness.
lability for
non-party, and mandates
apportioned between
must be
a law is "void
recognized that
haveWe
with their
parties in accordance
responsible
when it
process
violates due
vagueness" and
Specifically, AS
responsibility.
percentage
doing
requires
or
"either
forbids
09.17.080(a)
assign
requires the fact-finder
men of common
vague that
act in terms so
suit, as
parties to the
to all
percentages
fault
necessarily guess at
its
must
intelligence
liability
from
non-parties released
as to
well
application."7
to its
differ as
meaning and
However,
damages."
"responsible for
that AS
claim
are not
non-parties
responsible
potentially
09.17.080(a)
that render
ambiguities
contains
if
of fault
apportionment
included within
Each of these
unconstitutionally vague.
opportunity" to
had a "sufficient
parties
separately dis
ambiguities will be
alleged
Under
not to" do so.75
join
"chose
them but
in turn.
cussed
09.17.080(c)
(d),
then
the court must
the statute
First,
claim that
of the
equitable share
party's
each
determine
fault
assign a
fact-finder
requires
in accordance
judgment
damages and enter
alleged every person percentage
fault. The
percentage of
party's
with that
plain-
damages.
responsible for the
be
provides:
statute
State, Dep't
Energy
Servs.
09.17.080(a)(2).
Halliburton
75. See
2000)
(quoting
Labor,
Con
09.17.080(c).
76. AS
385, 391,
Co., 269 U.S.
v. General Constr.
nally
(1926)).
tiffs imply that there is an ambiguity [3] parties had a sufficient opportu language require join of the statute seems to nity person in the action but chose not to.81 person may that no such assigned per- be
centage of zero. State, while urging us to affirm this statute, interpretation "common sense" reject argument. We The lan that, statute, also observes under the a non- 09.17.080(a) guage of AS does state or party can included the allocation imply percentage that a of zero cannot be of fault the defendant identifies the assigned.79 provide any do not non-party as someone who the defendant will legislative history plain to counter fault, argue is at the defendant shows unambiguous language 09.17.080(a), of AS *14 person joined. that the could not be This is preclude which does not a percentage of zero also correct. In non-party order to include a being assigned.80 from allocation, in the fault a defendant must iden ambiguities The other by claimed the tify non-party the as someone who the defen plaintiffs arise from exception the in AS fault, argue dant will is because otherwise 09.17.080(a)(2) that non-par- excludes some non-party "person that cannot responsi be a ties from the allocation of fault. As the ble for damages" general the under the rule noted, superior rule, general court the or 09.17.080(a)(2). And, of AS even if the defen "presumption," by established the statute is argues fault, dant non-party that a was at parties that all non-parties "responsible non-party that cannot be included the damages" may for the assigned be a fault allocation of fault if there was a "sufficient percentage. However, exceptions there are join opportunity" to non-party, because general to that rule: fault not be allocat- opportunity" join "sufficient triggers the (1) any ed to non-party that is identified as exeeption 09.17.080(a)(2) defining AS non- "potentially responsible," protected is not parties assigned that cannot be an allocation by repose, person statute of is a of fault.82 The statute states that there is a entity parties or had "sufficient opportunity" join "sufficient when the non- opportunity" join, but "chose not to." "(A) party is jurisdiction within the of the ... [The shall jury instruct (B) court; precluded not joined from being special or, answer interrogatories if there (C) rule; law or court reasonably jury, is no shall findings, make indicating Thus, locatable." as the correctly State ... percentage of the total fault that is maintains: tentially responsible person, been son third-party allocated to each [1] responsible released from person defendant, for the was lability, claimant, defendant, identified as a person who has damages, or other unless per- po- fault. While no method of identification is lows the allocation of only if certain conditions are met. The as someone the defendant [Als finally first has to enacted ... defendant will fault to a identify [AS 09.17.080] argue non-party person is at al [2] person is not a person protected specified, procedures in the Alaska from a 09.:10.055, civil action under AS Rules of Civil govern Procedure will 09.17.080(a) provides: vincing contrary history must be to interpret contrary the statute ain manner." jury [The court ... shall instruct to an- Johnstone, (Alaska 2000) re or, special interrogatories swer if there is no (quoting v. Alaska Airlines, Inc., 963 P.2d Ganz jury, findings, indicating shall make ... (Alaska 1998)). 1015, 1019 percentage of the total fault that is allocated to each claimant, defendant, defen- third-party 09.17.080(a) (numeration added). 81. AS dant, person who has been released lia- from bility, person responsible or other for the dam- exception ages.... requires 82. The person also "protected must not be from a civil action under 09.10.055," repose. the statute of language If the plain of a statute is and unam- 09.17.080(a)(2). biguous, meaning we will follow this unless strong legislative history presented: is "the statute, plainer language 09.17.080(a)(2). of a the more con- 83. AS ambiguity unconstitutional is no There Next, will the defendant identification. 09.17.080(a)(2). in AS exception contained not be could person have to show 09.17.080(a)(2) not does that AS It is true either third-party defendant as a added responsible per- "potentially the term define jurisdic person because outside However, an un- not create this does son." or court by law court or ambiguity. The identification constitutional as a named cannot be person rule the persons" can be responsible "potentially wishes to Thus, who defendant party. managed will by any party and made add the person must to a fault allocate process will rule-making court. Our the trial legal if defendant party as a person guidance guidance such provide further to do so.84 ty able needed. omitted.) (Citations in- exception, component of the The third opportunity cluding phrase "sufficient third first and that the plaintiffs claim unconstitutionally ambigu- not join," is also in AS exception components implicitly exception does ous. The First, 09.17.080(a)(2) ambiguous. simply creates any duties-it explicitly create not de- statute does that the plaintiffs claim all general rule that exception to the respon- "potentially term sufficiently the fine *15 assigned a non-parties will be responsible this claim that plaintiffs The person." sible percentage. fault is unclear who ambiguous because is term 09.17.080(a)does that AS conclusion Our re- identifying potentially responsible is ambiguities is contain unconstitutional not proof what the standard persons, sponsible Lazy in prior decisions by our supported for such is, procedure should or what v. Matanuska-Susitna Land Club Mountain an identification. Appeals,85 Adjustment & Borough Board of third that claim plaintiffs also The State, Revenu Department and Williams ambiguous. is exception of the component Mountain, that Lasy we stated In e.86 possi- it is impliedly argue that plaintiffs in considerations principal are "three there as a identified non-party could be that a ble statute is unconstitu determining a whether the de- party without responsible (1) potentially oper the statute whether tionally vague": this that therefore knowledge-and fendant's First Amend the exercise ates to inhibit that defen- may apply not to third condition gives the statute whether rights, ment not have the did the defendant prohibit because dant is of what conduct notice adequate history join a has been ed, "choose" not there required to whether knowledge application.87 that of uneven strong also claim likelihood or a non-party. Williams, claim compensation duty workers' ambiguous may an exception create that the claimed responsible ant was denied benefits potentially try to ascertain unconstitutionally defining "injury" was op- statute governing phrase "sufficient persons, and in noted We vague. join" is not clear. portunity to argument, any history, evidence or interpretation islative accept State's we 84. Because language unambiguous of the statute 09.17.080, argu- plaintiffs' reject we of AS interpretation. support their lan- does interpretation of the that a reasonable ment 09.17.080(a) contrary actually guage of AS 1995). (Alaska making purpose," it unconstitution- 904 P.2d "intended its any legislative vague. ally Without citation evidence, 1995). (Alaska claim history or other P.2d 99 86. 895 is to re- of the statute "apparent intention" non-parties an allocation receive quire (quoting v. O'Neill In State P.2d at 383 87. 904 09.17.080(a)(2) ap- exception in fault Inc., vestigations, 609 P.2d noted, However, unambigu- already plies. that non- language statute indicates of the ous of fault if an allocation parties will not receive plaintiff Specifically, in at 105. are met. conditions the three "extraordinary phrase claimed that Williams unusual," "work stress" describe the used to challenge. plain- vagueness reject We compensable level of a to rise interpretation of the sufficient support tiffs do not unconstitutionally vague. any leg- injury, was of the statute '"'apparent intention" Lazy Williams that the three rights Mountain fac cess because it forces to de- nothing tors had "little or to do" with the responsible non-parties fend may who share situation in Williams: in the fault allocation but who definition obviously These factors have little or noth appear will not at trial to defend themselves. ing present to do with the First case. Plaintiffs would have an interest in defending involved[;] rights Amendment are not non-parties because an allocation of conduct; in question prohibit statutes no non-parties fault to would reduce the amount give and the prose- statutes rise to neither recoverable from the defendants. cutorial action a criminal context nor a superior rejected civil litigant enforcement action where a may argument, holding losing "empty be at risk of important right chair" litigant's because the problem conduct did give not meet does not rise to a constitutional a certain standard.89 violation, and stated that it is "inevitable" that someone disadvantaged by will be rejected We vagueness challenge presence of "empty multi-party chairs" in Williams, merely because "the statute set[] tort superior cases. The court noted that dividing line between instances where com system pensation under a payable liability" and several and those where it is "Joint not.90 (the We noted that "a degree lower system Alaska), former the defen- required exactitude opposed for civil prejudiced [as dants are face the statutes," and that reading criminal] of the risk of paying more than their fair share entire statute meaning clarified the damages, and must sue other co-defendants challengedterms.91 remedy contribution to the situation. Under comparative the AS 09.17.080 09.17.080(a) negli- Similarly, AS merely sets a gence scheme, plaintiffs dividing prejudiced non-parties line between be- who *16 assigned they be percentage getting a fault cause risk less those who than their fair Also, may not. first rights compensation. amendment share of superior are The court involved, not prohibits AS 09.17.080 no con noted that the choice system between a duct, and the give statute does not rise to disadvantages which sys- defendants and a liability possible criminal civil enforcement tem disadvantages which "pure is a litigant where "a may be at losing risk of public policy" choice that by was made important right litigant's because the conduct legislature and is not one that is "vulnerable did not meet a certain standard.9 And the to constitutional attack." 09.17.080(a) language of AS is "not so con flicting and confused that it cannot We have held that pro "[slubstantive due given be cess is denied when a enactment meaning adjudication process."9 ambiguities has no reasonable by relationship legiti identified to a do not governmental purpose.94 09.17.080(a) mate make unconstitutionally vague. relevant authorities parties cited are two Supreme decisions, Montana Court
2. The
non-par-
allocation
to
Court,
Plumb v. Fourth Judicial District
of fault
ties
does mot violate the
County95
State,
Missoula
and Newville v.
process
substantive
rights.
due
Department
Services,96
Family
in which
argue
also
that AS
applied
court
process
a substantive due
standard identical to our own.97 The Mon
09.17.080 violates their
pro-
substantive due
89.
Id.
Borough,
Peninsula v. Kenai Peninsula
(Alaska 1974)).
90.
Id.
(1996).
95. 279 Mont.
tana dispropor assigned a likely to be parties mandat statute negligence comparative tana responsible plaintiff's] allocated lability, and [the be that fault ing tionate share recovery likely to be reduced.1 liability for party non-parties dam Newville, accordingly. reduced ages be distinguishable Plumb are Newville first version down court struck 09.17.080(a) con appeal because AS from man "unreasonably it statute adequately address safeguards tains negli percentages an allocation date[d] Court's concerns. Supreme Montana any kind of without non-parties gence 09.17.080(a) not allocation does allow Statute is, even That safeguard.98 procedural if three conditions non-parties of fault statute negligence comparative though (1) non- if exception are all met: of its pur governmental valid for a was enacted responsible, potentially as party is identified reasonably related not was pose, the statute protected is not non-party "arbitrarily and purpose because to that 09.10.055, had a sufficient parties plaintiffs who prejudiced unreasonably" not non-party did join the but opportunity not recovery did diminished risked "opportu exception provides This do so. non-party defendants.99 defend appear and defend non-party to nity" for the decision, the Montana Plumb In the later lacked be statute the Montana itself alloca implied that the again Supreme Court 09.17.080(a), a defendant under AS cause constitu non-parties would tion of fault responsible non- join any potentially must safegu procedural adequate if there were tional oppor long there is a "sufficient as parties next considered ards.100 so, fault will be or else no tunity" to do statute comparative negligence version these Because of non-parties. apportioned to as a re legislature by the Montana passed 09.17.080(a) is procedural protections, statute, In the second to Newville.101 sponse govern legitimate reasonably related to a procedural safe created some substan not violate purpose and does mental in Plumb court stated guards, but process.105 tive enough to make were safeguards The second constitutional.102 the statute (1) the requirements included statute Procedure, AS Judgment D. The Offer non-party to show the burden had defendant 09.30.065, Facially Is Constitutional. *17 had to be (2) defense non-party liability; 09.30.065, judg the offer Statute (3) non-party had and affirmatively pled; re who penalizes parties procedure, ment being blamed it was notified that to be sum, for some judgment an offer of ceive held that The court injuries.103 after offer, judgment and win refuse constitutionally were safeguards procedural offered than the favorable is less trial provide they did because insufficient penalty The percent or more.106 by five sum appear and opportunity non-party with an multiple defen- plaintiffs who sue ly unfair" at 802. 98. at injuries sustained with in connection dants may employer that an plaintiffs claim The work. Id. at 803. of its im- automatically non-party because abe (workers' compensa- munity AS 23.30.055 P.2d at 1019-21. See 927 tion). defendants situation, may In such non-party employer to in- "collude" id. at 1018. 101. See cir- These employer's share of fault. crease theoretical, we de- wholly cumstances id. 1019-21. 102. See process violation due find a substantive cline to scenario, since hypothetical on such based id. at 1019. constitutionality ASof challenge of the facial. 09.17.080 Id. at 1020. are mul- slightly if there different rule is process 106. The a substantive decline to find
105. We
defendants;
applies
penalty
case the
tiple
in that
responsible non-
merely because some
violation
by
the offer
than
judgment
is less favorable
if the
plaintiff. The
employers of the
parties
percent or more.
ten
09.17.080(a)
"especial-
argue
plaintiffs
that AS
is that the offeree
required
pay
all costs
2. Alaska Statute 09.30.065 does not
thirty percent
between
seventy-five
right
violate the
to a
jury.
trial
percent
fees,
attorney's
offeror's
de
plaintiffs
The
preced
also recast the
pending on when the offer was made.107The
ing 'argument under the
right
rubric of the
legislation
altered but did not create
by jury,
a trial
claiming that the disincentive
this scheme.108
provided by AS 09.30.065
accompa
and the
plaintiffs
The
challenge
statute,
the entire
nying "chilling effect"
great
is so
it
claiming that
it
is unconstitutional.
The
effectively deprives
plaintiffs
some
of their
plaintiffs claim that AS 09.30.065 violates
right
jury
to a
trial.
(1)
right
courts,
both
of access to the
right
jury
to a
trial. These conten-
We have
party
held that a
is entitled to a
tions willbe addressed in turn.
jury
right
trial
jury
to a
trial was
preserved by
I,
the enactment of article
see
1. Alaska Statute 09.30.065 does not
tion 16 of
is,
the Alaska Constitution-that
right
violate the
access to the
there is such a right in suits "at law" where
courts.
plaintiff
seeks damages.111 Without cit
plaintiffs
claim that AS ing any authorities,
plaintiffs
ask us to
right
09.30.065 violates their
of access to the
hold that
right
jury
to a
trial
in
also
courts, guaranteed by
I,
article
section 7 of
right
cludes the
to be free from financial
the Alaska Constitution
"in
some
disincentives
might persuade
parties
cireamstances
it renders
victorious
not to
jury
seek the
trial to which they are
penniless."
hypo
discuss a
entitled. We declineto do so.
example,
thetical
plaintiff
which a
who
recovers almost the same amount at trial as
E. The
Tolling
Limitations
Procedure
was contained in a defendant's
great-
offer is
Minors,
09.10.140,
Ty
Defined
punished because
pay
she is forced to
Facially
Is
Constitutional.
attorney's
defendant's
superior
fees. The
rejected
argument,
stating that
Alaska Statute 09.10.140 tolls the
was a
policy argument."
"frivolous
two-year statute of limitations for tort ac
As we noted
opinion,
earlier in this
in our
parties
tions.
dispute
both
meaning
past
considering
decisions
right
of access
and constitutionality of AS 09.10.140 as it
courts,
we have been concerned with
applies to minors.
impediments to actual access to the courts.109
contend that AS 09.10.140
We
expand
decline to
of access to
treats two different
personal
classes of minor
prohibit an
judgment
offer of
scheme. We
injury plaintiffs
differently:
those
note that
less
this is consistent with the United
eight years
than
age
at the
Supreme
injury,
States
time of
rejection
Court's
of a similar
*18
(2)
those older than
challenge
eight years
age
to Federal
of
at
Rule of Civil Procedure
in
68 Marek v.
Chesny,
1,
injury.
473 U.S.
the time of
105 S.Ct.
claim
(1985),
87
1
09.10.070(a)
L.Ed.2d
in
09.10.140(c)
which the Court
AS
together
provide
"[mJerely
noted that
subjecting
those
rights
injured
civil
before
eighth
provision
birthday
settlement
their
of Rule
have until
their tenth
68 does
courts,
not curtail
birthday
their access to
personal
to file a
injury action,
or significantly deter
them from bringing
injured
while those
after
eighth
their
birth-
suit."1
day are treated
favorably,
more
since their
09.30.060(a).
107. See AS
1, 10,
110. 473 U.S.
105 S.Ct.
pose and bringing for of time period a shorter interact and .055 .140 how sections consider provi- another imposed under the action .070. section relate to how both of law. sion 09.10.070, provisions, AS first of usual .070's section exception makes This of limita- statute two-year general creates injury claims personal limit for two-year time action, including causes of various tions apply; if it would otherwise controlling injury actions. personal .055 that section thereby clarifies exception 09.10.140, over- provision, AS The second setting outer repose, as a statute operates person- two-year tolling the first rides injury ac- commencing personal limits eases. Subsection in certain injury statute al of limitations tions, the statute even when minors, including .140(a) exempts all broadly them. allow would claims, injury potential personal those with .055(b)(5) establishes Second, paragraph established limitation all statutes from minors that injured discovery governing rule two-year 09.10, .070's including section the rea- repose based period of tolls the tolling period of limit. The injury personal parents perceptions sonable throughout continues this subsection guardians: reach minors minority, and when years (a) gives *19 eighteen, subsection majority age if apply not section does This sue, regardless years to two them But subsec- action. cause of of their nature aceru- constitute that would the facts these .140(c) exception to an carves out tion minor are of a of action a cause al of narrowly Focusing provisions. tolling broad reasonable in the exercise discoverable injury personal potential minors who on guardian. or parent minor's by the care years old when eight less than and are claims Airlines, Inc., 963 (quoting v. Alaska (Alas Johnstone, Id. Ganz re See In 1998)). 1015, 1019 ka seen, As can be this discovery provision short, .140(c) subsection simply sepa- injured treats all rates those tolling equally children for whom minors and does not depend on injury.114 the date of statute of preserve limitations would the abil- ity to sue as adults from ability those whose interplay foregoing provisions of the to sue on their own will necessarily depend sheds light considerable on subsection exceptions included in the statute of re- 140(c)'s purpose. In drawing a line between pose. injured minors who are before and those injured on or after eighth birthdays, their The line logical, itself is then. And onee .140(c) tacitly subsection acknowledges both drawn, the line is good there is reason for underlying purpose subsection .140(c)'s disparate subsection treatment 140(a)'s tolling provision and overriding younger ten-year minors: The imposed limit effect of section repose. .055's statute of by repose statute of eventually will re-
By quire tolling section all two-year .070's minors who are eight years statute of injured limitations old when (provided until a majority, they child reaches do not .140(a) subsection fall injured seeks within one exceptions, to enable of the mi statute's tolled) age majority nors to which event without their claims losing their to sue claims, through so parents will their guardians; be able sue on or their these own instead of minors through parents ultimately their through or must sue their guardians. parents But or purpose guardians, can not be at then it serves no useful injured purpose, tained when only claims, minors are encourages before reach stale ing eighth birthdays. parents let their injured guardians An or years minor wait ten who eight years is less than before commencing an old must wait action. years more than ten reaching majori before Thus, .140(c)'s subsection disparate treat- ty. ten-year Since the outer limit of the ment of age minors under eight statute repose specifically overrides sub rationally legitimate based and furthers state .140(a)'s section provision tolling the two- interests.
year statute of personal limitations for injury claims, repose the statute of will always bar F. The Granting Provision Partial Tort these children from suing in their own Immumaity 09.65.096, Hospitals, wnless their claims fall within one of the Facially Is Constitutional. exceptions contained in repose the statute of event, itself. But in .055(b) grants Statute 09.65.096 subsection par specifies .055(a) that subsection will long no immunity tial hospitals for actions taken .140(a)'s er cancel subsection tolling provi by emergency physicians room who are not sions-which again govern onee will minors'employees but are rather independent cont clai ms.115 09.65.096, ractors.116 Under hospitals exception 114. This important also is in connec- within discovery the traditional rule at the time argument with the related that the eighth of the birthday. child's repose statute impermissibly abolishes dis- covery (b)(5) Paragraph 09.65.096(a) rule. provi- provides, 116. AS part: other .055(b) sions of subsection combine to establish a hospital A is not liable for civil as a somewhat narrowed, but still broad, reasonably result of an act emergency or omission statutory approximation of the common law dis- physician room employee who is not an Moreover, covery provisions rule. only agent hospital actual hospital if the govern ten-year subsection .055's statute of re- provides emergency notice that the phy- room pose; they do not affect the common law discov- independent sician is an contractor and the ery applies rule as it to subsection .070's two- emergency physician room is insured as de- year statute of limitations. (c) scribed under of this section. The hospital responsible exercising reasonable care in Although reinstating .140(a)'s granting subsection privileges practice hospital, in the tolling provisions would not affect reviewing subsection privileges those regular aon 140(c), two-year basis, which tolls youn- statute for taking and for appropriate steps to re- ger eighth children birthdays, until their privileges voke or appropriate restrict cir- *20 two-year triggered statuie would not be under hospital cumstances. The is not otherwise lia- .140(c) any subsection child whose case fell ble for emergency the acts or omissions of an has the legislature the previously, stated exercising reason only for responsible are Indeed, law.121 modify the common power to reviewing privi granting in care able in AS enshrined is itself principle Hospitals hospital. in practice leges to law to be 01.10.010, which states tak for actions responsible not otherwise are law not "the common is are courts applied who physicians room emergency en of the hos with the Constitution contractors, long as the inconsistent as independent physicians notice,117 of the the Constitution or provides of Alaska pital State passed by the any insuran law malpractice or with States levels United prescribed have (Empha Alaska." the State legislature ce.118 Therefore, added.) legislature was sis in created was 09.65.096 Alaska Statute 09.65.096. to enact AS rights its within well Power, v. in Jackson decision to our response a non- hospitals held that we in which 09.10.055, Repose, AS The Statute G. non-negligent care provide duty delegable Facially Constitutional. Is hospitals rooms, and that emergency in their 09.10.055, liability by repose, AS superior The statute respondeat avoid cannot "independent in ad period, ten-year doctors limitations room emergency imposes making their limitations actors.11 two-year statute dition contr 09.10.140, personal actions for AS on 09.65.0096 challenge AS Even death, damage. property injury, or is a the statute basis-they claim one of AS period two-year limitations process. due of substantive violation tolled, period of AS ten-year is 09.10.140 modifi- legislature's claim that action. separately bar an 09.10.055 law, it was inter- the common cation Jackson, of substan- is a violation preted 09.10.055, actions under AS Specifically, legislature's process because tive the earli years after ten be filed within must policy." public of "sound in violation action completion" of construc "substantial er of allegedly against statute Specifically, injury, or caused allegedly tion "legislatively is a policy because public personal to have caused alleged the last act in an inserted inju clause exculpatory imposed exceptionsfor cer ry.122 There formed contract contract"-the adhesion limitations injuries,123and the types of tain emergen- to an go is foreed patient awhen period in which during a is tolled period ey room. action cause of upon which a "foreign body" plaintiff's in a undetected remains is based argument However, altered Chapter SLA 1997 body.124 free to over was fails because formerly applied which repose, statute Our v. Power. in Jackson ride our decision in connec injuries based only to actions inter on our was based Jackson decision property,125 to real improvements As we have law.120 common pretation 09.10.055(a). 122. AS independent con- physician who is an room tractor. injuries 09.10.055(b) exempts certain AS 123. 09.65.096(a)(1-4). See acts, waste, intentional by hazardous caused fraud, express of an negligence, breach gross 09.65.096(c). 118. See trust products, and breach warranty, defective exception fiduciary duty. is also There or 1987); (Alaska see 1382-85 119. 743 give of a would notice "the facts where 1(6), § SLA ch. intentionally con- action are potential cause of party cealed," or, injured where the the case P.2d at 1382-85. 120. See minor, in the "not discoverable facts are parent by the minor's care of reasonable exercise (Alas 817, 828 v. 892 P.2d Bauman Day, guardian." that, 1995) holding the absence (implicitly "in ka rule," contrary couris directing a of a statute 09.10.055(c). 124. See AS law); interpret common empowered were Buckalew, Surina 09.10.055(a) (providing that See former power "to 1981) (noting court has that this applies to actions period fifteen-year limitations until unless and ... explicate common law design, planning, su it"). defect in on "a modify based legislature acts to the Alaska *21 period and shortened the from fifteen to ten age, ten-year to a period. limitations As the
years.126 plaintiffs imply, the statute does have an effect on tolling imposed by for minors plaintiffs arguments The offer two to chal- 09.10.140(a). 09.10.140(a), Under AS dis lenge constitutionality of the statute of cussed earlier opinion, this the normal repose: equal protec- the statute violates two-year period limitations is tolled until the tion; and process the statute violates due plaintiff reaches age majority. of because it "discovery overturns rule." Statute 09.10.055 tolling plain limits this arguments These will be discussed in turn. injured tiffs age before eight by of bar ring their years actions ten injury after the 1. The repose statute does not vio- of they when yet have not age reached the of equal protection. late However, majority. this is not differential plaintiffs The claim that the statute of treatment ten-year since the statute of re repose equal protec- constitutes a violation of pose applies plaintiffs. Instead, to all tion because it treats two classes minor legislature simply made a policy decision to plaintiffs differently. Minors who are less separate create a repose statute of in addi eight years than old at the injury time of will tion to the statute of limitations.128 have their claims barred they before reach age majority the statute of 2. The repose statute does not vio- repose, while minors who are more than process. late due eight years old at injury the time of will have their claims barred after age reach the plaintiffs The also claim that the statute of majority. plaintiffs claim that this repose process violates due effectively constitutes differential treatment of similarly abolishing rule," our "discovery pro which situated minors because the group first of vides that the statute of limitations does not rely minors must bring others to suit on running start plaintiff discovers, until the or behalf, their if suit brought is to be before reasonably discover, should the existence of the claim is lost. all of the elements of his cause of action.129 However, subject we need plaintiff some cases a might not discover a equal protection 09.10.055 to analysis because cause of action until ten-year after the limita plaintiffs have failed to make period the thresh tions repose run, statute has showing old necessary for an equal protec and therefore the claim would be lost before tion violation claim. As we stated in Mata- the discovery rule operate could fully toll nuska-Susitna Borough School District v. period 09.10.070(a). limitations under AS State, "[where there is no unequal plaintiffs treat argue that this is a violation of ment, there can be no violation of process departs because it from the com equal law," protection of and "we need not mon reject law. We this argument. subject challenged to sliding laws scale discovery rule is a common law rule created scrutiny." repose statute of does not court, and is any not based on constitutional princi treat differently: minors subjects It all mi ples.130 As noted earlier in this nors, as well as all other opinion, actions is free modify or personal death, injury, abolish Therefore, property common law rules.131 or dam injury, three at the construction, and would have had the effect pervision, or observa inspection improvement of construction of an barring to real age majority. claims before the
property").
129. See Pedersen v. Zielski,
1069 of, part or understanding, as to be tradi popular limits the AS 09.10.055 extent subject.133 to, general one germane had rule,132 discovery tional enacting the statute. in so to do power one-subject rule is to purpose of the practice "log-rolling"-the prevent 26, Does Not Vio- 1997 SLA Chapter H. inserting in one bill several "deliberately of Article Subject" Rule the "One late of subjects in order to incongruous or dissimilar Constitu- II, the Alaska 18 Section of support passage for of necessary secure 34 tion. plaintiffs argue that the measure."1 subject 26, the one 1997violates chapter SLA chal the facial to all of In addition are "scattered" provisions its tort rule because of the components specific lenges above, plaintiffs subject. a common considered not embrace legislation and do reform 26, is 1997 chapter SLA of that all claim that "what However, also stated we have "one it violates unconstitutional of article subject purposes constitutes one II, 18 of section of article subject" rule construed," only ILI, and that broadly § 13 is Alaska Constitution. one of the plain" violation "substantial and will legislation have stated We legis down us to strike subject rule will lead decisions, past long this as subject" rule on this basis.135 lation the "one violate subject: single general have consid appeals of embraces the court court and very cases was some legislation that ered to one is confined if a bill To determine case that in each have held broad: We the act necessary is that is subject, all that subject; subject, such as one general was within legislation one some embrace should 36 law."1 We or "the criminal "land" meant, all mat merely, that by this is and this onee on legislation down struck some fall under ... should ters treated wholly basis, unrelated unique situation in a idea, so connected general one Even appeal.137 this of the cireumstances other, logically or either to each related 1978) 534, (Alaska law); Corp., 545-46 585 P.2d leum interpret the common empowered to were municipal (act and both dealing with matters (Alaska 969, 973 629 P.2d Buckalew, v. Surina subject, "'state taxa one is within state taxation power "to 1981) (noting this court has (legislation tion"); in at 1123 until P.2d and Gellert, 522 law ... unless explicate common pro flood control cluding and it"). both boat harbor modify legislature acts to the Alaska "cooperative water subject, a jects within one is v. development program"); Suber resources note supra. 546, 556-57 414 P.2d Comm., Bond Alaska State 1966) (act concerning (Alaska relief disaster Anchorage, 660 Nat'l Bank v. First 133. State and crimi grants homeowners both contained (internal 1982) (Alaska quotations 415 P.2d grants integrity protect penalties to nal omitted). citations and homeowners"); "grants subject, within one (Alaska State, 885-86 P.2d v. 693 Galbraith (Alaska State, 1122 522 P.2d v. 134. Gellert modifying diverse various (Jegislation App.1985) assault, as law-sexual aspects criminal felony sault, for certain presumptive sentences Anchorage, 660 P.2d Bank First Nat'l warrants, disposal offenders, telephonic search insanity property, and recovered of seized defense, joyriding, necessity, im the defense 698 v. Alaska, Inc. Air McAlpine, 136. See Yute one sentencing procedure-is within munity, (initia 1985) 1175-77, (Alaska P.2d State, law"); v. Van Brunt subject, "criminal in- deregulation Alaska's proposing both tive (statute (Alaska re App.1982) 874-75 deregulation motor carriers air and tra-state driving is and to drunk lating to sale of alcohol federally regulated sea carriers interstate "intoxicating liquor"). subject, within one Nat'l transportation"); First subject, within one (legisla at 414-15 Anchorage, 660 P.2d Bank of Voluntary, 606 P.2d land, v. A.L.I.V.E. In State interests relating sale of to fraudulent enabling 1980), leases, (Alaska down a statute subdivisions, we struck dispositions of in and "legislative veto" "land"); legislature to exercise subject, Short within one rents regulations. Because agency annulling 1979) (legislation 20, 24 State, legislate without legislature to would allow projects correctional relating to bond procedures, includ observing enactment normal subject, "gen one safety is within public facilities rule, subject" we struck down ing the "one protecting life safety public function eral Id. at 771-74. statute. Borough Petro Slope v. Sohio property""); North though provisions chapter BRYNER, Justice, SLA with whom CARPENETI, Justice, joins, matters, dissenting concern different are all 138 part. - single subject within the of "civil actions." *23 disagree I parts with those plurality opinion uphold that would the 1997 tort re v. CONCLUSION form act's noneconomic damages cap and punitive damages provision. forfeiture In above, For reject the reasons stated we view, my cap «damages noneconomic challenges facial and hold that jury violates Alaska's equal protec trial and challenged provisions 26, chapter SLA clauses, provision and the requiring 1997 facially constitutional under plaintiffs to forfeit half puni their awards of Alaska and United States Constitutions.139 tive to the state violates substantive We therefore superior AFFIRM the court's process takings and the clause. Al 26, decision as to all chapter elements of SLA though plurality opinion has limited im 1997.140 pact and leaves points open to future
consideration,1 I think are suffi ciently important require explain me to MATTHEWS, Justice, not participating. my reasons disagreeing. BRYNER, Justice, with whom Damages Cap Noneconomic Is Un- CARPENETI, Justice, joins, dissenting in constitutional. part.
Jury Trial
CARPENETI,
Justice, dissenting
part.
Although cases from
split
other states are
issue,2
on the
I think that
the better-rea
138.
provisions,
1997)). Moreover,
addition to its "tort reform"
by
equally
"an affirmance
an
26,
chapter
provisions
SLA 1997 includes
affect-
precedent." City
divided court is not
Kenai v.
ing
eg., §§
other civil actions,
see,
11-14, 16-19;
(Alaska
Burnett,
amount
should
Equal Protection
receive;
damages
the
for
and since
demand
jury
right
a
trial under
triggers the
itself
Despite
strength
plaintiffs’ argu-
the
of the
provisions, these courts
constitutional
damages cap deprives
ment
them
that,
jury’s
of whether the
regardless
reason
trial,
right
jury
their constitutional
to a
it
technically
a find-
characterized as
decision
me
argument
seems to
that their
under Alas-
law,
“[i]t
fact or
would
ing of
conclusion
protection
equal
provides an
ka’s
clause12
jury, empaneled
...
to find
a
illogical
compelling
holding
more
even
basis
sought,
could
monetary
because
cap
unconstitutional.
amount of dam-
fully
then
determine the
Many
addressing
challenges
state cases
suffered.”5
ages
caps
equal
protec-
have considered
contrast,
by
relied on
the eases
In
evenly
arguments;
these
are about
cases
Davis,6 Pulliam,7
plurality opinion—chiefly
split,
usually
outcome
and their
on
centers
distinguishable.
Etheridge,8—are readily
protection
equal
scrutiny
level of
what
opinions—Pulliam and
Virginia
The two
apply
court chooses to
to the issue. Almost
unique provision
a
Etheridge—interpret
upheld damages caps
have
all courts that
Virginia
stating that a “trial
equal protection challenges
constitution
against
have
other”;9
preferable
any
more
by jury
scrutiny:
done so under
lowest level
over,
heavily
test,
the status of the
draw
“rational
asks
basis”
which
any
Virginia
legislature might
logical
a
law when
had
right
jury
trial
have
Conversely,
in
adopted
adopting
cap.13
the late
state
its constitution
reason
applied heightened, mid-level
federal case—Davis—bas
cases that have
1700s.10 And the
protection scrutiny
uniformly
equal
de-
decision on the
Amendment’s
es its
Seventh
Const,
I,
559,
added).
Inc.,
(emphasis
§
Hosp.,
623
Va.
11
240 Wis.2d
9.
art.
v. St. Francis
776,
(same),
(App.2000)
de-
783-85
rev.
N.W.2d
543,
nied,
(2001).
314,
242
N.W.2d 783
Wis.2d
629
'See
3. The
883 F.2d
1159-65.
11.
at
I,
Alaska Constitution:
article
section 16
controversy
civil
where the amount
“In
cases
Const,
I, §
12. Alaska
art.
dollars,
fifty
exceeds two hundred
by jury
preserved
same
trial
of twelve is
See,
50,
(Me.
e.g.,
Soft,
v.
A.2d
Peters
53
597
as it
at common law.”
extent
existed
Edmonds,
342,
1991); Murphy
Md.
601
v.
325
102,
(1992); English
Eng-
v. New
A.2d
111-12
Bell,
Moore,
159-65;
So.2d at
757 P.2d
592
n 9,
Ctr.,
423,
Med.
405 Mass.
541'N.E.2d
land
473-74;
258; Lakin,
Sofie,
P.2d
111
at
987
at
(1989);
Mercy Hosp.,
v.
333
Adams
Children's
at 721-22.
(Mo.1992); Wright v.
832 S.W.2d
903-05
Dist.,
County Sch.
301 S.C.
391
Colleton
Bell,
at 258.
Pulliam,
(1990);
509
at
S.E.2d
S.E.2d
533;
317;
v.
Etheridge, 376
Robinson
S.E.2d
F.2d
6. 883
at 1159-65.
Ctr., W.Va.
Charleston Area Med.
(1991);
Fran-
886-88
St.
S.E.2d
Guzman
at 314-15.
7. 509 S.E.2d
Inc.,
Hosp.,
623 N.W.2d
240 Wis.2d
cis
(App.2000).
S.E.2d at 529.
8.376
invalid,
clared
damages caps
Furthermore,
noneconomic
despite
plurality
opin
concluding
caps
aground
contrary
run
ion's
assumption,
on the
Alaska's test of
scrutiny
equal protection
mid-level
test's
automatically
means-to-end-fit
re
does not
rele
gate
quirement;
all economic
typically
interests to
cases
ask
low-level seruti-n
whether
Instead,
y.16
incorporates pure
legitimate
a substantial
reason
sliding-seale approach,
actually
equal protec
Alaska's
adopting
cap
existed for
tion test eschews
rigid categories
such
adopted cap
whether
actually bears a
recognizes "a continuum of available levels of
close and
relationship
substantial
leg
serutiny."
continuum,
importance
underlying
islature's
interest.14
any particular
interest-whether
economic
present case,
In the
plurality opinion
or not-is
a relative
judged by
matter to be
describes the
plain
interest asserted
realistically applying
adjustable
"an
'uniform-
tiffs as an interest
damages";
"unlimited
balancing'
test" that considers
the overall
plurality
then dismisses this interest as
importance
specific
interest at issue in
"merely economic"-too
trifling to deserve
relation to other societal interests.17 And
anything but the
level
lowest
of constitutional
notably,
applying
prior
this test on
occa
serutiny.15
sions, this court has not
identify
hesitated to
*25
some economic interests
ranking
as
But in
suffi
truth the
assert a consid-
ciently high in the continuum of societal in
erably more fundamental and focused inter-
to
terests
deserve close serutiny.18
est:
justice
their interest
in a
system
civil
that
similarly
affords all
negligence
situated
Here, when
against
considered
backdrop
equal
victims an
opportunity to seek full
imaginable
of other
interests,
economic
compensation
injuries.
sure,
for their
To be
plaintiffs' specific interest
in access to the
this interest can be characterized as econom-
recovery
courts to seek full
for their actual
ic.
hardly
Yet it is
the selfish and unbound-
injuries easily qualifies as an important eco
ed
interest
damages"
"unlimited
that
nomic interest. Whether
"a
labeled
mere
plurality opinion
plaintiffs.
aseribes to the
economic interest" or an
implicating
interest
Rather,
properly
asserted interest
lim-
plaintiffs'
right
constitutional
of access to the
personal
ited
injuries
to
legislature
that
courts,
then, this interest deserves consider
expressly recognized
has
to be real and that
ably
serutiny
more
under
sliding
Alaska's
prove
can
they actually
that
suf-
seale test
than the
glance
minimal
that
plurality chooses give
fered.
to
it.19
See, eg.,
Ass'n,
(1999)(due
Infirmary
Moore v. Mobile
process);
592
Savoy,
Morris v.
61 Ohio
156,
(Ala.1991);
So.2d
Wright
166-70
v.
Central
(1991)(same).
St.3d 684,
Although
plurality's
New Mexico's description
rational
applicable
basis anal
ysis certainly
typifies
identifies a
standard
potentially legiti
formulation of mid-level
interest,
mate state
serutiny
it
applied by
falls short of comply
other
using
courts
a con-
ing with Alaska's low-level
ventional
scrutiny
approach
test
three-tier
to equal protec-
ways: by
two
neglecting to
noted,
ask whether the
review. And
already
courts
purpose
rational
plurality
that the
has
applied
identi
have
serutiny
mid-level
instead
goal
fied was a
actually
of the rational basis test have almost invari-
sought
by
advance
enacting the damages
ably concluded that damages caps violate the
cap and,
important,
more
by neglecting to
test's
requirement.
means-to-end-fit
Co.,
28. Alaska Pac. Assurance
29. 743 P.2d
(1988).
Plurality Opinion
at 18.
Id.
Co.,
31. Alaska Pac. Assurance
tical to particularized of Alaska's edge-this breach our decision guide they should scrutiny, requirement. nexus the arbi- they explain, As case. present fit the means-to-end trary nature relation be substantial I see no Because apparent: test legis chosen specific means tween aas the statute enough that is not [It ostensibly ends it legitimate and the lature asserted to serve might tend whole achieve, that the I conclude would sought to statutory classification Each purpose. Alaska's cap violates noneconomic reasonable, arbitrary, and "'must be assuming that clause-even equal protection ground of difference upon some must rest unim interests are so plaintiffs' economie relation fair and substantial having a lowest only for the qualify portant as to persons that all so legislation, object of scrutiny under the level allowable treated be shall similarly cireumstanced Constitution.36 " alike. reason supportable logically no There is Statute Damages Punitive Forfeiture injured malpractice severely most
why the Is Invalid. for pay singled out to should be victims opinion plurality I further believe medical tortfeasors special relief upholding persuasive case fails to make in- preserving The idea of insurers. damages forfeiture 09.17.020(j)'s punitive on a huge sacrifices imposing surance requirement. Insur- perverse. logically few victims risks and spreading a device ance is Due Process Substantive people so large numbers among costs by misfor- any is crushed person one accepts without that no opinion plurality princi- of this strange reversal In a tune. position that analysis the state's meaningful costs of statute concentrates ple, the minimally rational- statute the forfeiture a few individuals. injuries on the worst substan under the muster passes and thus requirement-because process
tive prevent "deterrent general aas serves jus cannot arbitrary treatment Such general de But the state's future harm."3 purpose of reference tified with minimal, even withstand goal fails to terrence on the wis speculating Without statute. scrutiny. rational basis alternatives, plain it is possible dom provided could Legislature the truth of nobody questions Of course providers and care health relief to special punitive dam- proposition general crushing imposing these without insurers public harm. future in fact deter ages do *28 vice- arbitrarily selected on a few burdens cannot effect undisputed deterrent But this tims.35 provi- forfeiture challenged justify the itself damages to punitive full case, sion, noth- state offers for an award present In the as future harm to deter plaintiff serves absolute discon- seemingly justify the ing to punitive splits that fully as an award tort stated legislature's nect between plaintiff. and the the state costs, damages between dis- insurance goals-reducing reform half to award mandate legislature's claims, The preventing couraging frivolous in no results thus the state jury's verdict particular verdicts-and excessive entire awarding than greater deterrence it goals when those to attain it chose means damages reflect reim- do not punitive 36. Because Group, 38 Cal.3d Med. Permanente Fein v. by actually suffered injuries 690-91 for Cal.Rptr. bursement C.J., omitted)(Bird, writing opinion in a that (citations plurality agree with the plaintiff, I unsuccessfully a tiered advocated that damages cap dissent valid. punitive re- that would protection standard equal sliding-scale stan- like Alaska's quired-much Opinion Plurality at 1058. means between relation substantial dard does-a review). in low-level ends even (In plaintiff. fact, verdict to the as ishing legitimate discussed users. As a deterrent fully below, more provision the forfeiture claims, re- then, frivolous regime this is worse sults less by discouraging deterrence fu- irrational; than perverse. it is claims.) punitive ture damages Because the punitive deterrent effect of damages flows Takings Alaska's Clause taking from money away from wrongdoing apparent lack purpose of a tenable defendants, a statute designating gets who underlying the forfeiture statute feeds direct money logical bears no relation to the ly into taking. the issue of "takings Alaska's goal stated of enhanced deterrence. prohibits clause" taking private prop plurality's general reliance on deter erty public for purposes compen without fair public rence of begs harm key ques thus sation: property "Private shall not be taken legitimate tion: objective What legis did the compensation." damaged or public for just use without lature replacing law, have for the existing 40 general which achieved by deterrence award forfeiture statute's premise tacit ing punitive full plaintiff, seems to be that the state has an automatic provision forfeiture great achieved no stake in punitive all damages awards because er deterrence required plaintiff but those public awards serve the interest. But surrender half the award to the state? The premise overbroad, this is staggeringly for it plurality opinion offers no answer to this essentially posits who sue indi question. legislature, however, sug did vidually punitive damages become de fac- gest objective another being legitimate: public servants who donate their efforts purposes Its statement of in the 1997 tort and half their causes of action to the state. reform incorporates act goal as a the need to Yet Alaska's gov constitution forbids state discourage frivolous claims.38 The state tac ernment wielding from this kind of absolute itly espouses goal by this citing cases from power over its citizens: whether its actions jurisdictions other that cite the discourage property affect land, in the form of money, a ment of justification frivolous claims as a action, legal cause personal services, similar forfeiture statutes.39 But goal state private not confiscate property fares even serutiny worse under than the notice, without process, just compens goal general deterrence. ation.41 Because the state receives fifty-percent its And 09.17.020(J), under AS fifty- the state's punitive share under AS percent punitive share of a damages award is 09.17.020(J) only jury's if the puni- award of undeniably somebody's property-property tive serutiny withstands by the trial state obtains compul- judge upheld and is appeal, the actual sion. It ask, then, seems necessary to where source of forfeiture under the statute will power derives this to autho- always punitive consist of damages that have rize state confiscation judgments awarding conclusively been factually established to be punitive damages in civil actions between legally justified. While purporting to private parties. target claims, frivolous then, and excessive the forfeiture statute paradoxically just does The plurality opinion tries to duck the opposite: attacks meritorious issue of confiscation proclaiming subsec judgments, supposedly deterring .020(J) abusers of merely to be "cap" limits *29 punitive damages system solely by pun- damages they are ap awarded-an "before" 1,§ 38. See ch. SLA 1997. Court, 41. Superior DeLisio v. Cf. 1987)(Imposing require ... a See, State, eg., Gordon v. 608 So.2d 801-02 ment rendering which would per demand the of ( 992)(holding provision that forfeiture Fla.1 just sonal compensation services without would "'discourage[s] punitive damages by claims mak impermissible infringement itself be an of ing them less remunerative to the claimant and Alaska's clause and, thus, process may attorney"). the claimant's serve avoiding provisions as the basis for clause."). takings L, § 40. Alaska Const. art. the defendant from changes hands money as the tacit evidently premised proach tak- still is a the forfeiture plaintiff, to the "cap" damages punitive a that sumption proble ing. no constitutional raise kind would gener approach plurality's Yet ms.42 damages forfei punitive approving it resolves. than problems ates more essentially statute, opinion plurality ture charac with, unrealistic it is begin To jury's a reasoning that the state's adopts that provision a .020(J) as subsection terize merely a factu damages is punitive award of An cap. damages punitive a simply creates until significance no actual finding that has al limits a merely "cap" damages ordinary This effect.46 legal it gives a court order from takes recovery: it neither plaintiff's separate two award into reasoning splits an state, does as gives to nor defendant necessary be of which are both components, Moreover, in AS .020(j). subsection finding binding: a becomes the award fore shortly appears 09.17.020(f)-a that provision prov ordinarilyfalls within fact, which act reform .020()-the tort subsection before by the order a formal jury, and ince of the punitive cap on express an already imposes find jury's factual implements that placing (J) as subsection to read damages;43 as a matter significance gives it ing and cap thus the first top of cap on a second law. realm.44 into a Seussian us carries forfei- avoid the dichotomy fails to But this cap .020(J) as a subsection And to construe while problem: takings basic statute's ture receives plaintiff before occurs that identity of the changes the dichotomy face of in the damages flies award taken, noth- it does property is whose owner Alaska Statute language. plain subsection's autho- the statute fact that ing to alter to occur a forfeiture 09.17.020(j) allows pri- taking of uncompensated state rizes an and fur an award" receives person "a when jury's verdict if the For property. vate award percent "50 that ther commands by itself cannot finding that merely a factual 5 By fund."4 general into the deposited be then neither plaintiff, in the damages "vest" "the as of forfeiture source specifying any defendant legally "divest" can to be both award defining an award" courts And while interest. property receives" person "a that something factual improper negate authority to have into "deposited be something that can legal- any implement declining to findings by un language fund," the statute's general verdict, jury's aspect of a impermissible ly of funds transfer contemplates a equivocally to dis- legal power raw surely no have only when the occur that will the state proper factual a without property pose of make actual obliged to becomes defendant partly a is, jury returns when basis-that nee- event plaintiff-an to the payment verdict, no authori- courts unauthorized in the judgment entry of essarily follows factfinding role jury's preempt the ty to favor. plaintiff's property disposition of commanding a impor- identify arguments Although these addressed specifically jury has neither opinion's plurality in the flaws textual tant its of fact a matter authorized nor .020(G)as subsection attempt to characterize verdict. pale flaws cap, those mere a in a verdict punitive Nor can premise flawed opinion's comparison properly litigants private dispute between constitu- avoid kind would cap of this finding of fact general as a characterized conceptu- if we For even problems. tional punish a defendant's broadly authorizes punitive statutory forfeiture alize the might enable finding that kind ment-the caps the merely as an event property the defendant judge to divest before it occurs recovery because plaintiff's added). (emphasis 09.17.020(G) 45. AS Opinion -- Plurality *30 09.17.020(f). Plurality Opinion at 1059. See Seuss, BartHoromew Hats or THs 500 44. See Dr (Reissue House ed., Random CursiNs heeding without jury's desire to award it system justice. traditional Alaska's courts plaintiff. to the A public punitive offer a verdict awarding forum for resolving a vast damages personalized: product it is the array private public disputes. Within a process deliberative that translates the ser- forum, this system the tort allows individual particular iousness of a plaintiff's injuries litigants disputes to resolve involving private outrageousness and the specific of a defen- themselves, harms between calling without dant's conduct a monetary into sum that on the state to intervene on behalf of either reflects jury's felt need both to reward party. private Most of disputes raise punish. and to any few if issues of substantial concern to
Under .020(j), subsection jury government. is not state Even when these cases asked include state; punitive to award claims for anything damages, to the nor the con- does it determine duct at typically how much issue might the state falls below prevailing deserve. Its verdict money takes thresholds for par- regulation subject from a state or is ticular gives government defendant and to specific regulation it to a through separate plaintiff; administrative, civil, party's private settles each rights or eriminal channels. responsibilities only reason, in relation For this to the though even all awards of other's. It no obliges punitive more the defendant to involve a theoretical ele- pay money anyone to plaintiff but the public than it ment of harm protect and serve to plaintiff entitles the to receive money general welfare, from implicate few will the kind of anyone but the defendant. private particularized And the governmental concerns process that leads to this verdict requires are needed to trigger a participatory state neither participating party to surrender its support interest or to a formal state claim to rights against parties. other proceeds at issue. It follows that if a court give declines to Indeed, it is precisely system because our part of punitive a verdict for damages legal invites individual litigants to advance the reasons, effect for policy extrinsic the una- good common through private initiative that part warded money must remain the the state can have no automatic presump- or jury defendant's. If the finds as a matter of tive claim pot to the when judgment a civil plaintiff fact that the deserves a certain sum punitive damages is pri- entered between punitive as damages, a may law properly parties. sure, vate To be the state does have allow the court to part effectuate of this a compelling system interest puni- finding. But if the verdict includes no ex- whole; tive as a and to that extent press finding that the part state deserves legislature unquestionably has broad money, there is predicate no factual power to define and limit both the cireum- allows the court go beyond to declining stances punitive under which damages can be implement impermissible part of the awarded and the amounts of damages that jury's verdict and that enables it instead to can be recovered. But systemic interest divert plaintiff's half the award to the state. gives alone legitimate state no stake in Regardless of conceptualize whether we any part specific of a award that falls within verdict vesting property interest legal established limits and issues from a plaintiff or leaving defendant, it in then, judicial lawful proceeding private between an order awarding half the verdict litigants. necessarily state impermissible results taking. all, After greater state has no Moreover, though legislature may authority summarily confiscate a defen- plenary authority regulate punitive dama money dant's plaintiff's. than a ges,47 that authority alone justify cannot Neither the state nor plurality opinion 09.17.020()'s deeply summary flawed forfei suggests plausible way concep- around this ture mechanism. While problem, tual readily none is apparent. choose to reduce completely eliminate a Indeed, 09.17.020(J)'s plaintiff's theoretical under- punitive collect pinnings impossible seem square with our from a through defendant a civil proceeding, Plurality Opinion See at 1058.
1079 age.1 years of eighteen is majority, which in a power zero-sum this not exercise it meaning and the dispute both parties reduce is, may not it that manner: one-sided 09.10.140. constitutionality of AS dam punitive collect right plaintiffs the the expanding correspondingly without ages may not it of pay; two classes creates 09.10.140 1. AS defendant's re plaintiffs. who plaintiff injury the personal state the child substitute the leaving intact verdict, while covers parties' out the correctly sets effec this Because pay. duty to defendant's AS that contend plaintiffs positions: action to the party a new tively adds personal of child classes two treats 09.10.140 recovery, the affected right of newa creates treating those differently, injury notice, process, entitled are parties at the time age years of eight than younger against to defend opportunity and an than those older favorably than injury less claim. state's injury. The time age at the years of eight 09.17.020()'s then, me, AS that 09.10.070(a) seems It that claim money necessarily takes provision youn- forfeiture that 09.10.140(c) provide together simply There birthday compensation. just tenth their until without children ger for a jury's verdict between action, no room while injury personal to file entry of a court's plaintiff favorably, particular more treated are older children can state where verdict that judgment birthday twentieth their have until they since as an thing such taking-no without receive an action. to file con- the state Either reception. immaculate view, contending that rejects this The state it still money while the defendant's fiscates 09.10.140 of AS tolling provisions usurps the it or defendant belongs eight age of under apply to children from taking action cause Therefore, in the state's injury. time way One plaintiff. in the it vests after award eight at the age view, over children works forfeiture other, the automatic after years two injury have time taking. impermissible suit, other tort like all to file injury in which state by the asserted interest no Because plaintiffs. either forfeiture summary state justifies observation the court's with agree I that hold I would property, party's opinion today's 09.17.020(j) invalid.48 of a stat language interpreting [when dissent. I therefore lan unambiguous normally give ute, we may also meaning.112 We plain its guage part. Justice, dissenting CARPENETI, guide history as rely on 1997 that the Bryner Justice agree I the lan 'plainer "but interpretation, cap act's noneconomic reform tort convincing statute, more of a guage provisions forfeiture punitive to in be' history must contrary legislative separately be- I write unconstitutional. contrary manner." ain statute terpret a 2 limitations hold also I would cause minors applies to it tolling procedure, unconstitutional. age, is years eight Johnstone, 112 1231 re See In (Alaska 09.10.070(a) gen states Alaska Statute Inc., Airlines, Alaska (quoting Id. Ganz tort period for limitations rule eral 1998)). (Alaska 1015, 1019 P.2d Statute years. two actions explicitly nowhere opinion today's will be period While provides 09.10.140 It view. state's rejects the so, flatly says age of reach until minors tolled Opinion at 1065. Co., P.2d Publ'g v. Denver Kirk (Colo.1991). McDonald, 956 25.20.010; Neary v. also see 1998) (noting 1209 n. age). years eighteen majority is age of *32 so, is correct to do because the state's inter- a different tolling rule for plaintiffs. pretation impossible is to reconcile with the For plaintiffs those under age the eight of at unambiguous language of AS 09.10.140. the injury, time of the statute of limitations is Alaska Statute 09.10.140 tolling creates a only tolled until plaintiffs those reach the age provision two-year for the statute of limita- of eight. Therefore, AS 09.10.140 distin 09.10.070(a). tions in AS guishes Statute between children and creates two 09.10.140 general contains a rule and an ex- different classes personal of minor injury ception. general rule, (i) in AS plaintiffs: those who were under age the 09.10.140(a), tolls the statute of limitations eight of at (i) the injury; time of and those for all children until they reach age the of who eight years were old or older at the time majority, which eighteen years of age: injury. of Children under age the eight of at Except provided (c) as under of the time injury this see- of have until their tenth tion, person if a bring birthday suit, entitled to action file while children over the chapter mentioned this age eight is at of the time the the injury time of have until cause of action accrues ... under their age the twentieth birthday, subject to the stat of majority ... repose.5 ute of the time of plaintiff's [the minority] ... part is not a of the time limit 2. tolling provision in AS for the commencement of the action. equal protection. violates 09.10.140 general This rule existed in former AS 09.10.140.3 Chapter SLA 1997 modified contend that AS 09.10.140 equal protection, violates this tolling procedure because it with an exception creates two classes of general rule, personal child injury plaintiffs now codified in AS 09.10.140(c)4 who are treated differently.6 09.10.140(a) As AS states, the tolling plaintiff's for the minority applies "ex As noted earlier in the opinion,7 court's cept provided as 09.10.140}(c)" under [AS under our equal protection test the relative 09.10.140(c) Alaska Statute provides: importance plaintiff's interest and the In an personal action for injury person of a state's interest weighed. If who was age under the eight of years at interest very is not important, the state need the time of the injury, period time only show that objectives its "legiti were before person's eighth birthday is not a mate"; if plaintiff's interest important, part of the time imposed limit under AS the state must show a "compelling" state 09.10.070(a) for commencing the civil ac- interest. If the state can meet part this of tion. test, to satisfy the part next the state The unambiguous language (c) of subsection must show required "nexus" or "fit" be indicates that applies personal injury tween regulations its objectives. and its plaintiffs who were age "under the of eight required depends nexus importance years at the time of injury," and creates interest, and a continuum of 3. Former AS provided, 09.10.140 part: injured ages eight between the and ten would have ten to file years suit, instead of until minority (a) Disabilities incompetency. If birthday. twentieth person bring entitled to an action mentioned chapter in this is at the time the cause of 6. argues action The state accrues ... age we need majori- not reach the plaintiffs' challenge, constitutional ... ty time of [the] [of disability minority] part is not a concerning claim the time limit for the com- 09.10.140 is not mencement of the action. However, ripe. state does not discuss requirements ripeness, single or cite a an- 8,§ 4. Ch. thority SLA support argument. Therefore, of this argument is waived for lack of sufficient briefing. See In re 09.10.140(c) Marriage Since Dissolution its own terms does apply not Alaback, 997 P.2d age 2000) minors eight over the 1184 n. 3 at the ("Points given only cursory injury, 09.10.140(a) time of treatment in the applies and tolls argument portion aof brief will statute of not be consid- limitations for those minors until ered, developed brief."). even if reply age However, in the majority. the statute of 09.10.055, repose, AS applies also imposes limitations Opinion ten-year at 1051-1052. period. Therefore, minors not view does opinion The court's claims. interest plaintiff's If the exists. possibilities problematic among minors distinction merely this must be fit important, very .140 in subsection drawn the line finds means relationship between substantial "a those children separate interest It serves logical: however, plaintiff's ends"; *33 block repose would of statute the whom for the be must regulation the important, very is as an decision make the ability to to achieve child's available the means restrictive least who, they were from those objective.8 adult the injured, when adulthood years of ten within the clearly fails 09.10.140 Statute for themselves. to decide be able would the even analysis, because this part of third the and unimportant, are interests plaintiffs' injured child's the individual find I would is no there compelling, is interest state's to make being able in interest interests-the AS 09.10.140 relationship between substantial aas to whether oneself, the decision sue only state goals. legislature's the and I important. quite be competent adult-to underlying goal legislative one offers legitimate ahas the state that also find would statute the that claims state 09.10.140-the even But claims. minimizing stale in interest pro- finality and to provide "to enacted was here interests the assuming that the diffi- from and defendants the courts tect a substantial is not there unimportant, are stale litigating of unfairness and culties of chil- classification the relationship between earlier, 09.10.140 noted But claims." importance goals. the state's and dren differently. minors of classes two treats own, rather on one's file suit to being able of per- example, a dramatic most the To take third-party- a rely on to being forced than injured one who was plaintiff injury sonal justify to sufficient guardian-is or parent until birthday has eighth her day before above for children limit 09.10.070's tolling AS her suit before file birthday to her tenth tortfeasors potential eight. While of age the was however, who plaintiff barred; a is claim in which period longer a subject to be would birthday has eighth her day after injured one for children suit subject to may be the before suit to file years which ten be, length would increased that eight, under the make to barred, able will be and claim justifica- is no There most, years. eight at supplied not has state herself. decision this support to state by the offered tion of classes two these why any reasons on children impact when differentiation differently, and a treated should children Fur- considered. eight is of age under no history reveals of review the statute that suggestion ther, court's rationale. possible any of discussion reason a sufficient furnishes repose of here, because exist does nexus required unpersuasive. two these of treatment differential First, rela- reasons: for three no substantial unpersuasive has It is children groups finality twist. perverse a "provid[ing] works goal of classification tionship to unlikely to realize defendants and are the courts who children protecting] Those claim, young- litigat- potential unfairness a they have the difficulties from protec- the least receive est, claims." those ing stale are is to child The closer laws. of the justify to is unable state While likely the more majority, age of reaching the eight below of children treatment disparate understand to able better he or she above eight and and those age years legal system workings basic find a to purports the court injury, time By have. she he or claims any potential repose, the statute justification real- more time children older these giving repose reading the statute But 09.10.055. claims, denying but potential ize their two creates .140 section conjunction children, today's deci- younger same who minors those of minors: classes more chil- younger rights of compromises sion them- file suit opportunity given the statute eight, when age At dren. rely on must who minors those selves court's running begins limitations action to take guardian or parent Bd., Comp. Workers' v. Alaska 8. Gilmore view, these children will have barely graduat- age eight are. This especial failure is *- ed from their Big Wheels Such a child is ly given anomalous there is a definite absolutely dependent upon parent time at which children will be relieved of guardian protect his or rights. her Con- their disability whereas those suffering from versely, a fifteen- or sixteen-year-old, who incompetency may never be relieved of their may well have at an inkling least of the need disability. cireumstances, protect to sue to rights, one's has additional court's reliance on the repose statute of years to consider the matter: the statute of justify disparate injured treatment limitations will not begin to run until children problematic. seems eighteenth child's birthday and will not ex- reasons, For these I would find tolling pire until the twentieth. *34 deprive To provision children, for when conjunc- read in younger children of their pro- claims while tion with the repose, statute of depri- to be tecting the claims of those children who are equal vation of protection injured children better able to understand their situation and age and, eight therefore, uncon- to articulate their thoughts creates an imper- stitutional.
missible divide within the group injured children.
Second, today's decision utterly ignores what has, the law respects, other histori cally recognized: children, by definition,
are in their years.9 formative If any group lay can strong claim to the need for addition al time to assess the physical, effects of emotional, and types other of injury, surely it BEASLEY, Lottie R. Appellant, young children. Yet in consigning the youngest injured children two-year to a v. limi period, tations deprives court them and Alaska, STATE of Appellee. parents guardians of an important opportunity fully know the extent of the No. A-8289. injured injuries. children's Court Appeals of Alaska. Finally, in hypothesizing that the effect of repose statute of provides justification Oct. disparate for the injured treatment of chil dren, ignores the statute of repose persons treats other under disability
differently than it treats children. Alaska 09.10.140(a) Statute tolls the statute of limita tions for both the disability of mental incom petence and the disability of minority. But
the statute of repose, 09.10.055, provides
only that the statute applies "[nlotwithstand-
ing the disability of minority described un
der
09.10.140(a),"1
making no mention of
the disability of mental
incompetence. No
appears
reason
why
people
those
suffering
from a mental disability
subject
are not
the same
repose
statute of
as children under
F.L.A.,
(Alaska
State
Cf.
State,
1972)