Rita Mae LOUK, Plaintiff Below, Appellant, v. Serge CORMIER, M.D., Defendant Below, Appellee.
No. 31773.
Supreme Court of Appeals of West Virginia.
Decided July 1, 2005.
622 S.E.2d 788
Submitted April 27, 2005. Concurring Opinion of Chief Justice Albright July 6, 2005. Dissenting Opinion of Justice Maynard July 11, 2005. Concurring and Dissenting Opinion of Justice Benjamin Aug. 8, 2005.
Brent P. Copenhaver, Colombo & Stuhr, Morgantown, West Virginia, Attorney for Appellee.
DAVIS, Justice:
Rita Mae Louk, appellant/plaintiff below (hereinafter referred to as “Ms. Louk“), appeals from an order of the Circuit Court of Randolph County denying her motion for a new trial. A jury returned a non-unanimous verdict against Ms. Louk in her medical malpractice action against Dr. Serge Cormier, appellee/defendant below (hereinafter referred to as “Dr. Cormier“). Here, Ms. Louk contends that the circuit court erred by ruling that the non-unanimous verdict provision of
I. FACTUAL AND PROCEDURAL HISTORY
The sparse record in this case2 indicates that on June 13, 2000, Dr. Cormier performed a hysterectomy and salpingo-oophorectomy3 on Ms. Louk. The surgery occurred at Davis Memorial Hospital. Several days after Ms. Louk was released from the hospital, she became gravely ill. Consequently, on June 22, 2000, Ms. Louk returned to the hospital complaining of a fever, abdominal stress, constipation, bloating and a tender abdomen. On the day that Ms. Louk
On May 20, 2002, Ms. Louk filed a medical malpractice action against Dr. Cormier. The central allegation in the complaint was that Dr. Cormier perforated Ms. Louk‘s cecum when he performed the hysterectomy and salpingo-oophorectomy. Dr. Cormier defended the action on a theory that the cecum spontaneously ruptured.
The case proceeded to trial on December 2, 2003, before a twelve person jury. After both parties presented their case-in-chief, the trial court gave its jury charge. Among the instructions given was an instruction that informed the jury that it was not necessary to reach a unanimous verdict. The jury returned a verdict in which ten jurors found in favor of Dr. Cormier. Two jurors found in favor of Ms. Louk.
Thereafter, Ms. Louk filed a post-trial motion seeking a new trial arguing that the non-unanimous verdict instruction authorized by
II. STANDARD OF REVIEW
Before this Court, Ms. Louk appeals from an order denying her motion for a new trial. We have held that “the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, [and] the trial court‘s ruling will be reversed on appeal [only] when it is clear that the trial court has acted under some misapprehension of the law or the evidence.” Syl. pt. 4, in part, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976). In this proceeding, we are asked to determine specifically whether the trial court correctly found that the non-unanimous verdict provision of
In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.
Accord Syl. pt. 4, State ex rel. Cities of Charleston, Huntington & its Counties of Ohio & Kanawha v. West Virginia Econ. Dev. Auth., 214 W.Va. 277, 588 S.E.2d 655 (2003); Syl. pt. 1, West Virginia Trust Fund, Inc. v. Bailey, 199 W.Va. 463, 485 S.E.2d 407 (1997); Syl. pt. 1, State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 474 S.E.2d 906 (1996).
With these standards in mind, we turn to the issues presented by this appeal.
III. DISCUSSION
A. Propriety of Addressing the Constitutionality of W.Va Code § 55-7B-6d
The first issue we must address is Dr. Cormier‘s contention that Ms. Louk has
In the concurring opinion of Justice Cleckley in State v. Greene, the following observations were made regarding this Court‘s authority to address an issue that was not properly preserved at the trial court level:
[A]lthough the rule requiring all appellate issues be [properly] raised first in the circuit court is important, it is not immutable: Our cases have made clear that the failure to [properly] raise issues below is not a jurisdictional prerequisite to an appeal but, rather, is a gatekeeper provision rooted in the concept of judicial economy, fairness, expediency, respect, and practical wisdom. Requiring issues to be [properly] raised at the trial level is a juridical tool, embodying appellate respect for the circuit court‘s advantage and capability to adjudicate the rights of our citizens.
This case, however, is not one in which, by neglecting to raise an issue in a timely manner, a litigant has deprived this Court of useful factfinding. The issue raised here, but omitted below, is purely legal in nature and lends itself to satisfactory resolution on the existing record without further development of the facts. . . . More importantly, the defendant‘s belated proffer raises an issue of constitutional magnitude, a factor that favors review notwithstanding a procedural default. . . . I believe this sensitivity is appropriately expressed by a frank recognition that, when public, as well as institutional, interests are at stake, the case for the flexible exercise of this Court‘s discretion is strengthened and waiver rules ought not to be applied inflexibly.
196 W.Va. 500, 505-06, 473 S.E.2d 921, 926-27 (1996) (Cleckley, J., concurring).5 See also State v. Aleman, 210 Ariz. 232, 239, 109 P.3d 571, 579 (2005) (“[W]aiver is a procedural concept that courts do not rigidly employ in mechanical fashion.“); In re Foster, 33 Kan. App. 717, 725, 107 P.3d 1249, 1255 (2005) (“[A]n appellate court may consider an issue for the first time on appeal in exceptional circumstances in order to serve the interests of justice or to prevent a denial of fundamental rights.“).
The case of Whitlow v. Board of Education of Kanawha County, 190 W.Va. 223, 438 S.E.2d 15 (1993), illustrates the narrow context in which this Court may address an issue that was not properly preserved below. In Whitlow, the plaintiff was injured in 1987 when the bleachers at her junior high school collapsed. At the time of the accident, she was fifteen years old. The plaintiff filed a law suit in 1991. The trial court dismissed the action on the grounds that the statute of limitations for the West Virginia Governmental Tort Claims and Insurance Act,
In this case, we are confronted with very limited and essentially undisputed facts. The constitutional issue raised for the first time on appeal is the controlling issue in the resolution of the case. If the statute is unconstitutional, the case should not be dismissed. Furthermore, the issue is one of substantial public interest that may recur in the future . . . .
. . . Here, the defendant has thoroughly briefed the constitutional issue in response to the plaintiff‘s claim. We view the matter as sufficiently developed to decide the issue.
Whitlow, 190 W.Va. at 226-27, 438 S.E.2d at 18-19.6 See also Los Angeles Unified School Dist. v. State of California, 280 Cal.Rptr. 237, 239, 229 Cal.App.3d 552, 555 (1991) (“[A] claim regarding [a] constitutional provision can be belatedly raised [on appeal] because it raises a purely legal question involving no disputed facts.“). Accord Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143 Ariz. 101, 692 P.2d 280, 283 (1984) (same); State v. Samuels, 273 Conn. 541, 871 A.2d 1005, 1016 (2005) (same); Wright v. State, 2005 WL 1026669, at *1 (Fla.Dist.Ct. App.2005) (same); People v. Pickens, 354 Ill.App.3d 904, 290 Ill.Dec. 776, 822 N.E.2d 58, 66 (2004) (same); Unwired Telecom Corp. v. Parish of Calcasieu, 903 So.2d 392, 399 (La.2005) (same); State v. Ronning, 2005 WL 1088435, at *5 (Minn.Ct.App.2005) (same); Anderson v. Assimos, 356 N.C. 415, 572 S.E.2d 101, 102 (2002) (same); Roseborough v. Scott, 875 P.2d 1160, 1165 (Okla.Ct. App.1994) (same); Bassi v. Rhode Island Insurers’ Insolvency Fund, 661 A.2d 77, 79 (R.I.1995) (same); In re D.L., 160 S.W.3d 155, 160 n. 1 (Tex.App.2005) (same); In re Disability Proceeding Against Diamondstone, 153 Wash.2d 430, 105 P.3d 1, 8 (2005) (same).7
As a result of our thorough and very logical reasoning in Whitlow, we now hold that a constitutional issue that was not properly preserved at the trial court level may, in the discretion of this Court, be addressed on appeal when the constitutional issue is the controlling issue in the resolution of the case.
Applying the above principle of law to the facts of this case, we exercise our discretion to address the constitutional issue presented even though it was not properly preserved below. The issue of the constitutionality of Ms. Louk contends that enactment of the non-unanimous verdict provision of The Separation of Powers Clause of [t]he Separation of Powers Clause is not self-executing. Standing alone the doctrine has no force or effect. The Separation of Powers Clause is given life by each branch of government working exclusively within its constitutional domain and not encroaching upon the legitimate powers of any other branch of government. This is the essence and longevity of the doctrine. State ex rel. Affiliated Constr. Trades Found. v. Vieweg, 205 W.Va. 687, 702, 520 S.E.2d 854, 869 (1999) (Davis, J., concurring). It also has been noted that “[t]he system of ‘checks and balances’ provided for in American state and federal constitutions and secured to each branch of government by ‘Separation of Powers’ clauses theoretically and practically compels courts, when called upon, to thwart any unlawful actions of one branch of government which impair the constitutional responsibilities and functions of a coequal branch.” State ex rel. Farley v. Spaulding, 203 W.Va. 275, 286-87, 507 S.E.2d 376, 387-88 (1998) (Davis, C.J., dissenting) (quoting State ex rel. Brotherton v. Blankenship, 158 W.Va. 390, 402, 214 S.E.2d 467, 477 (1975)). The Rule-Making Clause of The case of Laxton v. National Grange Mutual Insurance Company, 150 W.Va. 598, 148 S.E.2d 725 (1966), overruled on other grounds by Smith v. Municipal Mut. Ins. Co., 169 W.Va. 296, 289 S.E.2d 669 (1982), is one of the earliest decisions to address the issue of a statute that was in conflict with a rule promulgated by this Court. In Laxton, the plaintiff‘s automobile was damaged in a wreck. The plaintiff filed an action against his insurer to recover the cost to repair the vehicle. The insurer defended the action on the theory that the policy had been cancelled before the wreck occurred. The jury returned a verdict in favor of the plaintiff. The insurer appealed, and the plaintiff filed a cross-assignment of error. The relevant issue in the case involved the plaintiff‘s cross-assignment of error.8 On appeal, the plaintiff argued that the insurer had waived its defense of alleged cancellation by failing to plead the defense in conformity with We believe that the procedural provisions of this statute have been superseded by the West Virginia Rules of Civil Procedure which became effective July 1, 1960. The . . . cases cited in behalf of the plaintiff were decided before that date. R.C.P. 1 is, in part, as follows: “These rules govern the procedure in all trial courts of record in all actions, suits, or other judicial proceedings of a civil nature whether cognizable as cases at law or in equity. . . .” R.C.P. 8(c) deals with affirmative defenses, but does not provide that such defenses must be raised by a pleading under oath. R.C.P. 11 provides, that except where otherwise provided by the Rules, pleadings need not be verified or accompanied by affidavit. The Rules embrace actions such as that involved in this case. The answer to the complaint affirmatively pleaded the alleged cancellation. The answer was not required by the Rules to be under oath. The cross-assignment of error, therefore, is not well taken. Laxton, 150 W.Va. at 601, 148 S.E.2d at 727. The leading case addressing the issue of a legislative statute that conflicted with a rule promulgated by this Court is Mayhorn v. Logan Medical Foundation, 193 W.Va. 42, 454 S.E.2d 87 (1994). Mayhorn was a medical malpractice action against an emergency room physician and hospital. During the trial, the circuit court granted the defendants’ motion for a directed verdict asserting that the plaintiff‘s expert relied on a fact not in evidence when rendering his opinion. The plaintiff filed an appeal. The defendants filed a cross-assignment of error. The relevant issue in the case involved the defendants’ cross-assignment of error.9 In the defendants’ cross-assignment of error, they alleged that the plaintiff‘s expert should not have been allowed to testify because he did not qualify as an expert under If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. (Emphasis added). The opinion in Mayhorn acknowledged that the Court had previously examined the validity of There is a difference between the competency of a witness, which is governed by Accordingly, we hold that Rule 702 of the West Virginia Rules of Evidence is the paramount authority for determining whether or not an expert is qualified to give an opinion. Therefore, to the extent that Gilman v. Choi, 185 W.Va. 177, 406 S.E.2d 200 (1990) indicates that the legislature may by statute determine when an expert is qualified to state an opinion, it is overruled. Mayhorn, 193 W.Va. at 49, 454 S.E.2d at 94 (internal citations omitted).11 See also West Virginia Div. of Highways v. Butler, 205 W.Va. 146, 516 S.E.2d 769 (1999) (holding that the requirement of Recently, in Games-Neely ex rel. West Virginia State Police v. Real Property, 211 W.Va. 236, 565 S.E.2d 358 (2002), we were again asked to determine the validity of a legislative statute that conflicted with a rule of this Court. The decision in Games-Neely involved the State‘s seizure of the home of an elderly woman. The home had been used by others to engage in drug trafficking. The State filed a petition to seize the home under the West Virginia Contraband Forfeiture Act (the “Forfeiture Act“), If no answer or claim is filed within thirty days of the date of service of the petition pursuant to subsection (b) of this section, or within thirty days of the first publication pursuant to subsection (b) of this section, the court shall enter an order forfeiting the seized property to the state. The Court in Games-Neely properly concluded that Despite the mandatory language of Section 705(d), the Appellant maintains that the circuit court still has discretion to set aside the default judgment pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure. . . . [T]here is no question that rules promulgated under authority of the state constitution . . . prevail whenever there is a conflict, real or perceived, between such rules and legislative provisions involving court procedures. . . . Upon consideration of these established principles concerning conflicts between judicially-enacted rules of procedure and legislative acts that contain procedural directives, we conclude that Rule 60(b) has the force and effect of law; applies to forfeiture proceedings under the Forfeiture Act; and supersedes West Virginia Code § 60A-7-705(d) to the extent that Section 705(d) can be read to deprive a circuit court of its grant of discretion to review a default judgment order. Accordingly, we hold that a circuit court has discretion under Rule 60(b) of the West The decisions in Laxton, Mayhorn and Games-Neely are illustrative of this Court‘s longstanding position that “the legislative branch of government cannot abridge the rule-making power of this Court.” In re Mann, 151 W.Va. 644, 651, 154 S.E.2d 860, 864 (1967), overruled on other grounds by Committee on Legal Ethics of West Virginia State Bar v. Boettner, 183 W.Va. 136, 394 S.E.2d 735 (1990). See also Syl. pt. 2, Williams v. Cummings, 191 W.Va. 370, 445 S.E.2d 757 (1994) (“West Virginia Code § 56-1-1(a)(7) provides that venue may be obtained in an adjoining county ‘[i]f a judge of a circuit be interested in a case which, but for such interest, would be proper for the jurisdiction of his court. . . .’ This statute refers to a situation under which a judge might be disqualified, and therefore it is in conflict with and superseded by Trial Court Rule XVII, which addresses the disqualification and temporary assignment of judges.“); State v. Davis, 178 W.Va. 87, 90, 357 S.E.2d 769, 772 (1987) (holding that Ms. Louk next contends that the non-unanimous verdict provision contained in The Legislature hereby finds and declares that the citizens of this state are entitled to the best medical care and facilities available and that health care providers offer an essential and basic service which requires that the public policy of this state encourage and facilitate the provision of such service to our citizens: That as in every human endeavor the possibility of injury or death from negligent conduct commands that protection of the public served by health care providers be recognized as an important state interest; That our system of litigation is an essential component of this state‘s interest in providing adequate and reasonable compensation to those persons who suffer from injury or death as a result of professional negligence; . . . . Therefore, the purpose of this enactment is to provide for a comprehensive resolution of the matters and factors which the Legislature finds must be addressed to accomplish the goals set forth above. In so doing, the Legislature has determined that reforms in the common law and statutory rights of our citizens to compensation for injury and death must be enacted together as necessary and mutual ingredients of the appropriate legislative response.14 This Court is quite sensitive to the need for reform in medical malpractice litigation. Furthermore, we wholeheartedly applaud the efforts of the Legislature in attempting to find a balance between the rights of injured persons and the desire to maintain a stable health care system in our State. However, “[i]t is the constitutional obligation of the judiciary to protect its own proper constitutional authority by upholding the independence of the judiciary.” Syl. pt. 4, State ex rel. Lambert v. Stephens, 200 W.Va. 802, 490 S.E.2d 891 (1997). “The efficient administration of the judicial system is essential to our duty to implement justice in West Virginia; and, therefore, we must be wary of any legislation that undercuts the power of the judiciary to meet its constitutional obligations.” State ex rel. Frazier v. Meadows, 193 W.Va. 20, 25, 454 S.E.2d 65, 70 (1994). “[T]he role of this Court is vital to the preservation of the constitutional separation of powers of government where that separation, delicate under normal conditions, is jeopardized by the usurpatory actions of the executive or legislative branches of government.” State ex rel. Steele v. Kopp, 172 W.Va. 329, 337, 305 S.E.2d 285, 293 (1983). Without question, “this Court has settled on a policy of strong adherence to the several constitutional provisions relating to the separation of powers, as conferred on the three departments of the State government, and particularly as to the jurisdiction of courts, and the powers they may assume or decline to exercise.” Sims v. Fisher, 125 W.Va. 512, 524, 25 S.E.2d 216, 222 (1943). Therefore, it is our constitutional duty to make certain that The relevant language in The judge shall instruct the jury that they should endeavor to reach a unanimous verdict but, if they cannot reach a unanimous verdict, they may return a majority verdict of nine of the twelve members of the jury. The judge shall accept and record any verdict reached by nine members of the jury. The verdict shall bear the signatures of all jurors who have concurred in the verdict. The verdict shall be announced in open court, either by the jury foreperson or by any of the jurors concurring in the verdict. After a verdict has been returned and before the jury has been discharged, the jury shall be polled at the request of any party or upon the court‘s own motion. The poll shall be conducted by the clerk of the court asking each juror individually whether the verdict announced is such juror‘s verdict. If, upon the poll, a majority of nine members of the jury has not concurred in the verdict, the jury may be directed to retire for further deliberations or the jury may be discharged. (Emphasis added).15 Pursuant to the Rule-Making Clause of our constitution, this Court has addressed the issue of a non-unanimous jury verdict in Rule 48. Rule 48 clearly states that “[t]he parties may stipulate . . . that a verdict . . . of a stated majority of the jurors shall be taken as the verdict . . . of the jury.” There is simply no ambiguity in Rule 48. Rule 48 provides only one method by which a jury may return a non-unanimous verdict, i.e., through a stipulation by the parties. See Franklin D. Cleckley, Robin J. Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 48, at 844 (2002) (“The parties may stipulate that a verdict of a majority of the jurors will be taken as the verdict of the jury.“). The non-unanimous verdict provision in Accordingly, we hold that the provisions contained in Because of an amendment to the MPLA‘s Severability statute in 2001,17 our determination that the non-unanimous verdict provision in (a) If any provision of this article as enacted during the first extraordinary session of the Legislature, 1986, in House Bill 149, or as enacted during the regular session of the Legislature, 1986, in Senate Bill 714, or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end, the provisions of this article are declared to be severable. (b) If any provision of the amendments to section five of this article, any provision of new section six-d of this article or any provision of the amendments to section eleven, article six, chapter fifty-six of this code as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, two thousand one, is held invalid, or the application thereof to any person is held invalid, then, notwithstanding any other provision of law, every other provision of said House Bill 601 shall be deemed invalid and of no further force and effect. (c) If any provision of the amendments to sections six or ten of this article or any provision of new sections six-a, six-b or six-c of this article as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, two thousand one, is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end, such provisions are deemed severable. (Emphasis added). A fair reading of the Severability statute indicates that it is a hybrid, i.e., it contains both severability provisions and a non-severability provision. It is the non-severability provision, It has been observed that “[a] non-severability clause is almost unheard of and constitutes a legislative finding that every section is so important to the single subject that no part of the act can be removed without destruction of the legislative purpose.” Farrior v. Sodexho, U.S.A., 953 F.Supp. 1301, 1302 (N.D.Ala.1997).19 Our research indicates that only a few courts have addressed the issue of non-severability provisions. A majority of those courts have enforced non-severability provisions without comment. See Texas Pharmacy Ass‘n v. Prudential Ins. Co. of America, 105 F.3d 1035, 1039 (5th Cir.1997) (finding portions of law unconstitutional and invalidating remainder because of non-severability statute); Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977, 988 (9th Cir.1991) (same); Wisconsin Realtors Ass‘n v. Ponto, 233 F.Supp.2d 1078, 1093 (W.D.Wis.2002) (same); Scinto v. Kollman, 667 F.Supp. 1106, 1109 (D.Md.1987) (same); Schafer v. Vest, 680 P.2d 1169, 1170 (Alaska 1984) (same); City of Colorado Springs v. State, 626 P.2d 1122, 1129 (Colo.1980) (same); Sarner v. Union Tp., Union County, 55 N.J.Super. 523, 151 A.2d 208, 220 (1959) (same); Texas Vending Comm‘n v. Headquarters Corp., 505 S.W.2d 402, 404 (Tex.Civ. App.1974) (same); State v. Mendoza, 748 P.2d 181, 186 (Utah 1987) (same).20 A few courts, however, have commented on the degree of deference to be accorded to non-severability provisions. These courts have held that “a non-severability clause cannot ultimately bind a court, it establishes [only] a presumption of non-severability.” Biszko v. RIHT Fin. Corp., 758 F.2d 769, 773 (1st Cir.1985). That is, “[d]espite the unambiguous command of [non]severability clauses, they create only a rebuttable presumption that guides but does not control—a reviewing court‘s severability determination.” Shumsky, Severability, Insevera- We have discerned from courts and commentators that statutory construction principles that apply to “severability” provisions are equally applicable to “non-severability” provisions. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-party Standing, 113 Harv. L.Rev. 1321, 1349 (2000) (“[G]eneral separability principles apply in all contexts to determine whether particular statutes are nonseverable[.]“); Israel E. Friedman, Inseverability Clauses in Statutes, 64 U. Chi. L.Rev. 903-04 (1997) (“Despite the explicit statutory language in severability and [non-]severability clauses, courts all but ignore the clauses and apply their own tests and presumptions to determine severability. These tests generally begin with a presumption that all statutes are either severable or inseverable. . . . Courts will also consider whether the statute can reasonably function as an autonomous whole without the invalid provision.“). Consequently, we now hold that a non-severability provision contained in a legislative enactment is construed as merely a presumption that the Legislature intended the entire enactment to be invalid if one of the statutes in the legislation is found unconstitutional. When a non-severability provision is appended to a legislative enactment and this Court invalidates a statute contained in the enactment, we will apply severability principles of statutory construction to determine whether the non-severability provision will be given full force and effect. Under this Court‘s severability principles of statutory construction we do not defer, as a matter of course, to severability provisions contained in statutes. Instead, we engage in an independent analysis to “determine legislative intent and the effect of the severability section of the statute.” In re Dostert, 174 W.Va. 258, 272, 324 S.E.2d 402, 416 (1984), overruled on other grounds by Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991). See also State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953) (invalidating entire statute even though the statute contained a severability provision); Lingamfelter v. Brown, 132 W.Va. 566, 52 S.E.2d 687 (1949) (same); Hodges v. Public Serv. Comm‘n, 110 W.Va. 649, 159 S.E. 834 (1931) (same). The reason for this procedure is that a severability provision “provides a rule of construction which may aid in determining legislative intent, but it is an aid merely; not an inexorable command.” Singer, Statutes § 44:8, at 585-86 (quoting Dorchy v. State of Kansas, 264 U.S. 286, 44 S.Ct. 323, 68 L.Ed. 686 (1924)). See also Hodges v. Public Serv. Comm‘n, 110 W.Va. 649, 656, 159 S.E. 834, 837 (1931) (“[A severability] declaration is not an inexorable command, but is merely an aid in determining the legislative intent. The fact that a workable act remains, after eliminating the invalid provisions, is not decisive of whether the provisions are separable. There are other considerations.” (internal quotation marks and citation omitted). This Court has adopted the following statutory construction principle that is applied in determining the issue of severability: A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in Syl. pt. 6, State v. Heston, 137 W.Va. 375, 71 S.E.2d 481 (1952). Accord Syl. pt. 3, Frantz v. Palmer, 211 W.Va. 188, 564 S.E.2d 398 (2001). See also State v. Flinn, 158 W.Va. 111, 130, 208 S.E.2d 538, 549 (1974) (“[A] statute may be constitutional in one part and unconstitutional in another.“); State ex rel. State Bldg. Comm‘n v. Bailey, 151 W.Va. 79, 93, 150 S.E.2d 449, 457 (1966) (“The principle is well settled by many decisions of this Court that a statute . . . may contain both constitutional and unconstitutional provisions which in substance are distinct and separable so that some may stand though others must fall.“). The most critical aspect of severability analysis involves the degree of dependency of statutes. Thus, “[w]here the valid and the invalid provisions of a statute are so connected and interdependent in subject matter, meaning, or purpose as to preclude the belief, presumption or conclusion that the Legislature would have passed the one without the other, the whole statute will be declared invalid.” Syl. pt. 9, Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964). The foregoing severability statutory construction principles will be applied to determine whether the remaining twelve juror provision in The remaining provision in The issue of the number of jurors in a civil action is addressed in Rule 47(b) of the West Virginia Rules of Civil Procedure. Rule 47(b) states, in relevant part, that “[u]nless the court directs that a jury shall consist of a greater number, a jury shall consist of six persons.”21 Under Additionally, the twelve juror requirement is dependent upon and intertwined with the unconstitutional non-unanimous jury verdict provision of The 2001 amendment to The provisions of this section providing for a six member jury trial do not apply to any proceeding had pursuant to article seven-b, chapter fifty-five of this code, the provisions of which apply to all cases involving a medical professional liability action. Clearly, The 2001 amendment to (b) Notwithstanding any other provision of law, absent privity of contract, no plaintiff who files a medical professional liability action against a health care provider may file an independent cause of action against any insurer of the health care provider alleging the insurer has violated the provisions of subdivision (9), section four, article eleven, chapter thirty-three of this code. Insofar as the provisions of section three, article eleven, chapter thirty-three of this code prohibit the conduct defined in subdivision (9), section four, article eleven, chapter thirty-three of this code, no plaintiff who files a medical professional liability action against a health care provider may file an independent cause of action against any insurer of the health care provider alleging the insurer has violated the provisions of said section three. (c) No health care provider may file a cause of action against his or her insurer alleging the insurer has violated the provisions of subdivision (9), section four, article eleven, chapter thirty-three of this code until the jury has rendered a verdict in the underlying medical professional liability action or the case has otherwise been dismissed, resolved or disposed of. The issues addressed in Moreover, In this proceeding Ms. Louk sought a new trial on the grounds that the non-unanimous verdict instruction authorized by and given under Reversed and Remanded. Justice MAYNARD dissents and reserves the right to file a dissenting opinion. Chief Justice ALBRIGHT concurs and reserves the right to file a concurring opinion. Justice BENJAMIN concurs, in part, and dissents, in part, and reserves the right to file a separate opinion. MAYNARD, Justice, dissenting: (Filed July 11, 2005) A court should exercise the greatest caution and restraint when deciding its own power. I wish the majority had done so here. By ruling that this Court, simply by its own judge-made rules, can strike down a statute passed by the entire legislature is sobering indeed! This ruling not only invalidates important provisions of the medical malpractice reform package but also serves as a warning that this Court has the absolute power to declare null and void any part or the entire reform package. The mechanism for grinding a statute out of existence is for the Court simply to declare that the statute conflicts with an existing rule of this Court or to make a new rule which conflicts with the statute. In either case, the statute becomes unconstitutional. One of the reforms struck down by this decision is a provision which allows non-unanimous verdicts in medical malpractice cases. Thirty-four other states already allow non-unanimous jury verdicts in civil trials.1 If all but 16 states permit non-unanimous verdicts in some form, why is it so offensive in West Virginia? If it is true that this Court‘s rule conflicts with the statute, why not change our rule to comport with the overwhelming national trend and the will of the people expressed through an act of the Legislature. In an effort to respond to a perceived crisis in the availability of medical care and the cost of medical malpractice insurance, the Legislature passed the statute at issue. The majority now overrules the statute, which is clear and unambiguous, and which was properly enacted by the Legislature and signed into law by the Governor. I heartily dissent to such disregard for the constitutional prerogatives of the Legislature and the Governor—separate and coequal branches of State government. I believe that such drastic steps are unnecessary. The majority, in invalidating This is illustrated by comparing the language of West Virginia Rule of Civil Procedure 48 with its federal counterpart. According to our State rule, The parties may stipulate that the jury shall consist of any number fewer than six or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. In contrast, Federal Rule of Civil Procedure 48 provides: The court shall seat a jury of not fewer than six and not more than twelve members and all jurors shall participate in the verdict unless excused from service by the court pursuant to Rule 47(c). Unless the parties otherwise stipulate, (1) the verdict shall be unanimous and (2) no verdict shall be taken from a jury reduced in size to fewer than six members. Further, there is certainly nothing inherently wrong with non-unanimous jury verdicts in civil cases that should cause this Court to disfavor such verdicts. In fact, as I said earlier, 34 states allow non-unanimous verdict in civil trials. Therefore, for this reason also, I see no valid reason to strike down non-unanimous verdicts in medical malpractice cases where the Legislature has clearly and unambiguously provided for such verdicts. Finally, I note that the majority also strikes a non-severability provision. The reader should understand that the Legislature passed, as part of its reform package, what I call a “poison pill” non-severability provision. Simply put, it says that if this Court strikes down any part of specified articles in House Bill 601, which makes up part of the Medical Professional Liability Act, then every other provision of House Bill 601 shall be deemed invalid and of no further force and effect. The majority now says the Legislature cannot do that. This I find astonishing. The majority actually says the Legislature cannot reverse a statute it passed. It seems to me if the Legislature has the power to enact a law, it certainly has the power to repeal the same law. At any rate, I do not need to reach that provision in this dissent. Since there is no conflict between the statute and this Court‘s rule, I would find the statute to be valid and constitutional. Thus, the non-severability clause would not be implicated. Accordingly, for the reasons stated above, I dissent to the majority opinion. ALBRIGHT, Chief Justice, concurring: (Filed July 6, 2005) I concur with the result in this case but pause to offer some words of caution. The authority relied upon by the majority regarding the non-severability clause is quite tenuous. I fear the reasoning employed by the majority creates serious potential for mischief. On the other hand, the use by the Legislature of a so-called “non-severability” clause—especially on a regular basis—has equal or even greater potential for mischief. In this case, I would have preferred that the Court postpone the issuance of the mandate in order to give the Legislature the time needed to reconsider whether it truly desired to have its entire enactment on medical malpractice fail because it had inadvertently strayed into an area of constitutional responsibility reserved to this Court. For this reason I concur with reservation. BENJAMIN, Justice, concurring, in part, and dissenting, in part: (Filed Aug. 8, 2005) The means by which our Constitution may be impaired, even innocently, are at once subtle and not readily apparent. Artful in their form, their perceived immediate need can hide their ultimate potential for damage to our system of governance. These instruments for harm may be statutory, judicial, administrative or procedural. They may take the form of actions by one branch of government seeking to exercise an authority delegated by our Constitution to another branch of government. Beguiling in their manner, they may seem to be no more than an excuse codified to remedy a perceived injustice. Ours, necessarily, is a duty of independent scrutiny and impartial review. Consistent with this duty, it would be calamitous for us to ignore the unconstitution- We must focus our review upon whether portions of the MPLA, purporting to govern a sub-category of civil liability cases, are consistent with our Constitution, or, if not, whether they must yield to our Constitution‘s delegation of such authority to the Judiciary (i.e., this Court‘s rules governing the practice and procedure applicable to civil liability cases brought in the courts of this State). While the Legislature may have chosen to enact certain statutory provisions applicable only to medical professional liability actions in an attempt to stabilize the availability of health care services in this State, the Legislature may not in so doing appropriate for itself the constitutional authority to supersede or nullify this Court‘s constitutionally empowered procedural rules or to deny longstanding rights reserved to the people. Thus, I concur with the majority‘s conclusion that the non-unanimous verdict provision of I agree with the majority that rules governing jury verdicts, such as size and unanimity requirements, are procedural matters over which this Court has sole authority. See, e.g., Owens-Corning Fiberglas Corp. v. Martin, 942 S.W.2d 712, 721 (Tex.Ct.App.1997) (noting number of jurors required to reach a verdict is a procedural matter under Texas law); State v. Lopez, 390 N.W.2d 306, 308 (Minn.Ct.App.1986) (finding number of jurors is procedural matter); State v. Girts, 121 Ohio App.3d 539, 700 N.E.2d 395, 408 (Ohio Ct.App.1997) (recognizing number of persons comprising a jury is a matter of procedure subject to the court‘s rule making authority). Rules governing jury size and unanimity are deemed procedural because they do not affect substantive rights. Rather, they determine how substantive rights are to be enforced. So long as this Court has a validly enacted procedural rule governing an issue, the Legislature may not seek to circumvent such a rule under the guise of tort reform or any other perceived immediacy. Rule 481 of the West Virginia Rules of Civil Procedure, adopted in 1998, three years prior to the enactment Since the creation of the federal judicial system, federal courts have always required that a jury verdict be unanimous . . . . In American Publishing, the Supreme Court held that the Seventh Amendment to the United States Constitution requires a unanimous jury verdict in civil cases brought in the courts of federal territories. The Court stated: Now unanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition. Whatever may be true as to legislation which changes any more details of a jury trial, it is clear that a statute which destroys this substantial and essential feature thereof is abridging the right. Recently, the Supreme Court has modified the position it took in the American Publishing case. Since that decision, many state courts have abandoned the unanimous verdict rule and have required only a majority of jurors reach a verdict. . . . These cases, however, have addressed only the issue of unanimous verdicts in state criminal trials, although they can be interpreted as also permitting states to utilize majority jury verdicts in civil cases. However, as Justice Powell emphasized in Johnson v. Louisiana, these decisions have not eliminated the requirement that in federal courts a jury must be unanimous. The long-standing commitment to unanimous jury verdicts in federal courts has been recognized in Rule 48 of the Federal Rules of Civil Procedure which provides: The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury. Implicit in the Rule is that unless otherwise stipulated by the parties, a jury verdict in federal courts must be unanimous. Masino v. Outboard Marine Corp., 88 F.R.D. 251, 252-253 (E.D.Pa.1980) (internal citations and footnotes omitted). The right to a unanimous jury verdict is embedded in this nation‘s history. This Court, recognizing the substantive right to a unanimous verdict requirement, has adopted in its procedural rules a limited exception which expressly requires the agreement of the parties. Thus, only the parties may agree to waive their substantive right to a unanimous jury verdict. The Legislature‘s attempt to infringe not only upon this Court‘s rule making power, but also upon the people‘s common law rights to a unanimous verdict, is unconstitutional. I, therefore, concur in the majority‘s holding that the non-unanimous verdict provision of Likewise, I concur that the twelve person jury requirement contained within Similarly, I dissent from Syllabus Point 4 and the majority‘s analysis of the non-severability clause contained in B. Separation of Powers Clause and the Rule-Making Clause
C. Conflict between
D. The MPLA‘s Severability Statute
1. Severability principles of statutory construction.
2. The twelve juror provision of
3. Six Member Jury Exemption in Amendment to
4. Proscription of Bad Faith Claims Against Medical Malpractice Insurers in Amendment to
IV. CONCLUSION
I conclude that a legislative body may not, years after it has dissolved and been replaced by a new legislative body, reach out from the grave to invalidate an otherwise valid law of this state in the manner intended by this clause. The insertion of a “poison pill” clause into otherwise valid legislation constitutes a usurpation of this Court‘s role in determining the validity of lawfully enacted statutes. Our system of governance does not envision legislative “dares” to this Court to not invalidate unconstitutional legislative enactments. A non-severability clause, such as here, improperly seeks to protect an unconstitutional enactment from legitimate scrutiny by the judicial branch by linking it to viability of valid law (law which has been followed and properly relied upon in this State for years). By such “poison pills“, the message to this Court is clear—either we permit unconstitutional legislation to stand, or otherwise valid statutes which have been relied upon and used for years by citizens of West Virginia become collateral damage. The Judiciary must resist such an injection of politics into this Court‘s decisions. This Court‘s duty to determine the constitutionality of legislation must not be impeded, constrained, threatened or cajoled. Separation of Powers, a foundation of our constitutional system of governance, proscribes any such legislative posturing which would cause us indirectly to do that which we would not do directly.
The non-severability provision of
section six-d of this article or any provision of the amendments to section eleven, article six, chapter fifty-six of the code as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, two thousand one, is held invalid, or the application thereof to any person is held invalid, then, notwithstanding any other provision of law, every other provision of said House Bill 601 shall be deemed invalid and of no further force and effect.