Jodi McClay v. Airport Management Services, LLC - Dissenting

02/26/2020

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

September 4, 2019 Session

JODI McCLAY v. AIRPORT MANAGEMENT SERVICES, LLC

Rule 23 Certified Question of Law

from the United States District Court

for the Middle District of Tennessee

No. 3-17-CV-0705 Eli Richardson, Judge

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No. M2019-00511-SC-R23-CV

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Cornelia A. Clark, J., dissenting.

I dissent. I would hold that Tennessee Code Annotated section 29-39-102(e)

(2012) violates article I, section 6 of the Tennessee Constitution by usurping the jury’s

essential and constitutionally protected fact-finding function.

Every version of the Tennessee Constitution dating back to the attainment of

statehood in 1796 has declared “[t]hat the right of trial by jury shall remain inviolate.”1

The contours of this right thus “‘have remained unchanged’” for the past 223 years.

Sneed v. City of Red Bank, Tenn. 459 S.W.3d 17, 29 n.8 (Tenn. 2014) (quoting Jones v.

Greene, 946 S.W.2d 817, 823 (Tenn. Ct. App. 1996)). This constitutional guarantee

preserves “the right of trial by jury as it existed at common law and was in force and use

under the laws and Constitution of North Carolina at the time of the formation and

adoption” of the Tennessee Constitution of 1796. Newport Hous. Auth. v. Ballard, 839

S.W.2d 86, 88 (Tenn. 1992) (citing Trigally v. Mayor of Memphis, 46 Tenn. 382 (1869));

1

Tenn. Const. art. XI, § 6 (1796); Tenn. Const. art. I, § 6 (1834); Tenn. Const. art. I, § 6 (1870).

The full text of article I, section 6, the current constitutional guarantee, states “[t]hat the right of trial by

jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for

jurors.” Tenn. Const. art. I, § 6 (1870).

see also Helms v. Tenn. Dep’t of Safety, 987 S.W.2d 545, 547 (Tenn. 1999). As for

claims that would have been tried to a jury at common law, this constitutional guarantee

ensures that the right of trial by jury “shall remain inviolate.” Newport Hous. Auth., 839

S.W.2d at 88; see also Young v. City of LaFollette, 479 S.W.3d 785, 793-94 (Tenn.

2015) (stating that the constitutional right to trial by jury does not apply to statutory

rights and remedies first created after the adoption of the 1796 Constitution, although the

General Assembly remains free to provide expressly for a statutory right of trial by jury);

Smith Cnty. Educ. Ass’n v. Anderson, 676 S.W.2d 328, 336 (Tenn. 1984) (recognizing

that the constitutional right to trial by jury does not apply to inherently equitable claims

that would not have been tried to a jury at common law); Jones, 946 S.W.2d at 823-24

(enumerating the claims at common law to which the right to trial by jury did not apply).2

Article I, section 6 therefore preserves the essential functions of the jury. One of those

essential functions “is that all contested factual issues be determined by an unbiased,

impartial jury.” Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996); see also State v.

Bobo, 814 S.W.2d 353, 356 (Tenn. 1991) (“Among the essentials of the right to trial by

jury is the right guaranteed to every litigant in jury cases to have the facts involved tried

and determined by twelve jurors.”). This constitutionally guaranteed fact-finding

function encompasses the jury’s determination of the type and amount of damages.

Indeed, only seventeen years after the current version of article I, section 6 was adopted,

this Court declared:

In trials at common law, the jury are the proper judges of damages; and,

where there is no certain measure of damages, the court ordinarily will not

disturb their verdict, unless on grounds of prejudice, passion, or corruption

in the jury. To this rule we have conformed our practice, and it is the only

safe one on the subject. In view of the rule at common law, and as

discovered in the decisions of our predecessors on this bench, we hold that,

in actions for damages for personal torts, it is within the strict province of

the jury to estimate the extent of the injury, and assess the damages; and

unless there is a manifest abuse of this trust, such as to indicate passion,

prejudice, partiality, or unaccountable caprice, or corruption, that the trial

judge ought not to interfere.

Tenn. Coal & R.R. Co. v. Roddy, 5 S.W. 286, 290 (Tenn. 1887) (emphasis added)

(internal quotation marks omitted) (citing Goodall v. Thurman, 38 Tenn. 209, 218

(1858)); Dimick v. Schiedt, 293 U.S. 474, 480 (1935) (“[T]he common-law rule as it

2

The parties do not dispute that the constitutional right to trial by jury applied at common law to

personal injury tort claims, although some dispute has arisen about whether noneconomic damages were

available at common law. The majority has assumed for purposes of this appeal that such damages were

available, so I have accepted that assumption as well.

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existed at the time of the adoption of the Constitution” was that “in cases where the

amount of damages was uncertain[,] their assessment was a matter so peculiarly within

the province of the jury that the Court should not alter it.” (citations and internal

quotation marks omitted)). Article I, section 6 squarely places the determination of

damages “within the strict province of the jury.” Roddy, 5 S.W. at 290; see also Meals

ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419 (Tenn. 2013) (“We entrust the

responsibility of resolving questions of disputed fact, including the assessment of

damages, to the jury.”); Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 308

(Tenn. 2017) (“Where a party invokes the right to a jury trial, our constitution requires

‘that the jury be allowed to determine all disputed issues of fact.’” (citations omitted)).

Indeed, the jury’s constitutionally protected function of determining damages is so well

established that, “[t]o avoid contravention of the right to jury trial clauses of the federal

and state constitutions, the trial court must obtain the consent of the party against whom

[an] additur or remittitur is to be entered; if that party does not consent, the trial court

must order a new trial.” Borne, 532 S.W.3d at 309 (citing Spence v. Allstate Ins. Co.,

883 S.W.2d 586, 594 (Tenn. 1994); Tenn. Code Ann. §§ 20-10-101, -102 (2009)).

Tennessee Code Annotated section 29-39-102(e) usurps and replaces the jury’s

constitutionally protected function of determining damages with an arbitrary ceiling on

damages mostly unrelated to the specific facts and circumstances of each litigant’s claim.

The effect of Tennessee Code Annotated section 29-39-102(e) is a mandatory remittitur

that would otherwise be unenforceable unless a trial court first determined that the

evidence in a particular case preponderated against the jury’s determination of damages

and the plaintiff then consented to the remittitur. See Borne, 532 S.W.3d at 309-10; see

also Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, 163 (Ala. 1991) (describing a

statute capping noneconomic damages as “patently inconsistent with the doctrines of

remittitur or new trial as we have applied them”). By usurping the jury’s constitutionally

protected function of determining damages and rendering the jury’s factual findings

meaningless, Tennessee Code Annotated section 29-39-102(e) clearly contravenes article

I, section 6.

In so concluding, I adopt the reasoning of the high courts of Alabama, Georgia,

Kansas, Missouri, and Washington, which have eloquently explained how statutes

capping damages in their own jurisdictions violate their own state constitutional

provisions preserving “inviolate” the right to trial by jury. Moore, 592 So. 2d 156;

Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010); Hilburn v.

Enerpipe. Ltd., 442 P.3d 509 (Kan. 2019); Watts v. Lester E. Cox Med. Ctrs., 376

S.W.3d 633 (Mo. 2012); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), amended

by 780 P.2d 260 (Wash. 1989).3 See also Lindenberg v. Jackson Nat’l Life Ins. Co., 912

3

Although eight other state courts interpreting constitutional provisions that use the term

“inviolate” to secure the right of trial by jury have upheld statutory damages caps, five other state courts

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F.3d 348, 353 (6th Cir. 2018) (holding that Tennessee Code Annotated section 29-39-

104, the statute capping punitive damages, violates article I, section 6 of the Tennessee

Constitution). As the Alabama Supreme Court explained, “[b]ecause the statute caps the

jury’s verdict automatically and absolutely, the jury’s function, to the extent the verdict

exceeds the damages ceiling, assumes less than an advisory status.” Moore, 592 So. 2d at

164. See also Smith v. Dep’t of Ins., 507 So. 2d 1080, 1088-89 (Fla. 1987) (striking

down a statute capping nonecomonic damages as a violation of the Florida constitutional

provision guaranteeing a right of access to the courts and also commenting that “because

the jury verdict is being arbitrarily capped,” the statute deprived the plaintiff of “the

constitutional benefit of a jury trial as we have heretofore understood that right”). The

Missouri Supreme Court pointed out that a statute imposing an arbitrary limit on damages

“directly curtail[s] the individual right to one of the most significant constitutional roles

performed by the jury—the determination of damages.” Watts, 376 S.W.3d at 642. The

Georgia Supreme Court reasoned that, by requiring courts “to reduce a noneconomic

damages award determined by a jury that exceeds the statutory limit,” a statute capping

damages, “clearly nullifies the jury’s findings of fact regarding damages and thereby

undermines the jury’s basic function.” Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at

223 (citing Lakin v. Senco Prods., Inc., 987 P.2d 463, 473 (Or. 1999)). Like the Kansas

Supreme Court, I “simply cannot square a right specially designated by the people as

‘inviolate’ with the practical effect of the damages cap: substituting juries’ factual

determinations of actual damages with an across-the-board legislative determination of

the maximum conceivable amount of actual damages.” Hilburn, 442 P.3d at 523.

Finally, as the Washington Supreme Court noted, a statute capping damages “directly

changes the outcome of a jury determination” by altering a jury’s factual finding “to

conform to a predetermined formula[,]” and thereby “robs the [jury] of its function.”

Sofie, 771 P.2d at 720, 721.

The majority acknowledges that article I, section 6 protects the jury’s fact-finding

determination of damages but nevertheless concludes that Tennessee Code Annotated

section 29-39-102(e) does not violate article I, section 6. The majority advances several

arguments to support this conclusion, but none of these arguments is persuasive.

First, the majority characterizes section 29-39-102(e) as merely a permissible

legislative alteration of the common law. The General Assembly unquestionably has

authority to alter the common law. State v. Howard, 504 S.W.3d 260, 270 (Tenn. 2016).

But, the General Assembly cannot modify the Tennessee Constitution, and that is what

section 29-39-102(e) does. Article I, section 6 unequivocally declares that the common

law right to trial by jury as it existed at the time of the adoption of the Tennessee

have struck down statutory damages caps as unconstitutional under constitutional provisions that use the

term “inviolate” to describe the jury trial right. Hilburn, 442 P.3d at 522-23 (Kan. 2019) (collecting

cases).

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Constitution “shall remain inviolate.” By this declaration, article I, section 6 divests the

General Assembly of all authority to modify the common law right of trial by jury. The

United States Supreme Court has succinctly explained the distinction between

permissible legislation that modifies the common law and impermissible legislation that

has the effect of modifying constitutional provisions:

It is said that the common law is susceptible of growth and

adaptation to new circumstances and situations, and that the courts have

power to declare and effectuate what is the present rule in respect of a given

subject without regard to the old rule; and some attempt is made to apply

that principle here. The common law is not immutable, but flexible, and

upon its own principles adapts itself to varying conditions. But here we are

dealing with a constitutional provision which has in effect adopted the rules

of the common law in respect of trial by jury as these rules existed in 1791.

To effectuate any change in these rules is not to deal with the common law,

qua common law, but to alter the Constitution. The distinction is

fundamental . . . .

Dimick, 293 U.S. at 487 (emphasis added) (citations omitted). Other states addressing

statutes capping damages have recognized this distinction as well. See Atlanta

Oculoplastic Surgery, P.C., 691 S.E.2d at 223 (rejecting the notion that the authority to

modify or abrogate the common law “empowers the Legislature to

abrogate constitutional rights that may inhere in common law causes of action”); Hilburn,

442 P.3d at 524 (“[T]he cap’s effect is to disturb the jury’s finding of fact on the amount

of the award. Allowing this substitutes the Legislature’s nonspecific judgment for the

jury’s specific judgment. The people deprived the Legislature of that power when they

made the right to trial by jury inviolate.”); Sofie, 771 P.2d at 720 (“The scope of the right

to trial by jury may be defined by the common law through a historical analysis, but the

right itself is protected by the state constitution.”). The majority erroneously

characterizes Tennessee Code Annotated section 29-39-102(e) as a permissible

legislative alteration of the common law. Thus, the majority’s characterization is fatally

flawed and unpersuasive.4

Equally unconvincing is the fact-law dichotomy the majority relies upon to uphold

the constitutionality of the statute. Admittedly, almost every court that has upheld

statutes capping damages has relied upon this dichotomy. See Hilburn, 442 P.3d at 521-

22 (“The fact-law or fact-policy distinction has been relied on in varying degrees by

almost all courts that have upheld damages caps in the face of jury trial-based

4

The majority’s reliance upon Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000), also is misplaced.

There was no challenge in Lavin to the constitutionality of the statute capping damages at $10,000.

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challenges.” (collecting cases)). But, as the Washington Supreme Court explained when

rejecting it:

[t]his argument ignores the constitutional magnitude of the jury’s fact-

finding province, including its role to determine damages. Respondents

essentially are saying that the right to trial by jury is not invaded if the jury

is allowed to determine facts which go unheeded when the court issues its

judgment. Such an argument pays lip service to the form of the jury but

robs the institution of its function.

Sofie, 771 P.2d at 721. “The constitution deals with substance, not shadows. Its

inhibition was leveled at the thing, not the name . . . . If the inhibition can be evaded by

the form of the enactment, its insertion in the fundamental law was a vain and futile

proceeding.” Cummings v. Missouri, 71 U.S. 277, 325 (1866). “In other words, a

constitutional protection cannot be bypassed by allowing it to exist in form but letting it

have no effect in function.” Sofie, 771 P.2d at 724. The fact-law dichotomy exalts form

over substance. It serves as a means of obfuscating the true effect of statutes capping

damages, which is to render a jury’s constitutionally protected fact-finding function an

exercise in futility—a façade, a sham, and a pretense.5

“The common law and trial by jury in case of disputed facts is the birthright of the

people, and the best preservative of their constitutional rights.” Rogers v. Waller, 5

Tenn. 205, 208 (1817). As this Court explained only nine years ago:

The citizen jury provides the foundation of this Nation’s legal system.

Encroachment on the right to trial by jury was among the chief complaints

registered by the American colonists in the Declaration of Independence.

Alexander Hamilton considered the right to trial by jury to be “the very

palladium of free government.” Thomas Jefferson believed it to be “the

only anchor, ever yet imagined by man, by which government can be held

to the principles of [the] Constitution.”

5

Also unpersuasive is the defendant’s argument that statutes capping damages are no different

than statutes multiplying damages. A statute capping damages arbitrarily and unconstitutionally usurps

and alters a jury’s constitutionally protected determination of damages. A statute multiplying damages

adopts and validates a jury’s constitutionally protected determination of damages and utilizes that

determination to implement a policy decision that certain conduct should be further penalized. See

Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at 224 (“Nor does . . . the existence of statutes authorizing

double or treble damages attest to the validity of the caps on noneconomic damages. . . . [T]reble

damages do not in any way nullify the jury’s damages award but rather merely operate upon and thus

affirm the integrity of that award.”).

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The right to trial by jury was held in equally “high estimation” by

the framers of Tennessee’s constitutions. This Court has characterized the

right as “an essential element of public liberty” and as “vital . . . to the

security of life, liberty, and property of the citizen.”

State v. Hester, 324 S.W.3d 1, 50-51 (Tenn. 2010) (footnotes omitted) (alterations in

original). Just thirty years after Tennessee became a State, this Court declared:

The right to a trial by jury . . . is too sacred to be intermeddled with

by any power upon earth; too inseparable from human happiness to be

submitted to the discretion of any human Legislature; it stands upon eternal

foundations, and as time grows old it grows in veneration and stability.

Tipton v. Harris, 7 Tenn. 414, 419 (1824). Indeed, the Tennessee Constitution’s use of

“[t]he term ‘inviolate’ connotes deserving of the highest protection.” Sofie, 771 P.2d at

721 . As a judge of Tennessee’s highest court wrote in 1833:

[T]he preservation of the trial by jury in all its purity is of the first

importance; a strict adherence to its form, in all its parts, is not to be

dispensed with, or to be considered as captious or trifling. It is to be

watched with a jealous assiduity, and the slightest deviation from the

established mode of proceeding regarded as affecting our dearest interests,

and as such to be instantly put down—bearing constantly in our minds, that

it is one of the best guards of our rights, of our property, of our liberty and

our lives.

Garner v. State, 13 Tenn. 160, 179 (1833) (Whyte, J.) (emphasis added).

Tennessee Code Annotated section 29-39-102(e) constitutes far more than a slight

deviation from the established mode and function of the jury. It amounts to a legislative

usurpation of the jury’s constitutionally protected fact-finding function. As such, it

should be “instantly put down” as a violation of article I, section 6. Garner, 13 Tenn. at

179.

For all these reasons, I dissent from the majority’s decision and would hold that

Tennessee Code Annotated section 29-39-102(e) violates article I, section 6 of the

Tennessee Constitution.

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CORNELIA A. CLARK, JUSTICE

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