Trujillo v. City of Albuquerque

MONTGOMERY, Justice (concurring in part, dissenting in part).

I join in the Court’s opinion and ruling on the single-occurrence issue in this case. I dissent from the disposition of the constitutional issue. Since the Court does not rule on the constitutionality of the statute imposing the damage cap, I will not express a view on that question either. I confess to some skepticism about the Court’s linchpin proposition that a tort victim’s interest in “full recovery of damages” is entitled to constitutional protection in this state; but it will be time enough to develop a definitive opinion on this issue when, and if, a majority of the Court actually decides it in a case in which I participate. 1

I recognize that the proposition was articulated in Richardson v. Carnegie Library Restaurant, as a predicate for applying heightened scrutiny analysis to the dram-shop liability limitation in that case. In light of the Court’s opinions in the case, however, it is difficult to understand why heightened scrutiny was necessary. Under the reasoning in the plurality and dissenting opinions not even minimal scrutiny would have saved the statute. For the plurality, Justice Walters was “unable to discern or discover” any “legitimate or substantial reason” for limiting the liability of a tavernkeeper. 107 N.M. at 699, 763 P.2d at 1164. The only justification offered in Justice Stowers’ dissent was that the statute avoided “overburdening” tavemkeepers. Id. at 704, 763 P.2d at 1169. The plurality, in other words, was unable to find any public purpose in the statute; the dissent offered only protection of a certain class of tortfeasors, without any explanation of why or how that purpose satisfied even a rational-basis test.

Both the plurality opinion in Richardson and the majority opinion in this case anchor a victim’s interest in full recovery in the constitutional right of access to the courts. See id. at 692, 696, 763 P.2d at 1157, 1161. As recognized by the majority here, however, some state constitutional provisions that the courts shall be open to every person, that a speedy remedy shall be afforded for every injury, and that no person shall be deprived of full legal redress have been construed as mandating only that the courts shall provide equal access to causes of action and remedies established by the courts or the legislature, not that the legislature’s power to limit causes of action is constricted. See, e.g., Meech v. Hillhaven West, Inc., 238 Mont. 21, 37-42 , 776 P.2d 488, 498-500 (1989). The majority embraces a more expansive view of the right of equal access to the courts, apparently holding (though never explicitly saying) that the right of access entails also a right to some unspecified amount of money— “full recovery” — and that our state Constitution limits the power of the legislature to place restrictions on this expanded right.

Neither the plurality opinion in Richardson nor the majority opinion here ever explains why our Constitution should be construed as affording an injured person a right to any monetary recovery, much less “full” recovery. 2 Richardson and the Court here merely posit that there is some sort of right in the Constitution, emanating from or related to the right of equal access to the courts — which I certainly agree is fundamental and unquestionably present in several clauses of our Constitution — entitling an aggrieved party to remuneration and constraining the power of the legislature to limit or qualify it.

The majority notes that the power of our state legislature is confined by the Constitution and that the courts, as guardians of the Constitution, have the authority and responsibility to determine when and to what extent legislation has exceeded the bounds imposed by it. But the question before us does not turn on any such elementary principle; it rather depends on whether we read the Constitution as extending to certain litigants a “substantial and important” (Richardson, 107 N.M. at 698, 763 P.2d at 1163) right to full recovery. Along with the majority, I believe that no specific right to recovery, no cause of action, no entitlement to monetary redress is “so important” that it must be “elevate[d] ... to the level of a fundamental right[,]” as it would be if it were found, expressly or impliedly, in the Constitution. 3 The questions of how much money an individual receives, and from whom he or she receives it and under what circumstances, are for the legislature (and, when it has not acted, the courts through common-law adjudication) to prescribe in regulating the economic affairs of our society.

I thus am highly dubious over the basic predicate to the majority’s entire heightened scrutiny analysis in this case. However, as I say, I prefer to leave those doubts for another day. For present purposes I am concerned that the Court has ducked the constitutional issue and sent it back to the district court for a trial on whether the legislature properly devised the legislation at issue to accomplish its purpose.

The majority says that sufficient facts were not developed at trial from which the court of appeals could conclude that the statutory damage cap is substantially related to the admittedly important governmental interest in preserving the public treasury. I am at a loss to know what “facts,” within the abilities of the parties to this lawsuit to prove, are supposed to be established on remand. Presumably those “facts” will relate to the impact on municipalities’ treasuries (and perhaps the treasury of the state at large) from large damage awards. Perhaps they will also relate to the ability of municipalities to obtain liability insurance with certain dollar limits and the variable cost of such insurance at greater and lesser limits. The majority suggests that the parties should provide evidence on whether large damage awards to individuals who suffer catastrophic injury do in fact create problems for governmental entities, what the extent of those problems may be, and what the effects of large damage claims may be in the aggregate, as compared to an aggregation of smaller claims. Similarly, evidence is to be adduced, or may be adduced, on the effects of inflation and whether or not some adjusting mechanism in the statute could have been implemented.

In my view, the existence of these and similar fact questions does not provide us with an adequate excuse to avoid deciding the constitutional question on this appeal. While development of the kind of record desired by the majority may always or usually be proper to facilitate constitutional adjudication of the sort involved here, I do not believe that we should suggest that it is required to enable us to fulfill our responsibility. We should decide the case on the basis of such facts as are available to us from the record, from parties’ briefs (including the voluminous and able briefs of the several amici), and from such other sources, including our own experience, as may occur to us. To remand for a trial— even a trial before a district judge, as opposed to a jury of six or twelve laypersons — is to prolong the course of litigation unnecessarily, to tax the parties’ resources unfairly, and to ask for a record on facts which may or may not have been considered by the legislature when it adopted the statute and in any case may not enable any member of this Court to come to a more confident decision than any of us might reach without such supra-legislative scrutiny.

It seems to me that the majority is asking for development of a record containing legislative facts, as that term has been developed by Professor Kenneth Culp Davis and as it is otherwise used in the literature. See, e.g., G. Currie, Appellate Court Use of Facts Outside of the Record by Resort to Judicial Notice and Independent Investigation, 1960 Wis.L.Rev. 39, K. Davis, Judicial Notice, 55 Colum.L.Rev. 951 (1955); C. McCormick, Judicial Notice, 5 Vand.L.Rev. 296 (1952).

When a court or an agency finds facts concerning the immediate parties — who did what, where, when, how, and with what motive or intent — the court or agency is performing an adjudicative function, and the facts so determined are conveniently called adjudicative facts. When a court or an agency develops law or policy, it is acting legislatively; the courts have created the common law through judicial legislation, and the facts which inform the tribunal’s legislative judgment are called legislative facts.

Stated in other terms, the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses. Legislative facts are those which help the tribunal to determine the content of law and policy and to exercise its judgment or discretion in determining what course of action to take.

The exceedingly practical difference between legislative and adjudicative facts is that, apart from facts properly noticed, the tribunal’s findings of adjudicative facts must be supported by evidence, but findings or assumptions of legislative facts need not, frequently are not, and sometimes cannot be supported by evidence.

K. Davis, supra, 55 Colum.L.Rev. at 952-53.

Assuming that we do have need for additional “legislative facts” to decide this appeal, the next question is: How are such facts to be established? Professor McCormick quotes from United States v. Carotene Products Co., 304 U.S. 144 , 153, 58 S.Ct. 778, 784 , 82 L.Ed. 1234 (1938):

“Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry, Borden’s Farm Products Co. v. Baldwin, 293 U.S. 194 [ 55 S.Ct. 187 , 79 L.Ed. 281 (1934)], and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. Chastleton Corp. v. Sinclair, 264 U.S. 543 [ 44 S.Ct. 405 , 68 L.Ed. 841 (1924)].”

C. McCormick, supra, 5 Vand.L.Rev. at 316. He goes on to say:

The usual resort, however, for ascertainment of legislative facts is not through formal proof by sworn witnesses and authenticated documents but by the process of judicial notice. Is judicial notice here trammeled by the usual requirement that the facts noticed must be certain and indisputable? Such a requirement seems inappropriate here where the facts are often generalized and statistical and where their use is more nearly argumentative, or as a help to value-judgments, than conclusive or demonstrative.

Id.

This position — that legislative facts, in order to be judicially noticed, need not be certain and indisputable — is reflected in the comments of the Advisory Committee for the Federal Rules of Evidence concerning Fed.R.Evid. 201.

The Advisory Committee ... embraced the general rule that legislative facts need not be developed through evidentiary hearings. Rule 201 of the Federal Rules of Evidence governs judicial notice of adjudicative facts. No evidentiary' rule refers to judicial notice of legislative facts because, as the Advisory Committee noted, “any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs, and any requirement of formal findings at any level” are inappropriate to judicial access to legislative facts. Fed.R.Evid. 201 note.

Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151 , 1163 n. 24 (D.C.Cir.1979), cert. denied, 447 U.S. 921 , 100 S.Ct. 3011 , 65 L.Ed.2d 113 (1980). The District of Columbia Circuit Court of Appeals goes on to point out that courts consistently have considered legislative facts that were not the product of trial-type proceedings, citing as examples Muller v. Oregon, 208 U.S. 412, 421-22 , 28 S.Ct. 324, 326-27 , 52 L.Ed. 551 (1908) (in which Louis D. Brandeis filed one of his famous briefs); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 63 , 93 S.Ct. 2628, 2638 , 37 L.Ed.2d 446 (1973); Frontiero v. Richardson, 411 U.S. 677, 686 , 93 S.Ct. 1764, 1770 , 36 L.Ed.2d 583 (1973).

Our own rule of evidence on judicial notice, SCRA 1986, 11-201, taken from the federal rule, also applies only to judicial notice of adjudicative facts.

It would seem, then, that this Court — or any court, trial or appellate — may take judicial notice of legislative facts by resorting to whatever materials it may have at its disposal establishing or tending to establish those facts. Of course, when a trial court takes notice of such facts, it should insure that they are made part of the record so that their ascertainment and effect can be reviewed on appeal. Similarly, if an appellate court judicially notices certain legislative facts as supporting a particular ruling — whether of constitutional law, statutory interpretation or common-law adjudication — the facts so noticed should probably be set out in the opinion, so that the bar and the public may likewise evaluate the correctness of and the implications flowing from those facts.

It would be inappropriate, however, for a trial court to “find” the legislative facts leading to a ruling on a question of law. Unlike the operative facts affecting the particular parties in the particular circumstances of a particular lawsuit — the adjudicative facts — the legislative facts relevant to a question of law cannot be binding on an appellate court and must always be open to redetermination and reevaluation.

It is considerations like these that lead me to the conclusion that remand for an evidentiary hearing on the “facts" relating to the “fit” between legislative classification and legislative purpose in this case is inappropriate. The trial court cannot find the facts and foreclose this Court from finding different facts. The trial court’s evaluation of the import of whatever facts it takes notice of may be quite different from the one adopted by an appellate court on review.

Then there are other, but similar, practical considerations. On remand, who will have the burden of proof? There are several indications in the majority opinion that, despite the presumption of constitutionality that usually attaches to legislation, the City will have the burden both to produce evidence and to persuade the trial court that the missing “facts” are as it, as proponent of the legislation, claims them to be. What facts must the City prove? It must prove — I assume, but am not sure — that there is a substantial relationship between the legislative purpose of conserving public funds (so that they may be allocated among competing demands for public resources and so that taxes may be kept low) and the means chosen to effectuate this purpose (the limitation on recovery). What if the City does not carry its burden? What if the evidence is evenly balanced, so that the City fails to persuade the fact-finder that there is the required substantial relationship? Then not only will the City lose this particular lawsuit; the statute will be declared unconstitutional and the damage limitation — for the City of Albuquerque, for all other municipalities in the state, and for the state itself — presumably will fall.

It is one thing to place the burden of persuasion upon a party to a lawsuit when the effect of not carrying that burden will be limited to the outcome of the particular lawsuit. It is quite another to make the constitutionality of legislation depend upon whether a single party does or does not carry his, her or its burden of proof in that suit.

Why should the constitutionality of legislation depend upon how well a party performs the evidence-producing function in a particular case? If the issue is the constitutionality of a statute as applied to the particular parties in the particular circumstances, it may well make sense for the outcome to depend on proof of specific facts as to how the statute operates in the specific circumstances. Where the issue is not limited to the statute’s validity or invalidity as applied, there is far too much at stake to leave the question in the hands of the parties to a given lawsuit.

Suppose the parties lack the resources to provide the requisite demonstration, through evidence, of the fit between ends and means? The parties may not only lack the resources and the ability to adduce the relevant evidence; what resources they have may be dissipated or significantly diluted through the Court's requirement that they go back to trial and prove the imponderables with which they are now saddled. Part of the damage award to Mr. Trujillo will now be used up in proving that the legislature was not sufficiently careful in devising alternative means for accomplishing its admittedly important public purpose. When the occurrences and other specific facts surrounding a dispute must be proved to the satisfaction of the fact-finder, it is appropriate to make one or the other of the disputants carry the burden of establishing or disproving those facts at the risk of losing; but when the validity of a legislative enactment of general application, based on facts and value judgments quite outside the details of a particular dispute, depends on what those parties can prove, the court in which the dispute is tried becomes a mini-, and in some ways a super-, legislature.

This dispute has been in court since 1985. The parties are entitled to an answer. They should not be sent back to the trial court for more discovery, investigation of the reasons why the legislature might or might not have acted as it did, a trial on that question, and another inevitable appeal. If, in order to decide this appeal, we feel that we need additional information, we should ask the parties to supplement their briefs and provide it to us. We should not defer the question; it is the kind of question this Court and appellate courts all over the country answer every day.

. The majority says near the end of its opinion that if and when this case returns to us after development of a fuller evidentiary record on remand, decision of the constitutional issue may be limited to the case at bar and "ultimate resolution” of that issue deferred to another case. To a considerable extent, therefore, the majority’s pronouncements in its opinion in this case represent obiter dicta.

. Contrary to the majority’s intimation, Richardson did not trace a right of full recovery to the due process and equal protection clauses of our Constitution or to the constitutional rights to jury trial and equal access to the courts; it merely described how an amicus curiae, the Trial Lawyers Association, had made this argument, purporting to found it on our Constitution’s antecedents in Spanish and Mexican law and the Kearney Code. See 107 N.M. at 691, 763 P.2d at 1156.

. The majority states that the right to recover monetary damages is one aspect of the right to petition for redress of grievances, citing Richardson, 107 N.M. at 696, 763 P.2d at 1161. Of course, while Richardson did declare the right to full recovery to be a right entitled to constitutional protection — a declaration with which I disagree — the opinion in that case links the right to petition for redress of grievances to the right of equal access to the courts, not to the putative right to recover monetary damages.