Ferreira v. Rancocas Orthopedic Associates

Justice ZAZZALI,

concurring in part and dissenting in part.

The majority and concurring opinions represent positive efforts to address an intractable problem. I agree with the result reached by Justice Albin on behalf of the majority, a result that will salvage yet another meritorious claim from dismissal under the Affidavit of Merit statute. Although I concur in the majority’s granting of relief to plaintiff, as to future cases I prefer the approach taken by Justice Long in her concurring opinion.

I recognize that the Affidavit of Merit statute has important objectives, but I write separately to express my reservations about its constitutionality. Because the parties have not briefed nor argued the issue, it would be inappropriate to speak conclusively on the subject. Nonetheless, the question, which is a profound one, remains unresolved. I offer these observations.

In Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 248 , 708 A.2d 401, 415-16 (1998), this Court discussed, but did not decide, whether the Affidavit of Merit statute impermissibly invades our exclusive power to regulate practice and procedure. In dicta, we suggested that the statute does not violate the doctrine of separation of powers. Ibid. Underlying that suggestion were two observations. First, we stated that “[i]t is within the Legislature’s *160 authority to define a cause of action to include a limitations period within which the plaintiff must act.” Ibid, (citing E.A. Williams Inc. v. Russo Dev. Corp., 82 N.J. 160, 164-67 , 411 A.2d 697, 699-700 (1980)). Second, we found that the Legislature’s decision to require an affidavit of merit neither conflicted with our rules applying to malpractice suits nor interfered with the judiciary’s role in resolving such disputes. Ibid. Notwithstanding that dicta, we noted that the constitutional issue did not “generate significant ... public concern,” and, therefore, we found “it unnecessary and inappropriate to deal conclusively” with the question given that it had not been raised properly below. Ibid.

Five years later, and after extensive litigation over strict application of the statute, one fairly can say that the affidavit-of-merit requirement has engendered significant concerns that call for a more thorough exploration of the statute’s constitutionality. Indeed, numerous courts have struggled with the statute when its application would bar an apparently meritorious claim. See, e.g., Burns v. Belafsky, 166 N.J. 466, 478 , 766 A.2d 1095, 1101 (2001) (reasoning that because statute was not intended to bar meritorious claims, lawyer’s inadvertent failure to file timely affidavit of merit did not preclude plaintiff from establishing good cause for sixty-day extension); Mayfield v. Cmty. Med. Assocs., 335 N.J.Super. 198, 209 , 762 A.2d 237, 244 (App.Div.2000) (finding, under circumstances, that “it would be wholly counter to the remedial purpose of the statute to dismiss [an] apparently meritorious action based on what would be no more than a merely mechanical application of the dry statutory words”).

Whether the struggle encountered by our courts demonstrates that the Legislature has impinged on powers reserved to the judiciary remains an open question. Because the parties have not raised the matter, the well-intentioned majority opinion does not address it. Confined by our decision in Comblatt, the majority attempts to reduce litigation over the statute by mandating a ease-management conference, a measure that I hope will succeed on a practical level. However, I agree with Justice Long that the case- *161 management requirement may become another source of litigation as parties dispute compliance with the mandate. In any event, we must begin to address the more fundamental question whether the statute unconstitutionally usurps judicial power.

I.

Article VI, section 2, paragraph 3 of the New Jersey Constitution provides that “the Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts.” In Winberry v. Salisbury, 5 N.J. 240, 247, 255 , 74 A.2d 406, 410 , 414 cert. denied, 340 U.S. 877 , 71 S.Ct. 123 , 95 L.Ed. 638 (1950), this Court interpreted that provision as providing the judicial branch with exclusive authority over court administration, including court practice and procedure. In reaching that determination, we observed that “[rjules of the court are made by experts who are familiar with specific problems to be solved and the various ways of solving them.” Id. at 253, 74 A.2d at 413 . Underlying our holding in Winberry was the doctrine of separation of powers and its recognition that each branch of government is suited to make certain types of decisions and should “exercise fully its own powers without transgressing upon the powers rightfully belonging to a cognate branch.” Knight v. City of Margate, 86 N.J. 374, 388 , 431 A.2d 833, 840 (1981).

Winberry and its progeny instruct that whether a legislative enactment impermissibly overrides a court rule depends on the character of the enactment. If the statute in question involves procedural as opposed to substantive rights, the court rule generally prevails. See, e.g., Winberry, supra, 5 N.J. at 255 , 74 A.2d at 414 (concluding that court rules requiring appeal from final judgment within forty-five days prevailed over statute authorizing appeal within one year after judgment); Borough of New Shrewsbury v. Block 115, Lot I, 74 N.J.Super. 1, 8 , 180 A.2d 387, 391 (App.Div.1962) (holding that court rule, not statute, controls motions to reopen judgment under law governing tax foreclosures); *162 In re J.M., 273 N.J.Super. 593, 599-600 , 642 A.2d 1062, 1065-66 (Ch.Div.1994) (finding that court rule mandating credit for time served must yield to statute authorizing denial of credit because statute addressed extent of punishment imposed for crime, a matter of substantive law for Legislature); cf. McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 557-58 , 626 A.2d 425, 430-31 (1993) (construing statute that permitted award of attorney fees against nonprevailing party for frivolous litigation as applying only to parties and not attorneys to avoid declaring statute unconstitutional under Winberry).

In Winberry , we distinguished between substantive and procedural laws by their primary effects on the parties. Substantive law defines the parties’ rights and duties, whereas procedural law regulates the means through which those rights and duties are enforced. Winberry, supra, 5 N.J. at 247-48 , 74 A.2d at 410 . In other words, “[i]f it is but one step in the ladder to final determination and can effectively aid a court function, it is procedural in nature and within the Supreme Court’s power of rule promulgation.” Suchit v. Baxt, 176 N.J.Super. 407, 427 , 423 A.2d 670, 680 (Law Div.1980).

Although Winberry expressed the substantive/procedural divide in rather clear terms, that distinction has been difficult to apply because statutes and rules can have both procedural and substantive implications. Knight, supra, 86 N.J. at 388-89 , 431 A.2d at 840-41 . “It occasionally happens that an underlying matter defies exact placement or neat categorization.” Ibid. Adding to the complexity of the task is the fact that the separation between the legislative and judicial branches has “ ‘never been watertight.’ ” Id. at 388 , 431 A.2d at 840 (quoting In re Salaries for Prob. Officers, 58 N.J. 422, 425, 278 A.2d 417, 418 (1971)). Indeed, our precedent makes clear that, in the spirit of comity, we at times have shared authority over administration of the judicial system with the Legislature. See, e.g., id. at 391, 431 A.2d at 842 (upholding statute prohibiting judicial employees from casino employment). In doing so, we have observed that “the doctrine of *163 separation of powers was never intended to create, and certainly never did create, utterly exclusive spheres of competence.” In re Salaries for Prob. Officers, supra, 58 N.J. at 425 , 278 A.2d at 418 .

Thus, our jurisprudence since Winberry demonstrates that the procedural characteristics of a legislative enactment do not necessarily determine the enactment’s fate. Knight, supra, 86 N.J. at 389 , 431 A.2d at 841 (recognizing that our post-Wm&em/ decisions “have made clear that [although] the judicial power is paramount and exclusive, it need not in every context or application be preclusive”). Rather, judicial toleration of legislative intrusion has pivoted on a two-prong analysis. Initially, we have considered whether the judiciary has fully exercised its power with respect to the matter at issue. Id. at 389-90 , 431 A.2d at 841 . In the absence of complete judicial action, we then have inquired into whether the statute serves a legitimate legislative goal, and, “concomitantly, does not interfere with judicial prerogatives or only indirectly or incidentally touches upon the judicial domain.” Id. at 391 , 431 A.2d at 842 ; cf. Suchit, supra, 176 N.J.Super. at 427 , 423 A.2d at 680 (finding court rule establishing medical malpractice panel was procedural device in view of its incidental effect on substantive rights and express purpose — ie., “expediting the disposition of cases”). In other words, we have accommodated legislative enactments touching on integral areas of the judicial system only when those enactments “have not in any way interfered with this Court’s constitutional obligation” to “insure a proper administration of the court system.” Passaic Cty. Prob. Officers’ Ass’n v. County of Passaic, 73 N.J. 247, 255 , 374 A.2d 449, 453 (1977) (emphasis added); see also Knight, supra, 86 N.J. at 391 , 431 A.2d at 842 (upholding statutory prohibition on employment of members of judiciary by casino licensees based on finding that statute dealt with important legislative concern and did not conflict with Court’s exercise of judicial powers).

II.

In the context of this case, the relevant question, and my concern, is whether the statute, which not only declares an affida *164 vit of merit to be an element of a professional malpractice cause of action but also requires it to be filed and served within a specific and strict period of time, impinges upon this Court’s constitutional power to regulate practice and procedure. 2

I do not believe the Affidavit of Merit statute is akin to a statute of limitations, which would be within the Legislature’s province. Rather, in my view, the mandatory time constraints at the heart of the statute are clearly procedural and were recognized as such by the Legislature itself, which described the statute as establishing “new procedures.” Assembly Insurance Committee, Statement to Senate Bill No. S-1493, at 1 (June 1, 1995); Senate Commerce Committee, Statement to Senate Bill No. S-1493, at 1 (Nov. 10, 1994).

As we observed in Cornblatt, supra, 153 N.J. at 238 , 708 A.2d at 411 , “the provision for filing an affidavit of merit imposes a pleading requirement.” Pleading requirements fall clearly within this Court’s rule-making prerogatives. See generally R. 4:5 to 4:9. However, our court rules may be regarded as not specifically addressing affidavits of merit despite Rule 4:5-l’s interdiction of any pleadings other than those enumerated therein. It is thus debatable whether this Court has fully occupied the “pleading” field precluding legislative action. If we assume that legislative action is not entirely prohibited, either because the statute blends substance and procedure or because the Court has not fully occupied the field, we then would have to determine whether the *165 legislative action meets the second prong of the Knight analysis. That requires balancing the legitimacy of the governmental purpose with the extent of the statute’s burden on the exercise of our judicial authority over court practice and procedure.

As we have said on numerous occasions, the Legislature enacted the Affidavit of Merit statute to “weed out frivolous lawsuits at an early stage and to allow meritorious cases to go forward” by requiring plaintiffs to make a threshold showing of the merits of their claim during the pleading stage. E.g., Galik v. Clara Maass Med. Ctr., 167 N.J. 341 , 350, 771 A.2d 1141 , 1147 (2001). Reducing the number of frivolous claims is a commendable governmental purpose that is closely linked to the efficient administration of justice.

Notwithstanding the legitimacy of the legislative objective, it may be difficult to reconcile the strict pleading requirements contained in the statute with our flexible approach to pleading, a keystone of our procedural jurisprudence that is reflected in both our court rules and case law. 3 That irreconcilability may result in *166 an untenable burden on the exercise of our judicial authority over practice and procedure.

For example, as we interpreted the statute in Comblatt, failure to comply with the strict temporal requirements of the statute requires dismissal with prejudice except in extraordinary circumstances. That result is contrary to our rules of practice and their spirit in several respects. It is incompatible with our aversion to dismissing complaints for failure to state a claim pursuant to Rule 4:6-2(e). It conflicts with Rule 4:37-2(a), which provides that dismissal for failure to comply with a procedural rule is presumptively without prejudice. And, it is inconsistent with our liberal approach to amendments to pleadings pursuant to Rule 4:9-1. See Pressler, Current N.J. Court Rules, supra, comment on R. 4:9-1 (explaining that “[t]he motion for leave to amend is required by the rule to be liberally granted and without consideration of the ultimate merits of the amendment”).

Moreover, dismissing a claim for failure to comply with a procedural hurdle disserves both the legislative goal of preserving meritorious malpractice actions and the broader raison d’ etre of our court rules — achieving substantial justice on the merits. As Justice Long notes in her concurrence, “procedural slip-ups in filing or service ... ‘do not go to the heart of ” a professional malpractice claim. Op. at 157, 836 A.2d at 786. Instead, those slip-ups should properly be regarded as curable deficiencies in pleadings that are traditionally left to a court’s discretion under our court rules.

Finally, there is an apparent conflict between the affidavit-of-merit requirement and the express instruction of Rule 4:5-7 that “no technical forms of pleading are required.” Pleadings are “formal allegations by the parties ... of their respective claims and defenses, with the intended purpose being to provide notice of what is to be expected at trial.” Black’s Law Dictionary 1152 (6th ed. 1990). By requiring plaintiffs to provide an affidavit demonstrating the strength of their negligence claim in order to “state a claim” for professional malpractice, the statute appears to *167 impose a technical pleading requirement. As a result, courts adhering to the Affidavit of Merit statute, in turn, may violate the provisions of Rule 4:5-7.

In sum, the conflicts between our rules and the Affidavit of Merit statute, coupled with the fine distinctions that we have drawn to avoid the injustice that flows from the statute’s strict application, suggest a possible constitutional infirmity.

III.

We would not be alone in concluding that an affidavit-of-merit statute is an improper legislative incursion into the judicial domain. In Hiatt v. Southern Health Facilities, Inc., 68 Ohio St.3d 236 , 626 N.E.2d 71, 72 (1994), the Supreme Court of Ohio reached a similar conclusion. The Ohio Constitution, like ours, vests exclusive power over practice and procedure with the judiciary. Id. at 72 n. 1. In Hiatt , the Supreme Court of Ohio considered a statute that required a plaintiff in a malpractice action to attach to the complaint an affidavit, in which either the plaintiff or his or her attorney verified that the plaintiff had attempted to obtain medical records. Id. at 73. The court found that the statutory requirement conflicted with a court rule that expressly provided that pleadings did not have to be verified or accompanied by an affidavit. Ibid. Citing to the constitutional provision vesting Ohio’s judiciary with exclusive power over practice and procedure, the court held that the court rule prevailed, rendering the statute invalid. Ibid. Thus, at least one other court has concluded that an affidavit-of-merit statute raises separation-of-powers concerns.

TV.

Fifty years ago we warned that “[i]t would ... defeat the desired objectives of simplicity and flexibility in procedure, if statutory procedures might be grafted on the rules of the court.” State v. Otis Elevator Co., 12 N.J. 1, 17 , 95 A.2d 715, 723 (1953). Experience has affirmed the Otis fears: conditions have become more complex and less flexible. If the Legislature simply had *168 required that plaintiffs file an affidavit of merit early in the process “subject to the Rules of the Supreme Court,” there would be less conflict with our procedural rules. Our Legislature wisely has followed that course in a number of contexts. See, e.g., N.J.S.A. 2A:34-9 (providing that jurisdiction in nullity-of-marriage proceedings may be acquired when “[p]rocess is served upon the defendant as prescribed by the rules of the supreme court [sic]”); N.J.S.A. 27:23-34.3(d) (providing that service of complaints and summonses charging violation of toll-collection monitoring system “may be made by means provided by the Rules Governing the Courts of the State of New Jersey”); N.J.S.A. 39:6A-28 (providing that “Compensation for arbitrators [under the New Jersey Reparation Reform Act] shall be set by the Rules of the Supreme Court of New Jersey”). Those statutes demonstrate that a revised Affidavit of Merit statute and our constitutionally prescribed rule-making power can co-exist in a similar manner.

The Affidavit of Merit statute has important and laudable goals and should not be disregarded without due consideration. Were we to conclude that the statute is constitutionally suspect, it may be subject to judicial surgery. We have engaged in surgery to excise constitutional defects while preserving legislative intent. Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254, 280 , 716 A.2d 1137, 1149-50 (1998), cert. denied, 527 U.S. 1021 , 119 S.Ct. 2365 , 144 L.Ed.2d 770 (1999). In this instance, however, it may be more prudent for the Legislature to take corrective action, following the examples set forth in the prior paragraph. Such action would obviate the constitutional concerns that I have expressed.

V.

In the eight years following the enactment of the Affidavit of Merit statute, we have interpreted and applied the statute on numerous occasions. During those years, we have not addressed comprehensively the statute’s constitutionality. In the meantime, the public, the parties, and the courts have dealt with a torrent of litigation that unduly has burdened litigants as well as our trial *169 and appellate courts. We could not have forecasted that flood five years ago when, in Comblatt, we found “it unnecessary and inappropriate to deal conclusively with the issue[].” Cornblatt, supra, 153 N.J. at 248 , 708 A.2d 401 . And, what is past being prologue, the burden on our courts may worsen. It is never too late to address a constitutional problem. As we have noted in other contexts, “[w]isdom too often never comes, and so one ought not to reject it merely because it comes late.” Immer v. Risko, 56 N.J. 482, 495 , 267 A.2d 481, 488 (1970) (quoting Henslee v. Union Planters Nat’l Bank, 335 U.S. 595, 600 , 69 S.Ct. 290, 293 , 93 L.Ed. 259 , 264 (1949) (Frankfurter, J., dissenting)).

Judge PRESSLER (temporarily assigned) joins in this opinion.

For reversing and remanding — Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and Judge PRESSLER (temporarily assigned) — 7.

Concur in part/dissent in part — Justices LONG, ZAZZALI and Judge PRESSLER (temporarily assigned).

It is noteworthy that an editorial published in the New Jersey Law Journal after the enactment of the Affidavit of Merit statute characterized the affidavit requirement as "an unmistakable legislative attempt to control practice and procedure in a lawsuit already before the court.” A Litigator’s Predicament, 142 N.J.L.J. 24 (Dec. 11, 1995). Observing that " '[p]redicament' is defined as a troublesome, embarrassing or ludicrous situation,” the editorial concluded that all three adjectives appropriately described the legislatively mandated affidavit of merit. Ibid. The editorial expressed hope that the "dangerous” legislation would "attract [our] attention soon” and that when it did, we would "seize upon the Winberry violation as a means to rid [malpractice litigators] of this entire unfortunate enactment.” Ibid.

Rule 4:5-7 provides that "[e]ach allegation of a pleading shall be simple, concise and direct, and no technical forms of pleading are required. All pleadings shall be liberally construed in the interest of justice.” (Emphasis added). Our general reluctance to dismiss complaints for failure to slate a claim pursuant to Rule 4:6-2(e) further evinces our liberal approach to pleadings. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 772 , 563 A.2d 31 (1989) (requiring courts to accord a "meticulous and indulgent examination” to complaint when determining whether to dismiss for failure to state claim); Pressler, Current N.J. Court Rules, comment 4.1 on R. 4:6-2 (2004) (instructing that "if a cause of action can be gleaned from even an obscure statement,” a claim should not be dismissed). Read together, the rules on pleadings reflect our overall goal of accomplishing "substantial justice on the merits” by not closing the courtroom doors to a party whose only failure is a procedural or technical mistake that causes no prejudice to other litigants. See Melone v. Jersey Cent. Power & Light Co., 18 N.J. 163, 174 , 113 A.2d 13, 19 (1955) (emphasizing that the “aim of [our court] rules is substantial justice”); Handelman v. Handelman, 17 N.J. 1, 11 , 109 A.2d 797, 802 (1954) (describing general purpose of rules as an effort to "broaden the procedural powers of our courts to the end that just dispositions on the merits may be facilitated and determinations on the basis of procedural niceties may be avoided”).