Opposition Brief — English v. New England Medical Center Hospital, Inc.

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Supreme Court, US.

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wneanes No. 89-825 s:sePh F. SPANIOL, JR.

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In the all

esi Supreme Court of the United States

Ocroser Term, 1989 |

JOSEPH E. ENGLISH AND ELIZABETH ENGLISH

INDIVIDUALLY AND AS GUARDIANS OF

KERRIE ANN ENGLISH,

PETITIONERS,

NEW ENGLAND MEDICAL CENTER, INC.,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT ,

FOR THE COMMONWEALTH OF MASSACHUSETTS

RESPONDENT'S BRIEF IN OPPOSITION

ALAN B. RInDLER

Caro. A. GrirFin*

Davi M. McCartruy

Laurie J. Conpos

Morrison, MAHONEY & MILLER

250 Summer Street

Boston, Massachusetts 02210

(617) 439-7500

Counsel of Respondent

wor \v

a he. aes ae

QUESTIONS PRESENTED

1. Does M.G.L. c. 231, §85K, which establishes a limitation

of liability of $20,000 for any cause of action based on tort

against a charitable organization, satisfy the requirements of

the equal protection clause of the United States Constitution?

2. Does M.G.L. c. 231, §85K satisfy the requirements of the

due process clause of the United States Constitution?

RULE 28.1 LIST

Parent Corporation

Subsidiary Corporations

New England Medical

Center, Inc.

New England Medical

Center Hospitals, Inc.

New England

Medical Center

Insurance Company

Tufts-New England

Medical Center,

Inc.

New England

Health Care

Foundation, Inc.

Pratt

Medical

Group, Inc.

NEMC Basic Research

Corp., Inc.

Community Practice

Program, Inc.

New England

Health Resources

(partnership)

New England Real

Estate Company, Inc.

Transition Systems, Inc.

Liability Limited, Inc.

New England Long-Term

Care, Inc.

TABLE OF CONTENTS

Page

Questions Presented ......... fies | I

Rule 28.1 List ............ eee Pete II

TaNe of Contents .......... ~ reyes Ill

Table of Authorities ........... PEC OT Ee | IV

EES ho 55 5060006sc0se0es. aviisny este

Counterstatement of the Case ......... 2

Reasons Why the Petition Should Be Denied . Z

I. The Massachusetts Supreme Judicial Court Cor.

rectly Held That M.G.L. c. 231, §85K Does Not

Violate The Equal Protection Clause Of The United

ee eee nae ecacnecesesocsse

A. The Massachusetts Supreme Judicial Court

Correctly Applied The Rational Basis Test In

Holding That M.G.L. c. 231, §85K Did Not

Violate the Equal Protection Clause ....... 3

B. This Court Should Not Apply A Heightened

Standard Of Scrutiny To M.G.L. c. 231, §85K &

Il. The Massachusetts Supreme Judicial Court Cor-

rectly Held That M.G.L. c. 231, §85K Does Not

Violate The Due Process Clause Of The United

ID, gcc cc cccccccccccscssscecss 17

A. The Massachusetts Supreme Judicial Court

Correctly Held That M.G.L. c. 231, §85K

Bears A Rational Relationship To A Legitimate

CER Rh Gea vesevcccccsscces: 17

B. This Court Does Not Need To Decide Whether

A State Must Provide A Quid Pro Quo When It

Abolishes A Common Law Right ............ 18

III. The Petitioners Have Not Sufficiently Demonstrated

A Conflict Between Decisions Of State And Federal

Jurisdictions Concerning A Federal Question ...... 21

SCR CRUG Sao ccsccscccscssceccccssceces 26

tro

a eT

TABLE OF AUTHORITIES

Cases

Page

American Bank & Trust Co. v. Community Hospital,

36 Cal. 3d 359, 204 Cal. Rptr. 671, 683 P.2d 670 (1984) 15

Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978) 13, 20, 22, 24

Baptist Hospital of Southeast Texas, Inc. v. Baber, 672

S.W.2d 296 (Tex. App. 1984), writ ref'd., n.r.e., 714

BF es ED Ko hed dinccdcccnvesenceses 14, 22

Bowen v. Gilliard, 483 U.S. 587 (1987) ......... 4,5, 11,12

Brown v. Wichita State University, 219 Kan. 2, 547 P.2d

1015, appeal dismissed, 429 U.S. 806 (1976) ......... 15

Cargill v. Rochester, 119 N.H. 661, 406 A.2d 704 (1979),

appeal dismissed, 445 U.S. 921 (1980)... . 2... 6.6 .... 15

Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980) 13, 20,

22, 23, 24

Cauley v. Jacksonville, 403 So.2d 379 (Fla. 1981) ....... 15

Cleburne v. Cleburne Living Center, 473 U.S. 432

RR ppeerrery reer rr eet 5, 7, 10, 11, 14, 16

Clements v. Fashing, 457 U.S. 957 (1982) ............. 4,5

Craig v. Boren, 429 U.S. 190 (1976) ................ 4,5,9

Crowe v. John W. Harton Memorial Hospital, 579

S. W.28 GES (CTemm. Am. BOGE) oon os cccscsnsecasess 15

Duke Power Co. v. Carolina Environmental Study

Group, Inc., 438 U.S. 59 (1978) .............. 18, 19, 23

Duren v. Suburban Community Hospital, 24 Ohio Misc.

2d 25, 482 N.E.2d 1358, repub. as corrected, 495 N.E.

jf regrets em ren 14, 22

Etheridge v. Medical Center Hospitals, 237 Va. 87, 376

BA Sl eee eee 24

Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) .......... 3

Farrigan v. Pevear, 193 Mass. 147, 78 N.E. 855 (1906)... 6

Fein v. Permanente Medical Group, 38 Cal. 3d 137, 211

Cal. Rptr. 368, 695 P.2d 665, appeal dismissed, 474

UB. GEDIQUIED <<... sascvcacckcesaceieenee 15, 24

Page

Ferguson v. Skrupa, 372 U.S. 726 (1963) ........ ee 18

Hodel v. Indiana, 452 U.S. 314 (1981) ......... 18

Hunter v. North Mason High School, 85 Wash. 2d 810,

539 P.2d 845 (1975) ....... ery ey era ye ee Ory 14

Jetton v. Jacksonville Authority, 399 So.2d 396 (Fla.

ES bane Sdn W45.5:60 b0cscceeseseennace 15

Johnson v. St. Vincent Hospital, Inc., 273 Ind. 374, 404

ers io 6 noc cnaadkaneehseae ds 24

Jones v. State Board of Medicine, 97 Idaho 859, 555 P. 2d

399 (1976), cert. denied, 431 U.S. 914 (1977)....... 14, 22

Kadrmas v. Dickinson Public Schools, _. U.S. ___.,

108 S.Ct. 2481 (1988) ................ 12, 14

Kansas Malpractice Victims Coalition v. Bell, 243 Ken.

S333, 757 P.Bd B51 (1GSB) .. ww. cnn . 20, 23, 25

Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514

CE Uae or Sasa PUh eet wb ase ceesecee —. ee

Lehr v. Robertson, 463 U.S. 248 (1983) ...... a 4

Lucas v. United States, 757 S.W.2d 687 (Tex. 1988) 14, 15,

20, 23, 25

Lucas v. United States, 807 F.2d 414 (5th Cir. 1986)...... 14

Lyng v. Castillo, 477 U.S. 635 (1986) ............. 11, 14

MacDonald v. Massachusetts General Hospital, 120

SSSR TE TS 19

Marcoux v. Attorney General, 375 Mass. 63, 375 N.E. Od

ee Wied ek sada c cy acnnee nts 16

Massachusetts Board of Retirement v. Murgia, 427 U.S.

i See |

Mathews v. de Castro, 429 U.S. 181 (1976) ........... 4

Meech v. Hillhaven West, Inc., __. Mont. ___., 776

es eke a ik vhlens ss ey 22

Mills v. Habluetzel, 456 U.S. 91 (1982)................ 5,9

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456

(1981) . ee Savitwewdeas om

Parham v. Hughes, 441 U.S. 347 (1979) . wh ateeun 4

Plyler v. Doe, 457 U.S. 202 (1982) ............ 9, 10, 12, i4

Page

Schweiker v. Wilson, 450 U.S. 221 (1981) ............. 4

Silver v. Silver, 280 U.S. 117 (1929)... 2.00. c cece 19 |

Simon v. St. Elizabeth Medical Center, 3 Ohio Op.3d |

164, 355 N.E.2d 903 (1976)... cae 20, 23 |

St. Clair v. Trustees of Boston Univ., 25 Mass. App. Ct.

662, 521 N.E.2d 1044 (1988) .... 2... een 6

U.S. Department of Agriculture v. Moreno, 413 U.S.

GEE s 6.00 v00cckensceveugesseasaaneaseeeee 7

U.S. Department of Agriculture v. Murry, 413 U.S. 508

SIGE 0:0 v.n'n6. 000 000vesedss0tcnebsaeuseeneee 5

West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).... 17

Western and Southern Life Ins. Co. v. State Board of

Equalization, 451 U.S. 648 (1981)... .. 6 6... 3

White v. Montana, 203 Mont. 363, 661 P.2d 1272 |

(REED 0 0:0000000006) sescnuseenensesecenenneen’ 22, 23

Wright v. Central DuPage Hospital Ass'n., 632 Ill.2d

313, 347 N.E.2d 736 (1976) ©... o.oo ccc ene 20, 24 :

Constitutional Provisions |

- Massachusetts Constitution, Article 15 of the Declaration

OF Rmie wo sc cscccccccccccncccenncenebessecess 2

Massachusetts Constitution, Due Process Clause ........ 2

Massachusetts Constitution, Equal Protection Clause.... 2

United States Constitution, Due Process Clause .... . . passim

United States Constitution, Equal Protection Clause. . passim

Statutes

M.G.L. c. 231, §85K............ 2, 3, 6, 7, 8, 17, 18, 19, 24

"Ri < Pe 19

Other Authorities

Forty-Sixth Annual Report of The Judicial Council of

Massachusetts 82 (1970) . .. 6... cece eens 8

in the

Supreme Court of the United States

Ocroser Team, 1989

No. 89-825

JOSEPH E. ENGLISH AND ELIZABETH ENGLISH

INDIVIDUALLY AND AS GUARDIANS OF

KERRIE ANN ENGLISH,

PETITIONERS,

vb.

NEW ENGLAND MEDICAL CENTER, INC..,

RESPONDENT. ~~

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS

RESPONDENT'S BRIEF IN OPPOSITION

The respondent New England Medical Center, Inc. respect-

fully requests thet this Court deny the petition for writ of cer-

tiorari, seeking review of the Massachusetts Supreme Judicial

Court's opinion in this case.

Opinion Below

The opinion of the Massachusetts Supreme Judicial Court in

this case is reported at 405 Mass. 423, 541 N.E.2d 329 (1989) and

is reproduced in the appendix attached to the petition for writ of

certiorari at pp. la to 24a.

Counterstatement of the Case

The respondent New England Medical Center, Inc. (“New

England Medical Center”) does not dispute the description of the

procedural history of the case contained in the petitioners’ State-

ment of the Case.

With respect to the decision by the Supreme Judicial Court,

the Supreme Judicial Court affirmed the decision of the Superior

Court reducing the verdict to $20,000. It held that M.G.L. c.

231, §85K did not violate the petitioners’ right to a trial by jury,

as guaranteed by Article 15 of the Declarations of Rights of the

Massachusetts Constitution. The Supreme Judicial Court further

held that because the statute bore a reasonable relationship to a

legitimate state goal of preserving charitable assets, M.G.L. c.

231, §85K did not violate the equal protection or due process

guarantees of the Massachusetts and United States Constitutions.

Reasons Why the Petition Should Be Denied

|. THe Massacnuserrs SuprReME Juprcia Court Correcr.y

Hevcp Tuat M.G.L. c. 231, §85K Dogs Nor Vio.ate Tue

Eguat Prorecrion Ciause Or THe Unrrep States Con-

STITUTION.

In their petition for a writ of certiorari, the petitioners argue

that M.G.L. c. 231, §85K violates the equal protection clause of

the United States Constitution because the legislative purpose of

M.G.L. c. 231, §85K is not a legitimate purpose and because the

classifications created by the statute are not reasonably related to

its purpose. The petitioners further contend that an intermediate

standard of review is the appropriate standard under equal pro-

tection analysis and that M.G.L. c. 231, §85K satisfies neither an

intermediate standard of review nor the rational basis test. Con-

sequently, the petitioners argue that the Massachusetts Supreme

Judicial Court erred in finding that the statute satisfied federal

equal protection requirements. (Petition, pp. 12-37).

The Massachusetts Supreme Judicial Court held that the ap-

propriate standard of review is the rational basis test and that

M.G.L. c. 231, §85K plainly satisfies this test because it is ration

ally related to the legitimate legislative objective of protecting the

funds of charitable institutions so that they may be devoted to

charitable purposes. The Supreme Judicial Court also found that

the common law right of a tort victim to recover damages does

not trigger an intermediate equal protection standard. Because

the Massachusetts Supreme Judicial Court applied the correct

legal standard of review under equal protection analysis and

properly held that M.G.L. c. 231, §85K satisfies equal protection

requirements, there is no need for this Court to review that

decision.

A. The Massachusetts Supreme Judicial Court Correctly

Applied The Rational Basis Test In Holding That

M.G.L. c. 231, §85K Did Not Violate The Equal Pro-

tection Clause.

Equal protection analysis requires strict scrutiny of a legisiative

classification only when the classification impermissibly inter

feres with the exercise of a fundamental right or operates to the

peculiar disadvantage of a suspect class. Massachusetts Board of

Retirement v. Murgia, 427 U.S. 307, 312 (1976). Where a chal

lenged provision neither adversely affects a fundamental right

nor contains a classification based upon a suspect criterion, the

provision is examined under the rational basis test, whereby the

statute will be sustained if the legislature could have reasonably

concluded that the challenged classification would promote a

legitimate state purpose. Exxon Corp. v. Eagerton, 462 U.S. 176,

195-196 (1983).

In determining whether a challenged classification is ration-

ally related to the achievement of a legitimate state purpose, this

Court will examine two questions: (1) whether the challenged

legislation has a legitimate purpose, and (2) whether it was rea-

sonable for the lawmaker to believe that use of the challenged

classification would promote that purpose. Western and

Southern Life Ins. Co. v. State Board of Equalization, 451 U.S.

648, 668 (1981). Legislatures are ordinarily presumed to have

acted constitutionally, and state laws are entitled to a presump-

tion of validity against attack under the equal protection clause.

Clements v. Fashing, 457 U.S. 957, 962-963 (1982); Parham v.

Hughes, 441 U.S. 347, 351 (1979). Furthermore, the classifica-

tion will be upheld if the question as to whether the legislation

furthers a legitimate state goal is at least debatable. Minnesota

v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981).

A legislature may draw classifications “one step at a time”,

addressing problems in a piecemeal fashion, and a classification

is not deficient simply because the state could have selected

another means of achieving the desired end. Clements v.

Fashing, supra at 969-970. A classification is not unconstitu-

tional merely because it is imperfect. Mathews v. de Castro, 429

U.S. 181, 185 (1976). Moreover, a court examining a classifica-

tion under the equal protection clause should not substitute its

judgment of good public policy for that of the legislature.

Schweiker v. Wilson, 450 U.S. 221, 234 (1981); Parham v.

Hughes, supra at 351.

In examining social welfare legislation, the Supreme Court

has generally upheld such legislation where it found that the

legislation was rationally related to a legitimate state purpose.

See, e.g., Bowen v. Gilliard, 483 U.S. 587 (1987) (requirement

that family wishing to receive welfare benefits include within

its family unit child for whom child support payments are being

made by noncustodial parent does not violate equal protection

principles); Lehr v. Robertson, 463 U.S. 248 (1983) (state’s

failure to give putative father of illegitimate child notice of

pending adoption proceedings, despite knowledge of his where-

abouts, did not deny putative father equal protection);

Clements v. Fashing, supra (state constitutional provisions

regulating circumstances in which judges and other state

employees could run for public office did not violate equal pro-

tection clause).

This Court has adopted the use of an intermediate standard

to examine classifications based on gender and illegitimacy. See,

e.g., Craig v. Buren, 429 U.S. 190 (1976) (prohibition of sale of

3.2% beer to males under age of 21 and females under age of 18

violated equal protection clause); Mills v. Habluetzel, 456 U.S.

91 (1982) (one year statute of limitations on actions to deter-

mine paternity of illegitimate children violates equal protec-

tion). Under this intermediate standard, the challenged classifi-

cation must serve important governmental objectives, Craig v.

Boren, supra at 197, and must be substantially related to a

legitimate state interest. Mills v. Habluetzel, supra at 99.

This Court has refused to apply a heightened standard of

review, rather than the rational basis test, to social welfare leg-

islation. Thus, in Cleburne v. Cleburne Living Center, 473

U.S. 432 (1985), this Court declined to hold that the mentally

retarded constituted a “quasi-suspect” classification calling for a

heightened degree of scrutiny. See also Bowen v. Gilliard, supra

(no merit to argument that heightened scrutiny must be applied

because amendment affects family’s right to live in type of fam-

ily unit it chooses); Clements v. Fashing, supra (not all ballot

access questions require heightened equal protection scrutiny).

See also Section I.B., infra at 8-17.

Finally, in those cases where this Court has invalidated state

provisions under the rational basis test, it has done so because

the challenged statute did not further any state interest or

because there was no rational basis for the statute in the record.

Thus, in Cleburne v. Cleburne Living Center, supra, this Court

found that a zoning ordinance which excluded group homes for

the mentally retarded violated the equal protection clause

where the record did not reveal any rational basis for the exclu-

sion and where the challenged classification rested on irrational

prejudice. See also U.S. Department of Agriculture v. Murry,

413 U.S. 508 (1973) (statute denying food stamps to entire

household containing persons 18 years and older who had been

claimed as dependents for federal income tax purposes by tax-

payers themselves ineligible for food stamps was not a rational

measure of needs of household and hence violated equal protec-

tion).

In the instant matter, the petitioners allege that M.G.L. c.

231, §85K does not satisfy the rational basis test because the

purpose of the statute is not legitimate and the classifications

created are wholly unrelated to its stated purpose. The petition-

ers argue that the legislative purpose of M.G.L. c. 231, §85K —

to protect the funds of charitable institutions so that they may

be devoted to charitable purposes — is not a legitimate legisla-

tive purpose because special protections for charitable institu-

tions are no longer necessary. Furthermore, the petitioners

contend that such protections are not necessary for hospitals in

particular because hospitals enjoy other special legislative

protection. .

The Massachusetts Supreme Judicial Court identified the leg-

islative purpose behind the statute and found that such purpose

was legitimate.

The objective of §85K clearly is to protect the funds of

charitable institutions so that they may be devoted to char-

itable purposes. That objective is just as clearly legitimate.

If a charity's property were “depleted by the payment of

damages its usefulness might be either impaired or wholly

destroyed, the object of the founders or donors defeated,

and charitable gifts, discouraged.” St. Clair v. Trustees of

Boston Univ., 25 Mass. App. Ct. 662, 666 (1988), quoting

Farrigan v. Pevear, 193 Mass. 147, 149 (1906).

405 Mass. at 429, 541 N.E.2d at 333. Furthermore, the Court

found that the availability of other legislative protections for

hospitals did not render the legislative purpose of protecting

charitable assets for charitable goals unnecessary. “[T]he

availability of these sources of protection of charitable funds is

not inconsistent with a legislative purpose to provide still fur-

ther protection.” Id.

Plainly, the legislative purpose of protecting the funds of

charitable institutions so that they may be devoted to charitable

purposes is a legitimate public purpose. The statute is not based

on prejudice or a desire to harm a politically unpopular group.

—}

See, e.g., Cleburne v. Cleburne Living Center, supra (zoning

ordinance requiring special permit for group home for the men-

tally retarded rested on an irrational prejudice against the men-

tally retarded); U.S. Department of Agriculture v. Moreno, 413

U.S. 528 (1973) (where purpose of statute denying food stamps

to household containing individual unrelated to any other

household member was to prevent “hippies” or “hippie com-

munes” from participating in the food stamp program, such

purpose was a bare congressional desire to harm a politically

unpopular group and did not constitute a legitimate state

interest).

Petitioners also argue that the limitation on charitable liabil-

ity is not necessary, particularly as it applies to hospitals. These

reasons — because hospitals can purchase insurance, because

charities no longer need special protections — are all public

policy arguments. Thus, such arguments are more appropri-

ately addressed to the legislature than to the courts.

Next, the petitioners argue that even if the statute’s public

purpose is legitimate, the classifications created by the statute

are not reasonably related to that purpose. However, the

Supreme Judicial Court found that the statute’s classifications

were reasonably related to its purpose.

The plaintiffs also argue that the discrimination between

the victims of charitable tortfeasors and other victims, be-

tween the seriously injured victims of charitable tortfeasors

and those with minor injuries, between “wealthy” chari-

ties and impoverished ones, and between charities and

noncharities, wrought by §85K, cannot be viewed as a ra-

tional means of accomplishing the legislative objective,

even if the objective is considered legitimate, of protecting

charitable funds. The plaintiffs emphasize the low amount

of the statutory cap, arguing that frequently the expenses

involved in litigating a serious personal injury case against

a hospital may far exceed the allowable recovery. Never-

theless, while we acknowledge the validity of the plain-

tiffs’ assertion, it is not the court's prerogative to determine

whether a more equitable distribution of the burden of

negligently inflicted personal injuries could be devised. We

cannot say that there is no rational relationship between

§85K’s cap on damages and the statute’s legitimate objec-

tive of preserving charitable assets.

405 Mass. at 430, 541 N.E. 2d at 333. (Citations omitted.)

The statute’s establishment of a $20,000 limitation on charit-

able liability represents a legislative balancing of the desirability

of protection for charitable organizations against the interests of

a person injured as a result of a tort for which the charitable

organization is responsible. See Forty-Sixth Annual Report of

the Judicial Council of Massachusetts 82 (1970) (included in

appendix to petitioners’ application at 34a to 39a). Plainly the

statute represents a reasonable means of achieving a legitimate

state goal. The petitioners’ argument that charitable organiza-

tions no longer need special protection is likewise a public policy

argument which, as the Supreme Judicial Court correctly

noted, is more appropriately addressed to the legislature than

the courts. Thus, the Massachusetts Supreme Judicial Court

properly found that M.G.L. c. 231, §85K is rationally related to

a legitimate state goal.

B. This Court Should Not Apply A Heightened Standard

Of Scrutiny To M.G.L. c. 231, §85K.

The petitioners also request this Court to apply a heightened

or intermediate standard of review under equal protection

analysis to M.G.L. c. 231, §85K and further argue that M.G.L.

c. 231, §85K fails to satisfy constitutional requirements under

such a standard. Additionally, the petitioners argue that a

number of states have used an intermediate equal protection

standard in reviewing limitations on damage awards. (Petition,

pp. 8-10, 29-37.)

However, this Court has utilized an intermediate standard of

review only in limited circumstances, and the petitioners have

failed to identify a right or type of classification in this case

which would trigger such review. Furthermore, to the extent

that other states have utilized an intermediate standard, they

have done so either pursuant to the terms of their own state con-

stitutions or when both state and federal constitutional issues

were present. Thus, the petitioners have failed to present an

issue under federal law concerning the appropriateness of an

intermediate standard of review and thus have presented no

justification for this Court to extend the application of a height-

ened or intermediate standard of review for the purposes of

equal protection analysis.

As noted above, the Supreme Court has traditionally utilized

an intermediate standard of review only for two categories,

gender and illegitimacy. See, e.g., Craig v. Boren, supra

(gender); Mills v. Habluetzel, supra (illegitimacy). The stan-

dard to be applied in such cases is that “classifications by gender

{and illegitimacy] must serve important governmental objec-

tives and be substantially related to achievement of those objec-

tives.” Craig v. Boren, supra at 197.

In Plyler v. Doe, 457 U.S. 202 (1982), this Court used what

appeared to be a heightened standard to review a Texas statute,

without explicitly acknowledging that it was doing sc. In

Plyler, the Texas statute permitted school boards to deny a free

public education to students who could not prove that they

were legally admitted aliens. The Court rejected the claim that

“illegal aliens” were a suspect class or that education was a fun-

damental right, either of which would have triggered strict

scrutiny under equal protection analysis.

However, the Court was reluctant to permit the Texas statute

to impose legal disabilities upon the minor children of illegal

aliens where such children were unable to affect their parents’

conduct or their own legal status. Furthermore, the Court

noted that education plays a pivotal role in maintaining the

nation’s political and cultural heritage and that the denial of an

education forecloses the means by which any group might

advance itself, thereby creating a permanent underclass of

society. The Court noted:

[The denial of a public education] imposes a lifetime of

hardship on a discrete class of children not accountable for

their disabling status. The stigma of illiteracy will mark

them for the rest of their lives. By denying these children a

basic education, we deny them the ability to live within

the structure of our civic institutions, and foreclose any

realistic possibility that they will contribute in even the

smallest way to the progress of our Nation.

Id. at 223. For these reasons, the Court determined that the

statute would not be considered rational “unless it further{ed]

some substantial goal of the State”, id. at 224, a standard which

has traditionally been viewed as a heightened or intermediate

standard of review. Applying this standard of review, the

Supreme Court found that the Texas statute violated the equal

protection clause.

However, the Supreme Court has refused to extend the use of

the heightened or intermediate standard of review beyond the

facts of the Plyler case. In Cleburne v. Cleburne Living Center,

supra, decided in 1985, the Supreme Court refused to apply a

heightened standard of review to a classification affecting the

mentally retarded. First, this Court noted that it had previously

refused to extend heightened review to differential treatment

based on age in Massachusetts Board of Retirement v. Murgia,

supra, because the aged, though not wholly without discrimi-

natory treatment, had not experienced a history of purposeful

unequal treatment and had not been subjected to unique dis-

abilities on the basis of stereotypical characteristics not truly

indicative of their abilities. Cleburne v. Cleburne Living

Center, supra at 441.

In Cleburne, this Court declined to find that the mentally

retarded were a “quasi-suspect” class. The Court articulated

several reasons. First, the Court noted that there was a legiti-

mate reason to treat the mentally retarded differently in some

respects because they did have a reduced ability to function in

the everyday world. Second, the Court noted that federal and

state legislatures had addressed their unique problems, thus

belying a continuing antipathy or prejudice. Third, the Court

found that the mentally retarded were not politically powerless

or unable to attract the attention of lawmakers. Finally, the

Court stated that if the mentally retarded, a large and amor-

phous class, were deemed quasi-suspect, it would be difficult to

find a principled way to distinguish a variety of other groups

(such as the aging, the disabled, the mentally ill, and the in-

firm) who perhaps had immutable disabilities, who could not

mandate a desired legislative response, and who could claim

some degree of prejudice from the public at large. Id. at

442-446. Noting that its refusal to recognize the mentally re-

tarded as a quasi-suspect class did not leave them entirely

unprotected from individious discrimination, the Court applied

the rational basis test to the classification at issue and found it to

be a violation of equal protection.

In Lyng v. Castillo, 477 U.S. 635 (1986), this Court again

refused to extend the application of a heightened standard of

review. In Lyng, the Court examined a federal statute in the

food stamp program which treated family members (parents,

children, and siblings) who lived together as a single household

for the purpose of the food stamp program, thus reducing their

benefits or eliminating their eligibility for benefits, but which

did not treat more distant relatives or groups of unrelated per-

sons as a single household unless they customarily purchased

food and prepared meals together.

The Court again refused to apply a heightened degree of

scrutiny. It found that “close relatives” were not a suspect class

or even a “quasi-suspect” class because they had not been sub-

jected to discrimination, they did not exhibit obvious immu-

table, distinguishing characteristics that defined them as a dis-

crete group, and they were not a minority or politically power-

léss. Id. at 638. Similarly, it found that the statute did not

“directly and substantially” interfere with family living

arrangements and thereby burden a fundamental right. /d.

Consequently, the Court applied the rational basis test and

found the statute to be constitutional. See also Bowen v.

Gilliard, supra (Supreme Court refused to apply heightened

review to statute which required applicants and recipients of

public assistance to include in filing unit children living in

same home, but for whom support payments were being re-

ceived from noncustodial parent, because close relatives were

not a suspect class and statute did not burden a fundamental

right by affecting family living arrangements).

Finally, in Kadrmas v. Dickinson Public Schools, U.S.

, 108 S.Ct. 2481 (1988), this Court once again refused to

extend the use of a heightened scrutiny beyond Plyler. In

Kadrmas, the petitioners challenged the constitutionality of a

state statute permitting some school districts to charge a user

fee for bus transportation on equal protection grounds and

argued that heightened scrutiny should be utilized. Noting

that “[d]oing so would require us to extend the requirements of

the Equal Protection Clause beyond the limits recognized in

our cases,” the Court declined to take such a step. Id. at 2487.

The Court noted that it had previously rejected the sugges-

tion that “statutes having different effects on the wealthy and

the poor should on that account alone be subjected to strict

equal protection scrutiny” and that it had not “accepted the

propositon that education is a ‘fundamental right,’ like equal-

ity of the franchise, which should trigger strict scrutiny. .. .”

Id. With respect to heightened scrutiny, the Court noted that,

outside of gender and illegitimacy, it had utilized a heightened

scrutiny only in Plyler v. Doe. However, it refused to extend

Plyler beyond the “unique circumstances” of that case. Id. at

2487-2488. The Court found that, unlike Plyler, the statute in

Kadrmas did not penalize children for the illegal conduct of

their parents, nor did the user fee promote the creation and

perpetration of a sub-class of illiterates adding to the problems

and costs of unemployment, welfare, and crime. Nor did the

statute in Kadrmas completely bar the affected class from an

important government service. Jd. at 2488. Under these cir-

cumstances, the Court utilized the rational basis test and

found the statute constitutional.

In the instant matter, the petitioners have not identified a

classification or a right which would trigger a heightened

degree of scrutiny. The class of victims of charitable tort-

feasors, as compared to victims of non-charitable tortfeasors,

is not a class which has been subjected to purposeful discrimi-

nation; they do not exhibit obvious, immutable, distinguishing

characteristics which define them as a discrete group; nor are

they a minority or politically powerless. Furthermore, if edu-

cation is not a fundamental right, then the right to recover

damages for personal injuries is likewise not a fundamental or

quasi-fundamental right.

Moreover, the petitioners’ access to the judicial system was

not completely and irrevocably barred in all respects. The

petitioners’ right to recover damages for personal injuries was

not barred. Rather, with respect to a charitable tortfeasor,

their right to sue for damages for personal injuries was modi-

fied by permitting the petitioners to recover damages only up

to $20,000. Their right to sue other alleged tortfeasors was un-

changed. Indeed, the petitioners in fact presented their case

against the non-charitable defendants, two physicians, to the

jury, but did not prevail on these claims.

The petitioners also argue that, in applying federal equal

protection standards to damage cap statutes, a majority of

state courts have used an intermediate standard. (Petition, ;p.

29-30.) However, a review of the decisions cited by the peti-

tioners reveals that these courts were relying either jointly on

federal and state constitutional provisions or solely on state

constitutional provisions. Thus, because these cases did not

rely solely on federal equal protection analysis, they do not

demonstrate a need for clarification of federal constitutional

law with respect to limitation of damages in personal injury

actions. See Arneson v. Olson, 270 N.W.2d 125 (N.D. 1978)

(relied primarily on state equal protection analysis, although

also found violation of federal equal protection); Carson v.

\fourer, 120 N.H. 925, 424 A.2d 825 (1980) (relied on state

equal protection, recognizing that state constitution may be

it ch ise a. sneer ner ecmemmeanas

interpreted to grant more rights than federal constitution);

Duren v. Suburban Community Hospital, 24 Ohio Misc. 2d

25, 482 N.E.2d 1358, repub. as corrected, 495 N.E.2d 51

(1985) (found violation of equal protection under state and

federal constitutions without explicitly adopting intermediate

standard). '

Furthermore, the two states which relied solely on federal

law and which used an intermediate standard were decided in

1975 or i976, before this Court clarified the use of the inter-

mediate equal protection standard in Plyler, Cleburne, Lyng,

and Kadrmas. See Jones v. State Board of Medicine, 97 Idaho

859, 555 P.2d 399 (1976), cert. denied, 431 U.S. 914 (1977)

(noted that Supreme Court seemed to have declared a new

category of equal protection analysis); Hunter v. North Mason

High School, 85 Wash. 2d 810, 539 P.2d 845 (1975) (present-

ment or notice of claim statute passes neither “minimum

scrutiny” nor “newer ‘substantial relation’ test”).* Thus, these

' The petitioners also cite Baptist Hospital of Southeast Texas, Inc. v.

Baber, 672 S.W.2d 296 (Tex. App. 1984), writ ref'd, n.r.e., 714 S.W.2d 310

(Tex. 1986), for the proposition that it used an intermediate standard in find-

ing an equal protection violation. However, Baptist Hospital does not state

whether it was decided under state or federal equal protection, nor does it ex-

plicitly adopt an intermediate standard. Furthermore, the continued validity

of its holding is in doubt for two reasons. First, the Texas Supreme Court, in

reviewing the intermediate appellate court's decision, stated that the Court

of Appeals need not have decided the constitutional issues and therefore the

Texas Supreme Court did not pass on the constitutionality of the damage

limitation provision. 714 S.W.2d at 310. Second, although Baptist Hospital

has not been expressly overruled, it appears that its holding with respect to

federal equal protection is no longer valid. In Lucas v. United States, 807

F.2d 414 (Sth Cir. 1986), the Fifth Circuit examined the same statute re-

viewed in Baptist Hospital, a statute which establishes a $500,000 limit on

damages in medical malpractice actions, and held that it did not violate

federal due process or equal protection guarantees. However, the Fifth Cir-

cuit certified questions to the Texas Supreme Court concerning the statute's

validity under the Texas Constitution. In Lucas v. United States, 757 S.W 2d

687 (Tex. 1988), the Texas Supreme Court found that the statute violated the

open courts provision of the Texas Constitution.

* Petitioners cite this case for the proposition that a state court used an

intermediate standard under a state constitution. (Petition, p. 31.) However,

Hunter is decided on federal equal protection grounds.

cases do not stand for the proposition that state courts were

following current federal precedent when they adopted an

intermediate standard of review for the purposes of equal pro-

tection analysis.

Finally, the one case the petitioners cite for the proposition

that state courts, are using an intermediate equal protection

standard in construing state equal protection provisions relied

on a state constitutional provision guaranteeing open access to

the courts rather than state equal protection. Lucas v. United

States, 757 S.W.2d 687 (Tex. 1988).

Furthermore, a number of courts have used the rational

basis test in examining the constitutionality of limitations on

recoveries. See generally Fein v. Permanente Medical Group,

38 Cal. 3d 137, 211 Cal. Rptr. 368, 695 P.2d 665 (1985), ap-

peal dismissed, 474 U.S. 892 (1985) (limitation of $250,000 on

non-economic damages in medical malpractice actions; federal

and state grounds; rational basis test; no equal protection vio-

lation); American Bank & Trust Co. v. Community Hospital,

36 Cal. 3d 359, 204 Cal. Rptr. 671, 683 P.2d 670 (1984) (re-

quirement in medical malpractice actions that future damages

in excess of $50,000 be paid in periodic payments; federal and

state grounds; rational basis test; no equal protection viola-

tion); Jetton v. Jacksonville Authority, 399 So.2d 396 (Fla

App. 1981) (limitation of $50,000 on governmental liabilit) ;

federal and state grounds; rational basis test; no equal prot.

tion violation); Cargill v. Rochester, 119 N.H. 661, 406 A.2d

704 (1979), appeal dismissed, 445 U.S. 921 (1980) (limitation

of $50,000 on governmental liability; federal and state

grounds; rational basis test; no equal protection violation);

Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015

(1976), appeal dismissed, 429 U.S. 806 (1976) (governmental

immunity; federal and state grounds; rational basis test; no

equal protection violation); Cauley v. Jacksonville, 403 So.2d

379 (Fla. 1981) (limitation of $100,000 on governmental liabil-

ity; federal and state grounds; rational basis test; no equal pro-

tection violation); Crowe v. John W. Harton Memorial Hos-

pital, 579 S.W.2d 888 (Tenn. App. 1979) (limitation of

$20,000 on governmental liability; federal and state grounds;

rational basis test; no equal protection violation).

Finally, utilizing a rational basis test in the instant case did

not result in a cursory or formalistic review of the statute. A

review of the Supreme Judicial Court's decision in the instant

matter demonstrates that it engaged in a thoughtful and care-

ful analysis of the issues.

We agree with the plaintiffs that equal protection analy-

sis requires the court to look carefully at the purpose to be

served by the statute in question and at the degree of

harm to the affected class. We have observed that charac-

tex.zing the tests to be applied to determine the constitu-

tional validity of legislation as “reasonable relation” and

“strict scrutiny” is a “shorthand for referring to the oppo-

site ends of a continuum of constitutional vulnerability

determined at every point by the competing values in-

volved.” Marcoux v. Attorney General, 375 Mass. 63, 65

n. 4, 375 N.E.2d 688 (1978). However, our acceptance of

that method of analysis does not require us to adopt a

third level of review. The rational basis test “includes a

requirement that an impartial lawmaker could logically

believe that the classification would serve a legitimate

public purpose that transcends the harm to the members

of the disadvantaged class.” Cleburne v. Cleburne Living

Center, Inc., 473 U.S. 432, 452 (1985) (Stevens, J., con-

curring). In connection with such an analysis, the signifi-

cance of a limitation of $20,000 on recovery against

charities for personal injuries is a relevant factor.

405 Mass. at 428, 541 N.E.2d at 333. Thus, the Supreme

Judicial Court made a thoughtful and deliberate examination

of the classification made by the statute in its application of

the rational basis test.

The petitioners have not identified a classification or a right

which, under equal protection analysis, triggers or which

ought to trigger an intermediate standard of review.

Therefore, this Court should decline to review this case in

order to determine whether it should extend the use of an

intermediate standard of review.

Il. THe Massacnusetts SupreMeE Jupicia, Court Correctiy

Hevp Tuat M.G.L. c. 231, §85K Does Not VioLate THE

Due Process Ciause Or Tue Unrrep States Constiru-

TION.

In their petition, the petitioners argue that the Supreme

Court should resolve, with respect to the federal due process

clause, the question of whether a state may modify or abolish a

common law right without providing a satisfactory quid pro

quo by requiring a quid pro quo under those circumstances.

The petitioners argue further that M.G.L. c. 231, §85K vio-

lates the due process clause of the United States Constitution-

because it fails to provide a quid pro quo. (Petition, pp.

37-43.) However, the Supreme Judicial Court correctly held

that the statute bears a reasonable relationship to a legitimate

legislative objective and hence does not violate the due process

clause. Moreover, it is unnecessary to decide whether a quid

pro quo is constitutionally required.

A. The Massachusetts Supreme Judicial Court Cor-

rectly Held That M.G.L. c. 231, §85K Bear:

Rational Relationship To A Legitimate Legislativ«

Goal.

The requirements of the federal due process clause are satis-

fied if a statute has “a reasonable relation to a proper legisla-

tive purpose, and [is] neither arbitrary nor discriminatory.”

West Coast Hotel Co. v. Parrish, 300 U.S. 379, 398 (1937).

Economic legislation — legislation which represents a leyisla-

tive effort to structure and accommodate the burdens and

benefits of economic life — comes to the Court with a pre-

sumption of constitutionality, and the burden is on the one

complaining of a due process violation to establish that the

legislature has acted in an arbitrary and irrational way. Duke

Power Co. v. Carolina Environmental Study Group, Inc., 438

U.S. 59, 83 (1978).

Courts do not substitute their social and economic beliefs for

the judgment of legislative bodies, who are elected to pass

laws, and courts are not concerned with the wisdom, need or

appropriateness of legislation. Ferguson v. Skrupa, 372 U.S.

726, 730 (1963). Legislative bodies have broad scope to experi-

ment with economic problems. Id. Courts exceed their author-

ity when they merely substitute their policy judgment for that

of the legislative body. See generally Hodel v. Indiana, 452

U.S. 314 (1981) (federal statute governing surface coal mining

operations conducted on farmland was not irrational, arbi-

trary and capricious, and lower court, in finding statute

unconstitutional, had impermissibly substituted its policy

judgment for that of Congress).

In the instant matter, the Supreme Judicial Court applied

the standard described above to M.G.L. c. 231, §85K and

found that the statute did not violate the petitioners’ due

process rights:

In addressing the plaintiffs’ equal protection argument,

we determined that §85K is rationally related to a per-

missible legislative objective. Further discussion is not re-

quired. We conclude that §85K does not offend the plain-

tiffs’ due process rights.

405 Mass. at 431, 541 N.E.2d at 334. Thus, the Massachusetts

Supreme Judicial Court correctly found that the statute did

not violate the due process clause of the United States

Constitution.

B. This Court Does Not Need To Decide Whether A

State Must Provide A Quid Pro Quo When Ii Abol-

ishes A Common Law Right.

The petitioners request the Court to decide whether a state

must provide a satisfactory quid pro quo when it modifies or

abolishes a common law right.? In Duke Power Co. v.

Carolina Environmental Study Group, Inc., supra, this Court

stated that it did not need to resolve this question with respect

to the Price-Anderson Act, which established a limitation of

liability for accidents resulting from the operation of federally

licensed private nuclear power plants, because the Price-

Anderson Act did provide a reasonably just substitute for the

common law tort remedies it replaced. Jd. at 88. However, in

Duke Power, the Court also stated that it was not at all clear

that the due process clause required a reasonable substitute

remedy when common law rights are modified or abrogated.

Id. The Court noted that a person has no property or vested

interest in any rule of the common law and that the Constitu-

tion did not forbid the creation of new rights or the abolition

of old ones recognized by common law to attain a permissible

legislative object. Jd. at n. 32. The Court also noted that

statutes limiting liability are relatively commonplace and have

consistently been enforced by the courts. /d.

In Massachusetts, the Supreme Judicial Court previously

resolved this question in Klein v. Catalano, 386 Mass. 701, 437

N.E.2d 514 (1982), when it held that M.G.L. c. 260, §2B,

which completely abrogated a cause of action in tort against

an architect, engineer or design professional six years after the

design professional completed his work, did not violate the

federal due process clause, even though it did not provide an

alternative remedy. Citing Silver v. Silver, 280 U.S. 117

(1929), which upheld the constitutionality of a state statute

abrogating tort actions by guest passengers in automobiles, the

Supreme Judicial Court noted that the United States Constitu-

tion permits the legislature to abolish causes of action once

* Initially, it should be noted that M.G.L. c. 231, §85K does not modify a

prior unrestricted common law right to sue charities for tort damages in any

amount. Prior to the statute’s enactment, charities enjoyed complete immu-

nity. See MacDonald v. Massachusetts General Hospital, 120 Mass. 432

(1876). M.G.L. c. 231, §85K abolished the defense of charitable immunity

which existed prior to the enactment of the statute, but limited the charity's

liability to the sum of $20,000.

recognized by the common law to further permissible legisla-

tive objectives. 386 Mass. at 712, 437 N.E.2d at 521-522.

The petitioners contend that there is a dispute among state

courts and courts of appeals as to whether a satisfactory quid

pro quo is constitutionally required. However, those decisions

requiring a satisfactory quid pro quo were decided either

jointly on federal and state grounds or solely on state grounds.

Therefore, a decision on whether the federal due process

clause requires a satisfactory quid pro quo would have little or

no effect with respect to these decisions. See Carson v.

Maurer, supra, (limitation of $250,000 on non-economic

damages in medical malpractice actions; absence of quid pro

quo violates state equal protection); Kansas Malpractice Vic-

tims Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988) (lim-

itation on non-economic damages of $250,000 and on all dam-

ages of $1 million in medical malpractice cases; absence of

quid pro quo violates state constitutional guarantees of right to

jury trial and to a remedy by due course of law); Lucas v.

United States, supra (limitation of $500,000 on damages in

medical malpractice actions; absence of quid pro quo violates

state constitutional “open courts” provision); Simon v. St.

Elizabeth Medical Center, 3 Ohio Op.3d 164, 355 N.E.2d 903

(1976) (limitation of $200,000 on damages in medical mal-

practice actions; absence of quid pro quo denies state and

federal equal protection).

Several courts have found that no satisfactory quid pro quo

was constitutionally required, but nonetheless still found a

statutory limitation on liability to be in violation of federal or

state constitutional requirements. See Arneson v. Olson, supra

(limitation of $300,000 on damages in medical malpractice

actions; even though no quid pro quo is required, limitation

violated federal and state equal protection); Wright v. Central

DuPage Hospital Ass'n. , 632 Ill.2d 313, 347 N.E.2d 736 (1976)

(limitation of $500,000 on medical malpractice damages; quid

pro quo not required; violation of state constitutional provi-

sion against special privileges found). Thus, where these courts

found limitation of liability provisions to be violations of vari-

ous constitutional provisions, even though they held that a sat-

isfactory quid pro quo was not constitutionally required, fed-

eral guidance on the issue of whether a satisfactory quid pro

quo is required would likewise have had no effect on these

decisions.

The petitioners have failed to demonstrate that there is a

dispute among state and federal jurisdictions as to whether or

not a quid pro quo is required under the federal constitution.

In the absence of such a showing, this Court should decline to

review the decision of the Supreme Judicial Court.

III. THe Perrrioners Have Not SuFrFiciENTLY DEMONSTRATED

A Conruict BETWEEN Decisions Or STATE AND FEDERAL

JurispICTIONS CONCERNING A FEDERAL QUESTION.

The petitioners argue that there is a conflict among state

and federal jurisdictions concerning the application of federal

equal protection and due process guarantees to statutes estab-

lishing limitations of liability on damages awards. (Petition,

pp. 7-12.) However, to the extent that any such conflict exists,

it is caused by the application of either state constitutional pro-

visions or state and federal constitutional provisions jointly to

statutes establishing limitations on damage awards. Conse-

quently, the petitioners have failed to demonstrate a conflict

among the jurisdictions concerning a federal question which

merits review by this Court.

With respect to federal equal protection analysis, the peti-

tioners argue that the conflict among jurisdictions has arisen

from the lack of consistency concerning the applicable stan-

dard of review. The petitioners further argue that a majority

of courts which have addressed the issue have utilized an inter-

mediate or heightened degree of scrutiny to strike down

statutes establishing limitations on damage awards. (Petition,

pp. 8-9.)

However, all but one of the cases cited by the petitioners

rely either solely on state constitutional provisions or jointly on

state and federal constitutional provisions. Thus, these cases do

not demonstrate a conflict concerning the application of federal

constitutional law. See Arneson v. Olson, supra ($300,000

limitation on medical malpractice actions violates state and

federal equal protection and due process); Carson v. Maurer,

supra ($250,000 limit on non-economic damages violates state

equal protection); Duren v. Suburban Community Hospital,

supra ($200,000 limit on medical malpractice damages violates

federal and state equal protection and due process).‘

Furthermore, the one case cited by the petitioners which

relied exclusively on federal law and which utilized an inter-

mediate standard of equal protection analysis was decided in

1976, before the Supreme Court clarified the limited circum-

stances under which an intermediate standard of review

would be used. See Jones v. State Board of Medicine, supra.