MICRA can’t survive Timbs

The U.S. Supreme Court's decision last week to apply the excessive fines prohibition of the Eighth Amendment to the states, Timbs v. Indiana, 2019 DJDAR 1337 (Feb. 20, 2019), has broad implications to the right to a jury trial in civil cases. The connection between this ruling on the excessive fines clause of the Eighth Amendment and the jury-trial right of the Seventh Amendment might not be obvious, but the new decision nearly completes the realization of total incorporation of Bill of Rights to the states as Justice Hugo Black advocated in a dissent in 1947.

The unanimous excessive fines ruling allowed the Supreme Court to incorporate, or apply to the states, the Eighth Amendment's prohibition for the first time, holding that the seizure of a $42,000 Land Rover by Indiana authorities when the largest applicable fine was $10,000, violated federal constitutional rights.

When the Bill of Rights was first added to the Constitution, only the federal government was obliged to follow it. Slowly, step by step, the Supreme Court began to apply these provisions to invalidate state laws and actions, starting with the 1925 application of the free-speech right in Gitlow v. New York, 268 U.S. 652 (1925). Justice Black, in a 1947 dissent in Adamson v. California, 332 U.S. 46 (1947), argued that a selective approach made little sense and that total incorporation was necessary to realize the promise of the Fourteenth Amendment's due process clause. While the court accelerated the incorporation of Bill of Rights provisions during the Warren court, selective incorporation still characterized the effort.

With the incorporation of the excessive fines clause, the only Bill of Rights provisions that remain to be incorporated to the states are the Third Amendment's prohibition on the quartering of troops, the Fifth Amendment's requirement of indictment by grand jury, and the Seventh Amendment's right to a jury trial. Of these, there can be little doubt of the fundamental nature of the jury-right guarantee.

Like the rights most recently incorporated as applicable to the states, the rights to bear arms and to be free of excessive fines, the jury-trial right is of ancient origin. Often traced back to Magna Carta, but having precursors that predate even that important document, the civil jury was a hallmark of British common law. As William Blackstone wrote in his authoritative commentaries that were among the most influential documents in the early American republic, Magna Carta's acknowledgement of trial by jury was "the principal bulwark of our liberties," "the glory of the English law," and "the most transcendent privilege which any subject can enjoy."

British attempts to restrict the jury right in the American colonies out of fear of juries' decisions, along with taxation without representation, was a primary complaint against British rule. After independence, when the Constitution was first proposed, the absence of a jury-trial right nearly prevented ratification. No other right was the subject of every state's petition for a bill of rights, which became a prerequisite to achieving approval of the Constitution.

When the Fourteenth Amendment was ratified, only one of the 37 states of the Union lacked a jury guarantee in all civil or common law cases. By comparison, the right to bear arms was present in only 22 of those states; an excessive fines prohibition was found in 35 states. The Supreme Court regarded the deep permeation of those two rights in state constitutions as strong evidence that these rights were "foundational" and "among those fundamental rights necessary to our system of ordered liberty," mandating incorporation.

The decision in Timbs, then, renders incorporation of fundamental Bill of Rights guarantees non-debatable and plainly qualifies the Seventh Amendment's right to a jury trial. Why would that be significant? One reason is what it means for the jury's role and the constitutionality of California's Medical Injury Compensation Reform Act. Enacted in 1975, MICRA limits non-economic damages to $250,000, regardless of the proven facts or the nature of the noneconomic injury. Its one-size-fits-all maximum applies, whether the injury is the loss of one limb or all four limbs, the loss of reproductive capacity, or a lifetime of excruciating pain, whether the life expectancy is six months or 50 years.

While California's Supreme Court has never examined the constitutionality of MICRA under the state's own "inviolate right to a jury trial," the once merely persuasive case law from the U.S. Supreme Court would become binding precedent upon incorporation. That case law, at least since Kennon v. Gilmer, 131 U.S. 22, 29-30 (1889), recognizes that compensatory damages are a fact, within the province of the jury to determine and that a "court has no authority ... in a case in which damages for a tort have been assessed by a jury at an entire sum, ... to enter an absolute judgment for any other sum than that assessed by the jury [unless] the plaintiff elected to remit the rest of the damages."

Reviewing similar precedents and examining pre-constitutional English case law that stretches back to 1677, the U.S. Supreme Court unanimously described the role of jurors to be the "judges of damages." In that case, Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998), argued by Chief Justice John Roberts while still in private practice, the defendant had argued that the jury's responsibilities had ceased upon verdict and that there was no "right to a jury determination of the amount of the award." The Supreme Court rejected that argument, in an opinion written by Justice Clarence Thomas, and stated that "if a party so demands, a jury must determine the actual amount of ... damages" and that the Seventh Amendment "includes the right to have a jury determine the amount of ... damages." Any departure from that amount, it further held, would fail to preserve the jury-trial right. Damage caps like MICRA's replace the right to jury-assessed damages with a legislative assessment, so that two juries' determination of non-economic damages in two different cases of $250,000 and $5 million, respectively, must both be treated as $250,000.

When the Seventh Amendment applies to the states, it is difficult to imagine how the MICRA survives a Seventh Amendment challenge and permits the legislature to override the constitutionally consecrated prerogative of the jury.

The application of Timbs to a constitutional attack on California's 1975 MICRA legislation will occur soon in the case of Maisy Hernandez, et al. v. John P. Cardin, M.D., Los Angeles Superior Court Case No. BC637928, which is set for trial on April 8, 2019 in Los Angeles. The court has already signed an order bifurcating the MICRA affirmative defenses to be subject to a bench trial on the constitutionality of MICRA following a successful plaintiffs' verdict in the event the non-economic damages exceed the $250,000 cap. Ms. Hernandez was 31 years old when her doctor admittedly failed to diagnose bilateral Compartment Syndrome in her legs following complications from a Cesarean delivery of her child, and has been left crippled with Complex Regional Pain Syndrome in both legs. If she prevails on liability, the likelihood is that her non\economic damages would greatly exceed the MICRA cap.