Where the Indiana Supreme Court Lost its Roots in Liberty
To be fair, as the author[1] of this article, I cannot be certain Johnson v. St. Vincent’s Hospital [2] is the definitive moment in which the Indiana Supreme Court lost its footing in maintaining the ‘spirit of liberty’. Nonetheless, I will be the first to say Johnson is the embodiment of the idea. You may even be asking what the “spirit of liberty” is, and before we go any further, let us take from one of the most influential legal writers and judges of the 20th century, Learned Hand.[3]
“(It) Is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, nearly two thousand years ago, taught mankind that lesson it never learned, but has never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest.”[4]
“It was this spirit of liberty that was revealed in the making of the Constitution two hundred years ago; it is this spirit of liberty that has maintained American constitutionalism for two centuries. The words of the document are important, but they have life only through this spirit.”[5]
By taking from Learned Hand above, we find the spirit of liberty to be the ideas shared through the words of the Constitution. We do not take the words in their literal sense, but rather, we take them through their spirit and the intent of the framers themselves. This is what takes our hallowed Constitution from a simple plan for government to the embodiment of what it means to be a part of the free world.
In Johnson, an Indiana medical malpractice case decided in 1980, the Indiana Supreme Court interpreted whether the flat medical malpractice damage cap of $500,000 was constitutional. Among other arguments, the Indiana Supreme Court addressed if the cap on damages violated Art. I, § 20, of the Indiana Constitution which guarantees “In all civil cases, the right of trial by jury shall remain inviolate” (emphasis added). The Indiana Supreme Court decided the flat medical malpractice damage cap in Indiana did not, in fact, violate a Hoosier’s right to a jury trial. When comparing the analysis of the Indiana court to that of Washington and others around the United States, the Indiana court’s reasoning appears to depart from our Constitution’s “spirit of liberty.”[6]
Indiana and Washington both placed caps on medical-malpractice damages during the wave of “tort reform.” “Tort reform” as defined in this text being the method and moral grounds on which big-business pumped millions of dollars into state legislation to establish compensation caps on recovery for plaintiffs suing for damages due to medical-malpractice starting in the 1970s.[7] Commonly, tort reform takes the form of a cap on non-economic damages, where non-economic damages are defined as, “intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society.”[8]
In addition to non-economic damages, plaintiffs can seek economic damages, which are defined as, “all damages which are tangible, such as damages for past and future medical expenses, loss of income or earnings, and other property loss.”[9] Some states have placed caps on non-economic damages only with explicit dollar amount caps, while others have made caps on non-economic damages employing a formula based on the plaintiff’s age and working wage, such as Washington. Furthermore, others, such as Indiana, received the most limiting form of a cap on damages: a flat cap on all damages regardless of their economic or non-economic nature.[10]
In Sofie and Johnson, both Supreme Courts ruled on the constitutionality of damage caps in a medical-malpractice context. The Indiana Supreme Court followed an interesting line of reasoning. First, the court stated, “Medical malpractice acts similar in nature and scope to Indiana’s Act have recently been enacted in other states. The vast majority of state and federal appellate level courts have found them consistent with due process, equal protection, and jury trial guarantees.”[11] Only one of the seven states referenced by the court, Louisiana, has a flat cap like Indiana, three of the seven have since deemed caps unconstitutional (Florida, Arizona, and Pennsylvania), and the final three have more flexible caps on only non-economic damages (Maryland, Massachusetts, and Wisconsin).[12] All of the mentioned states with caps that have since been struck on unconstitutional grounds use the same language in their constitution as Indiana where the right to a jury trial must remain “inviolate.” The only state mentioned to not use “inviolate” is Massachusetts, where its cap on non-economic damages still stands. Nine years later, in 1989, the Washington Supreme Court in Sofie stated, “As for other states faced with similar issues, all but one similar to ours have stricken damages limits as violative of the right to a jury.”[13]
Specifically, Indiana’s constitution states, “In all civil cases the right to a jury trial shall remain inviolate.”[14] In reference to the Hoosier constitution, the Indiana Supreme Court referenced this right in Johnson, stating:
“The provision of the Constitution of Indiana that the right to a trial by jury in all civil cases shall remain inviolate means that the substantial elements and incidents, which pertained to a trial by jury at common law, shall not be altered or changed by the Legislature or the courts and are preserved in substance as they existed at common law.” … “It is the substance of the right that shall remain inviolate not the manner in which it is exercised or waived.”[15]
“It is the policy of this Act that recoveries be limited to $500,000, and to this extent the right to have the jury assess the damages is available. No more is required by the Constitution.”[16]
The Indiana Supreme Court appears to interpret their constitution as only allowing the jury to assess damages. They do not appear to allow the jury to determine them, but would this not be part of the jury’s fact finding mission? When addressing similar concerns, the Washington Supreme Court analyzes this argument indirectly in Sofie stating, “Respondents essentially are saying that the right to trial by jury is not invaded if the jury is allowed to determine the facts which go unheeded when the court issues its judgment. Such an argument pays lip service to the form of the jury but robs the institution of its function. This court will not construe constitutional rights in such a manner.”[17]
Another moment in Sofie that brings upon the aura of the “spirit of liberty” is where the Washington court quotes State v. Strasburgstating, “’The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name’… In other words, a constitutional protection cannot be bypassed by allowing it to exist in form but not function… The impact of Strasburg on this case (Sofie) is worth repeating: because the jury’s province includes determining damages, this determination must affect the remedy. Otherwise the constitutional protection is all shadow and no substance.”[18] This, here, I believe is the quintessential safeguarding of our Constitution that is so greatly needed in modern times.
Furthermore, the Indiana court appears to ignore the definition of inviolate. The Indiana court provides no discussion on the word’s definition in Johnson, where the Washington court says, “The term “inviolate” connotates deserving the highest protection. “The word ‘inviolate’ carries with it a strong command: the right – as it existed in the minds of the framers and as it is relevant today – must exist free from assault or trespass: untouched, intact…”[19] Applied to the right to trial by jury, this language indicates that the right must remain the essential component of our legal system that it has always been. For such a right to remain inviolate, it must not diminish over time and must be protected from all assaults to its essential guaranties.”[20] In Sophie, the Washington Supreme Court referenced James v. Robeck stating, “To the jury is consigned under the constitution the ultimate power to weigh the evidence and determine the facts – the amount of damages in a particular case in an ultimate fact.”[21]
The Washington Supreme Court then referenced the United States Supreme Court’s decision in Dimick v. Scheidt stating, “the Court found that determining damages, as an issue of fact, was very much within the jury’s province and therefore protected by the Seventh Amendment. The Court also indicated that a judge should give more deference to a jury’s verdict when the damages at issue concern a noneconomic loss.”[22] Furthermore, the court cited Baker v. Prewitt stating, “The statute is mandatory, and we are satisfied that where the amount of damages is not fixed, agreed upon, or in some way liquidated, a jury must be called, unless expressly waived. This evidence can only lead to the conclusion that our constitution, in article 1, section 21, protects the jury’s role to determine damages.”[23]
In Kansas, with a flat damage cap similar to Indiana, in 1986 the Kansas Supreme Court struck down the cap as unconstitutional stating, “It would be illogical for this court to find that a jury, empaneled because monetary damages are sought, could not then fully determine the amount of damages suffered.”[24] Virginia, Florida, and Texas, all with flat caps similar to Indiana, also struck them down as unconstitutional. When debates emerge trying to differentiate types of damage caps and their constitutionality, the Washington Supreme Court stated, “the nature of the mechanism itself makes little difference. Whether the limit is fixed or follows a formula, if it restricts the jury’s ability to reach its damages verdict, it invades the jury’s province.”[25] The Washington Court even made a critique of the Indiana Supreme Court as they said, “The Indiana Supreme Court upheld a flat limit on damages against the challenges that it violated the right to a jury… to this extent the right to have a jury assess damages is available. Essentially, although it gave no clear reasons, the Indiana court did not recognize the jury’s role to determine damages. It is also notable that the court did not undertake any historical analysis to reach its conclusion. This lack of analysis minimizes impact.”[26]
For judges around the country, combating legislation is difficult when constitutional arguments are being made, and it is a task in which we must have empathy towards. The Kansas Supreme Court, on their way to deeming caps on malpractice damages unconstitutional, put it well in Kansas Malpractice Victims Coalition v. Bell. They said, “This court is by the Constitution not made a critic of legislature, but rather, the guardian of the Constitution… Moreover, it is the court’s duty to uphold the statute under attack if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”[27] One must understand the willingness courts will likely have to shape their judgments in accord with legislation, but they must never forget their most important duty in upholding the “spirit of liberty.” As Learned Hand put it:
“[Liberty] is the product, not of institutions, but of a temper, of an attitude towards life; of that mood that looks before and after and pines for what is not. It is idle to look to laws or courts, or principalities, or powers, to secure it. You may write into your constitutions not ten, but fifty amendments, and it shall help not a farthing, for casuistry will undermine it at casuistry should, if it have no stay but law. It is secure only… in that sense of fair play, of give and take, of the uncertainty of human hypothesis, of how changeable and passing are our surest convictions, which has so hard a chance to survive in any times, perhaps especially our own.”[28]
Forgive me for repeating one unbelievably important line. “For casuistry will undermine it as casuistry should, if it have no stay but law.”[29] If there were only words in law, the spirit of liberty would be at great risk. It’s our job to fight for the spirit of the Constitution, to not let casuistry undermine it. This duty is bestowed upon the courts from the lowest to the Supreme Court must not be forgotten in the way Indiana’s highest court has. Indiana has allowed casuistry to take and manipulate what the spirit of liberty means when protecting our right to a jury trial. This is the comparison readers must make between the reasoning in Sofie and Johnson. We do not take the words of the Constitution simply in their literal sense, but rather, we take them through the intent of the framers themselves. This is what makes our Constitution more than simply a plan, but the symbol of the free world.
[1] Charles J. Vaughan, class of 2021 at Harvard College, is pursuing a concentration in economics and an articles writer for the Harvard College Law Review.
[2] Johnson v. St. Vincent's Hospital, 273 Ind. 374 (Ind. 1980)
[3] Learned Hand has been quoted more often by legal scholars and The Supreme Court of the United States than any other lower-court judge. Vile, John R. Great American Judges : An Encyclopedia. Santa Barbara, Calif.: ABC-CLIO, 2003. (319)
[4] L. Hand, Sources of Tolerance, in The Spirit of Liberty, 1952. (189, 190)
[5] Ibid, 24.
[6] Sofie v. Fibreboard Corp., 112 Wn. 2d 636 (Wash. 1989)
[7] Logan, David Andrew, Judges, Juries, and the Politics of Tort Reform. 2015. University of Cincinnati Law Review, Vol. 83; Roger Williams Univ. Legal Studies Paper No. 163. 2015, (83).
Available at SSRN: https://ssrn.com/abstract=2653919. 904.
[8] Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217 (Ill. 2010)
[9] Ibid.
[10] Washington: Wash. Rev. Code § 4.56.250. Indiana: Ind. Code Ann. § 34-18-14-3(a)(3).
[11] Johnson v. St. Vincent's Hospital, 273 Ind. 374, 383 (Ind. 1980)
[12] Ibid.
[13]Sofie v. Fireboard Corp., 112 Wn. 2d 636, 666 (Wash. 1989)
[14] Ind. Const. Art. I, § 20
[15] Johnson v. St. Vincent's Hospital, 273 Ind. 374, 383 (Ind. 1980)
[16] Ibid, 401.
[17] Sofie v. Fireboard Corp., 112 Wn. 2d 636, 655 (Wash. 1989)
[18] Ibid, 660, 661.
[19] Sofie v. Fireboard Corp., 112 Wn. 2d 636, 662 (Wash. 1989)
[20] Ibid, 655.
[21] Ibid, 645
[22] Ibid, 647.
[23] Ibid, 648.
[24] Kansas Malpractice Victims Coalition v. Bell, 333 Kan. 243, 251 (Kan. 1988)
[25] Sofie v. Fireboard Corp., 112 Wn. 2d 636, 658 (Wash. 1989)
[26] Ibid, 659.
[27] Ibid, 645.
[28] L. Hand, Sources of Tolerance, in The Spirit of Liberty 66, 77 (1952)
[29] Ibid.