The Right to a Jury Trial in Civil Cases in Tennessee Why Governor Haslam and the GOP Lobbyists Will Fail

The Right to a Jury Trial in Civil Cases in Tennessee: Why Governor Haslam & the GOP Lobbyists Will Fail

“Section 6. That the right of trial by jury shall remain inviolate, and no
religious or political test shall ever be required as a qualification for jurors.”
Tennessee Constitution, Declaration of Rights.

“The declaration of rights hereto prefixed is declared to be a part of the Constitution of the state, and shall never be violated on any pretense whatever. And to guard against transgression of the high powers we have delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of the government, and shall forever remain inviolate.”
Tennessee Constitution. Art. 11 § Section 16.

Governor Haslam and his lobbyists are poised to pass the Governor’s bill for “tort reform”. But there is good news. The tort reform law, with its damages caps, is plainly unconstitutional under our Tennessee Constitution.

I commend the Governor to re-read Article I § 6 of the Tennessee Constitution and Art. 11 § 16. For over 200 years, the Tennessee Constitution has provided that, “That the right of trial by jury shall remain inviolate.” The Tennessee Supreme Court has long recognized that compensatory damages, including damages for “mental and physical pain,” is a form of “property” protected by the constitutional right to trial by jury. See also Kaiser v. Cannon, 529 S.W.2d 235 (Tenn. Ct. App. 1975) and Pitts v. Exxon Corp., 596 S.W.2d 830, 835 (Tenn. 1980). Taking away a jury’s finding of damages in personal injury tort cases violates that which cannot be violated—the right to trial by jury.

Through time, there have been many discussions of the American jury process and the role it plays in our justice system. U.S. Supreme Court Justice Story considered the subject as a privilege: “The inestimable privilege of a trial by jury in civil cases — a privilege scarcely inferior to that in criminal cases, which is counted by all persons to be essential to political and civil liberty” Alexis de Tocqueville discussed trial by jury as a political institution more than as a judicial institution. His analysis of jury in the United States led him to find that the process educates people. The influence of a jury in civil cases affects all of the interests of a community and is gradually associated with the idea of justice itself. Alexis de Tocqueville asserted that the greatest advantage of a jury was that it contributed to form the judgment and to increase the natural intelligence of the people. He concluded that “the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.

The Georgia Constitution has the same language as the Tennessee Constitution: “The right to trial by jury shall remain inviolate.” Ga. Const. Art. I. § 1 ¶ XI. The Georgia Supreme Court recently held that damages caps violated the “inviolate”” right to trial by jury guaranteed by the Georgia Constitution. Atlanta Oculoplastic Surgery, P.e. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010). In 2005, the Georgia legislature enacted a $350,000 cap on noneconomic damages in medical malpractice cases. Georgia’s state constitution protects the right to a jury trial, as does ours, stating “[t]he right to trial by jury shall remain inviolate.” Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a). Because the determination of damages has always been the jury’s province, and noneconomic damages have always been a component of compensatory damages, the damages cap unconstitutionally infringed on the right to a jury trial. Id. at 223. The Court concluded: “The very existence oft he caps, in any amount, is violative of the right to trial by jury.” Id.

The Georgia Supreme Court’s opinion was unanimous.

“At common law at the time the right to trial was written into the first Tennessee Constitution a jury verdict in personal tort cases could not be disturbed, and a new trial granted, merely because the judge found the damages as assessed to be either excessive or inadequate. n1 Sedgwick on Damages, § 349 at 688-89 (9th ed. 1912). Kaiser v. Cannon, 529 S.W.2d 235 (Tenn. Ct. App. 1975)

Given that Georgia’s constitutional language is the same as Tennessee’s and that the Georgia Supreme Court struck down caps in July of last year as violating the constitutional right to trial by jury, one may rightly ask whether Governor Haslam and the Tennessee GOP legislators who seek to change the very essence of democracy are being disloyal to their oath of office: “I do solemnly swear that I will perform with fidelity the duties of the office to which I have been elected, and which I am about to assume. I do solemnly swear to support the constitutions of Tennessee and the United States.” Governor Haslam has attempted in his first 100 days in office to take away a sacred right that has been enshrined in Tennessee’s Constitution for over 200 years.

The same “inviolate” language was in Washington’s state constitution and the Washington Supreme Court reached the same result as the Georgia Supreme Court. In Sofie v. Fibreboard Corp., 112 Wn.2d 636 (Wash. 1989) The court held that Wash. Const. art. I § 21 protected the jury’s role to determine damages. The court held that the statute limiting damages violated appellants’ right to a trial by jury.

Tennessee’s right to trial be jury has included the requirement of a unanimous jury – and “qualifies as a precious individual right. See Tenn. Const. art. I, § 6 (“That the right to trial by jury shall remain inviolate . . .”Waters v. Coker, 229 S.W.3d 682, 688 (Tenn. 2007). This is a very important point–we have the unanimous jury rule in Tennessee because we stick to the historic common law jury rules as they existed at the time of the adoption of Tennessee Constitution. The constitutional provision in Tennessee’s Constitution declaring that the right to trial by jury shall remain inviolate protects the right of trial by jury as it existed at common law. Marler v. Wear, 117 Tenn. 244 (Tenn. 1906). “The right to trial by jury is one of the most cherished rights preserved by our Constitution” and preserves the right as it existed at common law “insofar as that law had been adopted and was in force in North Carolina when the territory embraced in Tennessee was ceded by North Carolina to the United States government.” State v. Dusina, 764 S.W.2d 766 at 768 (Tenn.1989).

Article 1, § 6 guarantee “that the right to trial by jury shall remain inviolate” was incorporated into the Constitution of 1870 from the Constitution of 1796. It protects the right of trial by jury as it existed at common law. Woods v. State, 130 Tenn. 100, 169 S.W. 558 (1914); State v. Sexton, 121 Tenn. 35, 114 S.W. 494 (1908); Marler v. Wear, 117 Tenn. 244, 96 S.W. 447 (1906).

Other cases on the right to jury trial are collected in Annotation, Validity, Construction, and Application of State Statutory Provisions Limiting Amount of Recovery in Medical Malpractice Claims, 26 ALR 5th 245 (1995) and Cumulative Supplement. Other states have held that damage caps violate the state constitutional right to a trial by jury. Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, 164 (Ala. 1991) (statute setting $ 400,000 damage cap on noneconomic damages in medical malpractice cases violated the Alabama Constitution’s guarantee of a right to a trial by jury because “the statute caps the jury’s verdict automatically and absolutely, the jury’s function, to the extent the verdict exceeds the damages ceiling, assumes less than an advisory status,” which violates the mandate of a trial by jury (emphasis in original)); Kansas Malpractice Victims Coal. v. Bell, 757 P.2d 251, 243 Kan. at 346 (Kan. 1988) (a $ 250,000 damage cap for recovery of noneconomic damages and requirement that award of future benefits must be used to purchase an annuity contract violates the Kansas constitutional right to a trial by jury); Lakin v. Senco Prods. Inc., 329 Ore. 62, 987 P.2d 463, 474 (Ore. 1999) (a $ 500,000 statutory damage cap interferes with [**66] jury’s fact-finding function, and “[l]imiting the effect of a jury’s noneconomic damages verdict eviscerates ‘Trial by Jury’ as it was understood in 1857 and, therefore, does not allow the common-law right of jury trial to remain ‘inviolate'”); and (as discussed above) Sofie v. Fibreboard Corp., 112 Wn.2d 636, 771 P.2d 711, 719 (Wash. 1989) (damage cap violated the constitutional right to trial by jury in Washington, stating: “[T]he Legislature has power to shape litigation. Such power, however, has limits: it must not encroach upon constitutional protections. In this case, by denying litigants an essential function of the jury, the Legislature has exceeded those limits.” Id. at 719. Interestingly, the trial judge stated that although he found the jury’s damage award reasonable, he was required to reduce the award based on the damage cap. Id. at 713.). It is also important to note that, as the Washington court pointed out in Sofie, the language of the right to trial by jury provisions in states that have found the damage limit unconstitutional are nearly identical to Tennesse’s provision that the right of a trial by jury shall remain inviolate. Id. at 723. See also Carly N. Kelly & Michelle M. Mello, Are Medical Malpractice [**67] Damage Caps Constitutional? An Overview of State Litigation, 33 J.L. MED. & ETHICS 515 (2005).

Trial by jury is one of the most potent checks on government power ever devised. The power grab by the Tennessee GOP is being spearheaded by business interests with a conflcit-of-interest–having a history of causing injuries and deaths. Bill Lee, the president of this lobbying group (Tennesseans for Economic Growth) runs an HVAC contrtactor, Lee Company. This company was sued and Mr. Lee was deposed by me when Lee company –in violation of Codes — installed 2 swimming pool water heaters in the Ramada Inn at Opryland in an interior room with no source for outside combustion air. John Spalding died and his wife was brain damaged from CO poisoning. The case settled in 1986. More here. Likewise National HealthCare Corporation (NHC–who runs nursing homes). National HealthCare ( NHC’s ) President, Steven F. Flatt is also on the Board of this lobbying group. Sure they too want to cap damages–being the same company that failed to install sprinklers in a four story nursing home where 16 people died. For a link to the hearings beforte the Senate Judiciary Committee see here: It would be funny if it weren’t true.

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