                                                                                          02/26/2020
                 IN THE SUPREME COURT OF TENNESSEE
                            AT NASHVILLE
                               September 4, 2019 Session

      JODI MCCLAY v. AIRPORT MANAGEMENT SERVICES, LLC

                           Rule 23 Certified Question of Law
                         from the United States District Court
                          for the Middle District of Tennessee
                       No. 3-17-CV-0705 Eli Richardson, Judge
                       ___________________________________

                            No. M2019-00511-SC-R23-CV
                       ___________________________________


HOLLY KIRBY, J., concurring.


       I join fully in the majority’s conclusion that the statutory cap on noneconomic
damages enacted by our legislature does not violate either the separation of powers clause
or the equal protection clause in the Tennessee Constitution. A much closer question is
presented on whether the statutory cap violates the clause in the Tennessee Constitution
guaranteeing a right to trial by jury. I agree with the majority’s analysis and conclusion
on this issue but write separately to further explain my reasoning.

        In her scholarly dissent, Justice Clark explains the significance Tennessee’s
founding citizens placed on the right to a jury trial, putting language in the Constitution
that makes the right “inviolate,” and argues forcefully that the statutory cap on
noneconomic damages is “a legislative usurpation of the jury’s constitutionally protected
fact-finding function.” I agree that our founding citizens considered the right to a jury
trial to be of profound importance. However, the plaintiffs in this case have not shown
that the constitutional right to a jury trial was intended to protect plaintiffs from
substantive legislative enactments limiting noneconomic damages.

        I agree with Maryland’s High Court that “the constitutional right to a jury trial is
concerned with whether the court or the jury shall decide those issues which are to be
resolved in a judicial proceeding.” Murphy v. Edmonds, 601 A.2d 102, 116 (Md. 1992)
(citations omitted). In holding that Maryland’s statutory cap on noneconomic damages
did not violate the right to a jury trial in Maryland’s constitution, the Maryland Court in
Murphy explained:
        If the General Assembly had provided in [the statutory cap on noneconomic
        damages] that the trial judge, rather than the jury, should determine the
        amount of noneconomic damages or the amount of noneconomic damages
        in excess of $350,000, a substantial issue concerning the validity of the
        statute would be presented. The General Assembly, however, did not
        attempt to transfer what is traditionally a jury function to the trial judge.
        Instead, the General Assembly abrogated any cause of action for
        noneconomic tort damages in excess of $350,000; it removed the issue
        from the judicial arena. No question exists concerning the role of the judge
        versus the jury with respect to noneconomic tort damages in excess of
        $350,000. Therefore, no question concerning the constitutional right to a
        jury trial is presented.

Murphy, 601 A.2d at 117.

        Maryland’s interpretation is borne out by the national discussion among American
revolutionaries during the time period in which Tennessee attained Statehood in 1796 and
the accompanying adoption of the 1796 Constitution declaring “[t]hat the Right of trial
by Jury shall remain inviolate.” Tenn. Const. art. XI, § 6 (1796). During this period, “the
jury represented the most effective means available to secure the independence and
integrity of the judicial branch of the colonial government” and the struggle with British
authorities “over jury rights was, in reality, an important aspect of the fight for American
independence.” Stephan Landsman, The Civil Jury in America: Scenes from an
Unappreciated History, 44 Hastings L.J. 579, 596 (1993) [hereinafter “Landsman, The
Civil Jury in America, 44 Hastings L.J. at __”].1

        The arguments of those advocating a right to jury trial “centered on their belief
that the courts should not become the exclusive province of the judges.” Id. at 599.2 The

        1
          Participants in the First Continental Congress in 1774 protested royal administrators’ acts to
remove certain categories of cases to England for trial and interfere with the election of jurors; they
adopted a declaration stating that the colonies were “entitled . . . to the great and inestimable privilege of
being tried by their peers of the vicinage. . . .” Declaration and Resolves of the First Continental
Congress, Res. 5 (1774), available at https://www.ushistory.org/declaration/related/decres.html.
        2
            Advocates of a constitutional right to jury trial frequently cited a statement by Blackstone:

        The impartial administration of justice, which secures both our persons and our
        properties, is the great end of civil society. But if that be entirely entrusted to the
        magistracy, a select body of men, and those generally selected by the prince or such as
        enjoy the highest offices in the state, their decisions, in spite of their own natural
        integrity, will have frequently an involuntary bias towards those of their own rank and
        dignity; it is not to be expected from human nature that the few should be always
        attentive to the interests and good of the many.


                                                       2
right to jury trial served not only as a “symbol of democracy” but also a “restraint on
judicial power.” Id. at 600.

       In post-revolutionary America, the conflicts surrounding juries focused on the
degree to which judges should be allowed to intrude on the jury’s role. Id. at 597–605
(describing several such conflicts). For example, in some states during this era, juries
generally “had the right to decide questions of law as well as fact.” Id. at 602.3 This
practice had proven useful when juries helped colonists resist unfair laws foisted upon
them by British authorities.4 Id. at 594–95.

        Demand for a more predictable justice system for the new nation eventually “led
to the curtailment of the jury’s power, especially with respect to the determination of
law.” Id. at 605 (citations omitted). States, including Tennessee, settled on a power-
sharing arrangement, in both civil and criminal cases, in which “the judges should
adjudicate finally upon the whole question of law, and the jury upon the whole question
of fact.” Sparf v. United States, 156 U.S. 51, 80 (1895) (citing Commonwealth. v. Anthes,
71 Mass. 185, 193 (1855)); Hopkins v. Nashville, Chattanooga & St. Louis Ry., 34 S.W.
1029, 1031 (Tenn. 1896) (citation omitted) (“The jury are a body of laymen, selected by
lot, to ascertain, under the guidance of a judge, the truth, in questions of fact. . . . Their
province is strictly limited to questions of fact, and within that province they are still
further restricted to the exclusive consideration of matters that have been proved by
evidence in the course of the trial.”).

        As described by the Maryland Court in Murphy, the genesis of the right to jury
trial was establishing the role of juries vis-à-vis judges. Murphy, 601 A.2d at 117. The
right to jury trial is not implicated by the legislature’s alteration of the remedies available
to litigants.




Landsman, The Civil Jury in America, 44 Hastings L.J. at 599–600 (quoting William Blackstone, 3
Commentaries on the Laws of England 682 (1783) (Nourse Publishing Co. 1959)).
         3
            See also John T. Nockleby, What’s a Jury Good For? 9 n.19 (Loyola-LA Legal Studies, Paper
No. 2007-15, 2005) [hereinafter “Nockleby, What’s a Jury Good For?, at __”] (citing Leonard Levy, The
Palladium             of         Justice           56–57          (1999)),           available          at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=965065 (“For more than a century bracketing the
founding of the country, many authorities insisted that the jury had the right and power to determine for
itself the law as well as the facts.”). It is unclear whether North Carolina had this practice in the late
1700s when Tennessee became a state.
        4
           See also Sparf v. United States, 156 U.S. 51, 89–90 (1895) (quoting Whart. Cr. Pl. (8th Ed.) §
806) (citing Williams v. State, 32 Miss. (3 George) 389, 396 (1856)) (explaining that indications by some
“in the early history of the country” that juries could disregard the law as given by the court were likely
because “in many of the states the arbitrary temper of the colonial judges, holding office directly from the
crown, had made the independence of the jury, in law as well as in fact, of much popular importance.”).
                                                     3
        Respectfully, this distinction explains much of how Justice Lee’s dissent goes
astray. The Lee dissent cites case after case on remittitur and additur, which of course
involve judicial actions that impact juries’ factual findings. Since the constitutional right
to a jury trial concerns directly whether the court or the jury will decide issues in a
judicial proceeding, of course there are many cases cautioning that judges’ undue use of
remittitur and additur may contravene the Constitution. See, e.g., Borne v. Celadon
Trucking Servs., Inc., 532 S.W.3d 274, 309 (Tenn. 2017) (citations omitted) (“To avoid
contravention of the right to jury trial clauses of the federal and state constitutions, the
trial court must obtain the consent of the party against whom the additur or remittitur is to
be entered; if that party does not consent, the trial court must order a new trial.”);
Johnson v. Nunis, 383 S.W.3d 122, 136 (Tenn. Ct. App. 2012) (quoting Smartt v. NHC
Healthcare/McMinnville, LLC, No. M2007–02026–COA–R3–CV, 2009 WL 482475, at
*21 (Tenn. Ct. App. Mar. 10, 2011)) (“[T]he determination of such non-pecuniary losses
as pain and suffering damages involves a subjective element not present in the
determination of ordinary facts. The jury trial guarantee requires that the subjective
element involved be that of the community and not of judges.” (emphasis added)).

        Appellate decisions indicating that a judge’s undue limitation on a jury’s damage
assessment may violate the constitutional right to jury trial are of no use to determine
whether the legislature’s enactment does so, even for purpose of analogy. None of these
cases elucidate how the constitutional right to jury trial, intended to limit judges’
interference with juries, applies to legislative action limiting remedies available to
claimants. Indeed, at least one specifically differentiates between the courts and the
legislature in this regard. See Meals v. Ford Motor Co., No. W2010–01493–COA–R3–
CV, 2012 WL 1264454, at *23 (Tenn. Ct. App. Apr. 13, 2012) (Kirby, J., dissenting in
part) (“In the absence of a basis under the law for [the majority’s] remittitur, I believe
that the majority’s decision amounts to a policy determination, limiting the size verdict a
jury may award. It may be that our Legislature can appropriately make such a policy
decision, but the courts are not authorized to do so.”), rev’d sub nom. Meals ex rel. Meals
v. Ford Motor Co., 417 S.W.3d 414 (Tenn. 2013).

       Putting “[l]egal analysis aside,” the Lee dissent then goes on to castigate
Tennessee’s legislature for enacting a statute with which the dissent disagrees based on
policy. It cites statistics suitable for a legislative committee hearing and describes in
vivid detail the injuries in Meals, cited above, as an example of how the legislature’s
policy choice will be unfair to such seriously injured claimants.5


        5
            In my partial dissent in Meals, I described in detail the evidence of Billy Meals’ grievous
injuries, but I did not put “[l]egal analysis aside”; detailing that evidence was pertinent to the legal
analysis. It demonstrated that the evidence fully supported the jury’s verdict and did not support the
intermediate appellate majority’s significant remittitur of the jury’s verdict. Meals, 2012 WL 1264454, at
*25 (Kirby, J. dissenting in part). This Court granted permission to appeal and reversed the remittitur on
that basis. See Meals, 417 S.W.3d 414.
                                                    4
       This Court has on occasion expressed dislike for particular statutes. See, e.g.
Lavin v. Jordon, 16 S.W.3d 362, 369–70 (Tenn. 2000) (“[W]e find that the result
compelled by the statute in this case is particularly distasteful in that the plaintiffs . . . are
denied the opportunity to be made whole for their loss. . . . Perhaps the General
Assembly will revisit the issue of whether the statutory cap on damages contained in
section 37-10-102 provides an adequate and sufficient remedy. . . .”). Importantly, this is
normally done to demonstrate that this Court will uphold statutes despite displeasure with
the legislature’s policy choice. It reinforces the principle of judicial restraint,
demonstrating that the Court adheres to the longstanding precept that “[T]he wisdom, or
unwisdom of a statute lies solely with the Legislature and is not the concern of the
Court.” Hoover Motor Exp. Co. v. Hammer, 298 S.W.2d 724, 726 (Tenn. 1957) (citing
Davidson Cnty. v. Rogers, 184 Tenn. (20 Beeler) 327, 331–332, 198 S.W.2d 812 (1947)).

        Unfortunately, the Lee dissent does the converse. In a case in which this Court is
asked to render one of the most consequential decisions any court can make—hold a
statute unconstitutional—the Lee dissent first strongly advocates striking down
Tennessee Code Annotated section 29-39-102 as unconstitutional, and then describes at
length why the dissent disagrees with the legislature’s policy decision to enact it in the
first place. This sequence could give a misimpression that the two points are linked.

       This Court has stated:

              A challenge to a statute’s constitutionality does not give the Court a
       license to second-guess the General Assembly’s policy judgments. . . . It is
       not our prerogative to inquire into the motives of the General Assembly.
       Nor may we review the statute’s wisdom, expediency, reasonableness, or
       desirability. These are matters entrusted to the electorate, not the courts.

Waters v. Farr, 291 S.W.3d 873, 917–18 (Tenn. 2009) (citations and footnotes omitted).
Admittedly, this can sometimes be a hard principle to maintain. But maintain it we must.

       For all of the reasons discussed herein, I concur in the majority opinion.




                                                     _________________________________
                                                     HOLLY KIRBY, JUSTICE


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