                                                                                                               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
                             ___________________________________



Cornelia A. Clark, J., dissenting.

       I dissent. I would hold that Tennessee Code Annotated section 29-39-102(e)
(2012) violates article I, section 6 of the Tennessee Constitution by usurping the jury’s
essential and constitutionally protected fact-finding function.

       Every version of the Tennessee Constitution dating back to the attainment of
statehood in 1796 has declared “[t]hat the right of trial by jury shall remain inviolate.”1
The contours of this right thus “‘have remained unchanged’” for the past 223 years.
Sneed v. City of Red Bank, Tenn. 459 S.W.3d 17, 29 n.8 (Tenn. 2014) (quoting Jones v.
Greene, 946 S.W.2d 817, 823 (Tenn. Ct. App. 1996)). This constitutional guarantee
preserves “the right of trial by jury as it existed at common law and was in force and use
under the laws and Constitution of North Carolina at the time of the formation and
adoption” of the Tennessee Constitution of 1796. Newport Hous. Auth. v. Ballard, 839
S.W.2d 86, 88 (Tenn. 1992) (citing Trigally v. Mayor of Memphis, 46 Tenn. 382 (1869));



        1
           Tenn. Const. art. XI, § 6 (1796); Tenn. Const. art. I, § 6 (1834); Tenn. Const. art. I, § 6 (1870).
The full text of article I, section 6, the current constitutional guarantee, states “[t]hat the right of trial by
jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for
jurors.” Tenn. Const. art. I, § 6 (1870).
see also Helms v. Tenn. Dep’t of Safety, 987 S.W.2d 545, 547 (Tenn. 1999). As for
claims that would have been tried to a jury at common law, this constitutional guarantee
ensures that the right of trial by jury “shall remain inviolate.” Newport Hous. Auth., 839
S.W.2d at 88; see also Young v. City of LaFollette, 479 S.W.3d 785, 793-94 (Tenn.
2015) (stating that the constitutional right to trial by jury does not apply to statutory
rights and remedies first created after the adoption of the 1796 Constitution, although the
General Assembly remains free to provide expressly for a statutory right of trial by jury);
Smith Cnty. Educ. Ass’n v. Anderson, 676 S.W.2d 328, 336 (Tenn. 1984) (recognizing
that the constitutional right to trial by jury does not apply to inherently equitable claims
that would not have been tried to a jury at common law); Jones, 946 S.W.2d at 823-24
(enumerating the claims at common law to which the right to trial by jury did not apply).2
Article I, section 6 therefore preserves the essential functions of the jury. One of those
essential functions “is that all contested factual issues be determined by an unbiased,
impartial jury.” Ricketts v. Carter, 918 S.W.2d 419, 421 (Tenn. 1996); see also State v.
Bobo, 814 S.W.2d 353, 356 (Tenn. 1991) (“Among the essentials of the right to trial by
jury is the right guaranteed to every litigant in jury cases to have the facts involved tried
and determined by twelve jurors.”). This constitutionally guaranteed fact-finding
function encompasses the jury’s determination of the type and amount of damages.
Indeed, only seventeen years after the current version of article I, section 6 was adopted,
this Court declared:

        In trials at common law, the jury are the proper judges of damages; and,
        where there is no certain measure of damages, the court ordinarily will not
        disturb their verdict, unless on grounds of prejudice, passion, or corruption
        in the jury. To this rule we have conformed our practice, and it is the only
        safe one on the subject. In view of the rule at common law, and as
        discovered in the decisions of our predecessors on this bench, we hold that,
        in actions for damages for personal torts, it is within the strict province of
        the jury to estimate the extent of the injury, and assess the damages; and
        unless there is a manifest abuse of this trust, such as to indicate passion,
        prejudice, partiality, or unaccountable caprice, or corruption, that the trial
        judge ought not to interfere.

Tenn. Coal & R.R. Co. v. Roddy, 5 S.W. 286, 290 (Tenn. 1887) (emphasis added)
(internal quotation marks omitted) (citing Goodall v. Thurman, 38 Tenn. 209, 218
(1858)); Dimick v. Schiedt, 293 U.S. 474, 480 (1935) (“[T]he common-law rule as it


        2
           The parties do not dispute that the constitutional right to trial by jury applied at common law to
personal injury tort claims, although some dispute has arisen about whether noneconomic damages were
available at common law. The majority has assumed for purposes of this appeal that such damages were
available, so I have accepted that assumption as well.

                                                    -2-
existed at the time of the adoption of the Constitution” was that “in cases where the
amount of damages was uncertain[,] their assessment was a matter so peculiarly within
the province of the jury that the Court should not alter it.” (citations and internal
quotation marks omitted)). Article I, section 6 squarely places the determination of
damages “within the strict province of the jury.” Roddy, 5 S.W. at 290; see also Meals
ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 419 (Tenn. 2013) (“We entrust the
responsibility of resolving questions of disputed fact, including the assessment of
damages, to the jury.”); Borne v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 308
(Tenn. 2017) (“Where a party invokes the right to a jury trial, our constitution requires
‘that the jury be allowed to determine all disputed issues of fact.’” (citations omitted)).
Indeed, the jury’s constitutionally protected function of determining damages is so well
established that, “[t]o 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
[an] additur or remittitur is to be entered; if that party does not consent, the trial court
must order a new trial.” Borne, 532 S.W.3d at 309 (citing Spence v. Allstate Ins. Co.,
883 S.W.2d 586, 594 (Tenn. 1994); Tenn. Code Ann. §§ 20-10-101, -102 (2009)).

        Tennessee Code Annotated section 29-39-102(e) usurps and replaces the jury’s
constitutionally protected function of determining damages with an arbitrary ceiling on
damages mostly unrelated to the specific facts and circumstances of each litigant’s claim.
The effect of Tennessee Code Annotated section 29-39-102(e) is a mandatory remittitur
that would otherwise be unenforceable unless a trial court first determined that the
evidence in a particular case preponderated against the jury’s determination of damages
and the plaintiff then consented to the remittitur. See Borne, 532 S.W.3d at 309-10; see
also Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156, 163 (Ala. 1991) (describing a
statute capping noneconomic damages as “patently inconsistent with the doctrines of
remittitur or new trial as we have applied them”). By usurping the jury’s constitutionally
protected function of determining damages and rendering the jury’s factual findings
meaningless, Tennessee Code Annotated section 29-39-102(e) clearly contravenes article
I, section 6.

       In so concluding, I adopt the reasoning of the high courts of Alabama, Georgia,
Kansas, Missouri, and Washington, which have eloquently explained how statutes
capping damages in their own jurisdictions violate their own state constitutional
provisions preserving “inviolate” the right to trial by jury. Moore, 592 So. 2d 156;
Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010); Hilburn v.
Enerpipe. Ltd., 442 P.3d 509 (Kan. 2019); Watts v. Lester E. Cox Med. Ctrs., 376
S.W.3d 633 (Mo. 2012); Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 1989), amended
by 780 P.2d 260 (Wash. 1989).3 See also Lindenberg v. Jackson Nat’l Life Ins. Co., 912


        3
           Although eight other state courts interpreting constitutional provisions that use the term
“inviolate” to secure the right of trial by jury have upheld statutory damages caps, five other state courts
                                                     -3-
F.3d 348, 353 (6th Cir. 2018) (holding that Tennessee Code Annotated section 29-39-
104, the statute capping punitive damages, violates article I, section 6 of the Tennessee
Constitution). As the Alabama Supreme Court explained, “[b]ecause 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.” Moore, 592 So. 2d at
164. See also Smith v. Dep’t of Ins., 507 So. 2d 1080, 1088-89 (Fla. 1987) (striking
down a statute capping nonecomonic damages as a violation of the Florida constitutional
provision guaranteeing a right of access to the courts and also commenting that “because
the jury verdict is being arbitrarily capped,” the statute deprived the plaintiff of “the
constitutional benefit of a jury trial as we have heretofore understood that right”). The
Missouri Supreme Court pointed out that a statute imposing an arbitrary limit on damages
“directly curtail[s] the individual right to one of the most significant constitutional roles
performed by the jury—the determination of damages.” Watts, 376 S.W.3d at 642. The
Georgia Supreme Court reasoned that, by requiring courts “to reduce a noneconomic
damages award determined by a jury that exceeds the statutory limit,” a statute capping
damages, “clearly nullifies the jury’s findings of fact regarding damages and thereby
undermines the jury’s basic function.” Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at
223 (citing Lakin v. Senco Prods., Inc., 987 P.2d 463, 473 (Or. 1999)). Like the Kansas
Supreme Court, I “simply cannot square a right specially designated by the people as
‘inviolate’ with the practical effect of the damages cap: substituting juries’ factual
determinations of actual damages with an across-the-board legislative determination of
the maximum conceivable amount of actual damages.” Hilburn, 442 P.3d at 523.
Finally, as the Washington Supreme Court noted, a statute capping damages “directly
changes the outcome of a jury determination” by altering a jury’s factual finding “to
conform to a predetermined formula[,]” and thereby “robs the [jury] of its function.”
Sofie, 771 P.2d at 720, 721.

       The majority acknowledges that article I, section 6 protects the jury’s fact-finding
determination of damages but nevertheless concludes that Tennessee Code Annotated
section 29-39-102(e) does not violate article I, section 6. The majority advances several
arguments to support this conclusion, but none of these arguments is persuasive.

        First, the majority characterizes section 29-39-102(e) as merely a permissible
legislative alteration of the common law. The General Assembly unquestionably has
authority to alter the common law. State v. Howard, 504 S.W.3d 260, 270 (Tenn. 2016).
But, the General Assembly cannot modify the Tennessee Constitution, and that is what
section 29-39-102(e) does. Article I, section 6 unequivocally declares that the common
law right to trial by jury as it existed at the time of the adoption of the Tennessee

have struck down statutory damages caps as unconstitutional under constitutional provisions that use the
term “inviolate” to describe the jury trial right. Hilburn, 442 P.3d at 522-23 (Kan. 2019) (collecting
cases).

                                                 -4-
Constitution “shall remain inviolate.” By this declaration, article I, section 6 divests the
General Assembly of all authority to modify the common law right of trial by jury. The
United States Supreme Court has succinctly explained the distinction between
permissible legislation that modifies the common law and impermissible legislation that
has the effect of modifying constitutional provisions:

              It is said that the common law is susceptible of growth and
       adaptation to new circumstances and situations, and that the courts have
       power to declare and effectuate what is the present rule in respect of a given
       subject without regard to the old rule; and some attempt is made to apply
       that principle here. The common law is not immutable, but flexible, and
       upon its own principles adapts itself to varying conditions. But here we are
       dealing with a constitutional provision which has in effect adopted the rules
       of the common law in respect of trial by jury as these rules existed in 1791.
       To effectuate any change in these rules is not to deal with the common law,
       qua common law, but to alter the Constitution. The distinction is
       fundamental . . . .

Dimick, 293 U.S. at 487 (emphasis added) (citations omitted). Other states addressing
statutes capping damages have recognized this distinction as well. See Atlanta
Oculoplastic Surgery, P.C., 691 S.E.2d at 223 (rejecting the notion that the authority to
modify or abrogate the common law “empowers the Legislature to
abrogate constitutional rights that may inhere in common law causes of action”); Hilburn,
442 P.3d at 524 (“[T]he cap’s effect is to disturb the jury’s finding of fact on the amount
of the award. Allowing this substitutes the Legislature’s nonspecific judgment for the
jury’s specific judgment. The people deprived the Legislature of that power when they
made the right to trial by jury inviolate.”); Sofie, 771 P.2d at 720 (“The scope of the right
to trial by jury may be defined by the common law through a historical analysis, but the
right itself is protected by the state constitution.”). The majority erroneously
characterizes Tennessee Code Annotated section 29-39-102(e) as a permissible
legislative alteration of the common law. Thus, the majority’s characterization is fatally
flawed and unpersuasive.4

       Equally unconvincing is the fact-law dichotomy the majority relies upon to uphold
the constitutionality of the statute. Admittedly, almost every court that has upheld
statutes capping damages has relied upon this dichotomy. See Hilburn, 442 P.3d at 521-
22 (“The fact-law or fact-policy distinction has been relied on in varying degrees by
almost all courts that have upheld damages caps in the face of jury trial-based


       4
         The majority’s reliance upon Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000), also is misplaced.
There was no challenge in Lavin to the constitutionality of the statute capping damages at $10,000.

                                                -5-
challenges.” (collecting cases)). But, as the Washington Supreme Court explained when
rejecting it:

        [t]his argument ignores the constitutional magnitude of the jury’s fact-
        finding province, including its role to determine damages. Respondents
        essentially are saying that the right to trial by jury is not invaded if the jury
        is allowed to determine 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.

Sofie, 771 P.2d at 721. “The constitution deals with substance, not shadows. Its
inhibition was leveled at the thing, not the name . . . . If the inhibition can be evaded by
the form of the enactment, its insertion in the fundamental law was a vain and futile
proceeding.” Cummings v. Missouri, 71 U.S. 277, 325 (1866). “In other words, a
constitutional protection cannot be bypassed by allowing it to exist in form but letting it
have no effect in function.” Sofie, 771 P.2d at 724. The fact-law dichotomy exalts form
over substance. It serves as a means of obfuscating the true effect of statutes capping
damages, which is to render a jury’s constitutionally protected fact-finding function an
exercise in futility—a façade, a sham, and a pretense.5

      “The common law and trial by jury in case of disputed facts is the birthright of the
people, and the best preservative of their constitutional rights.” Rogers v. Waller, 5
Tenn. 205, 208 (1817). As this Court explained only nine years ago:

        The citizen jury provides the foundation of this Nation’s legal system.
        Encroachment on the right to trial by jury was among the chief complaints
        registered by the American colonists in the Declaration of Independence.
        Alexander Hamilton considered the right to trial by jury to be “the very
        palladium of free government.” Thomas Jefferson believed it to be “the
        only anchor, ever yet imagined by man, by which government can be held
        to the principles of [the] Constitution.”


        5
           Also unpersuasive is the defendant’s argument that statutes capping damages are no different
than statutes multiplying damages. A statute capping damages arbitrarily and unconstitutionally usurps
and alters a jury’s constitutionally protected determination of damages. A statute multiplying damages
adopts and validates a jury’s constitutionally protected determination of damages and utilizes that
determination to implement a policy decision that certain conduct should be further penalized. See
Atlanta Oculoplastic Surgery, P.C., 691 S.E.2d at 224 (“Nor does . . . the existence of statutes authorizing
double or treble damages attest to the validity of the caps on noneconomic damages. . . . [T]reble
damages do not in any way nullify the jury’s damages award but rather merely operate upon and thus
affirm the integrity of that award.”).



                                                   -6-
             The right to trial by jury was held in equally “high estimation” by
      the framers of Tennessee’s constitutions. This Court has characterized the
      right as “an essential element of public liberty” and as “vital . . . to the
      security of life, liberty, and property of the citizen.”

State v. Hester, 324 S.W.3d 1, 50-51 (Tenn. 2010) (footnotes omitted) (alterations in
original). Just thirty years after Tennessee became a State, this Court declared:

            The right to a trial by jury . . . is too sacred to be intermeddled with
      by any power upon earth; too inseparable from human happiness to be
      submitted to the discretion of any human Legislature; it stands upon eternal
      foundations, and as time grows old it grows in veneration and stability.

Tipton v. Harris, 7 Tenn. 414, 419 (1824). Indeed, the Tennessee Constitution’s use of
“[t]he term ‘inviolate’ connotes deserving of the highest protection.” Sofie, 771 P.2d at
721 . As a judge of Tennessee’s highest court wrote in 1833:

      [T]he preservation of the trial by jury in all its purity is of the first
      importance; a strict adherence to its form, in all its parts, is not to be
      dispensed with, or to be considered as captious or trifling. It is to be
      watched with a jealous assiduity, and the slightest deviation from the
      established mode of proceeding regarded as affecting our dearest interests,
      and as such to be instantly put down—bearing constantly in our minds, that
      it is one of the best guards of our rights, of our property, of our liberty and
      our lives.

Garner v. State, 13 Tenn. 160, 179 (1833) (Whyte, J.) (emphasis added).

       Tennessee Code Annotated section 29-39-102(e) constitutes far more than a slight
deviation from the established mode and function of the jury. It amounts to a legislative
usurpation of the jury’s constitutionally protected fact-finding function. As such, it
should be “instantly put down” as a violation of article I, section 6. Garner, 13 Tenn. at
179.

      For all these reasons, I dissent from the majority’s decision and would hold that
Tennessee Code Annotated section 29-39-102(e) violates article I, section 6 of the
Tennessee Constitution.



                                                 _______________________________
                                                 CORNELIA A. CLARK, JUSTICE

                                           -7-
