                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 112,765

                                          DIANA K. HILBURN,
                                              Appellant,

                                                     v.

                                            ENERPIPE LTD.,
                                              Appellee.


                                   SYLLABUS BY THE COURT

        Section 5 of the Kansas Constitution Bill of Rights declares, "The right of trial by
jury shall be inviolate." The quid pro quo test that has been applied to analyze challenges
under section 18 of the Kansas Constitution Bill of Rights is inapplicable to challenges
under section 5. The noneconomic damages cap under K.S.A. 60-19a02 violates the right
protected by section 5, because it intrudes upon the jury's determination of the
compensation owed personal injury plaintiffs to redress their injuries.


        Review of the judgment of the Court of Appeals in 52 Kan. App. 2d 546, 370 P.3d 428 (2016).
Appeal from Sedgwick District Court; TIMOTHY H. HENDERSON, judge. Opinion filed June 14, 2019.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed and the case is remanded.


        Thomas M. Warner, Jr., of Warner Law Offices, P.A., of Wichita, argued the cause and was on
the briefs for appellant.


        Andrew D. Holder, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, argued the cause, and
Justice B. King, of the same firm, and Kelly A. Ricke, of the same firm, of Overland Park, were with him
on the briefs for appellee.



                                                     1
        Toby Crouse, solicitor general, argued the cause, and Jeffrey A. Chanay, chief deputy attorney
general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and
Derek Schmidt, attorney general, were on the brief for intervenor Kansas Attorney General Derek
Schmidt.


        Timothy J. Finnerty and Bryan R. Kelly, of Wallace, Saunders, Austin, Brown & Enochs,
Chartered, of Wichita, were on the brief for amicus curiae Kansas Association of Defense Counsel.


        James D. Oliver and Scott C. Nehrbass, of Foulston Siefkin LLP, of Overland Park, and Clayton
Kaiser, of the same firm, of Wichita, were on the brief for amicus curiae Kansas Chamber of Commerce
and Industry, Inc.


        David R. Morantz, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, and
James R. Howell, of Prochaska, Howell & Prochaska, of Wichita, were on the brief for amicus curiae
Kansas Trial Lawyers Association.


The decision of the court was delivered by


        BEIER, J.: This case requires us once again to examine the constitutionality of
K.S.A. 60-19a02, which caps jury awards for noneconomic damages in personal injury
actions. Plaintiff Diana K. Hilburn argues that the application of K.S.A. 60-19a02 to
reduce her jury award of $335,000 to a judgment of $283,490.86 violated her rights under
section 5 and section 18 of the Kansas Constitution Bill of Rights.


        In Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), a majority of this court
upheld the application of the noneconomic damages cap to a medical malpractice
plaintiff's jury award in the face of challenges under section 5 and section 18. The Miller
majority extended what it described as a "well-entrenched" section 18 quid pro quo
analysis to section 5 challenges. Under that test, the Legislature must provide an


                                                      2
"adequate and viable substitute when modifying a common-law jury trial right under
Section 5 or right to remedy under Section 18." 295 Kan. at 654.


       Today, in this auto-truck accident case, we change course on section 5, declining
to apply the quid pro quo test to analyze Hilburn's challenge. Section 5 declares, "The
right of trial by jury shall be inviolate." As discussed below in detail, the noneconomic
damages cap under K.S.A. 60-19a02 violates Hilburn's right protected by section 5
because it intrudes upon the jury's determination of the compensation owed her to redress
her injury. We therefore reverse the Court of Appeals decision affirming the district
court, reverse the district court's judgment, and remand this case to district court for entry
of judgment in Hilburn's favor on the jury's full award. This decision eliminates any
necessity of addressing Hilburn's section 18 claim.


                       FACTUAL AND PROCEDURAL BACKGROUND

       Hilburn was injured in November 2010 when the car in which she was riding was
rear-ended by a semi-truck. Hilburn sued the truck's owner, Enerpipe Ltd., alleging that
the truck driver's negligence caused the collision and that Enerpipe was vicariously liable
for its driver's actions.


       In its answer to Hilburn's Petition, Enerpipe admitted the driver's negligence and
conceded its vicarious liability.


       The case proceeded to a trial on damages, after which a jury awarded Hilburn
$335,000 in damages comprising $33,490.86 for medical expenses and $301,509.14 for
noneconomic losses.




                                              3
       Defense counsel prepared a journal entry of judgment against Enerpipe for
$283,490.86 because, "pursuant to K.S.A. 60-19a02(d), judgment must be entered in the
amount of $250,000 for all of Diana K. Hilburn's noneconomic loss." Hilburn objected on
the ground that K.S.A. 60-19a02 is unconstitutional. She alleged violations of sections 1,
5, and 18 of the Kansas Constitution Bill of Rights, as well as the jury trial and due
process guarantees of the United States Constitution.


       The district court judge acknowledged that Hilburn's case was distinguishable
from Miller, which was a medical malpractice case, but he ultimately decided the
constitutional issues in defendant's favor. The judge accepted Enerpipe's argument that
there was an adequate substitute remedy for Hilburn's loss of any section 5 or section 18
rights, just as mandatory medical malpractice insurance had constituted an adequate
substitute remedy in Miller. He relied on federal law mandating that a motor carrier
operating in interstate commerce must maintain a minimum level of liability insurance,
see 49 U.S.C. § 13906(a)(1) (2012); on Kansas law and regulation adopting the federal
minimum liability requirements, see K.S.A. 2010 Supp. 66-1,108b; K.A.R. 82-4-3n
(2014 Supp.); and on Kansas' no-fault auto insurance regime under the Kansas
Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. (KAIRA); see also K.S.A.
40-3107(e)-(f) (requiring all policies contain minimum levels of personal injury
protection benefits). The district judge entered a $283,490.86 judgment for Hilburn.


       Hilburn appealed to the Court of Appeals. In her brief, Hilburn asserted a facial
challenge to the damages cap under section 5, asserting that the quid pro quo test should
not be applied to analyze that claim. In addition, she argued that the cap violated section
18 because the Legislature had not provided a suitable or sufficient substitute remedy.
According to Hilburn, the two necessary prongs of the quid pro quo test were unmet:
The noneconomic damages limitation was not reasonably necessary in the public interest,


                                             4
"as applied" to her; and the Legislature failed to provide an adequate substitute remedy
for impairment of her constitutional rights.


       The Court of Appeals panel rejected Hilburn's arguments and affirmed. See
Hilburn v. Enerpipe, Ltd., 52 Kan. App. 2d 546, 560, 370 P.3d 428 (2016). Believing
itself bound by the precedent of Miller, the panel summarily declined Hilburn's invitation
to reexamine the threshold legal issue of whether the quid pro quo test should apply to
section 5. 52 Kan. App. 2d at 554.


       The panel then turned to the first prong of the quid pro quo test for both section 5
and section 18 and determined that it had been satisfied. Modification of the right to jury
trial under section 5 and the common-law right to remedy under section 18 was
"'reasonably necessary in the public interest to promote the public welfare,'" because "the
damages cap operates in a broader scheme of mandatory insurance and the State
maintains an interest in that insurance remaining available and affordable to compensate
accident victims." 52 Kan. App. 2d at 554, 556 (quoting Miller, 295 Kan. at 657).


       The panel also concluded that the "'more stringent'" second prong of the quid pro
quo test, that is, adequacy, had been satisfied because mandatory insurance for motor
carriers guaranteed "a reliable source of recovery" for victims in accidents involving
trucks. Hilburn, 52 Kan. App. 2d at 556, 558. The panel relied on federal and state
mandatory motor vehicle insurance laws and KAIRA.


       Hilburn petitioned this court for review, which was granted.


       The Kansas Attorney General intervened after initial oral argument in this case,
pursuant to K.S.A. 2018 Supp. 75-764. The Attorney General, like Enerpipe, argued that
the quid pro quo test had been satisfied for both section 5 and section 18. But, like
                                               5
Hilburn, he questioned the applicability of the test to section 5, arguing that "legislative
restrictions on remedies do not violate the right to trial by jury." The Attorney General
also asked this court to reconsider whether a statute alleged to violate section 18 must
satisfy the quid pro quo test.


                                         DISCUSSION

Preservation

       As a preliminary matter, we take up whether Hilburn preserved her challenge to
the applicability of the quid pro quo test for section 5 analysis.


       The version of Kansas Supreme Court Rule 8.03(a)(4)(C) in effect at the time
Hilburn filed her petition for review required that such a petition contain a "statement of
the issues decided by the Court of Appeals of which review is sought" and said that this
court would "not consider issues not presented or fairly included in the petition."
Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79). Hilburn's petition
focused exclusively on whether the Court of Appeals correctly held that the quid pro quo
test was satisfied; it did not separately list as an issue or subissue whether the quid pro
quo test applied in analyzing a section 5 claim. However, the same rule subsection that
purported to limit the number and identity of issues that could be decided on petition for
review also explicitly allowed us to "address a plain error not presented." Supreme Court
Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79). And, in civil cases such as this, a
different subsection of Supreme Court Rule 8.03 permitted but did not require us to
consider "other issues that were presented to the Court of Appeals and that the parties
have preserved for review." Supreme Court Rule 8.03(h)(1) (2015 Kan. Ct. R. Annot.
81).



                                              6
       Hilburn argued in the district court that her section 5 jury trial right was violated
by the noneconomic damages cap, preserving the necessary subissue on the proper legal
test to determine the existence of a violation. Her brief to the Court of Appeals
challenged whether the quid pro quo test should apply in analysis of her section 5 claim.
Indeed, the Court of Appeals panel decided the issue in Enerpipe's favor. See Hilburn, 52
Kan. App. 2d at 554. Once Hilburn's petition for review was granted, she argued in her
supplemental brief to this court that the "'inviolate' constitutional right to trial by jury
should not be impaired by the judicial creation of a quid pro quo substitute remedy" and
"urge[d] this court on review to strictly construe Section 5 to its simple, unambiguous
meaning and not engage in the judicial creation of exceptions to this 'inviolate' right." In
Enerpipe's supplemental brief, filed the same day, it argued we should continue to apply
the quid pro quo test in a section 5 analysis. It advanced this argument again in its
response to Hilburn's supplemental brief. As mentioned, the Attorney General, as
intervenor, also has dealt with the applicability of quid pro quo analysis in cases alleging
section 5 violations.


       Supreme Court Rule 8.03 has since been amended, effective July 1, 2018, in part
to address the inherent tension in the language that was in effect when Hilburn filed her
petition for review. See Supreme Court Rule 8.03 (2019 Kan. S. Ct. R. 53). We are
satisfied, however, that the issue of whether the quid pro quo test applies to analysis of
Hilburn's section 5 claim is properly before us under the old rule. It was preserved in the
district court, argued and decided in the Court of Appeals, and addressed by both parties
and the intervenor before us.


Standard of Review

       The core substantive issue before us is whether K.S.A. 60-19a02 is constitutional.
"Whether a statute is constitutional is a question of law." Board of Johnson County

                                               7
Comm'rs v. Jordan, 303 Kan. 844, 858, 370 P.3d 1170 (2016). We have often said that
"before a statute may be struck down, the constitutional violation must be clear. The
statute is presumed to be constitutional, and all doubts are resolved in favor of upholding
it. If a court can find any reasonable way to construe the statute as valid, it must." Board
of Johnson County Comm'rs, 303 Kan. at 858; see also State v. Laturner, 289 Kan. 727,
735, 218 P.3d 23 (2009) ("Whenever a court considers the constitutionality of a statute,
the separation of powers doctrine requires the court to presume the statute is
constitutional.").


       Recently, however, we pared back this presumption of constitutionality in cases
dealing with "fundamental interests" protected by the Kansas Constitution. See Hodes &
Nauser, MDs v. Schmidt, 309 Kan. 611, 673-74, 440 P.3d 461 (2019). In such cases, the
presumption of constitutionality does not apply.


       Section 5 of the Kansas Constitution Bill of Rights states that "[t]he right of trial
by jury shall be inviolate." We have previously acknowledged that "[t]his right is 'a basic
and fundamental feature of American jurisprudence.'" Miller, 295 Kan. at 647 (quoting
Gard v. Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 [1965]). "'It is a
substantial and valuable right and should never be lightly denied. The law favors trial by
jury, and the right should be carefully guarded against infringements.'" Miller, 295 Kan.
at 647 (quoting Gard, 194 Kan. at 549); see also Miller, 295 Kan. at 696 (Beier, J.,
concurring in part and dissenting in part) (right is more than right to impanel a jury, it is a
process that includes: right to assemble a jury, right to present evidence, right to have the
jury determine and award damages, and right to a judgment for the full damages as
determined by jury and supported by evidence).


       Hence, we have little difficulty deciding that the right protected by section 5 is a
"fundamental interest" expressly protected by the Kansas Constitution Bill of Rights. As
                                               8
such, we will not apply a presumption of constitutionality to challenges brought under
section 5.


The Challenged Statute

       K.S.A. 60-19a02(a) defines "'personal injury action'" as "any action seeking
damages for personal injury or death." Further,


               "(b) In any personal injury action, the total amount recoverable by each party
       from all defendants for all claims for noneconomic loss shall not exceed a sum total of
       $250,000.


               "(c) In every personal injury action, the verdict shall be itemized by the trier of
       fact to reflect the amount awarded for noneconomic loss.


               "(d) If a personal injury action is tried to a jury, the court shall not instruct the
       jury on the limitations of this section. If the verdict results in an award for noneconomic
       loss which exceeds the limit of this section, the court shall enter judgment for $250,000
       for all the party's claims for noneconomic loss. . . ." K.S.A. 60-19a02.


The amount of the cap has since been amended upward and is currently $325,000. It is set
to increase again, to $350,000, on July 1, 2022. But these changes are inapplicable to
Hilburn and thus not at issue here. See K.S.A. 2018 Supp. 60-19a02(d).


The Test for Section 5 Claims

       "Section 5 preserves the jury trial right as it historically existed at common law
when our state's constitution came into existence." Miller, 295 Kan. at 647 (citing State
ex rel. v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310 [1886]); see also Miller, 295 Kan.
at 696 (Beier, J., concurring in part and dissenting in part) ("This language preserves the

                                                      9
right to jury trial in those causes of action that were triable to a jury under the common
law extant in 1859, when the Kansas Constitution was ratified by the people of our
state."); In re L.M., 286 Kan. 460, 476, 186 P.3d 164 (2008) (Luckert, J., concurring)
("[T]he uncompromising language of [section 5] applies if an examination of history
reveals there was a right at common law to a jury trial under the same circumstances.").


       We have consistently held that the determination of noneconomic damages was a
fundamental part of a jury trial at common law and protected by section 5. See Miller,
295 Kan. at 647 (no dispute that determination of damages, including noneconomic
damages, was question of fact for jury in common-law tort actions); see also Smith v.
Printup, 254 Kan. 315, 324, 866 P.2d 985 (1993) ("There is no question in Kansas that
the right to trial by jury includes the right to have a jury determine actual damages.");
Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 358, 789 P.2d 541 (1990)
(Samsel II) (jury trial right includes right to have jury determine damages in personal
injury action), disapproved of on other grounds by Bair v. Peck, 248 Kan. 824, 811 P.2d
1176 (1991); Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 343, 757 P.2d
251 (1988) (jury's traditional role is to decide issues of fact, determination of damages is
issue of fact; thus jury's responsibility to determine damages), disapproved of on other
grounds by Bair, 248 Kan. 824. Accord Watts v. Lester E. Cox Medical Centers, 376
S.W.3d 633, 640 (Mo. 2012) (Missouri Constitution's "inviolate" right to jury includes
right to have jury determine facts, including noneconomic damages).


       The noneconomic damages cap in K.S.A. 60-19a02 clearly implicates section 5's
"inviolate" jury trial right, as that right has historically been understood. The next
question is whether it impairs that right by interfering with the jury's fundamental
function. See Markman v. Westview Instruments, Inc., 517 U.S. 370, 376, 116 S. Ct.
1384, 134 L. Ed. 2d 577 (1996) (after determining applicability, court considers
impairment; Seventh Amendment jury trial analysis asks whether "particular trial
                                              10
decision must fall to the jury . . . to preserve the substance of the common-law right as it
existed" at ratification); 9 Wright & Miller, Federal Practice & Procedure: Civil § 2302.4
(2008) (analysis of whether procedure violates Seventh Amendment "must look to
whether that procedure obstructs or interferes with the jury's substantive role as the fact-
finder").


       We hold the statute necessarily infringes on the constitutional right.


       "'The individual right to trial by jury cannot "remain inviolate" when an injured party is
       deprived of the jury's constitutionally assigned role of determining damages according to
       the particular facts of the case.' Watts, [376 S.W.3d at 640.] Giving the jury 'a practically
       meaningless opportunity to assess damages simply "pays lip service to the form of the
       jury but robs it of its function."' [376 S.W.3d at 642] (quoting Sofie v. Fibreboard Corp.,
       112 Wash. 2d 636, 655, 771 P.2d 711 [1989] [en banc]); see also Atlanta Oculoplastic
       Surgery, P.C. v. Nestlehutt, 286 Ga. 731, 735-36, 691 S.E.2d 218 (2010) (striking down
       damages cap for infringing state constitution's inviolate right to jury trial); Lakin v. Senco
       Products, Inc., 329 Or. 62, 78-79, 987 P.2d 463, 473 (1999) (same); Moore v. Mobile
       Infirmary Ass'n, 592 So. 2d 156, 164 (Ala. 1991) (same); Smith v. Department of Ins.,
       507 So. 2d 1080, 1089 (Fla. 1987) (same); Arneson v. Olson, 270 N.W.2d 125, 136 (N.D.
       1978) (same)." Miller, 295 Kan. at 698 (Beier, J., concurring in part and dissenting in
       part).


       Despite this infringement of section 5's jury trial right by K.S.A. 60-19a02, a
majority of this court held in Miller that any impairment was permissible as long as the
two-part due process-based quid pro quo test applicable in section 18 analysis was
satisfied. But the overlay of the quid pro quo test "transforms what the people made
inviolate into something violable at will." 295 Kan. at 698-99 (Beier, J., concurring in
part and dissenting in part). The court's previous decision to apply the quid pro quo test to
section 5 "overlook[ed] long-standing limitations on the legislature's power to modify the
common law; overestimate[d] the persuasive force of prior Kansas cases; and shortcut[]
                                                    11
the necessary cost-benefit evaluation" necessary when examining whether to keep or
jettison originally erroneous precedent. 295 Kan. at 699 (Beier, J., concurring in part and
dissenting in part).


       In Miller, the majority ignored


       "the plain 'inviolate' language chosen by Kansas citizens for Section 5's jury trial
       provision. Inviolate means not 'disturbed or limited.' In re Rolfs, 30 Kan. [758,] 762[, 1 P.
       523 (1883)]. It is defined as '"[n]ot violated; unimpaired; unbroken; unprofaned."' Samsel
       II, 246 Kan. at 368 (Herd, J., dissenting); see also Watts, [376 S.W.3d at 638] ('inviolate'
       means free from change or blemish, pure, unbroken) (citing Webster's Third New
       International Dictionary 1190 [1993]); Sofie[ v. Fibreboard Corp.], 112 Wash. 2d [636,]
       656, [771 P.2d 711 (1989) (en banc)] (citing same) ('inviolate' connotes deserving of
       highest protection, free from assault, trespass, untouched, intact). This inviolate right to
       jury trial is 'a basic and fundamental feature of American jurisprudence.' Gard v.
       Sherwood Construction Co., 194 Kan. 541, 549, 400 P.2d 995 (1965); see also Parklane
       Hosiery Co. v. Shore, 439 U.S. 322, 340-41, 343, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979)
       (Rehnquist, J., dissenting) (right so important that denial of 'right of jury trial was listed
       among the specific offensive English acts denounced in the Declaration of Independence';
       right a 'bulwark' of liberties, so essential that it '"was probably the only one universally
       secured by the first American state constitutions"') (quoting Levy, Legacy of
       Suppression: Freedom of Speech and Press in Early American History 281 [1960]).


               "The language of Section 5 is 'uncompromising.' In re L.M., 286 Kan. at 476
       (Luckert, J., concurring). Section 5 imposes a 'clear, precise and definite limitation[] upon
       the powers of the legislature.' Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660,
       665, 3 P. 284 (1884). It was chosen precisely because the people recognized that the right
       to jury trial required protection from legislative efforts to modify it in ways that destroy
       the substance of that right. See Wyandotte Const. Convention 462-63 (July 25, 1859)
       ('[T]hat very valuable right we propose to secure to the citizen in retaining the right of
       trial by jury, intact, will be accomplished by the words, "The right of trial by jury shall be
       inviolate."'); see also State ex rel. v. City of Topeka, 36 Kan. 76, 85-86, 12 P. 310 (1886)
                                                     12
       (by preserving the right as 'inviolate,' framers intended that the right of trial by jury 'shall
       be and remain as ample and complete as it was at the time when the [C]onstitution was
       adopted')." Miller, 295 Kan. at 699-700 (Beier, J., concurring in part and dissenting in
       part).


       As all members of this court acknowledged in Miller, it is within the power of the
Legislature to modify the common law. See 295 Kan. at 648; 295 Kan. at 705 (Beier, J.,
concurring in part and dissenting in part). But "what may have been a mere common-law
right to jury trial on the day before ratification of Section 5 was no longer a mere
common-law right from ratification onward." 295 Kan. at 705 (Beier, J., concurring in
part and dissenting in part).


       "Ratification expressed the people's choice to elevate the common-law right to jury trial
       to enumerated constitutional status. That status put it beyond everyday legislative
       meddling. The people entrusted juries with the task of deciding damages. The
       legislature's unwillingness to [entrust juries with deciding damages]. . . requires
       endorsement by the people before it can enjoy the force of law." 295 Kan. at 705-06
       (Beier, J., concurring in part and dissenting in part).


       As the United States Supreme Court emphasized long ago:


                "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. [Citation
       omitted.] 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, and has been



                                                      13
       clearly pointed out by Judge Cooley in 1 Const. Limitations, 8th Ed., 124." Dimick v.
       Schiedt, 293 U.S. 474, 487, 55 S. Ct. 296, 79 L. Ed. 603 (1935).


See also Watts, 376 S.W.3d at 643 (allowing Legislature to modify constitutional rights
makes protections "of only theoretical value . . . [s]uch rights would not be rights at all
but merely privileges that could be withdrawn"); Atlanta Oculoplastic Surgery, P.C. v.
Nestlehutt, 286 Ga. 731, 736, 691 S.E.2d 218 (2010) (general legislative authority to
modify common law does not permit abrogation of constitutional rights); Sofie v.
Fibreboard Corp., 112 Wash. 2d 636, 652-53, 771 P.2d 711 (1989).


               "Justice Herd made the same point in his dissent in Samsel II:


               "'Giving the legislature the authority to limit damages by changing the common
       law, or otherwise, violates § 5 of the Kansas Bill of Rights by taking the damage question
       away from the jury. A written constitution is adopted for the purpose of limiting the
       power of government. Providing that trial by jury shall be inviolate is a limitation on
       government as a protection of individual rights. There is no question the legislature has
       the power to change or abolish the common law. That, however, does not change the
       Kansas Constitution. A later change in the common law does not affect the meaning of §
       5. Its meaning was fixed in 1859. The proper method of constitutional change is by
       amendment, not legislation.' 246 Kan. at 369-70 (Herd, J., dissenting).


               "Even the case that is generally considered the source of recognition of
       legislative power to modify common law, Munn v. Illinois, 94 U.S. 113, 134, 24 L. Ed.
       77 (1876), is explicit about constitutional limitations on the power: 'Rights of property
       which have been created by the common law cannot be taken away without due process;
       but the law itself, as a rule of conduct, may be changed at the will, or even at the whim,
       of the legislature, unless prevented by constitutional limitations.' See also In re Tax
       Appeal of ANR Pipeline Co., 276 Kan. 702, 725, 79 P.3d 751 (2003) (Kansas
       Constitution limits otherwise plenary power of legislature); Harris v. Shanahan, 192 Kan.
       183, 207, 387 P.2d 771 (1963) ('It is axiomatic that [any] act of the legislature[] is subject
       to the limitations contained in the Constitution, and where such act exceeds the bounds of
                                                    14
       authority vested in the legislature and violates the limitations of the Constitution, it is null
       and void and it is the duty of courts to so declare.'); Lemons v. Noller, 144 Kan. 813, 817,
       63 P.2d 177 (1936) (citing State v. Weiss, 84 Kan. 165, 168, 113 P. 388 [1911]; Ratcliff v.
       Stock-yards Co., 74 Kan. 1, 16, 86 P. 150 [1906]) (legislature free to act except where
       Kansas Constitution restricts)." Miller, 295 Kan. at 706-07 (Beier, J., concurring in part
       and dissenting in part).


       In Miller, a majority of this court relied on stare decisis to ground its application of
the quid pro quo test to analysis of a section 5 jury trial challenge. In general, a "court of
last resort will follow the rule of law it established in its earlier cases unless clearly
convinced the rule was originally erroneous or is no longer sound because of changing
conditions and more good than harm will come by departing from precedent." Rhoten v.
Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010).


       But this rule "excuses us from following precedent that is 'plainly and
unmistakably' the result of mistake and error.' Prowant, Administratrix v. Kings-X, 184
Kan. 413, 416-17, 337 P.2d 1021 (Jackson, J., dissenting), rev'd on rehearing, 185 Kan.
602, 347 P.2d 254 (1959)." Miller, 295 Kan. at 707-08 (Beier, J., concurring in part and
dissenting in part); see also Arizona v. Gant, 556 U.S. 332, 348, 129 S. Ct. 1710, 173 L.
Ed. 2d 485 (2009) (Stare decisis does not require adherence to "a past decision when its
rationale no longer withstands 'careful analysis.'") (quoting Lawrence v. Texas, 539 U.S.
558, 577, 123 S. Ct. 2472, 156 L. Ed. 2d 508 [2003]); Bergstrom v. Spears
Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009) ("This court is not
inexorably bound by precedent; it will reject rules that were originally erroneous or are
no longer sound.").


       Moreover, "stare decisis is at its weakest in constitutional cases because our
mistakes cannot be easily corrected by ordinary legislation." Miller, 295 Kan. at 708
(Beier, J., concurring in part and dissenting in part) (citing State v. Hoeck, 284 Kan. 441,
                                                     15
463, 163 P.3d 252 [2007]); see also Agostini v. Felton, 521 U.S. 203, 235, 117 S. Ct.
1997, 138 L. Ed. 2d 391 (1997) (erroneous court interpretations in such cases "can be
altered only by constitutional amendment or by overruling our prior decisions"); Watts,
376 S.W.3d at 644 (if people disagree with court interpretation of constitution,
opportunity to change organic law more remote than opportunity to repeal, alter statute;
"'[m]oreover, no set of judges ought to have the right to tie the hands of their successors
on constitutional questions, any more than one [set of legislators] should those of its
successors on legislative matters'") (quoting Mountain Grove Bank v. Douglas County,
146 Mo. 42, 54, 47 S.W. 944 [Mo. 1898]). And strict application of stare decisis must be
tempered in constitutional cases because


       "[o]ur allegiance must be to the Constitution itself, 'not what we have said about it.'
       Graves v. N.Y. ex rel. O'Keefe, 306 U.S. 466, 491-92, 59 S. Ct. 595, 83 L. Ed. 927 (1939)
       (Frankfurter, J., concurring); see also Harris v. Anderson, 194 Kan. 302, 314, 400 P.2d
       25 (1965) (Fatzer, J., dissenting) (quoting 3 Warren, The Supreme Court in United States
       History, p. 470: '"However the court may interpret the provisions of the Constitution, it
       is still the Constitution which is the law and not the decision of the court. 'To the decision
       of an underlying question of constitutional law no . . . finality attaches. To endure, it
       must be right.'"')." Miller, 295 Kan. at 708-09 (Beier, J., concurring in part and dissenting
       in part).


       A careful examination of the majority opinion in Miller and the precedent it relied
on reveals that application of a quid pro quo test to section 5 claims rests on a shaky
foundation.


                   "The [Miller majority] relies on Kansas Malpractice Victims Coalition and
       Samsel II, both of which applied the quid pro quo test to excuse impairment of the right
       to jury trial. Samsel II, 246 Kan. at 358, 362; Kansas Malpractice Victims Coalition, 243
       Kan. at 344-52. Samsel II followed Kansas Malpractice Victims Coalition on this point,
       Samsel II, 246 Kan. at 351-62; and Kansas Malpractice Victims Coalition, in turn, relied

                                                     16
      on Manzanares[ v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974)], saying that Manzanares
      'found, in substance, that the injured person entitled to benefits under the statute received
      a sufficient quid pro quo for the limitation placed on his right to a jury trial.' Kansas
      Malpractice Victims Coalition, 243 Kan. at 344. In none of these three cases, however,
      did this court see fit to explain how or why the quid pro quo test, a due process-based rule
      originally relating to whether legislation impairs a vested right, can excuse legislation's
      impairment of a constitutional right to jury trial.


              "Moreover, it appears that the initial reliance Kansas Malpractice Victims
      Coalition placed on Manzanares in order to apply quid pro quo arose out of a misreading.
      Nowhere in Manzanares' one-paragraph discussion of the right to jury trial claim before
      it did this court 'require that the legislature provide an adequate substitute of the right to
      trial by jury[.]' Note, Testing the Constitutionality of Tort Reform with a Quid Pro Quo
      Analysis: Is Kansas' Judicial Approach an Adequate Substitute for a More Traditional
      Constitutional Requirement?, 31 Washburn L.J. 314, 332 (1992)." Miller, 295 Kan. at
      709 (Beier, J., concurring in part and dissenting in part).


      In addition, application of a quid pro quo test to section 5 claims cannot be
bolstered by reaching still farther back to Shade v. Cement Co., 93 Kan. 257, 144 P. 249
(1914).


              "Shade involved multiple constitutional challenges to the original workers
      compensation law. The claims were based on federal due process and equal protection,
      and on the Kansas Constitution Bill of Rights' Section 5 right to jury trial and Section 18
      right to remedy. Shade, 93 Kan. at 258-59. Shade's notable pithy rationale for rejecting
      these claims lumps the state constitutional theories together; and the only thing it makes
      clear is the determinative weight given to the elective nature of the original workers
      compensation system.


              "'The objection based upon the supposed deprivation of a right of trial by jury is
      equally untenable, as determined in many adjudicated cases. The same is true of the
      arbitration feature and the rules for determining compensation. Without reviewing

                                                    17
       seriatim all the specific objections made to this statute under the general charge that it
       violates constitutional safeguards, it is sufficient to say that they have all been met in
       judicial decisions in other jurisdictions after the most thorough and patient
       examination. . . . Briefly, it may be said that the operation of the system of compensation
       provided by the statute rests upon the free consent of employer and employee, given in
       the manner provided by the act. Without such consent on his part the employee retains all
       his remedies under common and statutory law. It is a matter of election.' 93 Kan. at 260
       (citing Matheson v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N.W. 71 [Minn. 1914]
       [election to be subject to system constitutes waiver of jury trial]; Deibeikis v. Link-Belt
       Co., 261 Ill. 454, 104 N.E. 211 [1914] [same])." Miller, 295 Kan. at 710 (Beier, J.,
       concurring in part and dissenting in part).


       It is inaccurate to say that Shade applied the quid pro quo test to reject the section
5 challenge, as we have previously recognized in multiple cases. See Baker v. St. Louis
Smelting & Refining Co., 145 Kan. 273, 280, 65 P.2d 284 (1937) (260 emphasizing
workers compensation system "'rests upon the free consent of employer and employee'";
thus "the liability of an employer to his employee under the act is a liability arising on
contract") (quoting Shade, 93 Kan. at 260); Potocan v. Hamilton Coal & Mercantile Co.,
120 Kan. 326, 329, 243 P. 537 (1926) (citing Shade, 93 Kan. 257, for proposition
Workers Compensation Act subject to no constitutional infirmity because not
compulsory); Smith v. Packing Co., 115 Kan. 874, 875, 225 P. 110 (1924) ("[Q]uestions
as to whether various features of a workman's compensation act were violative of the
fourteenth amendment have frequently been disposed of by reference to the fact that its
application was made optional.") (citing Shade, 93 Kan. at 260).


       Other courts and commentators discussing Shade have reached similar conclusions
about its underlying rationale. See Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d
425, 429, 580 P.2d 1366 (1978) (first case to consider Shade since workers compensation
system made mandatory, court cites Shade among cases upholding earlier system
"against constitutional challenges on the ground that it was optional with the employer
                                                     18
and employee"); see also Middleton v. Texas Power & Light Co., 249 U.S. 152, 160, 39
S. Ct. 227, 63 L. Ed. 527 (1919) (citing Shade for upholding act because voluntary);
Mosely v. Empire Gas & Fuel Co., 313 Mo. 225, 233-34, 281 S.W. 762 (1926) (same);
Harbis v. Cudahy Packing Co., 211 Mo. App. 188, 191, 241 S.W. 960 (1921) (observing
"Kansas courts have held that the relation between employer and employee" under
workers compensation law "is contractual") (citing Shade, 93 Kan. at 260); Phillips, The
Constitutional Right to a Remedy, 78 N.Y.U. L. Rev. 1309, 1330 n.92 (2003) ("Decisions
to uphold the statutes frequently were based on the fact that the employee or employer, or
both, had the ability to opt out of the scheme.") (citing Shade, 93 Kan. 257); Comment,
Workers' Compensation Benefits Go From Bad to Worse: The Kansas Supreme Court
Eliminates the Parallel Injury Rule, 48 Washburn L.J. 705, 710 n.42 (2009) (describing
Shade as upholding original workers compensation law on ground that employers,
employees consented to coverage). Rajala v. Doresky, 233 Kan. 440, 661 P.2d 1251
(1983), is even weaker support for the Miller majority's application of a quid pro quo test
for section 5 analysis. That case did not "explicitly" apply the test in considering a jury
trial challenge.


       "The only issue in Rajala was whether the workers compensation law's abrogation of
       fellow-employee liability violated the Section 18 right to remedy provision. Rajala, 233
       Kan. at 441-42. Likewise, the . . . citation of Injured Workers of Kansas v. Franklin, 262
       Kan. 840, 942 P.2d 591 (1997), and Scott v. Hughes, 294 Kan. 403, 275 P.3d 890 (2012),
       for their discussion of the exchanges of rights and remedies between employers and
       employees inherent in the Kansas workers compensation scheme cannot help [the Miller
       majority]. These cases did not have anything to do with a jury trial challenge to the
       scheme. Thus neither . . . stands for[] the proposition that the quid pro quo test can be
       applied to rescue a statute from its violation of Section 5." Miller, 295 Kan. at 711-12
       (Beier, J., concurring in part and dissenting in part).


       In short, none of the Kansas cases relied upon by the Miller majority as controlling
precedent for using the quid pro quo test on section 5 challenges withstands scrutiny.
                                                     19
       "Manzanares, Kansas Malpractice Victims Coalition, and Samsel II give no
       explanation . . . of why the due process-based concept should be imported from Section
       18. Furthermore, . . . efforts to press Shade and Rajala into service as substitutes for
       Manzanares, Kansas Malpractice Victims Coalition, and Samsel II are singularly
       unconvincing. Shade relied on an entirely different rationale to reject the jury trial and the
       other state constitutional challenge to the original workers compensation system before
       the court. Rajala did not involve any jury trial challenge at all. Under these
       circumstances . . . application of the quid pro quo test to Section 5 was originally
       erroneous and remains so." Miller, 295 Kan. at 712 (Beier, J., concurring in part and
       dissenting in part).


       The Miller majority also asserted that the cost-benefit analysis involved in
evaluating the wisdom of following precedent favored application of a quid pro quo test
to analysis of section 5 claims. In its view, "overruling our past application of the quid
pro quo test to excuse violation of the right to jury trial would require dismantling of the
workers compensation and no-fault automobile insurance systems. See Rajala, 233 Kan.
at 440 (workers compensation); Manzanares, 214 Kan. at 589 (no-fault)." Miller, 295
Kan. at 712-13 (Beier, J., concurring in part and dissenting in part). But the dismantling
of those two systems was far from assured for several reasons.


               "First, as discussed above, Rajala was a Section 18 decision that did not address
       the right to jury trial in any way. See Rajala, 233 Kan. at 441. Nothing about refusal to
       apply the quid pro quo test to save a statute impairing the right to jury trial has any
       bearing on Rajala's Section 18 holding.


               "Second, the comprehensive workers compensation system at issue in Rajala is
       totally distinct from the noneconomic damages cap applied to reduce [a plaintiff's
       damages under K.S.A. 60-19a02]. [C]ommon-law [personal-injury] cause[s] of action [as
       they] existed in 1859 [were] not wholly replaced with a comprehensive statutory scheme
       of compensation not employing jury trials at all. Far from it. . . . [P]ersonal injury

                                                     20
       plaintiffs in Kansas are still required to file civil lawsuits; conduct necessary discovery;
       obtain required expert testimony; and prove negligence, causation, and damages to a jury
       by a preponderance of the evidence. The only thing changed by K.S.A. 60-19a02 is
       whether the district court judge can give effect to the jury's discharge of its constitutional
       assignment. In the workers compensation arena, although recoveries are fixed, they are
       directly proportional to the nature and extent of each claimant's injury and income. In
       addition, distinct Section 18 jurisprudence permitted wholesale abolition and replacement
       of a common-law cause of action because both sides received clear and comparable
       benefits from the legislative transaction. The new administrative system of no-fault
       compensation for injured workers left no common-law cause of action upon which
       Section 5's jury trial right could act. See Watts, [376 S.W.3d at 638] (constitutional right
       to jury trial contingent upon existence of civil action for damages). The cap [under
       K.S.A. 60-19a02] did nothing of the sort, and its rejection on Section 5 grounds would
       not cause the collapse of the workers compensation system, much less make it inevitable
       or imminent.


               "Much of the same can be said of the no-fault automobile insurance system. It is
       markedly distinct from the damages cap at issue here. In order to receive prompt personal
       injury protection payments after a car accident, an injured person no longer needs to file a
       lawsuit to prove another's fault and the causal relationship between that fault and
       damages. Rather, the personal injury protection claimant simply submits a claim to the
       insurance company. The third-party common-law cause of action for those suffering
       relatively minor injury was replaced with a first-party insurance contract claim. As with
       workers compensation, the no-fault automobile insurance system means that every
       claimant's opportunity to recover is directly proportional to the seriousness of his or her
       case." Miller, 295 Kan. at 713-14 (Beier, J., concurring in part and dissenting in part).


       In addition to overstating the potential cost of abandoning the quid pro quo test in
section 5 cases, the Miller majority also overestimated the benefits of saving K.S.A. 60-
19a02. It asserted that applying the quid pro quo test "foster[ed] certainty." 295 Kan. at
714 (Beier, J., concurring in part and dissenting in part). But continuing to apply quid pro
quo to section 5 does exactly the opposite.
                                                     21
               "Uncertainty is created when error is compounded by blind adherence to
       precedent that is analytically unsound. Certainty, predictability, stability, and respect for
       the rule of law are enhanced when this court does what it has otherwise insisted upon
       doing in every other case calling a legislative act into constitutional question. This is
       what every Kansan expects of us, and properly so. 'We do more damage to the rule of law
       by obstinately refusing to admit errors, thereby perpetuating injustice, than by
       overturning an erroneous decision.' Johnson Controls, Inc. v. Employers Ins. of Wausau,
       264 Wis. 2d 60, 121, 665 N.W.2d 257 (2003). That is why '[i]t is more important that the
       court should be right upon later and more elaborate consideration of the cases than
       consistent with previous declarations.' Barden v. Northern Pacific Railroad, 154 U.S.
       288, 322, 14 S. Ct. 1030, 38 L. Ed. 992 (1894); see also Watts, [376 S.W.3d at 645]
       ('[d]eviations from clear constitutional commands—although longstanding—do not
       promote respect for the rule of law') (quoting Independence-Nat. v. Independence School,
       223 S.W.3d 131, 137 [Mo. 2007])." Miller, 295 Kan. at 714 (Beier, J., concurring in part
       and dissenting in part).


       Kansas' section 5 right to jury trial is distinct in every conceivable dimension from
the section 18 due process-based right to remedy. They share no language; they share no
drafting rationale. Indeed, the rights' placement in separate sections of the Bill of Rights
makes it obvious that they articulate different concepts aimed to achieve different
purposes, and thus merit unique analyses.

       Finally, looking beyond our state borders, we note that, at the time Miller was
decided, 19 states had addressed whether damages caps violated their state's
constitutional jury protections, and not one had employed the quid pro quo test in its
analysis. See 295 Kan. at 701-02 (Beier, J., concurring in part and dissenting in part)
(collecting cases). Since the Miller decision, the Oregon Supreme Court has reversed its
position in 1999's Lakin v. Senco Products, Inc., 239 Or. 62, 987 P.2d 463 (1999),
upholding rather than striking down a damages cap under the Oregon Constitution's jury
trial provision. See Horton v. Oregon Health and Science Univ., 359 Or. 168, 376 P.3d
                                                    22
998 (2016). It did not, however, rely on a quid pro quo test to reach the new outcome. On
this point of law, Kansas has stood strangely alone.


       For all of the reasons outlined above, we abandon the quid pro quo test for
analyzing whether the noneconomic damages cap is unconstitutional under section 5 of
the Kansas Constitution Bill of Rights.


Fact-Law or Fact-Policy Distinction

       Because the Miller majority concluded that K.S.A. 60-19a02 satisfied the quid pro
quo test, it did not need to engage in an exhaustive discussion of the more basic question
of whether the damages cap infringes on section 5's right to trial by jury. It merely
conceded quickly that the cap "encroaches" upon the jury trial right and moved to the
quid pro quo analysis to excuse what would otherwise have been a fatal constitutional
violation. As discussed in the concurring and dissenting opinion in Miller, the
"encroachment" conclusion is logically and legally indistinguishable from a conclusion
that the cap impairs the jury trial right of section 5 and is thus unconstitutional, and it
should have ended the matter. See 295 Kan. at 698 (Beier, J., concurring in part and
dissenting in part). It still should and does. We pause, however, to acknowledge and
reject one further argument advanced by the Attorney General.


       The Attorney General urges us to uphold the damages cap because of what he and
other states have characterized as a fact-law or fact-policy distinction. For example, in
Virginia, the Supreme Court has said,


               "The resolution of disputed facts continues to be a jury's sole function. 'The
       province of the jury is to settle questions of fact, and when the facts are ascertained the
       law determines the rights of the parties.' Thus, the Virginia Constitution guarantees only
       that a jury will resolve disputed facts.

                                                    23
                "Without question, the jury's fact-finding function extends to the assessment of
       damages. Once the jury has ascertained the facts and assessed the damages, however, the
       constitutional mandate is satisfied. Thereafter, it is the duty of the court to apply the law
       to the facts.


                "The [damages cap] does nothing more than establish the outer limits of a
       remedy provided by the General Assembly. A remedy is a matter of law, not a matter of
       fact. A trial court applies the remedy's limitation only after the jury has fulfilled its fact-
       finding function. Thus, [the damages cap] does not infringe upon the right to a jury trial
       because the section does not apply until after a jury has completed its assigned function
       in the judicial process.


                ". . . [A]lthough a party has the right to have a jury assess his damages, he has no
       right to have a jury dictate through an award the legal consequences of its assessment.
       [Citations omitted.]" Etheridge v. Medical Center Hospitals, 237 Va. 87, 96, 376 S.E.2d
       525 (1989).


       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 challenges.
See Evans ex rel. Kutch v. State, 56 P.3d 1046, 1050-51 (Alaska 2002) (decision to place
cap on damages policy choice, not reexamination of factual question of damages
determined by jury); Kirkland v. Blaine County Medical Center, 134 Idaho 464, 469, 4
P.3d 1115 (2000) (jury still allowed to act as fact-finder in personal injury cases; cap
statute simply limits legal consequences of jury finding); Johnson v. St. Vincent Hospital,
Inc., 273 Ind. 374, 401, 404 N.E.2d 585 (1980) (to extent of cap, right to have jury assess
damages still available), overruled on other grounds by In re Stephens, 867 N.E.2d 148
(Ind. 2007), and abrogated on other grounds by Collins v. Day, 644 N.E.2d 72 (Ind.
1994); Peters v. Saft, 597 A.2d 50, 53-54 (Me. 1991) (party does not have right to jury
determination of any question desired; right to jury determination only of questions of

                                                      24
fact that substantive law makes material); Murphy v. Edmonds, 325 Md. 342, 373, 601
A.2d 102 (1992) (Legislature did not attempt to transfer traditional fact-finding function
of jury to judge; instead it abrogated any cause of action for noneconomic damages in
excess of damages cap); English v. New England Medical Center, 405 Mass. 423, 426,
541 N.E.2d 329 (1989) (jury trial guarantee does not grant party right to put to jury any
question he or she wishes, right "means that, with respect to those questions of fact that
the substantive law makes material, the party has the right to have the determination
made by a jury"); Gourley v. Nebraska Methodist Health Sys., Inc., 265 Neb. 918, 953-
54, 663 N.W.2d 43 (2003) (jury's primary function of fact-finding includes damages;
court's primary function to apply law to facts; damages cap implicates remedy,
availability of remedy raises question of law); Tam v. Eighth Jud. Dist. Ct., 358 P.3d 234,
238 (Nev. 2015) (not role of jury to determine legal consequences of its findings); Arbino
v. Johnson & Johnson, 116 Ohio St. 3d 468, 476, 880 N.E.2d 420 (2007) (court simply
applies limits as matter of law to facts found by jury); Judd v. Drezga, 103 P.3d 135, 144
(Utah 2004) (jury's duty to determine damages; court's duty to conform jury's finding to
applicable law); see also Matter of Certif. of Questions of Law, 544 N.W.2d 183, 203
(S.D. 1996) (jury renders decision on damages, cannot mandate compensation as matter
of law; unconstitutional on other ground). Although it did not expressly couch its
decision in terms of a fact-law or fact-policy distinction, the Oregon Supreme Court
implicitly followed a similar route in 2016's Horton. 359 Or. at 250. It held that the
Oregon Constitution "guarantees litigants a procedural right to have a jury rather than a
judge decide those common-law claims and defenses that customarily were tried to a
jury" but does not "impose[] a substantive limit on the legislature's authority to define the
elements of a claim or the extent of damages available for a claim." 359 Or. at 250.


       The lone exceptional rationale among decisions that have upheld a damages cap
challenged under a state constitutional jury trial provision challenge appears to be that in
Robinson v. Charleston Area Med. Center, 186 W. Va. 720, 731, 414 S.E.2d 877 (1991).
                                             25
In Robinson, the West Virginia Supreme Court of Appeals focused on a "reexamination"
clause incorporated in the statement of the constitutional jury trial right. See W. Va.
Const. art. 3, § 13 ("No fact tried by a jury shall be otherwise reexamined in any case
than according to the rule of court or law."). Because that clause did not mention the
Legislature, the legislatively mandated damages cap did not infringe on the jury trial
right. 186 W. Va. at 731.


       The decisions from 14 of our sister states that have upheld damages caps under
attack for violating constitutional jury trial protections do not persuade us.


       First, only 8 of the 14 interpreted and applied constitutional provisions including
language similar to that of our section 5's "inviolate." See Kirkland, 134 Idaho at 466
(Idaho); Johnson, 273 Ind. at 383 (Indiana); Gourley, 265 Neb. at 953 (Nebraska);
Murphy, 325 Md. at 351 n.3 (Maryland; "inviolably preserved"); Tam, 358 P.3d at 238
(Nevada); Arbino, 116 Ohio St. 3d at 474 (Ohio); Horton, 359 Or. at 226 (Oregon);
Matter of Certif. of Questions, 544 N.W.2d at 186 (South Dakota). These eight decisions
compose a small majority when compared to those of the highest courts of five states that
have struck down damages caps as unconstitutional under constitutional provisions that
make the jury trial right "inviolate." See Moore v. Mobile Infirmary Ass'n, 592 So. 2d
156, 159 (Ala. 1991) (Alabama); Smith, 507 So. 2d at 1089-90 (Florida; reading access
right in conjunction with jury trial right); Atlanta Oculoplastic Surgery, P.C., 286 Ga. at
733 (Georgia); Watts, 376 S.W.3d at 637 (Missouri); Sofie, 112 Wash. 2d at 638
(Washington).


       Second, we 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. See Moore, 592 So. 2d at 164
                                              26
("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."). Although, as a purely technical, theoretical matter, we agree that the
mere application of an existing damages cap to reduce a jury's award is a matter of law,
this statement begs the question at the heart of this case: To whom have the people of
Kansas assigned the determination of the amount of the award? Unless an injured party
has decided to waive his or her right under section 5, the answer is "the jury."


       The Washington Supreme Court has addressed the jury's unique role in
determining "ultimate facts," such as damages, and the particular importance of its role in
determining noneconomic damages.


       "'To the jury is consigned under the constitution the ultimate power to weigh the evidence
       and determine the facts—and the amount of damages in a particular case is an ultimate
       fact.' See also Dacres v. Oregon Ry. & Nav. Co., 1 Wash. 525, 20 P. 601 (1889) (Act of
       1883, creating a scheme for determining the value of train-killed animals by appraisers,
       was unconstitutional because it denied the right to a jury trial); Worthington v. Caldwell,
       65 Wash. 2d 269, 273, 396 P.2d 797 (1964) ('Questions of damages should be decided by
       the jury'). [Citations omitted.]


               "The jury's role in determining noneconomic damages is perhaps even more
       essential. In Bingaman v. Grays Harbor Comm'ty Hosp., 103 Wash. 2d 831, 835, 699
       P.2d 1230 (1985), the husband of a woman who died painfully 35 hours after giving
       birth, the result of medical malpractice, brought a wrongful death and survival action.
       The only issue before this court was whether the trial judge had properly reduced the
       jury's damage verdict of $412,000 for the woman's pain and suffering. In resolving the
       issue in the plaintiff's favor, we stated: 'The determination of the amount of damages,
       particularly in actions of this nature, is primarily and peculiarly within the province of
       the jury, under proper instructions . . .' (Italics ours.) 103 Wash. 2d at 835. See also Lyster
       v. Metzger, 68 Wash. 2d 216, 224-25, 412 P.2d 340 (1966) (issue of damages, here
       primarily noneconomic, is within the jury's province); Power v. Union Pac. R.R., 655
                                                     27
       F.2d 1380, 1388 (9th Cir. 1981) (under Washington law, damages for loss of
       companionship determined by trier of fact).


               "United States Supreme Court jurisprudence on the Seventh Amendment's scope
       in civil trials, while not binding on the states, also provides some insight. In Dimick v.
       Schiedt, 293 U.S. 474, 55 S. Ct. 296, 79 L. Ed. 603 (1935), the Court used historical
       analysis to determine whether the Seventh Amendment allowed additur. Citing cases and
       treatises dating from the time of the amendment's adoption, 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. The Court quoted the English case of Beardmore v. Carrington, 2
       Wils. 244, 248:


               "'There is great difference between cases of damages which [may] be certainly
       seen, and such as are ideal, as between assumpsit, trespass for goods where the sum and
       value may be measured, and actions of imprisonment, malicious prosecution, slander and
       other personal torts, where the damages are matter of opinion, speculation, ideal . . .'


       293 U.S. at 479, 55 S. Ct. at 298. The Court clarified the implications of the difference
       between these two classes of actions by quoting from Mayne's Treatise on Damages, at
       571: '"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."' 293
       U.S. at 480, 55 S. Ct. at 298." Sofie, 112 Wash. 2d at 646-47.


       Finally, we recognize that the people's assignment of the jury's role in assessing
damages furthers the purpose of awards to make the particular injured party whole. See
22 Am. Jur. 2d, Damages § 28 ("The point of an award of damages, whether it is for
breach of contract or for a tort, is, so far as possible, to put the victim where he or she
would have been had the breach or tort not taken place."). Blackstone recognized this
principle in his commentaries. "Now, as all wrongs may be considered as merely a
privation of right, the one natural remedy for every species of wrong is the being put in
                                                     28
possession of that right whereof the party injured." 3 Blackstone, Commentaries on the
Laws of England, at *116 (1765). Ideally, this would be "effected by a specific delivery
or restoration of the subject-matter in dispute to the legal owner." 3 Blackstone, at *116.
But where this was not a possible or adequate remedy, the injured party should receive
"pecuniary satisfaction in damages . . . to which damages the party injured has acquired
an incomplete or inchoate right, the instant he receives the injury, though such right be
not fully ascertained till they are assessed by the intervention of the law." 3 Blackstone, at
*116. The jury's traditional role in determining the amount of a pecuniary award
necessary to make a party whole includes an assessment of noneconomic damages. See
Atlanta Oculoplastic Surgery, P.C., 286 Ga. at 735 (noneconomic damages long
recognized as element of total damages in tort, citing Blackstone).


       Regardless of whether an existing damages cap is technically or theoretically
applied as a matter of law, the 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. Thus we hold that the cap on damages imposed
by K.S.A. 60-19a02 is facially unconstitutional because it violates section 5 of the Kansas
Constitution Bill of Rights.


                                         CONCLUSION

       For the reasons outlined above, we reverse the decision of the Court of Appeals
affirming the district court and reverse the district court's judgment. We remand this case
to the district court for further proceedings in keeping with this decision.


       NUSS, C.J., not participating.



                                              29
                                            ***


       STEGALL, J., concurring in part and concurring in judgment: I agree with and join
the majority of the court that today reverses the so-called "quid pro quo" test as applied in
the context of a section 5 challenge under the Kansas Constitution Bill of Rights. I agree
that if an act of the Legislature invades the historic province of the jury to decide a
contested matter then the plain, original public meaning of section 5 is violated. I join the
portion of the majority opinion describing and applying the plain and original public
meaning of section 5.


       I disagree, however, with the way a plurality of the court appears to assume that
K.S.A. 60-19a02 must implicate section 5 in the first place. To me, this is far from clear.
Whether the statute implicates section 5 is a threshold question and the answer may
depend on the standard of review we apply. For this reason, I first consider and discuss
the history of our "clear error" standard of review and our recent partial departure from
that rule. Finally, I conclude that though it is a close call, K.S.A. 60-19a02 does in fact
invade the historic province of the jury to decide a contested matter. As such, I concur in
the judgment we reach that K.S.A. 60-19a02 violates section 5.


Background


       To clarify how I differ from the three-justice lead opinion in today's decision,
some background explanation will be helpful. For ease of reference, I will refer to the
lead opinion as simply the "majority," although it is a true majority only for those
portions I have joined, and otherwise represents only a plurality of justices on this court.
The importance of this distinction will become apparent.




                                              30
       As the majority explains, there is a clear difference between section 5 and section
18 in the Kansas Constitution Bill of Rights. Slip op. at 8. The section 5 "right of trial by
jury" that "shall be inviolate" is a procedural right to who decides contested questions in
Kansas courts. It does not guarantee or prescribe the substantive matter of which
questions Kansas courts can decide. A different provision of the Kansas Constitution—
section 18—governs the latter. So the procedural right to have a jury (rather than, say,
the Legislature) decide the kinds of contested questions juries historically decided is
sacrosanct under the Kansas Constitution. But the substantive decision about what kinds
of questions—in legalese, what causes of action—Kansas courts have the power to
resolve is untouched by the section 5 guarantee. Put another way, just because a jury
would have resolved a particular substantive question under Kansas common law in 1859
does not mean that a party has a constitutional right to a jury resolution of that question
today. This is because the scope of contested questions that Kansas courts may answer
can and does change—and this does not violate section 5.


       Historically, which questions—which causes of action—Kansas courts have the
power to resolve has been a matter of common law decision-making by Kansas courts.
But it is a universally accepted principle that the Legislature has the power to abrogate or
modify the common law. See, e.g., Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d
1291 (1974) ("[T]he Legislature has the power to modify the common law."). That is, the
Legislature has the power to substantively change or even eliminate common law causes
of action; or to create new statutory causes of action. See Shirley v. Glass, 297 Kan. 888,
893, 308 P.3d 1 (2013) ("Legislatures may create private causes of action that the
common law did not recognize."); see also Stanley v. Sullivan, 300 Kan. 1015, 1018, 336
P.3d 870 (2014) ("As a general rule, statutory law supersedes common law."). With
respect to civil remedies, the constitutional restraint on this legislative discretion is found
in section 18 of the Kansas Constitution Bill of Rights. Put simply, so long as it does not
run afoul of the Constitution, the Legislature has the power to describe and define which
                                              31
questions Kansas courts can resolve. And when those questions are of the kind
historically given to juries to decide, section 5 only requires that those questions remain
with Kansas juries.


       Given this, the threshold question we should ask of K.S.A. 60-19a02 or any statute
challenged under sections 5 and 18 is whether it is a procedural measure affecting who
decides or a substantive measure affecting what is being decided. If it is the former,
section 5 and its inviolate guarantee applies. If it is the latter, section 18—with its wider
guard rails—applies.


Is K.S.A. 60-19a02 procedural or substantive?


       The Attorney General gets at this key threshold determination—albeit obliquely—
when he argues the so-called "fact-law" distinction. He urges us to adopt the rationale of
the Virginia Supreme Court, which the majority also quotes:


               "The [damages cap] does nothing more than establish the outer limits of a
       remedy provided by the General Assembly. A remedy is a matter of law, not a matter of
       fact. A trial court applies the remedy's limitation only after the jury has fulfilled its fact-
       finding function. Thus, [the damages cap] does not infringe upon the right to a jury trial
       because the section does not apply until after a jury has completed its assigned function
       in the judicial process." Etheridge v. Medical Center Hospitals, 237 Va. 87, 96, 376
       S.E.2d 525 (1989); slip op. at 24.


And indeed, some of our predecessors on this court have followed a similar analytical
path. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 363, 789 P.2d 541
(1990) (McFarland, J., concurring).




                                                      32
       In my view, the majority does not give enough careful attention to the argument
that K.S.A. 60-19a02 does not implicate section 5 at all because it is a remedy provision
that simply modifies an available cause of action—and should therefore be analyzed
under section 18 instead of section 5. I am concerned the majority repeats the error
(identified by then Justice McFarland in Samsel) of "lumping together the right to trial by
jury on the question of liability and the remedy to be afforded if liability is established,
and then freezing the lump in a common-law time warp." 246 Kan. at 363 (McFarland, J.,
concurring). I agree with Justice McFarland that there is "no legal basis for including the
scope of the remedy in the right to a jury trial. . . . [T]he scope of the remedy to be
afforded is a matter of legislative determination . . . ." 246 Kan. at 363 (McFarland, J.,
concurring).


       In fact, the damage cap has some markings of both a procedural (who decides) and
a substantive (what gets decided) measure. It cannot be both, and the constitutionality of
the cap will likely turn on which category we assign it to. On the one hand, the effect of
the cap is to substantively limit all causes of action for noneconomic damages. On the
other hand, the cap is not written in the language of a modification of a personal injury
cause of action. In fact, the cap does not take any question away from the jury or
substantively alter its role at all. The very fact that the jury is permitted to "find" a
phantom damage amount beyond the cap which is then "replaced" by the legislative
judgment suggests the Legislature is actually substituting its decision for that of the jury.


       Finally, K.S.A. 60-19a02(d)'s requirement that "the court shall not instruct the jury
on the limitations of this section" is a clear indication to me that the Legislature sought to
substitute its judgment for the judgment of the jury. Why else would the Legislature play
hide-the-ball with something so consequential? Juries are told the substantive elements of
the causes of action being tried in front of them. The legislative refusal to let the jury
know about the damage cap tips the balance of consideration in my mind from a
                                               33
substantive modification of the cause of action to a procedural interference with the
inviolate right to a jury protected by section 5. The Legislature that passed K.S.A. 60-
19a02 wanted to achieve a substantive outcome without modifying the substantive cause
of action. So, it decided to substitute its decision for that of the jury's. It changed who
decides, not what is being decided.


       There may be many reasons the Legislature took the procedural rather than the
substantive route to achieve its policy goals. Perhaps the Legislature worried that
straightforwardly modifying the substantive cause of action would incentivize juries to
shift damage awards to other causes of action or categories of damages. Perhaps the
political will did not exist to do directly what some believed could be accomplished
procedurally.


       So which category does K.S.A. 60-19a02 belong to? Answering this question, in
turn, leads me to first consider our standard of judicial review.


De Novo or Clear Error Review?


       The majority acknowledges the boilerplate standard of review we use to consider
the constitutionality of a statute: "[B]efore a statute may be struck down, the
constitutional violation must be clear. The statute is presumed to be constitutional, and all
doubts are resolved in favor of upholding it. If a court can find any reasonable way to
construe the statute as valid, it must." Board of Johnson County Comm'rs v. Jordan, 303
Kan. 844, 858, 370 P.3d 1170 (2016).


       But, citing our recent decision in Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610,
680, 440 P.3d 461 (2019), the majority declines to apply this "clear error" rule of judicial
review in today's case. Slip op. at 8. In Hodes, a majority of this court rolled back the
                                              34
presumption of constitutionality in cases involving "fundamental interests" under the
Kansas Constitution. 309 Kan. at 673.


       In this case, whether we review the constitutionality of K.S.A. 60-19a02 de novo,
or with a presumption of constitutionality that can only be overcome if we have no
reasonable doubt about the alleged constitutional violation, matters to the outcome. If I
were to apply the presumption and its highly deferential standard of review, I would be
forced to conclude that K.S.A. 60-19a02 is a substantive measure modifying an available
cause of action in Kansas. Then I would consider whether this substantive modification
of an available cause of action violated section 18. This outcome is mandated under our
"clear error" standard of review because when "all doubts are resolved in favor of
upholding" the statute the "constitutional violation" is not "clear." Board of Johnson
County Comm'rs, 303 Kan. at 858.


       I have been—and remain—critical of judicial exercises in dividing up
constitutional rights and provisions into preferred (fundamental) and less preferred (or
even ignored) categories. See Hodes, 309 Kan. at 774 (Stegall, J., dissenting) ("[I]t is the
courts' job to patrol boundaries, not to decide . . . 'fundamental' or 'substantive' values."). I
am even less enamored with the judicial practice of treating these categories differently
as a matter of judicial review. See 309 Kan. at 720 (Stegall, J., dissenting) (critiquing the
adoption of "judicially favored rights and a byzantine system of tiered scrutiny"). So I
cannot agree with the proposition that we ought to exercise different standards of review
depending on which part of the Constitution we are interpreting or enforcing. Even so, I
am content, at present, to abandon our clear error standard of review in favor of de novo
review in this case, as set forth by the majority. See slip op. at 8. The reason is two-fold.
First, over my dissent in Hodes, de novo review in a case involving so-called
"fundamental" rights is now controlling precedent in Kansas. Second, and more
importantly, as discussed below, I suspect the infirmity in the precedent does not lie in
                                               35
going too far, but in not going far enough. Perhaps courts should exercise de novo review
over Kansas statutes when any portion of our Constitution is implicated, not only when
judicially favored rights are involved.


       Thus, applying a de novo standard of review, I conclude the Legislature that
passed K.S.A. 60-19a02 did not alter the cause of action for noneconomic damages but
instead substituted its judgment for the jury's. As set forth in the majority opinion, this
violates section 5 of the Kansas Constitution Bill of Rights.


Reconsidering the Clear Error Rule


       I take this opportunity to question whether the clear error rule should be retained
for any species of constitutional review in Kansas. Is it proper for this court to let statutes
stand that probably—or even almost certainly—violate any part of the Kansas
Constitution just because the violation is not clear or without any doubt? It is an
important question that cuts to the heart of the judicial power itself. The parties, however,
have not raised or argued the issue. Because resolving it in this case is unnecessary under
the current precedent of this court, I will only embark on a skeletal discussion of the
question which, by necessity, must arise in earnest sometime soon.


       What I have been calling our "clear error" standard of review is often referred to as
Thayerism in academic literature—named for Professor James B. Thayer after his 1893
article "The Origin and Scope of the American Doctrine of Constitutional Law" appeared
in the Harvard Law Review. 7 Harv. L. Rev. 129 (1893); see Grey, Thayer's Doctrine:
Notes on Its Origin, Scope, and Present Implications, 88 Nw. U. L. Rev. 28 (1993). After
surveying the law of judicial review, Thayer concluded that courts "can only disregard
the [statute] when those who have the right to make laws have not merely made a


                                              36
mistake, but have made a very clear one,—so clear that it is not open to rational
question." 7 Harv. L. Rev. at 144.


       Thayer's doctrinal formulation of what was otherwise an inchoate body of law
received an early endorsement from the influential Supreme Court Justice Oliver Wendell
Holmes. See Mendelson, The Influence of James B. Thayer upon the Work of Holmes,
Brandeis, and Frankfurter, 31 Vand. L. Rev. 71, 73 (1978). Justice Holmes—often
described as the father of modern era judicial restraint—once remarked that a judgment
concerning constitutionality often "turns on the feeling of the community" and "we accept
the judgment unless it makes us puke." Letter from Justice Holmes to Harold Laski
(October 23, 1926), in Holmes-Laski Letters: The Correspondence of Mr. Justice
Holmes and Harold J. Laski 1916-1935, pp. 887, 888 (Howe ed., 1953). Thus, Thayerism
can be described as a kind of judicial puke test—is the law in question so unconstitutional
that judges simply can't stomach it?


       In Kansas, there is evidence that we at least acknowledged some form of
Thayerism from our earliest days as a state. See State ex rel. Crawford v. Robinson and
others, 1 Kan. 17, 27, 1862 WL 397 (1862) ("It has been repeatedly held, by the Supreme
Court of nearly all the States of the Union, that no statute should be declared
unconstitutional, unless its infringement of the superior law is clear, beyond substantial
doubt."). There were also times we questioned the doctrine's relevance to our decision
making. For example, in Comm'rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 157, 34 P.
416 (1893), we noted that "[w]e appreciate the well-settled doctrine of this court, as, also,
of the supreme courts of nearly all the states, that no statute should be declared
unconstitutional unless the infringement of the superior law is clear, beyond substantial
doubt." But even so, we declared that it would be "'dangerous . . . to announce, that any
of the provisions of the constitution may be obeyed or disregarded at the mere will or


                                             37
pleasure of the legislature, unless it is clear beyond all question that such was the
intention of the framers of the instrument.'" 52 Kan. at 157-58.


       For most of our history, however, we have routinely recited some version of
Thayerism as a constraining principle when reviewing the constitutionality of statutes.
See Board of Johnson County Comm'rs, 303 Kan. at 858 ("[B]efore a statute may be
struck down, the constitutional violation must be clear. The statute is presumed to be
constitutional, and all doubts are resolved in favor of upholding it."); State v. Cook, 286
Kan. 766, 768, 187 P.3d 1283 (2008) ("We will not declare a statute unconstitutional as
applied unless it is clear beyond a reasonable doubt that the statute infringes on
constitutionally protected rights."); Moody v. Board of Shawnee County Comm'rs, 237
Kan. 67, 74, 697 P.2d 1310 (1985) ("A statute should not be stricken down unless the
infringement of the superior law is clear beyond substantial doubt."); Hunt v. Eddy, 150
Kan. 1, 10, 90 P.2d 747 (1939) ("Statutes should not be declared unconstitutional unless
the infringement of the superior law is clear beyond substantial doubt."); State v. Sherow,
87 Kan. 235, 239, 123 P. 866 (1912) ("This court has always endeavored to interpret acts
of the legislature with the utmost liberality and to uphold them, unless beyond reasonable
doubt they are found to conflict with some provision of the higher law. Doubts have
always been resolved in favor of the statute.").


       But we have never engaged in any sustained analysis of the constitutional roots of
the rule or inquired whether Thayerism is proper under our government's constitutional
structure. Simply put, the question is whether the "judicial power" vested by article 3,
section 1 of the Kansas Constitution "exclusively in one court of justice" is limited by
Thayerism. Do Kansas courts have the power to overturn statutes as unconstitutional
even when the unconstitutionality is not clear beyond a reasonable doubt? As mentioned,
answering this question is beyond the scope of today's opinion. But it is ripe for future
litigation and review by this court. For now, four short thoughts will suffice.
                                              38
       First, deciding the proper measure of deference courts must show to the other
branches of government implicates the separation of powers and thus our government's
constitutional structure. I have noted before that the decline of "this court's separation of
powers jurisprudence . . . was aided in no small part by our application of judicial
deference." Solomon v. State, 303 Kan. 512, 541, 364 P.3d 536 (2015) (Stegall, J.,
concurring). I criticized our court for invoking the presumption of constitutionality to
uphold statutes we believed were unconstitutional, concluding that


       "while judicial deference to the exercise of legislative or executive powers is entirely
       meet and proper, the same deference shown to the legislative or executive departments
       when they act outside of their respective vested powers is, in actual fact, an abdication of
       the vested judicial power to say what the law is.


               ....


               ". . . I would return this court to the active judicial role and obligation to guard
       and protect a clear and strong wall of separation between each of the three great
       departments of government—keeping each within its proper province and protecting
       those provinces from colonization by the other two departments. It is within the judicial
       province to carefully exercise this power without deference to the other branches . . . ."
       303 Kan. at 543, 545 (Stegall, J., concurring).


       While not a direct assault on Thayerism, at a minimum this suggests the strong
presumption of constitutionality undermines the bedrock constitutional principle of
separation of powers. Here it must be noted that Thayer's presumption is distinct from the
doctrine of constitutional avoidance, which is a rule of statutory construction that applies
when a statute is ambiguous. See State v. Ryce, 303 Kan. 899, 966, 368 P.3d 342 (2016)
(Stegall, J., dissenting) (distinguishing the constitutional avoidance doctrine, which


                                                    39
preserves the Legislature's policy choices, from deference, which abdicates the judicial
role), adhered to on reh'g 306 Kan. 682, 396 P.3d 711 (2017).


       Second, to fully flesh out these arguments, it would be necessary to investigate the
original public meaning of "the judicial power" at the time the Kansas Constitution was
written and ratified. See State v. Riffe, 308 Kan. 103, 113-14, 418 P.3d 1278 (2018)
(Stegall, J., concurring) (explaining the two basic tenets of original public meaning
jurisprudence: that the Constitution's meaning is fixed at the time of its adoption and its
meaning is based on the common understanding of the people adopting it). To date, the
most thorough, though indirect, consideration of that question is found in my recent
dissenting opinion in Hodes. Hodes, 309 Kan. at 707 (Stegall, J., dissenting).


       In Hodes, I analyzed section 1 of the Kansas Constitution Bill of Rights at length,
concluding that it was originally understood as a provision limiting the police power of
the Legislature. 309 Kan. at 768 (Stegall, J., dissenting). I detailed how section 1
mandated judicial review of all legislative acts under a standard I colloquially called
"rational basis with bite." 309 Kan. at 768 (Stegall, J., dissenting). Under this standard,
"[a]pplying the necessary deference, a court must examine the actual legislative record to
determine the real purpose behind any law in question before it can conclude the law is
within the limited constitutional grant of power possessed by the State." 309 Kan. at 767
(Stegall, J., dissenting). Again, at least on the surface, it is difficult to square Thayerism
with such review.


       Third, justices on other state supreme courts have compellingly argued against the
application of Thayerism in their jurisdictions. For example, in one notable concurrence,
Justice Richard B. Sanders of the Washington Supreme Court rejected Thayerism
because it lacked textual support in the constitution and denied citizens the protection of
an independent and impartial judiciary. Island County v. State, 135 Wash. 2d 141, 955
                                              40
P.2d 377 (1998) (Sanders, J., concurring). As Justice Sanders explained, "'where the will
of the legislature declared in its statute, stands in opposition to that of the people declared
in the constitution, the judges ought to be governed by the latter, rather than the former.'"
135 Wash. 2d at 157 (quoting The Federalist No. 78 [Alexander Hamilton] [May 28,
1788], reprinted in The Federalist Papers by Alexander Hamilton, James Madison and
John Jay, pp. 395-96 [Garry Wills ed., 1982]). For "it is the constitution, and only the
constitution, through which the people speak for themselves. Their voice is fundamental,
and it is only by their consent that we are governed." 135 Wash. 2d at 158. Similarly,
Justice Rebecca Grassl Bradley of the Wisconsin Supreme Court warned, "[I]n contrast to
the structural separation of powers our framers envisioned, judicial deference gives the
legislature both the pen and the gavel over their own laws, and imposes a 'tremendous
burden' on individuals attempting to limit the constitutional overreach of legislative
power." Mayo v. Wisconsin Injured Patients and Families Compen. Fund, 383 Wis. 2d 1,
53, 914 N.W.2d 678 (2018) (Grassl Bradley, J., concurring) (quoting Burke, The
"Presumption of Constitutionality" Doctrine and the Rehnquist Court: A Lethal
Combination for Individual Liberty, 18 Harv. J.L. & Pub. Pol'y 73, 90 [1994]).


       Fourth and finally, it is important to concede that despite its weaknesses,
Thayerism is not without its virtues. Chief among them is the pragmatic virtue of
encouraging judges to resist an excess of judicial formalism. Judge Richard Posner has,
perhaps, done the most convincing work on this point. Judge Posner helpfully contrasts
Thayerism with the rise of constitutional "theory." The promise of constitutional theory
has always been that theoretical principles, properly applied, will produce "correct"
constitutional outcomes. Thayerism, however, is not designed to produce a single "right"
answer, but is instead designed to aid judges who want to decide cases "sensibly or
prudently." Posner, The Rise and Fall of Judicial Self-Restraint, 100 Cal. L. Rev. 519,
535 (2012).


                                              41
       Judge Posner attributes—rightly so in my view—the decline in Thayeristic
judging (if not the decline of its rhetoric) to the rise of constitutional theory purporting to
deliver correct outcomes. "The precondition to a judge's embrace of Thayer's standard . . .
is to have no theory of how to decide whether a statute or an executive action violates the
Constitution. . . . Today, with constitutional debate awash with theory, judges may feel a
certain nakedness in having none." 100 Cal. L. Rev. at 538. So, if there is one, knowable,
and correct answer to every constitutional question, the idea (implicit in Thayer's
formulation) that a statute might or might not be constitutional loses most of its rhetorical
heft and all of its analytical oomph.


       Thus, on the one hand, Thayerism has declined in an atmosphere of increasing
confidence that constitutional theory can give judges and scholars "the keys to unlocking
the Constitution's secrets." 100 Cal. L. Rev. at 546. On the other hand, Thayerism suffers
from what Posner calls the "ratchet theory of judicial restraint," which occurs when
"unrestrained liberals expand constitutional rights" and "restrained conservatives preserve
those rights by complying scrupulously with precedent in order to limit their own
discretion." 100 Cal. L. Rev. at 547. In this environment, "[j]udicial self-restraint has
ceased to be a contender." 100 Cal. L. Rev. at 548.


       Of course, Thayerism is not the only nontheoretical principle that can restrain
judges. And Judge Posner's definition of judicial pragmatism—a rejection of the
formalist notion that "a legalistic algorithm" will produce a correct decision in "every
case"—suggests other paths of self-restraint are available to adherents of constitutional
theory. 100 Cal. L. Rev. at 539-40. Even originalist judges must exercise judgment. See
Issacharoff, Pragmatic Originalism?, 4 NYU J.L. & Liberty 517, 531 (2009); but see
Kramer, Two (More) Problems with Originalism, 31 Harv. J.L. & Pub. Pol'y 907, 907
(2008) ("there is no such thing as pragmatic originalism").


                                              42
       The warning to judicial theorists that we abandon prudent, sensible, and self-
restrained judging at our and the Republic's peril should not fall on theoretically deafened
ears. Yes, even a committed originalist ought to be "a jurist aware of his own humanity,
attuned to the humanity of those before him, and willing to allow both to shape his
judgment." Judge, Judges and Judgment: In Praise of Instigators, 86 U. Chi. L. R.
(forthcoming Feb. 2019); see Riffe, 308 Kan. at 117 (Stegall, J., concurring)
("[H]umility—attendant as it is to the indeterminacy of language and the difficulties of
the interpretive process—must be considered a third, equally important leg of the
originalist stool."). Prudential principals such as justiciability, judicial humility, a
recognition of the limits of judicial competency, constitutional avoidance, respect for
precedent, and the duty of candor when explaining our decisions all should play a role.


Conclusion


       In short, applying de novo review to what I consider a difficult constitutional call,
I am compelled by the unique characteristics of the damage cap, as I describe them
above, to conclude that the Legislature has substituted its judgment for the judgment of
the jury. While the policy ends sought by the Legislature may be acceptable, here, the
Legislature has chosen means that section 5 forecloses. The Legislature remains free—
within the bounds of section 18—to limit or otherwise modify the common law cause of
action for damages. But it must do so clearly and straightforwardly. Otherwise, the
section 5 right is illusory, and the judgments of Kansas juries are no better than a mirage.


       Therefore, I concur in the judgment.




                                               43
                                             ***


       LUCKERT, J., dissenting: I dissent from the majority's holding that the cap on
noneconomic damages set in K.S.A. 60-19a02 violates the right to a jury trial as
protected by section 5 of the Kansas Constitution Bill of Rights. Unlike the majority, I
would follow Miller v. Johnson, 295 Kan. 636, 289 P.3d 1098 (2012), which applied the
so-called quid pro quo test to determine K.S.A. 60-19a02 did not violate a medical
malpractice plaintiff's rights under section 5. Applying that same test and the rationale of
Miller to Diana Hilburn's claim of damages against a motor carrier and its driver, I
conclude: (1) the various statutes and regulations mandating motor carrier liability
insurance and K.S.A. 60-19a02 are reasonably necessary in the public interest to promote
the public welfare; and (2) the Legislature has substituted an adequate statutory remedy
for Hilburn's right to have a jury determine her damages. These two conclusions satisfy
the quid pro quo test, meaning K.S.A. 60-19a02 does not violate Hilburn's rights under
either section 5 or section 18 of the Kansas Constitution Bill of Rights.


       Two threshold considerations require discussion before I reach the quid pro quo
analysis, however. First, contrary to the majority's conclusion, Hilburn did not preserve
for this court's review the issue of whether the quid pro quo test should not be applied to
a section 5 analysis. Our analysis thus should begin where Hilburn started her argument
before the district court. Citing Miller, she argued it is distinguishable. As I will discuss
in more detail, I conclude it is not. Second, I disagree with the majority's decision to
overturn Miller and other decisions that apply the quid pro quo test for deciding whether
statutes limiting the right to a jury violate the Constitution. Overturning precedent runs
against the doctrine of stare decisis, especially when Kansans have relied on the law
when writing, negotiating, and agreeing to insurance, indemnity, and other contracts.




                                              44
       1. Hilburn did not preserve the issue of whether the quid pro quo test applies.


       The majority concluded that Hilburn preserved the issue of whether the quid pro
quo test applies to a section 5 analysis. I disagree because Hilburn did not present the
issue to the district court, the Court of Appeals did not decide it, and Hilburn did not
identify it as an issue in her petition for review. Thus, contrary to the majority's holding,
Hilburn failed to preserve the issue for our review. (In this context, I refer to both the
three-justice plurality and the concurring opinion as the majority. The plurality concludes
Hilburn preserved this question. Slip op. at 6-7. The concurring opinion does not discuss
the point but implicitly adopts that holding by joining the portion of the plurality that
"reverse[s] the so-called 'quid pro quo' test as applied in the context of a section 5
challenge under the Kansas Constitution." Slip op. at 30.)


       In the district court, Hilburn acknowledged this court's decision in Miller and its
holding that the quid pro quo test applied to section 5 challenges. Rather than argue a
different test applied, she sought to distinguish Miller from her situation. In doing so, she
pointed out that Miller's result hinged on the Health Care Provider Insurance Availability
Act's, K.S.A. 40-3401 et seq., requirement that all medical providers have malpractice
insurance coverage up to specified limits. The Miller court held that the existence of an
insurance mandate guarantees a plaintiff will recover some amount of damages, and that
guarantee, assured by Kansas statutes, provides an adequate quid pro quo. The cap on
noneconomic damages was therefore constitutional as applied to a medical malpractice
plaintiff. See Miller, 295 Kan. at 659-65. Hilburn argued there was no similar quid pro
quo in her case because "the requirement of mandatory insurance for semi trucks is not
Kansas law, rather it's federal law."


       The district court rejected Hilburn's argument, concluding her attempt to
distinguish Miller rested on "a distinction without a difference." The district court thus
                                              45
held that Miller "applies here as well and that the legislature also equally has the right to
limit noneconomic damages because they require and modify a common law obligation
that did not exist regarding mandatory automobile insurance." Neither Hilburn nor the
district court questioned whether Miller employed the correct test. Thus, the issue was
not raised in the district court.


       That procedural history leads to Hilburn's first preservation obstacle. A party
usually cannot argue an issue on appeal that the party did not raise in district court.
Exceptions exist, but the party must argue why an exception applies before we will
consider the issue. See, e.g., State v. Thach, 305 Kan. 72, 81, 378 P.3d 522 (2016); see
also Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35) ("If the issue was not raised
below, there must be an explanation why the issue is properly before the court."). Hilburn
made no attempt to argue one of the exceptions applied. She has thus failed to preserve
this question.


       For the purposes of our discretionary review of the panel's decision at Hilburn's
request she faces a different preservation issue, this time related to her arguments before
the Court of Appeals. There, she specifically argued this court should not have applied
the quid pro quo test in Miller or any other situation in which legislation encroached on
the jury trial right under section 5. But the Court of Appeals panel, apparently
overlooking Hilburn's failure to preserve the issue in the district court, quickly disposed
of this argument, noting it "is duty bound to follow Supreme Court precedent absent
some indication that the court is abandoning its prior position." Hilburn v. Enerpipe, Ltd.,
52 Kan. App. 2d 546, 554, 370 P.3d 428 (2017) (citing Farley v. Above Par
Transportation, 50 Kan. App. 2d 866, 877, 334 P.3d 883 [2014], rev. denied 302 Kan.
1009 [2015]). The panel thus "use[d] the quid pro quo test when considering the
constitutionality of K.S.A. 60-19a02 as applied to Hilburn." 52 Kan. App. 2d at 544.
Consequently, the panel did not reach any conclusion about whether this court had
                                              46
correctly decided Miller. Instead, applying the quid pro quo test, the panel affirmed the
district court. At one point, it summarized its reasoning:


       "[T]he Supreme Court [in Miller] relied on the insurance scheme established in the
       Health Care Provider Insurance Availability Act, an act that does not apply to other torts.
       Because the State has established a similar insurance scheme for injuries caused by the
       negligence of motor carriers and automobile drivers, we find the rationale of the Miller
       court controls our decision in this case." 52 Kan. App. 2d at 548.


       Hilburn petitioned for our review of this holding, raising four issues. All four
relate to the panel's analysis of whether the insurance requirements in motor carrier
regulations and the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-
3101 et seq., supply an adequate substitute remedy for the cap's encroachment on her
section 5 rights. None mentioned whether the panel applied the appropriate test. Not until
after this court granted review did Hilburn file a supplemental brief advancing arguments
about whether the quid pro quo analysis has a place in section 5 jurisprudence and, if not,
what test should apply in its stead. Hilburn waited too long to raise the issue.


       When Hilburn filed her petition for review, our rules required:


       "(C) A statement of the issues decided by the Court of Appeals of which review is sought.
       The court will not consider issues not presented or fairly included in the petition. The
       court, however, may address a plain error not presented. In a civil case, the petitioner
       also must list, separately and without argument, additional issues decided by the district
       court which were presented to, but not decided by, the Court of Appeals, which the
       petitioner wishes to have determined if review is granted." (Emphases added.)
       Kansas Supreme Court Rule 8.03(a)(4)(C) (2015 Kan. Ct. R. Annot. 79).


       A party thus must list an issue it wants this court to reach. Then, and only then, is
the issue properly preserved. And only if properly preserved does the exception relied on
                                                    47
by the majority—Rule 8.03(h)(1)—come into play. That exception states: "In civil cases,
the Supreme Court may, but need not, consider other issues that were presented to the
Court of Appeals and that the parties have preserved for review." (Emphasis added.) Rule
8.03(h)(1) (2015 Kan. Ct. R. Annot. 81). We recently discussed this preservation rule in
Castleberry v. DeBrot, 308 Kan. 791, 796, 424 P.3d 495 (2018).


       There, we held a petitioner must list any issue not decided by the Court of Appeals
that the petitioner wants this court to consider. Otherwise, the petitioner fails to preserve
the issue in a way that allows us to exercise our discretion to consider the issue. We
explained that the discretion granted by (h)(1) "ties to Rule 8.03(a)(4)(C), which requires
parties to identify and separately list any issues presented to—but not decided by—the
Court of Appeals that the party believes the Supreme Court should consider in its
review." 308 Kan. at 796. We reminded litigants that "Rule 8.03(h)(1) is not a stealth
mechanism to excuse the specificity required by Rule 8.03(a)(4) and our other rules
controlling the review process." 308 Kan. at 796.


       Despite Rule 8.03(a)(4), Hilburn did not list the issue. Yet the majority attempts to
untether the provisions without explaining why Castleberry was erroneous or,
alternatively, why Castleberry does not apply.


       Instead, the majority relies on the plain error exception in Rule 8.03(a)(4)(C). I can
find no case discussing this exception or how to apply it. And the majority cites none.
But, in context, I read the provision to require that the district court or the Court of
Appeals panel—not this court—to have committed plain error. But neither the district
court nor the Court of Appeals panel committed plain error when they applied Miller. As
noted, both courts recognized they had to follow Miller. Their conclusion is correct under
settled caselaw. See Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010). Today's
majority does not suggest otherwise. Instead, the majority holds this court erred in Miller.
                                              48
Rule 8.03(h)(1)—a rule about this court's review of a Court of Appeals decision—does
not open the door for us to revisit one of our prior decisions unless a party preserves the
issue. Hilburn did not.


       I thus would hold that Hilburn has not preserved the issue of whether a test other
than quid pro quo should apply. This court should thus apply the quid pro quo test to
Hilburn's assertion that the noneconomic damage cap violates her right to a jury trial
under section 5 of the Kansas Constitution Bill of Rights.


       2. The doctrine of stare decisis instructs us to apply Miller.


       After stretching our rules to reach whether Miller's application of the quid pro quo
analysis to section 5 should be reversed, the plurality concludes the doctrine of stare
decisis does not dictate we apply Miller. Slip op. at 15-19. Two members of today's
plurality took that same position in their dissent in Miller. For the most part, those
justices repeat that analysis today.


       The Miller majority explained why the stare decisis doctrine applied when we
decided Miller and nothing has altered the validity of that explanation:


               "The doctrine of stare decisis maintains that once a point of law has been
       established by a court, it will generally be followed by the same court and all courts of
       lower rank in subsequent cases when the same legal issue is raised. A court of last resort
       will follow that rule of law unless clearly convinced it was originally erroneous or is no
       longer sound because of changing conditions and that more good than harm will come by
       departing from precedent. Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010).
       Stare decisis '"'promote[s] system-wide stability and continuity by ensuring the survival
       of decisions that have been previously approved by a court.'"' Crist v. Hunan Palace,
       Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting [Samsel v. Wheeler Transport

                                                   49
Services, Inc., 246 Kan. 336, 356, 789 P.2d 541 (1990) [Samsel II)]) 'Judicial adherence
to constitutional precedent ensures that all branches of government, including the judicial
branch, are bound by law.' Samsel II, 246 Kan. at 356.


        "A quid pro quo analysis in Section 5 challenges to the legislature's limitations on
recovery for personal injuries has been employed by this court in varied contexts,
including workers compensation (Rajala [v. Doresky, 233 Kan. 440, 661 P.2d 1251
(1983)]), no-fault automobile insurance coverage (Manzanares [v. Bell, 214 Kan. 589,
522 P.2d 1291 (1974)]), medical malpractice (Kansas Medical Malpractice Victims
[Coalition v. Bell, 243 Kan. 333, 757 P.2d 251 (1988)]), and general tort litigation
(Samsel II). To retreat from that analysis now, our court would have to overrule those
cases and embark on a new analytical model that would collaterally create uncertainty
about the constitutionality of the Workers Compensation Act, which has been upheld
since our 1914 decision in Shade, and what is now known as the Kansas Automobile
Injury Reparations Act, upheld since our 1974 decision in Manzanares. See Samsel II,
246 Kan. at 361.


        "In addition, there is a link between Section 5 and Section 18 issues in a damages
case such as this, so it seems logical when dealing with statutory caps to have Section 5
and Section 18 encroachments measured against the same standard as has been done in
our prior caselaw. As discussed in greater detail below, our caselaw dealing with Section
18 right-to-remedy issues is well entrenched using a quid pro quo analysis and it simply
makes sense to have the same analytical model for Section 5. After all, noneconomic
damages are a subset of compensatory damages; therefore, the statutory cap impacts a
plaintiff's compensatory damages, which is a category of remedy at common law
protected by Section 18. Smith v. Printup, 254 Kan. 315, 325, 866 P.2d 985 (1993).
Moreover, the quid pro quo model readily allows the legislature to understand that it must
provide an adequate and viable substitute when modifying a common-law jury trial right
under Section 5 or right to remedy under Section 18.


        "Accordingly, we are not clearly convinced use of the quid pro quo model was
originally erroneous or is no longer sound because of changing conditions, or that more
good than harm would come by departing from this precedent. See Rhoten, 290 Kan. at

                                            50
       112. And while our court has come to different outcomes after employing the quid pro
       quo analysis in Section 5 challenges, this does not detract from its viability as an
       analytical model to determine such challenges. See Bair v. Peck, 248 Kan. 824, 844, 811
       P.2d 1176 (1991) (Adequacy of the substitute remedy as it applies to comprehensive
       remedial legislation must be made on a case-by-case basis.); Lemuz v. Fieser, 261 Kan.
       936, Syl. ¶ 6, 933 P.2d 134 (1997) (In considering the adequacy of the quid pro quo of
       comprehensive legislation that substitutes a statutory remedy for one that formerly
       existed at common law, 'no hard and fast rule can apply to all cases.').


                 "We hold that a quid pro quo analysis is appropriate for determining [Amy]
       Miller's Section 5 right-to-jury trial claims against K.S.A. 60-19a02." Miller, 295 Kan. at
       653-55.


       Today, a majority of this court rejects these reasons for applying the stare decisis
doctrine. I am no more persuaded by the majority's position today than I was when two
members of the plurality expressed their view when dissenting from Miller. That said, for
me, the stare decisis doctrine plays a compelling and determinative role in my position,
just as it did when the court decided Miller. In my view, the majority downplays the
consequences of overruling Miller. The majority's decision today upends caselaw
addressing jury trial limitations imposed in workers compensation, medical malpractice,
no fault insurance, and general tort litigation. If nothing else, Kansans have written,
negotiated, and executed innumerable insurance policies and indemnity contracts relying
on the limitations of the damages caps. As we have recognized, "'[c]onsiderations in
favor of stare decisis are at their acme in cases involving property and contract rights,
where reliance interests are involved.'" Crist v. Hunan Palace, Inc., 277 Kan. 706, 715,
89 P.3d 573 (2004) (quoting Payne v. Tennessee, 501 U.S. 808, 828, 111 S. Ct. 2597, 115
L. Ed. 2d 720 [1991]). Thus, we have generally declined to overrule precedent that would
undercut the reliance placed on our past decisions when writing, issuing, and buying
policies for such things as automobile insurance. See 277 Kan. at 715. The majority gives
little heed to the consequences of changing the rules that underlie these contracts. In
                                                    51
doing so, it creates instability. In turn, it undercuts the stare decisis principles on which
our system of the rule of law depends.


       In part, today's majority does so by taking the view that the Miller majority
misread the caselaw holding the workers compensation system did not infringe on section
5 rights. Today's majority concludes the analysis in these cases was based on consent, not
the quid pro quo test. The Miller majority discussed this argument at some length:


       "This view, however, can be criticized as an oversimplification of the [workers
       compensation] statute. The opt-out provision in the original workers compensation law
       was entirely passive in nature, and its effect was not based on a knowing and voluntary
       waiver or affirmative consent. Instead, the law upheld in Shade [v. Cement Co., 93 Kan.
       257, 260, 144 P. 249 (1914)] abolished an injured worker's 'inviolate' right to a jury trial
       as stated in Section 5 even though the worker had done nothing to accept the benefits
       under the statute or forego his or her constitutional right to a jury trial. The statute simply
       took away this inviolate right unless the worker performed an intentional act to preserve
       it by opting out of the statutory provisions. Thus, the Shade decision's influence on any
       Section 5 analysis cannot be as easily discarded as the dissent argues.


               "Regardless, the opt-out provision was removed in 1974, making the system
       mandatory for both employees and employers. L. 1974, ch. 204, sec. 8 (amending K.S.A.
       44-505). And our more recent decisions emphasize that the Workers Compensation Act
       constitutionally balances the interests of employees and employers—a balance described
       as an adequate quid pro quo." 295 Kan. at 649-50.


       Today's majority rejects this discussion because these later cases involved a
section 18, rather than a section 5, challenge. This misses the point that a quid pro quo
analysis would—and has—served as a basis for upholding the constitutionality of the
Workers Compensation Act, even if on section 18 grounds. And because until today this
court has analyzed section 18 and section 5 under the same test, the section 18 caselaw

                                                     52
implicitly foreclosed a section 5 attack. But no longer. Today's majority leaves shaky
ground in many areas of law that had long been firmly settled.


       In such circumstances, the doctrine of stare decisis instructs us to follow
precedent. And that is what I would do.


       3. Mandatory motor carrier liability insurance provides an adequate substitute
          remedy for the rights K.S.A. 60-19a02 curtails.

       I agree with the majority on one point: "[T]he determination of noneconomic
damages was a fundamental part of a jury trial at common law and protected by section
5." Slip op. at 10 (citing Miller, 295 Kan. at 647). But I disagree with the majority's
analysis of how K.S.A. 60-19a02 impacts the common-law right or the test to be applied.
Using the quid pro quo test, I view Miller as persuasive and conclude K.S.A. 60-19a02
does not violate section 5. Thus, I dissent. And because I reach that conclusion I must
consider Hilburn's section 18 claim. For the issue presented today, the two sections go
hand-in-hand because Miller applied the same quid pro quo test to both sections 5 and 18.
Miller, 295 Kan. at 657.


       In reaching this conclusion, I reject Hilburn's position on the four issues she
preserved in her petition for review. Each of them focuses on the panel's application of
the quid pro quo test and Miller to the factual and legal circumstances of Hilburn's claim.
Hilburn's four issues can be distilled into a single question: Has Hilburn received an
adequate substitute remedy for the limitation caused by the noneconomic damages cap in
K.S.A. 60-19a02 on her section 5 and section 18 rights to have the jury determine—and
to have judgment for the full amount of—her noneconomic losses? I conclude she has.


       I reach this conclusion by extending the rationale in Miller, which applied the
same quid pro quo test to both sections 5 and 18. Under this test, K.S.A. 60-19a02 does
                                             53
not violate either section 5 or 18 so long as it (1) is reasonably necessary in the public
interest to promote the public welfare; and (2) the Legislature has substituted an adequate
statutory remedy for the modification of the individual rights at issue. Miller, 295 Kan. at
657.


       Before us, Hilburn disputes only the second prong of the test. She did not seek our
review of the Court of Appeals panel's conclusion that the damages cap satisfies the first
prong. As a result, she failed to preserve for this court's review any aspect of that portion
of the panel's analysis. See Snider v. American Family Mutual Ins. Co., 297 Kan. 157,
172, 298 P.3d 1120 (2013). For this appeal, the cap thus satisfies the first prong—it is
reasonably necessary in the public interest to promote the public welfare. See Hilburn, 52
Kan. App. 2d at 556.


       Under the second prong of the quid pro quo analysis, a court must determine
whether the Legislature provided an adequate statutory remedy for the modification of
the individual rights at issue. Miller, 295 Kan. at 664. This analysis focuses on "the
context" within which the impairment of the common law right "operates." See 295 Kan.
at 659 ("As a medical malpractice plaintiff, Miller's damages cap operates within the
context of the comprehensive statutory scheme created in the Health Care Provider
Insurance Availability Act."). Analyzing context necessarily means we must decide each
case on its own merits. A court thus must consider both the extent of the deprivation and
the relative significance of the substitute. See 295 Kan. at 660-62 (comparing scope of
limitation on noneconomic damages with significance of readily available recovery from
doctors' mandatory liability insurance); Bair v. Peck, 248 Kan. 824, 843-44, 811 P.2d
1176 (1991) (reasoning mandatory liability insurance minimums were "a sizeable quid
pro quo . . . and certainly [were] an adequate substitute remedy for the common-law
rights given up by injured malpractice victims.").


                                              54
       Focusing first on the extent of the deprivation, the Miller court determined the cap
on noneconomic damages is "very real, [but] limited in its scope." 295 Kan. at 661. The
court noted the cap's application, which causes a plaintiff to lose some noneconomic
damages, is "significantly more serious" than deprivations upheld in other cases. 295
Kan. at 660-61 (citing Lemuz, 261 Kan. 936 [holding statute barring action for corporate
negligence against hospital for negligently extending staff privileges to doctor whose
malpractice injured plaintiff did not violate section 18]; Aves v. Shah, 258 Kan. 506, 524,
906 P.2d 642 [1995] [holding statute immunizing state fund that provides excess liability
coverage to doctors from claims based on fund's alleged bad-faith refusal to settle a claim
within policy limits did not violate section 18]; Bair, 248 Kan. at 845 [holding statute
immunizing health care providers qualified for excess coverage under state fund from
vicarious liability for professional services negligently provided by other fund-covered
health care providers did not violate section 18]; Manzanares v. Bell, 214 Kan. 589, 599,
522 P.2d 1291 [1974] [holding statute prohibiting actions for noneconomic loss arising
from automobile accidents unless medical expenses exceeded statutory threshold did not
violate section 18]).


       At the same time, the cap is limited in scope because it does not leave a litigant
totally without compensation. Miller and Hilburn were left in a better position than some
litigants in other cases in which we had applied the quid pro quo test. See Miller, 295 Kan.
at 661 (citing Bonin v. Vannaman, 261 Kan. 199, 221, 929 P.2d 754 [1996] [holding
statute of repose barring claims arising from tortious acts committed against minors not
brought within 8 years of act did not violate 18-year-old plaintiff's section 18 rights when
it barred her tort claims arising from medical malpractice allegedly committed 15 years
earlier]; Rajala v. Doresky, 233 Kan. 440, 442, 661 P.2d 1251 [1983] [holding statute
barring civil action against fellow employee for injury compensable under Workers
Compensation Act did not violate injured employee's section 18 rights]; Neely v. St.
Francis Hospital & School of Nursing, Inc., 192 Kan. 716, 722-23, 391 P.2d 155 [1964]
                                             55
[holding statute shielding funds held by bank for nonprofit hospital from garnishment
violated judgment creditor's section 18 rights]).


       The second consideration is the significance or quality of the substituted remedy.
To satisfy the quid pro quo analysis, the litigant must have been provided "a significant,
individualized substitute remedy." See Miller, 295 Kan. at 661. Because "a judgment that
cannot be collected is worthless," mandatory insurance requirements providing a litigant
with a guaranteed source of recovery for the injury for which the capped noneconomic
damages are sought may constitute an adequate quid pro quo. See Miller, 295 Kan. at
661-62 (holding mandatory minimum primary and excess liability coverage for medical
malpractice adequate quid pro quo for cap on noneconomic damages in malpractice
lawsuit).


       The fact of mandatory minimums, alone, is insufficient, however. The court must
also consider the relative balance between the benefits conferred and the right curtailed.
In doing so, a court is not required "to look only to a contemporaneous quid pro quo
within the same statutory enactment containing the noneconomic damages cap." 295 Kan.
at 661. "[M]ajor statutory enactments establishing a broad, comprehensive statutory
remedy or scheme of reparations in derogation of a previously existing common-law
remedy may be subsequently amended or altered without each such subsequent change
being supported by an independent and separate quid pro quo." 295 Kan. at 660 (citing
Lemuz, 261 Kan. at 955). This must be done case by case, and "the proper test to apply is
whether the substitute remedy would have been sufficient if the modification had been a
part of the original Act. If so, then no new or additional quid pro quo is necessary to
support the modification . . . ." Bair, 248 Kan. at 844. Because this test is applied case by
case, the Miller court framed its quid pro quo analysis in the context of a damages cap
applied in a medical malpractice case governed by the comprehensive statutory scheme
created in the Health Care Provider Insurance Availability Act.
                                             56
       Under that Act as it existed when we decided Miller, doctors had to maintain
professional liability insurance with policy minimums of at least $200,000 per claim and
at least a $600,000 annual aggregate for all claims made during the policy period. The
Act required doctors to elect one of three levels of excess coverage from the state Health
Care Stabilization Fund ranging from $100,000 to $800,000. And the Act required
insurers to participate in an apportionment plan to supply insurance to doctors who are
unable to obtain insurance "through ordinary methods." Miller, 295 Kan. at 662. The Act
guaranteed to those who obtain medical care from a doctor that the doctor is insured, and
that the insurance would cover damages up to $200,000 from primary insurance coverage
and another $100,000 from the Fund.


       Based on these mandatory levels of insurance coverage, the Miller court held an
adequate substitute remedy existed for the cap even though Miller's jury had awarded her
$575,000 in noneconomic damages, for which the district court entered judgment for
$250,000 as K.S.A. 60-19a02 required. In holding the cap did not violate sections 5 and
18, the Miller court reasoned:


               "For Miller, having an available source of recovery of the statutorily mandated
       minimums provides her with a significant, individualized substitute remedy. And as
       pointed out by more than one amici, a judgment that cannot be collected is worthless. So
       under this statutory scheme, Miller has an obvious direct benefit not available to all
       others." 295 Kan. at 662.


       Then, considering the cap's amount, the court observed "the legislature's failure to
increase the $250,000 cap on noneconomic damages over the more than 20 years since it
first set that amount is troubling . . . ." But, despite its concern, the court could not
conclude "that the legislature's failure to increase the statutory cap has sufficiently diluted
the substitute remedy to render the present cap clearly unconstitutional when viewed in
                                                   57
light of the other provisions in the Act that directly and exclusively benefit a medical
malpractice plaintiff." 295 Kan. at 665.


       Likewise, this court held the Health Care Provider Insurance Availability Act
provided an adequate substitute remedy when deciding the two earlier cases of Bair and
Lemuz. In Bair, the court reasoned that without the mandatory insurance coverage there
would be no guarantee of coverage and a fund from which to collect. "That is a sizable
quid pro quo, established by the Act, and certainly is an adequate substitute remedy for
the common-law rights given up by injured malpractice victims," specifically for loss of
the ability to hold defendants liable under a theory of vicarious liability. Bair, 248 Kan. at
843-44. In Lemuz, where the elimination of liability for a hospital negligently granting
privileges to a doctor was at issue, the court considered whether the reduction in the
amount of mandatory insurance from what the court had considered in Bair changed the
result. The court held the reduction did not change its holding:


       "Absent the amended Act, many Kansas health care providers would not have any
       malpractice liability coverage, either because they could not qualify for it or could not
       afford it. Thus, the Act, the Plan, and the Fund still constitute an adequate quid pro quo
       for the abrogation of the plaintiffs' remedy to bring a corporate negligence action against
       a hospital, despite the amendments to the Act and Fund. This remedy has not been
       emasculated to a point where it is no longer a viable and sufficient substitute remedy."
       Lemuz, 261 Kan. at 956.


       The Lemuz court also noted that the Legislature had supplemented the quid pro
quo provided by the insurance requirements by enacting statutes requiring hospitals to
"engage in risk management to ensure that all incompetent physicians are discovered and
denied staff privileges. With these statutes, the very purpose of the corporate negligence
cause of action is fulfilled." 261 Kan. at 958. But the court reiterated that the mandatory
insurance requirements alone were sufficient:
                                                    58
       "Under the amended Fund, the minimum amount of medical malpractice insurance the
       doctor is now required to carry is $300,000. If they can prove negligence, the plaintiffs
       will recover at least $300,000. Without the Act and the Fund, the doctor might not have
       been insured at all and the plaintiffs might have recovered nothing. In a medical
       malpractice case, the doctor has his or her personal fortune at stake if adequate insurance
       is not purchased. It is basically the doctor who has little to risk who carries the minimum
       insurance. The public is benefitted by any insurance that is carried by that doctor. This is,
       and should be to some extent, a legislative call and we are unable to say that requiring
       $300,000 minimum to be available in every case is so inadequate that it is an inadequate
       quid pro quo. The plaintiffs herein will personally receive the benefit of the portion of the
       original quid pro quo that remains—required primary medical malpractice insurance and
       guaranteed excess medical malpractice insurance." 261 Kan. at 959.


       Enerpipe argues a similar rationale applies because motor carriers have mandatory
insurance obligations that guarantee a source from which a plaintiff injured by a motor
carrier can collect a damage award. Under Title 49 of the United States Code, the federal
secretary of transportation and the Surface Transportation Board have jurisdiction as
specified in Title 49, Subtitle IV, Part B, "over transportation by motor carrier and the
procurement of that transportation to the extent that . . . property . . . [is] transported by
motor carrier . . . between a place in . . . a State and a place in another State . . . ." 49
U.S.C. § 13501 (2012). The Code defines "motor carrier" as "a person providing motor
vehicle transportation for compensation." 49 U.S.C. § 13102(14) (2012). Motor carriers
must be registered under U.S.C. Title 49, Subtitle IV, Part B, Chapter 139, in order to
legally operate. 49 U.S.C. § 13901(a) (2012). Registration is permitted only if the
Secretary of the United States Department of Transportation (USDOT) determines the
prospective registrant complies with several requirements, including "the minimum
financial responsibility requirements established by the Secretary . . . ." 49 U.S.C. §
13902(a)(1)(A)(vi) (2012). The Code directs the Secretary to prescribe regulations
imposing minimum levels of financial responsibility—not less than $750,000—to cover
                                                    59
public liability and property damage "for the transportation of property by motor carrier
or motor private carrier." 49 U.S.C. § 31139(b)(1)(b), (2) (2012); see 49 C.F.R. § 387.9
(adopting minimum levels of financial responsibility). Regulations define "financial
responsibility" as "the financial reserves (e.g., insurance policies or surety bonds)
sufficient to satisfy liability amounts set forth in this subpart covering public liability." 49
C.F.R. § 387.5. They define "public liability" as "liability for bodily injury or property
damage." 49 C.F.R. § 387.5.


       The parties agree these regulations apply here. Hilburn stated in her brief to the
Court of Appeals that the semi-truck that hit her vehicle was a motor carrier, was
registered and titled in Texas, was engaged in interstate commerce at the time of the
accident, was over 47,000 pounds, was 50 feet long and had 5 axles, and was registered
with the United States Department of Transportation. She added: "The fact that the semi
had a [US]DOT number alone indicates that the [US]DOT has exercised its jurisdiction
over the semi-truck. See Vanartsdalen v. Deffenbaugh Indus., 2011 U.S. Dist. LEXIS
28279 [2011 WL 1002027] (Dist. Kan. 2011)."


       In Enerpipe's reply, it agreed with these facts and said that the federal regulations
required it to maintain a minimum of $750,000 in liability insurance. Hilburn responded
by agreeing with that representation and citing 49 U.S.C. § 31139(b)(2); 49 C.F.R. §
387.301(a), and Carolina Cas. Ins. Co. v. Yeates, 584 F.3d 868 (10th Cir. 2009).


       Kansas statutes also apply to vehicles using Kansas roadways. As applicable here,
"[n]o public motor carrier of property or passengers or private motor carrier of property
or local cartage carrier shall operate any motor vehicle for the transportation of either
persons or property on any public highway in this state except in accordance with" the
Kansas motor carrier laws. K.S.A. 66-1,111. The Kansas Corporation Commission
(KCC) has "full power, authority and jurisdiction to supervise and control motor carriers
                                              60
as defined in K.S.A. 66-1,108 . . . ." K.S.A. 2010 Supp. 66-1,108b; see also K.S.A. 66-
1,112(a) (granting KCC authority over motor carriers of property). The Legislature has
also charged the KCC with adopting safety rules and regulations with which public and
private motor carriers of property must comply as a condition of operating "any motor
vehicle on any public highway in this state . . . ." K.S.A. 66-1,129.


       Kansas has also integrated with the regulatory network established through the
federal system. Kansas statutes make it "unlawful for any private motor carrier to operate
as a carrier of property or passengers within this state either in intrastate commerce or in
interstate commerce without first having obtained from the commission a license or
permit or without being registered pursuant to federal statutes." K.S.A. 66-1,115. And the
Act makes it "unlawful for a public motor carrier of property, of household goods or of
passengers to operate in interstate commerce regulated by the relevant federal agency
without registering its motor vehicles in its base state pursuant to federal statutes in order
to operate in Kansas." K.S.A. 66-1,116(a).


       The Kansas laws apply only to the extent not preempted by federal law. Federal
law generally preempts state legislation "related to a price, route or service of any motor
carrier . . . or any motor private carrier . . . with respect to the transportation of property."
49 U.S.C. § 14501(c)(1). But it does not, among other things, "restrict . . . the authority of
a State to regulate motor carriers with regard to minimum amounts of financial
responsibility relating to insurance requirements and self-insurance authorization . . . ."
49 U.S.C. § 14501(c)(2)(A).


       Under its authority to supervise public motor carriers to the extent not preempted
by federal law, to issue permits to private motor carriers, and to promulgate motor carrier
safety rules and regulations, the KCC has generally adopted the requirements of 49
C.F.R. pt. 387. See K.A.R. 82-4-3e; see also K.A.R. 82-4-3n (2016 Supp.).
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       Insurance is mandated by both federal and Kansas law. The KCC regulations
prohibit public motor carriers and contract motor carriers of property, household goods,
and passengers and private motor carriers of property or household goods from
"operat[ing] a motor vehicle, trailer, or semitrailer for the transportation of persons or
property within the provisions of the motor carrier law of this state until an insurance
policy is filed in accordance with K.S.A. 66-1,128." K.A.R. 8-4-21. "Each policy of
insurance filed with the commission for approval shall be in amounts not less than the
minimum of liability required under K.S.A. 66-1,128 . . . ." K.A.R. 82-4-23(f). For motor
carriers subject to KCC licensure, the Legislature has charged the KCC with setting
insurance limits at:


       "reasonable amounts as the commission determines by rules and regulations is necessary
       to adequately protect the interest of the public with due regard to the number of persons
       and amount of property involved. Such amounts shall be not less than $100,000 for
       personal injury or death to any one person in any one accident, $300,000 for injury or
       death to two or more persons in any one accident and $50,000 for loss to property of
       others in any one accident, which liability insurance shall bind the obligors to pay
       compensation for injuries to persons and loss of damage to property resulting from the
       negligent operation of such carrier." K.S.A. 66-1,128(a).


       Enerpipe asserts it is subject to these requirements. The record lacks sufficient
information to verify that assertion. Perhaps only Enerpipe's base-state's requirements and
the federal regulations define the level of its insurance coverage. Regardless, through the
web of federal regulations that Kansas has incorporated into its framework, the parties
agree Enerpipe had to have at least $750,000 in insurance coverage.


       The Court of Appeals panel held this motor carrier insurance scheme was an
adequate substitute remedy because, "[a]lthough the required insurance amounts are

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different, [the scheme] behaves similarly to the medical malpractice insurance one" by
providing Hilburn with "a reliable source of recovery." 52 Kan. App. 2d at 558. Hilburn
did not persuade the panel that the insurance benefitting her was mandated by the federal
government, rather than the Kansas Legislature. See 52 Kan. App. 2d at 558. The panel
also discounted the fact that the federal government might have mandated this insurance
coverage because Kansas also regulates motor carriers by granting the KCC regulatory
authority, and because the KCC has adopted the federal minimums. It further noted
Kansas has insurance minimums independent of the federal scheme, designed to ensure
all motor carriers have sufficient insurance to protect the public. 52 Kan. App. 2d at 556-
57 (citing Mariott v. National Mut. Cas. Co., 195 F.2d 462, 466 [10th Cir. 1952]).


       Hilburn argues the panel erred in holding the motor carrier laws provide an
adequate substitute because Miller turned on "a connection between the [Health Care
Provider Insurance Availability Act] and K.S.A. 60-19a02" but "[t]here is no temporal or
historical tie between K.S.A. 60-19a02 and financial responsibility requirements for
foreign motor carriers involved in interstate trucking." She argues "[t]he cost and
availability of medical malpractice insurance was at the heart of the Supreme Court's
decision in Miller upholding the non-economic damages cap." Hilburn also argues the
"mere adoption of federal motor carrier insurance requirements by a Kansas
administrative agency" is not "on the same level as comprehensive health care legislation
unique to Kansas implemented as a substitute for rights taken away by K.S.A. 60-19a02."
And she argues federal law imposes the insurance minimums and that the KCC could
impose neither a lower nor a higher limit, citing 49 C.F.R. § 355.25(a).


       Importantly, Hilburn does not argue the minimum insurance coverage mandated
by these laws fails to supply guaranteed recovery in an amount necessary to satisfy the
quid pro quo analysis. Like the Health Care Provider Insurance Availability Act's
insurance requirements, the motor carrier laws and regulations make, for plaintiffs like
                                            63
Hilburn, "the prospects for recovery of at least the statutory minimums directly available
as a benefit . . . when there is a finding of liability. This is something many other tort
victims do not have." Miller, 295 Kan. at 662.


       As to Hilburn's remaining arguments, I would conclude: (1) the lack of a temporal
or historical connection between the cap and the motor carrier laws does not matter; (2)
Kansas law need not be the sole source of the substitute remedy; and (3) the substitute
remedy of mandatory insurance is created by the comprehensive regulatory network of
federal and state law and that network of laws provides an adequate substitute remedy for
the damage cap.


       As to the first point, the temporal or historical connection between motor carrier
laws and the cap are not relevant to whether one supplies an adequate substitute for the
other. As noted above in the discussion of Lemuz, under the second step of the quid pro
quo analysis, the court need not look only to contemporaneous quid pro quo within the
same statutory enactment containing the cap. See Lemuz, 261 Kan. at 959-60. Also, in
determining whether there was an adequate substitute remedy for the cap's application,
the Miller court noted simply that "[a]s a medical malpractice plaintiff, Miller's damages
cap operates within the context of the comprehensive statutory scheme created in the
Health Care Provider Insurance Availability Act." 295 Kan. at 662. The decision did not
suggest, however, that the court could only look to the Health Care Provider Insurance
Availability Act as a potential substitute for the cap because of a particular relationship
between the two. Rather, the two provided the context of the case because both applied
under the facts. In fact, while the cost and availability of medical malpractice insurance
was central to the court's analysis under the first step of the quid pro quo test about
whether the cap served a public policy purpose, it was not central to the court's second-
step analysis. See 295 Kan. at 661-62.


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       In addition, in Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 337,
362, 789 P.2d 541 (1990), the court upheld the damage cap against a facial section 5 and
18 challenge. Samsel answered a certified question from the United States District Court
for the District of Kansas that broadly applied to all tort plaintiffs—not just those
bringing a medical malpractice action—and essentially asked if the damage cap was
facially unconstitutional. In answering that it was not, the court broadly discussed the
availability and affordability of all liability insurance, not just insurance covering medical
malpractice. This analysis applies here even though Miller overruled Samsel because
Samsel "premised its inquiry at step two on an interpretation of K.S.A. [60-19a02(d)] . . .
that we cannot accept." 295 Kan. at 658. That premise related to how the reduction of
damages would operate under the statute. This disagreement did not impact Samsel's
suggestion that the cap can be constitutionally applied to plaintiffs other than those
injured by medical malpractice, however. The essential point I take from Samsel is that a
public policy relationship between the damage cap and the substitute remedy suffices.


       I thus conclude a temporal or historical connection between the laws that supply
the substitute and the cap is unnecessary.



       Second, Hillburn argues the substitute remedy must be found in Kansas statutes
and we cannot rely on the $750,000 policy limit mandate of federal law. Granted, our
caselaw strongly suggests—but does not hold—that the substitute remedy must be found
in a state statute. Step two of the quid pro quo analysis in the caselaw turns on whether
"the legislature substituted an adequate statutory remedy for the modification to the
individual right at issue." (Emphasis added.) Miller, 295 Kan. at 657; see Bair, 248 Kan.
824, Syl ¶ 11 ("The legislature can modify the common law so long as it provides an
adequate substitute remedy for the right infringed or abolished." [Emphasis added.]).



                                             65
       These statements appear to be more artifacts of the context of the cases than a
statement of a requirement, however. In every quid pro quo case to date, the source of the
substitute remedy found to satisfy the second step of the quid pro quo inquiry has been
state law. See Miller, 295 Kan. at 663 (holding medical malpractice insurance minimums
mandated by state law provided substitute for limitation on noneconomic damages);
Lemuz, 261 Kan. at 959 (holding medical malpractice insurance minimums mandated by
state law provided substitute for ban on corporate negligence claim against hospital
providing staff privileges to tortfeasor-doctor); Aves, 258 Kan. at 523-24 (holding
medical malpractice minimums mandated by state law provided substitute remedy for bar
on bad-faith refusal claims against state-run excess liability insurance fund); Bair, 248
Kan. at 843-44 (holding medical malpractice minimums provided substitute remedy for
abrogation of vicarious liability claim against health care provider's employer); Samsel,
246 Kan. at 362-63; see also Rajala, 233 Kan. at 441 (holding Workers Compensation
Act's abrogation of right to sue fellow employee in tort did not violate section 18 because
the Act "removes certain common law remedies for injured employees but provides a
statutory substitute therefor," which "is basically a matter of public policy");
Manzanares, 214 Kan. at 599 (holding KAIRA's partial bar on recovery of noneconomic
loss arising from automobile accidents did not violate due process by taking a property
right without compensation, and commenting that because KAIRA assures prompt
payment of economic losses, to the extent that it limits ability to recover nonpecuniary
damages the right received in exchange is "no less adequate").


       Nothing in these decisions mandated that Kansas law be the sole source of the
substitute remedy, however. Rather, the cases broadly require an available remedy. For
example, Miller established that an "available source of recovery" from mandatory
insurance coverage can constitute an adequate substitute remedy. Miller, 295 Kan. at 662.
More generally, this court's caselaw has


                                             66
       "long recognized, at least tacitly, that major statutory enactments establishing a broad,
       comprehensive statutory remedy or scheme of reparation in derogation of a previously
       existing common-law remedy may be subsequently amended or altered without each such
       subsequent change being supported by an independent and separate quid pro quo." Bair,
       248 Kan. at 842.


       The evaluation of the substitute remedy's adequacy therefore turns on the balance
of the derogation of the plaintiff's rights and the available substitute at the time of the
section 18 challenge, regardless of the source of the mandate. See Bair, 248 Kan. at 843-
44 (holding medical malpractice insurance requirements existing "[a]t the time of the
malpractice alleged by the plaintiff" were adequate to support amendment eliminating
vicarious liability claims against doctors' employers because quid pro quo would have
been sufficient if amendment was part of original Act); see also Miller, 295 Kan. at 662-
65 (considering "continued adequacy of the $250,000 limitation that has admittedly
devalued over time due to the legislature's failure to adjust it" but concluding failure to
increase the cap had not "sufficiently diluted the substitute remedy to render the present
cap clearly unconstitutional when viewed in light of [other statutory provisions] that
directly and exclusively benefit a medical malpractice plaintiff"). If an adequate
substitute for a common-law right infringed upon is mandated and available, the purposes
of sections 5 and 18 are satisfied.


       In a damages cap case, the Kansas Constitution guarantees the litigant gets the
benefit of something valuable in place of the loss of the right to be made whole through
damages. See Miller, 295 Kan. at 656 (discussing purpose of right to damages protected
by section 18). This guarantee is not undermined based on how the exchange occurs. The
caselaw shows the quid pro quo test is satisfied when the litigant gets the benefit of the
guarantee. It does not matter whether the Legislature provided for the guarantee when it
infringed on the right, see Manzanares, 214 Kan. at 599; or whether the Legislature
infringed the right after providing for the benefit, see Bair, 248 Kan. at 843-44, and
                                                    67
Rajala, 233 Kan. at 441-42. As for mandatory insurance requirements, the quid pro quo is
the assured recovery of one's judgment—or a substantial enough part of it. See Miller,
295 Kan. at 662.


       Finally, I would hold the network of laws that provides this guarantee of recovery
through mandatory insurance satisfied the test. Even assuming Enerpipe carried insurance
only because of federal requirements, motor carrier regulation cannot be easily
characterized as exclusively a state or federal product. Kansas has incorporated federal
law into its regulations. Plus, a review of motor carrier regulations reveals that motor
carriers are governed by interrelated schemes of state and federal regulation imposed
through statutes and through administrative agencies tasked with implementing the
statutes. Which laws control a given aspect of motor carrier operations may depend on
the type of carrier; the cargo carried; the origin, destination, and travel route of the
subject cargo; and the subject of the regulation, e.g., financial responsibility and driver
and vehicle requirements. See 49 U.S.C. § 14501(a)(2), (c)(2)(A) (outlining areas related
to motor carriers of persons and property in which states' regulatory authority not
limited); K.S.A. 66-1,129(a) (outlining areas in which KCC has regulatory authority over
motor carrier safety).


       The regulation of entities operating commercial vehicles in interstate commerce is
only part of these schemes. And whether state or federal laws apply turns on other
factors. As the Court of Appeals panel concluded, through Kansas' own statutory scheme
the Legislature has regulated motor carriers in a manner complementary to federal law so
that all carriers who operate their vehicles on Kansas roadways meet minimum financial
responsibility requirements. The Legislature has therefore provided Kansas victims of
motor carrier negligence a substantial, individualized remedy in the form of an assured
source from which to recover judgments in recompense.


                                              68
       In summary, I conclude (1) the various statutes and regulations mandating motor
carrier liability insurance and K.S.A 60-19a02 are reasonably necessary in the public
interest to promote the public welfare and (2) through these statutes and regulations, the
Legislature has substituted an adequate statutory remedy for Hilburn's right to have a jury
determine her damages. Because I reach these conclusion, I need not discuss the parties'
arguments about the KAIRA. My conclusions that the motor carrier liability insurance
requirements satisfy the quid pro quo test means that, in my view, K.S.A. 60-19a02 does
not violate Hilburn's rights under either section 5 or section 18 of the Kansas Constitution
Bill of Rights.


       BILES, J., joins the foregoing dissenting opinion.




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