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Commonwealth v. Claycomb

Supreme Court of Kentucky

November 15, 2018



          COUNSEL FOR APPELLANT: Catherine Elaine York Johann Frederick Herklotz Matthew Kleinert Cabinet for Health and Family Services Mark Stephen Pitt Stephen Chad Meredith Matthew Kuhn Office of the Governor


          COUNSEL FOR AMICUS CURIAE: ST. ELIZABETH HEALTHCARE AND LEADINGAGE KENTUCKY David V. Kramer Mark David. Guilfoyle Michael Enzweiler Dressman Benzinger LaVelle PSC

          COUNSEL FOR AMICUS CURIAE: ROBERT STIVERS, KENTUCKY SENATE PRESIDENT David E. Fleenor R. Vaughn Murphy Tyler Peavler Office of the Senate President


          COUNSEL FOR AMICUS CURIAE: KENTUCKY ASSOCIATION OF HEALTH CARE FACILITIES Bryan Todd Thompson Mitchel Terence Denham Joseph Wright Thompson Miller 8& Simpson PLC

          COUNSEL FOR AMICUS CURIAE: KENTUCKY HOSPITAL ASSOCIATION Wesley Reed Butler Holly Iaccarino Barnett Benvenuti 85 Butler PLLC



         Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the guarantee of a right of access to the courts to obtain a remedy for injury is possibly the most important.[1] Kentucky's version of this guarantee, referred to in our jurisprudence as the open-courts provision, appears in the Bill of Rights, Section 14, of the Kentucky Constitution, which states: "All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay."

         The Kentucky General Assembly in its 2017 regular session enacted Kentucky Revised Statutes ("KRS") Chapter 216C, the Medical Review Panel Act, establishing a mandatory process to delay certain medical-malpractice claimants' ability to access immediately the courts of the Commonwealth by creating medical-review panels and requiring a panel's opinion about the merits of the claimant's proposed complaint against health-care providers before the claimant may file suit. This case presents to us on discretionary review a legal challenge to KRS Chapter 216C in which the trial court declared the Act unconstitutional on several grounds. We hold that because the Act delays access to the courts of the Commonwealth for the adjudication of common-law claims, Chapter 216C violates Section 14 of the Kentucky Constitution.

         I. BACKGROUND.

         A. The General Assembly enacts the Medical Review Panels Act.

         KRS Chapter 216C "provides for the establishment of medical review panels to review proposed malpractice complaints against health care providers "[2] KRS 216C.020(1) makes clear:

All malpractice and malpractice-related claims against a health care provider, other than claims validly agreed for submission to a binding arbitration procedure, shall be reviewed by a medical review panel. Such an action may not be commenced in a court in Kentucky before:
(a) The claimant's proposed complaint has been presented to a medical review panel established under this chapter; and
(b) An opinion is given by the panel. If the panel has not given its opinion within nine (9) months after the filing of the proposed complaint, the plaintiff may commence the action in court.

KRS 216C.101(4) defines health care provider to mean:

[A]ny health facility as defined in KRS 216B.015, or a provider, including natural persons, of health care or health services, including, but not limited to those licensed, certified, registered under, or subject to KRS 194A.700 to 194A.729 or KRS Chapter 310, 311, 311A, 311B, 312, 313, 314, 314A, 315, 319, 319A, 320, 327, 333, 334A, or 335 and the current and former officers, directors, administrators, agents, or employees of any such persons or entities acting within the course and scope of their office, employment, or agency.

         In other words, as the trial court noted, the medical review panel must first review any malpractice or malpractice-related claim filed on or after June 29, 2017, against any individual or entity bearing some sort of relationship to the health care profession and industry, "other than claims validly agreed for submission to a binding arbitration procedure, "[3] before that claim is subject to adjudication:

Any action involving a dependent claim accruing after June 29, 2017, shall be immediately and automatically stayed until:
(a) The claimant's proposed complaint against the health care provider has been presented to a medical review panel established under this chapter and an opinion is given by the panel; or
(b) Nine (9) months after the filing of the proposed complaint if the panel has not given its opinion.[4]

         The panel does not engage in any adjudication of a claimant's claim.[5] Rather, the entire purpose and function of the panel is to generate an opinion about the merits of the claim, an opinion that may or may not have any evidentiary usefulness in a court of law.[6] Finally, Chapter 216C does allow the parties to bypass medical review panel review, but only if all parties involved in the action agree.[7]

         B. The trial court declares the Medical Review Panels Act unconstitutional.

         Ezra Claycomb, a minor, by and through his next friend, natural guardian, and parent, Tonya Claycomb, individually and on behalf of all others similarly situated, sued the Commonwealth in the trial court, challenging the constitutionality of Chapter 216C. Ezra suffers from severe brain damage and cerebral palsy allegedly caused by medical malpractice. But for Chapter 216C, Claycomb could immediately file a medical-malpractice suit in circuit court.

         Claycomb specifically argued in the trial court that Chapter 216C violates: (1) the equal protection and due process guarantees under Sections 1, 2, and 3 of the Kentucky Constitution; (2) the open-courts and jural rights guarantees under Sections 7, 14, 54, and 241; (3) the separation of powers doctrine under Sections 27, 28, 109, and 116; (4) the prohibition against special legislation under Sections 59 and 60; and (5) the subject and title requirements of Section 51. The trial court found violations of the equal protection guarantee, the prohibition against special legislation (although did not provide an analysis of that issue), the separation of powers doctrine, and the open-courts and jural rights guarantees but found that Chapter 216C did not violate the subject and title requirements of Section 51.[8] The trial court found the entirety of Chapter 216C unconstitutional and permanently enjoined the Commonwealth from enforcing any of its provisions.

         The Commonwealth then requested in the Court of Appeals emergency relief from the trial court's order under Kentucky Rule of Civil Procedure ("CR") 65.08(7) and suspension of the enforcement of the permanent injunction under CR 65.08(2), which the Court of Appeals granted. This Court then accepted transfer to decide the merits of the case.

         II. ANALYSIS.

         At the outset, we note that our analysis focuses solely on Section 14 of the Kentucky Constitution because we find Chapter 216C violates that constitutional provision.[9]

         A. Section 14 acts as a limitation against all departments of government interfering with its guarantees.

         For more than two and a quarter centuries, the language of Section 14 has appeared verbatim in all four of Kentucky's constitutions, first as Article XII, § 13 of the original one in 1792. But as the former Dean of the University of Kentucky College of Law, the late Thomas R. Lewis, notes in his scholarly analysis, the remedy guarantee provided for in Section 14 is an ancient right dating from Magna Carta in 1215.[10]

         Tracing the pedigree of Section 14 to Magna Carta brings up a fundamental question with which Kentucky's highest court has famously struggled since the antebellum years of the Commonwealth: Is Section 14 a limitation on all departments of state government interfering with its guarantees, or just the judiciary?

         Dean Lewis's ultimate conclusion about the reach of Section 14, as confirmed by his study of the historic explication of the right by Sir William Blackstone, is: "[T]hat common law courts resolve disputes, creating precedents, and thus law, in the absence of governing legislation but subject to modification by the people through their elected representatives.''[11] In other words, Blackstone and Dean Lewis would likely argue, as has the Commonwealth in this case, that the constraints on government reflected in Section 14 do not apply to the popularly elected legislature.

         Almost 200 years ago, this Commonwealth's highest court "found that access to courts was 'clearly indicative of the duty which the functionaries of the government owe to the citizens' and that if 'it shall occur that the right of the citizen has been invaded contrary to the constitution, it is the duty of the judiciary to shield him from oppression.[12] In Commonwealth ex rel. Tinder v. Werner, the court identified the history of its decisions related to striking down acts of the legislature that sought to restrict plaintiffs' rights to the redress of civil wrongs.[13] In "Blair v. Williams[14] and Lapsley v. Brashears, [15] [Kentucky's highest court] held unconstitutional an act of the legislature permitting a stay of two years on the debtor giving bond and security unless the creditor endorsed on his execution a willingness to accept notes on the Bank of Kentucky or the Bank of the Commonwealth of Kentucky . . . ."[16] Those decisions "nearly destroyed this court:"

As was foreseen, those decisions produced very great exasperation and consequent denunciation of the court. The Judges were charged with arrogating supremacy over the popular will-their authority to declare void any act of the Legislature was denied, and they were denounced by the organs and stump orators of the dominant relief party as usurpers and self-made kings. No popular controversy, waged without bloodshed, was ever more absorbing or acrimonious than that which raged, like a hurricane, over Kentucky for about three years succeeding the promulgation of those judicial decisions.[17]

         Some years later, after the "hard money" fight had subsided, the court in Johnson v. Higgins[18] and Barkley v. Glover[19] "held that Section 14 of the [Kentucky] Constitution was a limitation on the judicial branch of the government and not a limitation on the legislative branch, and that it prohibited the courts from arbitrarily delaying or denying to its citizens the administration of justice, but constituted no limitation upon the legislature in formulating procedural methods to be used by the courts."[20]

         This rule changed with the decision in Ludwig v. Johnson, the seminal case establishing the open-courts and jural rights doctrines in Kentucky jurisprudence, which stated:

[I]t is said in effect that section 14 of our Constitution is a restriction on the judicial, and not on the legislative, branch of government, but this observation was unnecessary in the decision of those cases, and is clearly unsound in view of section 26 of our Constitution, which is the concluding section of the Bill of Rights, and which reads: "To guard against transgression of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this constitution, shall be void."[21]

         So our predecessors on the Commonwealth's highest court recognized in Ludwig that when Section 14 is read in conjunction with Section 26, the Bill of Rights of the Kentucky Constitution establishes "a limitation on the power of the legislature to enact laws which are in contravention of the plain provisions of Section 14.*[22] This conclusion led our predecessors in Werner to the ultimate conclusion "that section 14, when construed in the light of section 26, prohibits the legislature from invading the province of the judiciary and that the prohibition of section 14 applies to the legislative branch of the government as well as to the judicial."[23]

         This Court has never retreated from that position, and we find no reason to do so today.

         Sir Edward Coke and Blackstone, two of England's most preeminent legal scholars, undeniably viewed the ancient guarantees now reflected in the language of Section 14 of Kentucky's Constitution as checks on royal abuse, not on parliamentary excesses. With all due respect to the conclusion reached by Dean Lewis, who would exempt the modern legislative branch from the constraints of Section 14, that conclusion overlooks a fundamental difference between English and American jurisprudence:

Unlike Coke and Blackstone, the rebellious American colonists saw both the Crown and Parliament as oppressors.[24] Parliamentary initiatives during the 1760s and 1770s convinced the colonists that the informal constitution securing English rights against royal infringement was inadequate to protect against all forms of government oppression. When independence was declared, some of the new American states began adopting formal written constitutions to structure their new governments and to help secure their most fundamental rights. As Gordon Wood notes, they recognized that laws protecting their basic freedoms must be of "a nature more sacred than those which established a turnpike road"[25], [26]

         Furthermore, a[i]n contrast to England . . . early state constitutions transformed the right from a restriction on monarchical power to a positive obligation to provide access to an independent judiciary for vindication of rights, particularly against overreaching legislatures."[27]

         As the Tennessee Supreme Court has explained:

This declaration, copied from the great charter [Magna Carta], is not a collection of unmeaning epithets. In England, the reason of riveting this barrier around the rights of the subject was well understood. Their sovereign was wont to interfere in the administration of justice; "a remedy by due course of law" was often refused, under the mandate of men in power, and the injured man denied justice; they were ordered sometimes not to proceed with particular causes, and justice was delayed; and the obtainment of their rights was often burdened with improper conditions and sacrifices, and justice was sold. So anxious were they to stop this enormous evil, that a part of the official oath of a judge was that he would proceed to do right and justice, notwithstanding any letter or order to him to the contrary.
This clause of Magna Carta, why is it inserted in our Bill of Rights? Was it from apprehensions of our executive? We had left him no power. Whatever power is considered as properly belonging to the executive department elsewhere is, by our institutions, conferred upon the legislature. It is the more important, therefore, and so the framers of our constitution decreed, that the judicial department should be independent and coordinate, and that the legislature should have no judicial power. Danger might justly be apprehended from this quarter. If the legislature, possessing a large share of executive power, be permitted to exercise judicial power also, or control the action of the judges within their peculiar sphere, the liberty of the citizens, under the government of good legislators, would be in imminent peril, and under bad ones would be entirely destroyed.[28]

         Although much of our law is rooted in English law, we cannot ignore the fundamental distinctions that developed in America. The framers of written constitutions for the new American states were clearly wary of the power of all branches of government. "Many framers of the original state constitutions in colonial America adopted [Section 14's guarantees] as their own, recognizing it as a constraint on both judicial and legislative power."[29]

         To characterize, as the Commonwealth insisted at oral argument, certain sections of the Kentucky Bill of Rights as applying only to the judicial department of the Commonwealth is to ignore the common understanding of the original framers and the original meaning of the words they employed-all branches of government can oppress the people and such oppression must be guarded against. So the framers of Kentucky's First Constitution included Section 28 in the Kentucky Bill of Rights: "To guard against transgressions of the high powers which we have delegated, WE DECLARE, that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to this Constitution, shall be void."[30] This is the same provision, now Section 26, that this Court in Ludwig identified as making clear that Section 14 applies to all branches of government.

         Based upon the plain text of Section 14, its history, and our longstanding precedent interpreting its reach, we hold that Section 14 acts as a restraint on the power of all departments of state government. As Justice Hughes observed at oral argument of this case, Section 14 is a right "of the people," and the people deserve to be protected against all departments of government infringing on their right to seek immediate redress for common-law personal-injury claims.

         C. The plain words of Section 14, coupled with a historical understanding of the remedies guarantee offered by it, mandate that Chapter 216C be declared unconstitutional.

         Now that we have clarified that Section 14 does apply to all departments of government, we turn to evaluating its implications for the case at hand. In our review, we must remember our duty to presume that the statutes we address are constitutional.[31] Additionally, "[i]t is a well-established principle that '[a] facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."'[32] "The violation of the Constitution must be clear, complete and unmistakable in order to find the law unconstitutional."[33]

         We have held that Section 14 protects "[t]he right of every individual in society to access a system of justice to redress wrongs," and such protection "is basic and fundamental to our common law heritage."[34] The right to a remedy protected in Section 14 applies to actions for death and personal injuries, among other types of actions.[35] And medical-malpractice claims fall under this category of claims.

         "The most widespread and important. . . provision [of states' bills of rights] is probably the guarantee of a right of access to the courts to obtain a remedy for injury."[36] "It is one of the oldest of Anglo-American rights, rooted in Magna Carta and nourished in the English struggle for individual liberty and conscience rights."[37] Former Chief Justice of the Texas Supreme Court Thomas Phillips sheds light on the origin of the rights secured by Section 14:

The motivations for the original guarantee are actually easier to discern than those of our own states' framers. The barons had little interest in abstract pronouncements of ideal governance; they were after specific language to compel particular action.[38] The barons were displeased because the royal courts, which fast were displacing local feudal courts as the preferred forum for dispute resolution, operated on a fee scale, with different charges for particular writs. "The system invited abuse; more expensive writs worked faster than cheaper ones, were more potent, and could achieve access to a more favorable forum."[39]

         The rights guaranteed by Section 14 arose to prevent royal abuse through the courts: "These provisions were intended to address two abuses in England's medieval justice system: (1) the random exploitation of judicial power without lawful judgment, and (2) the practice of the selling of writs to gain access to the King's courts."[40] The framers of our own Constitution recognized this, as well:

We have all read that King John had the habit of gathering gear by every wile that was justified by honor, and a good many that were not.... When he went hunting or junketing about the kingdom his justiciary was at his heels, under the idea that the King, as the fountain of justice, must be present in person as in theory when an appeal for justice should be made by one of his subjects. But in consequence the nomadic nature of the court-here to-day and gone to-morrow-there were the most intolerable delays in the administration of justice .... So, when he was confronted by the old barons who had assembled on the plain of Running Mead (sic) to persuade him to accede to the demands suggested by Langdon, he graciously promised that he would "... delay justice to no man ," [41]

         Sir Edward Coke, in his Second Part of the Institutes of the Laws of England, [42] described the rights guaranteed by Section 14 as a "'roote' from which 'many fruitful branches of the law of England have sprung."[43] "One such branch was the protection of individuals' rights from official acts of oppression . . . ."[44] "Another was the rights of subjects in their private relations with one another . . . ."'[45] Coke further stated about the rights as guaranteed in Section 14:

[E]very subject of this realm, for injury done to him in goods, lands, or person, by any other subject. . . may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay . . . .[J]ustice must have three qualities; it must be . . . free; for nothing is more odious than Justice let to sale; full, for justice ought not to limp, or be granted piece-meal; and speedily, for delay is a kind of denial; and then it is both justice and right.[46]

         During the next century, Sir William Blackstone described the right to a remedy as one of the critical means through which a civilized society served its principal aim-the preservation of an individual's absolute rights to life, liberty, and property.[47] Blackstone identified three absolute rights: "personal security, personal liberty, and private property."[48] "Personal security include[s] the right to life and limb, and ... to body (freedom from assault), health, and reputation."[49]

         Blackstone described the right to a remedy as "one of the five subordinate rights through which people vindicated their absolute rights, and it encompassed both the substance of the law and the procedures through which courts applied that law."[50] Once a person was injured, the right to an "adequate remedy" immediately attached, though judicial process might be necessary to ascertain the exact parameters of that right.[51] "The right to a remedy dictated that common-law courts exercise general jurisdiction, being open for all cases involving injury to individual rights, '[f]or it is a settled and invariable principle . . . that every right when withheld must have a remedy, and every injury its proper redress.*"[52]

         So Blackstone was "concerned [with both] the physical availability of judicial process [and] with the substantive opportunity to assert claims to protect absolute rights."[53] As Blackstone stated, "'Since the law is . . . the supreme arbiter of every man's life, liberty, and property, courts of justice must at all times be open to the subject, and the law be duly administered therein' to satisfy the ...

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