Friday, December 8, 2017
The Utah Supreme Court recently rejected two constitutional challenges to the Utah workers' compensation statute that were each advanced under that state’s “open access” (often known as an “open courts”) provision. The Florida Supreme Court, on the other hand, recently upheld an open courts provision challenge under its state constitution in a medical malpractice case. Because workers’ compensation legal battles are likely to be primarily waged for the foreseeable future as state constitutional challenges, and because open courts theories are a common form of state constitutional challenge, it can be instructive to follow these kinds of cases closely.
The essence of an open courts challenge is not difficult to understand: a preexisting right is statutorily, substantively modified—arguably to the point of elimination—and a party harmed by the alteration/elimination argues that, under the circumstances, the court has effectively been “closed” to that party. The claim is usually not ignored because state open courts provisions date to John Adams’ 1780, Massachusetts Constitution, which in turn derived its open courts language directly from the Magna Carta.
One major conceptual question in these challenges is what a state believes is meant by the term “open courts” under its state constitution. A narrow reading of the phrase holds that it means no more than that courthouse doors should not be locked or filing fees set too high. (That is, it is merely procedural). A more generous interpretation views the phrase as requiring substantive legal remedies adequate to render access to the courts meaningful. I speak at length about these different interpretations here at pp. 162-172.
Open courts challenges are closely related to the concept of “quid pro quo” and center on three possible approaches to evaluating legislatures’ modification or elimination of remedies: a historically tied approach, a “reasonable alternative” public policy approach, and a legislative power approach. The historically tied approach holds that the [open courts and remedies] clauses protect only common law causes of action that existed at the time of the adoption of the constitutional clause, which are to be preserved unless the legislature substitutes another adequate remedy or “quid pro quo” for the affected litigants. The public policy approach permits the legislature to limit any cause of action and remedy if it creates a reasonable alternative, but, even without creating a substitute, it may alter former rights if it acts for a very important reason or is responding to an overwhelming public need. The third theory allows legislatures broad latitude to alter or eliminate common law rights and remedies by redefining the notion of legal injury. This is often seen as a form of legislative supremacy. (More after the fold)In Waite and Ortega v. Labor Commission, the Utah Supreme Court upheld a provision preventing workers from applying for wage-loss benefits for disabilities that were initially compensable but worsened, resulting in claims for additional benefits, more than 12 years after the date of an accident, and were thus absolutely barred under the Utah statute. (As an aside, the outcome seems contrary to the Pennsylvania Supreme Court’s analysis and opinion in Tooey v. AK Steel Corporation (2013)).
In Petersen v. Labor Commission, the Utah Supreme Court upheld a provision cutting off eligibility for wage-loss benefits if eight years have passed since the injury occurred (in other words, the provision operates as a statute of repose). The claimant had suffered a work-related injury in 1982 when a 500-pound iron boiler door fell on him. In 2004, the claimant required surgery, found by the state agency to be causally related to the 1982 work-related injury. However, the applicable Utah statutory provision provided for temporary disability benefits for 312 weeks over a period of eight years from the date of injury. As a result, the claimant was found ineligible for temporary total benefits (and, indeed, had no legal recovery). The Court utilized its traditional three-part test for evaluating open courts’ questions:
Has the Legislature revoked a previously existing remedy?
If so, has it provided a reasonable alternative remedy?
If not, was the remedy revoked to eliminate a “clear social or economic evil”?
Because the challenged provision in Petersen had been a feature of the Act since its inception, the Court concluded that the Legislature did not “revoke a previously existing remedy” when it wrote the statute. Workers had never had the right to receive wage-loss benefits after eight years since their injury, so they didn’t have a right taken away from them, the court decided. This, of course, evades the question of whether the specific provision was ever constitutional. As the New Mexico Supreme Court argued in Rodriguez v. West Brands Dairy, a provision is not perpetually valid simply because it has not yet been successfully challenged. The essence of the problem in Peterson is whether the architects of the workers’ compensation system would have agreed that no recovery should be available to a worker with lingering effects from an injury where those effects could be tied medically to that injury. On that point, the Court launched into a full-throated defense of workers’ compensation as an adequate substitute for tort, and argued that the adequacy of the structure must be assessed in its totality, and not post hoc as applied to a single individual. In the context of a systemic problem, however, this reasoning is not persuasive. Any employee is claimant’s situation is without recovery. That is the point. The situation is not so exotic that one cannot imagine it happening repeatedly, and justification of the entire structure does not answer a systemic constitutional objection.
In Waite, the Utah Supreme Court appeared to reaffirm a view that “open courts” encompass substantive rights. But it effectively circumscribed those rights by insisting that it must afford substantial deference to the Legislature when analyzing whether the remedy was revoked “to eliminate a clear social or economic evil.”
“Our inquiry under the ‘clear social or economic evil’ portion of the [traditional] test is . . . limited to a determination of ‘whether the Legislature overstepped the bounds of its constitutional authority in enacting (the statute), not whether it made wise policy in doing so,’” the Court wrote. The circularity in that approach is self-evident, however. The Court also cited with approval an earlier medical malpractice case, Judd v. Drezga, which had held, “When an issue is fairly debatable, we cannot say that the legislature overstepped its constitutional bounds when it determined that there was a crisis needing a remedy.” The upshot in Utah is that there seems, under a “fairly debatable” standard, very little difference between heightened court deference in equal protection and open courts cases. It could be argued that this level of deference amounts, in practice, to embrace of the third major judicial approach to open courts challenges – legislative supremacy.
The Utah perspective could not be more different than the Florida stance, as reflected in the Florida Supreme Court’s opinion in Weaver v. Myers, 2017 WL 5185189 (Fla. Nov. 9, 2017). In Weaver, the Court struck down amendments to Florida’s statute regarding the filing of medical negligence claims. The amendments required plaintiffs to arrange ex parte interviews by defendants with plaintiffs’ treating physicians at defendants’ request, and (somewhat incredibly) did not require that plaintiffs, or their attorneys, be present at the interviews. The Court determined that the amendments not only violated state constitutional rights to privacy but also conditioned access to the courts on foregoing the right to privacy. Forbidding such a procedure, the Court quoted from its earlier opinion in Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973):
[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown. (emphasis supplied).
The lesson to be learned from considering Peterson, Waite, and Weaver in tandem is that open courts litigation will necessarily be completely different in Utah than it is in Florida. And, as I discuss in my article, Worse than Pirates or Prussian Chancellors, the dissimilarities in state constitutional litigation will not be limited to open courts provisions questions. Unique state constitutional analyses pertaining to equal protection, substantive due process, right to a remedy, and right to a jury trial are the rule, rather than the exception.
Michael C. Duff