The following question was certified to this Court by the United States District Court for the Southern District of Alabama:
"Is Alabama Code 1975, § 6-11-3, either on its face or as applied to the above-styled case, violative of Alabama Constitution of 1901, Article I, § 11; Article
I, § 13; Article I, § 6; or Article III, § 42?"
We assume that the phrasing of the question was intended as a guide and that it was not meant to restrict our consideration only to the constitutionality of Ala. Code 1975, § 6-11-3, but was intended to extend to all portions of Article I ("Structured Damages") of Chapter 11, of Title 6 (§§ 6-11-1
through 6-11-7).
Billy Ray Clark's claim arose out of an "injury done him in his . . . person," while operating high pressure cleaning equipment for his employer, Halliburton Industrial Services Division ("Halliburton"). Halliburton had been engaged by Container Corporation of America, Inc. ("Container"), to perform industrial cleaning services at a Container facility. Clark was performing these services at the time he sustained his injury. The jury returned a verdict against Container in the amount of $822,600 in the United States District Court for the Southern District of Alabama, Southern Division. Of the total sum awarded, it is only the amount awarded for lost future wages ($289,800) that is in any way involved in this certified question,1 because Container filed a post-trial motion requesting the court to structure the award of future damages in accordance with Ala. Code 1975, §§ 6-11-1 through 6-11-7, particularly § 6-11-3. The parties have stipulated as to the applicability of these statutes to this case. Clark, however, objected to the application of § 6-11-3 as violating four constitutional provisions — Article I, §§ 6, 11, and 13, and Article III, § 42.
Alabama Code 1975, § 6-11-3, provides:
"Where the damages assessed against a defendant by the trier of fact include an award of future damages, the trial court shall comply with the following in rendering its judgment in the case:
"(1) Judgment shall be entered against the defendant for all past damages and punitive damages assessed against the defendant by the trier of fact.
"(2) If the award of future damages assessed by the trier of fact is $150,000.00 or less, the trial court shall enter judgment against the defendants for the amount of such future damages.
"(3) If the award of future damages assessed by the trier of fact is greater than $150,000.00, the trial court shall enter judgment as follows:
"a. Judgment shall be entered against the defendant for $150,000.00 of such future damage.
"b. If, as part of the plaintiff's contract with his attorney, the plaintiff is obligated to pay his attorney a fee based on that portion of the award of future damages which exceeds $150,000.00, the court shall determine what portion of the award of future damages in excess of $150,000.00 is owed to the attorney under the contract and shall enter judgment for the remainder of the award of future damages in excess of $150,000.00 as provided in c, below. As to that portion of the award of future damages in excess of $150,000.00 which is owed to the plaintiff's attorney, that portion shall be reduced to present value by the court and judgment shall be entered against the defendant for the reduced amount.
"c. 1. For that portion of a future damage award in excess of $150,000.00 and in excess of the attorney's fee subject to b, above, judgment shall be entered requiring the defendant to pay that portion of such future damages by periodic payments over a period of years not to exceed such period of years as, according to the evidence offered during the trial of the case, such future damages may be incurred. In entering a judgment against the defendants ordering the payment of future damages by periodic payment, the trial court shall make a specific finding as to the dollar amount of periodic payments which will compensate the judgment creditor for such future damages as the same may be incurred, as determined
from the evidence offered during the trial of the case. If, or to the extent that, the evidence offered at trial did not indicate the approximate time or time frame or both within which the future damages would be incurred, the trial court, for the purpose of determining the amount of periodic payments and the interval between such payments, shall conclusively presume that such damages will be incurred throughout the life expectancy of the judgment creditor on an equal periodic basis. The judgment ordering payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amounts of the payments, the interval between payments, and the number of payments or period of time over which payments shall be made. The total amount of all periodic payments when added to the sum of $150,000.00 and when added to that portion of the future damages award, not reduced to present value, which was used to calculate the attorney's fee in paragraph b, above, shall not exceed the total amount of future damages contained in the verdict of the trier of fact.
"2. As a condition to authorizing periodic payments for future damages, the court must receive adequate assurance that the defendant can and will make all required payments. Such assurance may include the requirement that the defendant either have sufficient financial ability to make all required payments, post adequate bond or other security, give evidence that there exists an insurance company, registered in this state, which is obligated to pay the judgment, or purchase an annuity of sufficient value to pay the future damages as structured, or any accelerated payments of those damages which might be required by this article. Nothing contained herein shall be construed as limiting the authority of the trial court to order a new trial, enter a judgment notwithstanding the verdict, or order a remittitur of damages. The provisions of this section shall also apply to any judgment following remittitur.
"3. An award of future damages shall not be reduced to present value by the court, except as required in b, above, and no interest is to be charged on said damages. Evidence of the present value of future damages is inadmissible in cases covered by this article, except at a hearing authorized by section 6-11-5, herein. If, however, the court determines that damages which should be structured pursuant to c, above, cannot be structured due to the failure of the defendant to provide the financial assurances required in c 2, above, that portion of the future damage award shall be reduced to present value by the court prior to entry of judgment."
Article I, § 11, of the Constitution provides:
"That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:
". . . .
"That the right of trial by jury shall remain inviolate."
This is not the only place within the declaration of rights (Art. I, §§ 1-36) that the word "inviolate" is used. In § 36, the following appears:
"That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate."
(Emphasis added.)
"Inviolate" is defined in Black's Law Dictionary 826 (6th ed. 1990) as "Intact; not violated; free from substantial impairment."
Insofar as legislative power is concerned, § 11 of the Constitution has never been interpreted by this Court or the Courts of
Appeals of Alabama as doing more than restricting the legislature from denying or impairing the fundamental requisites of a jury, which are that the jury be composed of 12 persons, that they be impartial, and that their verdict be unanimous (Kirk v. State, 247 Ala. 43, 22 So.2d 431 (1945);Baader v. State, 201 Ala. 76, 77 So. 370 (1917); Culbert v.State, 52 Ala. App. 167, 290 So.2d 235 (1974); Brown v. State,45 Ala. App. 391, 231 So.2d 167 (1970); Dixon v. State,27 Ala. App. 64, 167 So. 340 (1936), cert. denied, 232 Ala. 150,167 So. 349 (1936); Judge Walter B. Jones, Trial by Jury inAlabama, 8 Ala.L.Rev. 274, 277 (1956); 16 Ruling Case Law 181 (1917)), in all cases in which the right of trial by jury existed at common law and in all cases where the right of trial by jury was secured by statute at the time the Alabama Constitution of 1901 was ratified.2 Gilbreath v. Wallace,292 Ala. 267, 292 So.2d 651 (1974); Alford v. State ex rel.Attorney General, 170 Ala. 178, 54 So. 213 (1910); Tims v.State, 26 Ala. 165 (1855).
In Baader v. State, 201 Ala. at 77-78, 77 So. at 371-72, Justice Thomas wrote for this unanimous Court:
"That the right of trial by jury may be regulated by the Legislature has been often reaffirmed; but legislative restrictions or amplifications must not be of such character as to deny or impair any of the fundamental requisites of a jury; that is, they may not vary the constituent number, nor provide for other than an unanimous verdict, nor introduce regulations leading away from impartiality. These original factors are necessary for the integrity of the jury and the jury trial, being 'impliedly, if not expressly, fixed by the Constitution.' Proffatt on Jury Trial, § 106; Sedgewick on Stat. Const.Law, p. 486; Spivey v. State, 172 Ala. 391, 397, 56 So. 232 [1911]; 16 R.C.L. 181."
Judge Walter B. Jones, Trial by Jury in Alabama, 8 Ala.L.Rev. at 277 (1956), wrote:
"The fundamental requisites of trial by jury are that (1) the jury shall be composed of twelve persons, (2) that they shall be impartial, and (3) that the verdict must be unanimous. Legislative regulations do not infringe our constitutional provision that the right of trial by jury shall remain inviolate so long as the essential elements of number, impartiality, and unanimity are preserved."
Judge Cates, writing for the Court of Criminal Appeals inBrown v. State, 45 Ala. App. at 393, 231 So.2d at 169, wrote: "All that the Constitution requires of a jury is that it be impartial, duodecimal and unanimous."
It is obvious from the proceedings of the Constitutional Convention of 1901 that the requirements that a jury's verdict be unanimous and that the number of jurors be 12 were set in stone by §§ 11 and 36 and were to remain free from encroachment by any department of government. See Official Proceedings,Constitutional Convention of 1901, Vol. 2, pp. 1677-1727. During the convention, a minority report sought to change what is now § 11 to: "The right of trial by jury as heretofore enjoyed, shall remain inviolate; but in civil actions three-fourths of the jury may render a verdict." This proposal was defeated by 81 votes to 29 votes. The number 123 was clearly not
to be violated, for the last delegate to speak before the vote at which the minority report was defeated, stated:
"[I]f . . . you . . . adopt the proposition contained in the minority report of the Committee, the same power lies in the hands of designing and unscrupulous men to go to the men who own their little farms all over Alabama, and say to them, this Constitution has done what it was predicted it would do, it has tampered with the jury system of Alabama. It has put it in the hands of the fellow that has got a mortgage on your property, to get it from you by a verdict of nine men, when the Constitution since the dawn of time has said twelve men, and that proposition would give you trouble world without end in securing the adoption of [the] Constitution.
"I appeal to this Convention not to tamper with the bill of rights. . . . [I]t is part and parcel of the rights reserved to the people, and I appeal to this Convention not to touch them, but let them stand as they have stood since the dawn of Alabama's history, the bulwark of the people against oppression of all sorts."
Official Proceedings, at 1723.
As for impartiality, that ideal, along with the ideal that a jury be composed of competent members, suffered in the debate, for, to support the amendment, there were allegations "that bribery stalks at noon time and sitteth in the courthouse in the evening hour." Id. at 1719. To oppose the amendment, there was the allegation that "[n]ine times out of ten you cannot get over three smart men on the jury on an average in this State. You know that is a fact." Id. at 1704.
Justice Jones, for a unanimous Court, wrote in Gilbreath v.Wallace, 292 Ala. at 271, 292 So.2d at 655, "In Alabama the basic principles which apply to constitutional juries in criminal cases also apply in civil cases."
Query: The Constitution requires a 12-person, impartial jurythat unanimously does what?
There is apparent in the Official Proceedings, ConstitutionalConvention of 1901, supra, an implicit understanding that a jury must function as a factfinder, for why would there be concern about whether the 12 persons were in complete agreement or accord, if it were not on the resolution of the facts necessary to determine guilt or innocence or to determine whether the plaintiff or the defendant prevails?
Section 6.11 of Amendment 328 to the Constitution, which was proclaimed ratified on December 27, 1973 (Proclamation Register No. 3, p. 32), provides:
"The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama of 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application."
There is some disagreement among the Justices on this Court as to what it is that the term "[t]hese rules" in the last sentence of § 6.11 does apply (see the per curiam opinion and the dissenting opinion of Houston, J., in Armstrong v. Roger'sOutdoor Sports, Inc., 581 So.2d 414 (Ala. 1991)); however, all Justices agree that the words "[t]hese rules" in the last sentence of § 6.11 clearly do not refer to the proviso addressing the right to trial by jury that precedes them and therefore do not empower the legislative department to change the right of trial by jury "by a general act of statewide application." The word "rule," as a noun, is defined as "[a]n established standard, guide, or regulation. Prescribed guide for conduct or action, regulation or principle [citation omitted]. A principle or regulation set up by authority, prescribing or directing action or forbearance; as, the rules of a legislative body, of a company, court, public office, of the law, of ethics." Black's Law Dictionary 1331 (6th ed. 1990). As a noun, the word "right" denotes "a power, privilege, faculty, or demand, inherent in one person and incident upon another"; and, giving the word a juristic content, "a 'right' is well defined as 'a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others.' " Black's Law Dictionary 1324 (6th ed. 1990).4
When writing of the right to trial by jury there is, on one hand, a tendency to overwrite, to be too expansive of the right: to use "encomiums" and "panegyrics" (Alford v. State exrel. Attorney General, 170 Ala. 178, 183-220, 54 So. 213,214-25 (1910) (Mayfield, J., dissenting)); and, to use words unduly restricting any change in the jury system, such as "forbid[ding] the State through the legislative, judicial, or executive department — one or all — from ever burdening, disturbing, qualifying, or tampering with this right" (Gilbreath v. Wallace, 292 Ala. at 271, 292 So.2d at 651); and "never . . . judicially abolish, curtail, or diminish . . . the right" (Jawad, supra). On the other hand, there is the tendency to underwrite, to be unduly restrictive of the right: "Legislative regulations do not infringe our constitutional provision that the right to trial by jury shall remain inviolate so long as the essential elements of number, impartiality, and unanimity are preserved." Jones, 8 Ala.L.Rev. at 277; Baader v. State, supra; Brown v. State, supra.
The passage quoted above from Jawad should have been tightened to correctly state the judicial prohibition involved in that case: "There can never be good reasons for attempting to judicially abolish, curtail, or diminish the factfinding function of a jury."
If "[t]o provide that the right of trial by jury shall remain inviolate is to forbid the legislative . . . department from ever burdening, disturbing, qualifying, or tampering with this right," (Gilbreath v. Wallace, 292 Ala. at 271,292 So.2d at 651), can the legislature change the mode of selecting the venire from which jurors are chosen?
In 1901, in each county the county commissioners or members of the board of revenue constituted a board of jury commissioners (Code of Alabama 1897, § 4976); that board selected from male residents of the county over 21 and under 60 years of age the names of such persons not exempt from jury duty "as in their opinion [were] fit and competent to discharge the duties of . . . petit jurors with honesty, impartiality and intelligence, and [were] esteemed in the community for their integrity, good character, and sound judgment." (Code 1897, § 4982). It was from these names that the petit jurors were selected. There were numerous persons exempted from jury duty (Code 1897, § 4986), including, but not limited to teachers, attorneys, judges, physicians, dentists, ministers, firemen, students, school board members, mailmen, wardens, and county commissioners.
Now, a jury commission from each county (Ala. Code 1975, §12-16-30) compiles a master list of all the persons in the county who may be called for jury duty (Ala. Code 1975, §12-16-57); and no citizen can be excluded from jury service on account of race, color, religion, sex, national origin, or economic status (Ala. Code 1975, § 12-16-56). All persons selected for jury service must be selected at random from a fair cross section of the population of the area served by the court (Ala. Code 1975, § 12-16-55). No qualified prospective juror is exempt from jury service. (Ala. Code 1975, § 12-16-62). Sections 12-16-55, -56, -57, and -62 were enacted in 1978, after Amendment 328 was ratified.
In lieu thereof, Ala. Code 1975, §§ 12-16-145 and -146, provide an alternative plan and procedure for qualifying, selecting, drawing, summoning, and empaneling juries. Do these legislative changes burden, disturb, qualify, or tamper with the right to trial by jury? These were enacted after the ratification of the Constitution of 1901.
Whether the change in the composition or selection of potential jurors violates or substantially impairs the right secured by § 11 of the Constitution is not before us; and the mention of this is not to suggest that it does or that it does not.
Judge Cates in Brown v. State, 45 Ala. App. at 395,231 So.2d at 171, wrote: "The mode of jury selection is basically one of statutory choice"; however, that was the same opinion in which Judge Cates wrote that § 11 requires only that a jury "be impartial, duodecimal and unanimous."
The general affirmative charge with hypothesis was used in Alabama prior to 1901. Alabama G.S.R.R. v. McAlpine Co.,80 Ala. 73, 74 (1885); McElroy, The General Affirmative Chargewith Hypothesis in Alabama, 1 Ala.L.Rev. 151 (1949). Where the party with the burden of proof presented evidence of each element of his cause of action by uncontradicted testimony, the case was sent to the jury but with a special direction that "if the jury believe the evidence; it must find for the plaintiff." This Court changed this by the last sentence of Rule 50(a), A.R.Civ.P.: "The order of the court granting a motion for a directed verdict is effective without any assent of the jury." (Emphasis added.)
At common law, the verdict of the jury had to be a general verdict, and no judgment could be rendered on a special verdict. Clay v. State, 43 Ala. 350 (1869). By Rule 49(b), A.R.Civ.P., this Court authorized special verdicts. According to the Committee Comments, "Rule 49(b) expressly cures the common law difficulty by express provision."
Whether these changes in the jury's function violate or substantially impair the right secured by § 11 and § 6.11 of Amendment 328 of the Constitution is not before us, and the mention of them is not to suggest that they do or that they do not.
It is obvious that neither the legislature nor the judiciary has considered §§ 11 and 36 of the Constitution as sacrosanct when dealing with certain aspects of trial by jury.
Under Ala. Code 1975, § 6-11-3(3)c.3., "Evidence of the present value of future damages is inadmissible in cases covered by this article, except at a hearing authorized by section 6-11-5, herein."
Alabama Code 1975, § 6-11-5, provides:
"The court may conduct hearings and receive such evidence as is deemed necessary in order to make the determinations required in section 6-11-3. . . ."
Therefore, § 6-11-3(3)c.3. and § 6-11-5 do transfer the function of determining the present value of future compensatory damages from the jury to the trial court. Was this a function of the jury at the time the Constitution of 1901 was ratified?
What are compensatory damages, if not an element of a cause of action? To the bench and bar all elements of a cause of action are essential in the trial of an action; but to a not-so-esoteric group — to us, the people — as parties to litigation, whether damages are awarded and, if awarded, the damages awarded are the essence of the action, the indispensable property of and the reason for bringing and for defending the action.
At common law as it existed in 1819, and in 1901, it was a jury function to assess compensatory damages.
In Wood's Mayne on Damages § 791, at 739 (3rd English and 1st American ed. 1880), the following appears:
"It was always admitted that in cases where the amount of damages was uncertain, their assessment was a matter so particularly within the province of the jury that the Court could not alter it."
We are aware that the United States Supreme Court in Tull v.United States, 481 U.S. 412, 425-26, 107 S.Ct. 1831, 1840,95 L.Ed.2d 365 (1987), uses language suggesting that a jury is never required to assess any form of damages:
"The Seventh Amendment is silent on the question of whether a jury must determine the remedy in a trial in which it must determine liability. The answer must depend on whether the jury must shoulder this responsibility as necessary to preserve the 'substance of the common-law right of trial by jury.' Colgrove v. Battin, 413 U.S. 149, 157, 93 S.Ct. 2448, 2452, 37 L.Ed.2d 522 (1973). Is a jury role necessary for that purpose? We do not think so. ' "Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed
beyond the reach of the legislature." ' Id., at 156, n. 11, 93 S.Ct. at 2452, n. 11 (quoting Scott, Trial by Jury and the Reform of Civil Procedure, 31 Harv. L.Rev. 669, 671 (1918)). See also Galloway v. United States, 319 U.S. 372, 392, 63 S.Ct. 1077, 1088, 87 L.Ed. 1458 (1943) ('[T]he Amendment was designed to preserve the basic institution of jury trial in only its most fundamental elements.' Congress' authority to fix the penalty by statute has not been questioned, and it was also the British practice, see, e.g., Atcheson v. Everitt, 1 Cowper 382, 98 Eng.Rep. 1142 (K.B.1776). In the United States, the action to recover civil penalties usually seeks the amount fixed by Congress. See, e.g., United States v. Regan, 232 U.S. [37], at 40, 34 S.Ct. [213], at 213 [58 L.Ed. 494 (1914)] Hepner v. United States, 213 U.S. [103], at 109, 29 S.Ct. [474] at 477 [53 L.Ed. 720 (1909)]. The assessment of civil penalties thus cannot be said to involve the 'substance of a common-law right to a trial by jury,' nor a 'fundamental element of a jury trial.' "
The Chief Justice and six Justices concurred. Justice Scalia, joined by Justice Stevens, dissented on this point "because in my view," wrote Justice Scalia, "the right to trial by jury on whether a civil penalty of unspecified amount is assessable also involves a right to trial by jury on what the amount should be." 481 U.S. at 427, 107 S.Ct. at 1840-41.
We are not dealing with a civil penalty in this case, as the United States Supreme Court was in Tull, but with compensatory damages, the remedy for an injury done to a person and to which the person has a right by § 13 of the Constitution.
At common law, it was a jury function to determine the life expectancy of a plaintiff who had suffered permanent injury.Alabama Mineral R.R. v. Jones, 114 Ala. 519, 21 So. 507 (1897). Mortality tables were admissible, but the tables were one of many factors to be considered by the jury. 114 Ala. at 533,21 So. at 510-11; Mary Lee Coal Ry. Co. v. Chambliss, 97 Ala. 171,11 So. 897 (1892). Subsequently, the legislature adopted statutes concerning mortality tables, Ala. Code 1975, §§ 35-16-3
and 35-16-4. Since the adoption of these statutes, this Court has reiterated that mortality tables are not conclusive evidence of the life expectancy of a particular person. InLouisville N.R.R. v. Richardson, 285 Ala. 281, 283,231 So.2d 316 (1970), this Court held:
"Mortality tables, showing at any age the probability of the duration of life, or life expectancy, and expert testimony relating to the present value of any loss sustained, are competent evidence, where the injury is permanent, to assist the jury in arriving at a fair recompense for the loss of what the injured person would otherwise have earned in his trade. . . . The mortality tables are not conclusive evidence of the life expectancy of a particular person, but are accepted only as an aid to the jury in connection with other relevant facts in arriving at the probable duration of the life of a person. . . .
The legislature, in adopting the mortality tables, did not prescribe the manner in which juries arrive at an amount of damages to compensate an injured plaintiff for his loss of future earnings.
The determination of the amount to which a plaintiff is entitled for his loss of future earnings was a jury question in a case tried to a jury, before the ratification of the Constitution. South North Ala. R.R. v. McLendon, 63 Ala. 266,273 (1879). At the time of the ratification of the Constitution, in cases tried to a jury, it was the jury's function to reduce future earnings to present value or present worth. McAdory v. Louisville N.R.R., 94 Ala. 272, 10 So. 507
(1892).
The general rule regarding present value is aptly stated in 22 Am.Jur.2d Damages § 174, at 156-57 (1988):
"When the plaintiff is compensated for a decrease in his earning capacity, he is awarded a sum of money now for funds which — had it not been for the injury — he would have received at some future dates. His wages or salary would have
been paid to him during the remainder of his work-life; the award compensating him for a decrease in his ability to earn wages or salary is paid to him in a lump sum and in advance of the date or dates on which he would normally have received the payments. Thus, if the court, for this element of damages, awards a sum of money equal to the total decrease in plaintiff's earning capacity without reduction to present worth, it is ignoring the fact that money has the power to earn money.
"In those jurisdictions which have not chosen to wholly or partially ignore this fact, on the grounds that doing so will compensate for erosion of the purchasing power of money, it is held that damages should be reduced to reflect only the present value of the plaintiff's decreased earning capacity. Courts following this rule state that the plaintiff is not entitled to a sum of money, the interest on which compensates him for his decreased earning capacity, because this would leave the principal amount intact, resulting in overcompensation. The amount awarded should consider the use of both the principal and the interest as compensating for the decreased earning capacity."
22 Am.Jur.2d Damages § 176 at 157, contains the following discussion of the determination of a discount rate:
"The goal of the personal injury award for impairment of future earning capacity should be to give the plaintiff that sum of money which, if invested, will return to the plaintiff the amount of the decrease in his earning capacity over the period of the injury if not permanent, or, if permanent, over the period of his life expectancy (or according to some courts, work expectancy) and — at the termination of that period — be reduced to no value. For this purpose, an interest rate must be selected. Courts generally admit evidence submitted on the question of the rate of interest and then leave to the jury under a general instruction the determination of the rate of return."
See Louisville N.R.R. v. Trammell, 93 Ala. 350, 9 So. 870,873 (1891) (a nonjury case); McAdory v. Louisville N.R.R.,94 Ala. 272, 10 So. 507 (1892); Alabama Pattern Jury Instructions:Civil, 1., 11.11 (1974). In Birmingham Ry. Light and Power Co.v. Wright, 153 Ala. 99, 44 So. 1037 (1907), the Court indicated that Trammell and McAdory should be limited to death cases for which compensatory damages were recoverable because "[w]here the injury does not result fatally, the plaintiff will be the beneficiary of the damages recovered, and to allow him the value of his life, which he yet has, is, of course, absurd." 153 Ala. at 108, 44 So. at 1040. We are not awarding the value of life, but the present value of decreased future earnings. We cannot comprehend the statement quoted fromWright, but it cannot properly relate to the function of reducing the award for the decrease in future earning capacity to present value; however, if it does relate to that function, it is wrong and it is overruled to the extent that it does so relate.
The legislature has adopted a discount rate of six percent (6%) to be used in reducing compensation paid under the Alabama workmen's compensation provisions, Code, § 25-5-83, see Exparte St. Regis Corp., 535 So.2d 160, 162 (Ala. 1988). However, the legislature has not adopted a discount rate to be applied in other areas.
Section 35-16-1 authorizes the superintendent of insurance and the superintendent of banks, within 30 days after final adjournment of each regular session of the legislature, to prepare an annuity table showing the present cash value of an annuity of $100 per month, month by month from 2 to 480 months at the following rates: 2, 2 1/2, 3, 3 1/2, 4, 4 1/2, 5, 5 1/2, and 6 percent. The secretary of state causes that table to be published in the bound volume of the acts of the legislature. See 1990 Acts of Alabama, Vol. 2, page 1588. Section 35-16-2
provides that these tables shall be received in all courts of this state as evidence of the facts therein stated, but that "nothing contained in this chapter shall affect the admissibility of other competent evidence when offered in a lawful and proper manner." Therefore, the discount rate to be applied in this case is a
question of fact for the jury. See 8 Am. Jur., Proof of Facts,Discount Rate, § 3, pp. 12-13 (1976).
It is apparent that the sentence "The fact-finder shall not reduce any future damages to present value," contained in §6-11-3 and in § 6-11-5, does take away from the jury a factfinding function (when a jury is the factfinder) that was within the province of the jury at the time of the ratification of the Constitution of 1901.
Do these Code sections violate § 11 of the Constitution? And, insofar as the judiciary is concerned, do § 6-11-3(3)c. and §6-11-5 violate § 6.11 of Amendment 328 of the Constitution?
The Seventh Amendment to the United States Constitution was ratified approximately 28 years before Alabama's first Constitution was ratified. So, we look to the historical events surrounding the Seventh Amendment for enlightenment as to what was excepted out of the state's general powers of government to "forever remain inviolate" (Article I, § 36, Alabama Constitution of 1901) (Article I, § 30, Alabama Constitution of 1819), insofar as "the right of trial by jury" is concerned.
Alexis de Tocqueville, Democracy in America 293 (1835; P. Bradley, rev. ed. 1945), astutely observed, "The jury is above all, a political institution, and must be regarded in this light in order to be duly appreciated."
The right to a civil jury played a bit part, but a greater part than any other right guaranteed by the Bill of Rights, in the 1787 Constitutional Convention at Philadelphia. The only recorded issue made of the absence of a bill of rights at that convention, that this Court has been able to find, was an objection that the document lacked a guarantee of jury trials in civil cases.
On September 12, 1787, Hugh Williamson of North Carolina raised this objection to the lack of a guarantee of a civil jury trial:
"Mr. Williamson, observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it.
"Mr. [Nathaniel] Gorham [of Massachusetts]. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.
"Mr. [Elbridge] Gerry [of Massachusetts] urged the necessity of Juries to guard agst. corrupt Judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by Juries.
"Col: [George] Mason [of Virginia] perceived the difficulty mentioned by Mr. Gorham. The jury cases cannot be specified. A general principle laid down on this and some other points would be sufficient. He wished the plan had been prefaced with a Bill of Rights, would second a Motion if made for the purpose — It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.
"Mr. Gerry concurred in the idea moved for a Committee to prepare a Bill of Rights. Col: Mason 2ded a motion.
"Mr. [Roger] Sherman [of Connecticut] was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient — There are many cases where juries are proper which cannot be discriminated. The Legislature may be safely trusted.
"Col. Mason. The Laws of the U.S. are to be paramount to State Bills of Rights. . . ."
J. Madison, Debates in the Federal Convention, in 2 Records ofthe Federal Convention of 1787 (M. Farrand ed. 1911) n. 54, at 587-88.
On September 15, 1787, Charles Pickney of South Carolina and Gerry moved to annex to the end of Art. III, § 2, paragraph 3: "And a trial by jury shall be preserved as usual in civil cases." This proposal was defeated. J. Madison, Debates in theFederal Convention, in 2 Records of the Federal Constitution of1787 at 628.
Professor Charles W. Wolfram, in The Constitutional Historyof the Seventh Amendment, 57 Minn.L.Rev. 639 (1973), recounting the Antifederalists' attempts to defeat ratification of the United States Constitution without a bill of rights, lists and discusses several distinct and specific arguments in favor of civil jury trials:
"[T]he protection of debtor defendants; the frustration of unwise legislation; the overturning of the practices of courts of vice-admiralty; the vindication of the interests of private citizens in litigation with the government; and the protection of litigants against overbearing and oppressive judges [if such there be or ever have been]."
57 Minn.L.Rev. at 670-71.
However, from a historical approach, it has not been determined what features of a civil jury trial were preserved to parties to civil litigation from the United States and its officers, agents, and employees.
"Others have already delved into history for specific answers to these questions and have found none. None can be reported from this author's research into the ratification controversy. It is clear that the antifederalists desired a strong and significantly independent role for the jury and there is some indication that this role was envisioned not to involve the risk of correction by the attending judge. Nothing has been found that bears explicitly on such questions as the size of the jury, the requirement of unanimity, or even the requirement of secrecy for their deliberations. It is not at all surprising that discussion of such secondary matters did not arise during the period under review. The major issues of the day were the large stakes of local control versus centralized power. Even at the level of personal rights and privileges, the larger and more critical task was to secure in some form a guarantee of such rights as those of free speech and press and the right to civil and criminal jury trial. Resistance [on] the part of federalists to the basic idea of a national bill of rights was too general to permit the introduction of matters of such relatively trivial significance as the size of juries or the precise line that should delineate the provinces of jury and judge."
Wolfram, 57 Minn.L.Rev. at 723-25. (Emphasis added.)
When the constitutionality of a duly enacted act of the legislature is challenged, we must remember that all questions of "propriety, wisdom, necessity, utility, and expediency" are exclusively for legislative determination. Alabama StateFederation of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810,815 (1944), cert. dismissed, 325 U.S. 450, 65 S.Ct. 1384,89 L.Ed. 1725 (1945). When the constitutionality of a duly enacted act is challenged, the only question for this Court is that of legislative power; and to determine that, we must determine whether the Constitution excepted that power from the power given the legislature.
Each of the Alabama Constitutions, from the Constitution of 1819 (Article I, §§ 28 and 30) to the present Constitution of 1901 (Article I, §§ 11 and 36), has excepted out of the general powers of government, the power to violate the right of trial by jury. What does that right entail? Twelve persons, who are impartial and who unanimously resolve disputed facts, following the instructions on the law to be applied, which are given to them by the trial court. The legislature can change the law, including the law of damages; however, the legislature cannot, just as we have held the judiciary cannot (Jawad v. Granade, supra), impinge upon the factfinding function of the jury.
We do not intend to lead a crusade "to a constitutional holy land"5; but we must agree with Justice Stone, who in Sadler v.Langham, 34 Ala. 311, 335 (1859), quoted with approval the following:
" 'It is highly probable that inconveniences will result from following the constitution
as it is written. But that consideration can have no weight with me. It is not for us, but for those who made the instrument, to supply its defects. If the legislature or the courts may take that office on themselves, or if under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set a boundary to the powers of the government. Written constitutions will be more than useless.
" 'Believing, as I do, that the success of free institutions depends on a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausible reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power — some evil to be avoided, or some good to be attained, by pushing the powers of the government beyond their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined, and finally overthrown. My rule has ever been to follow the fundamental law as it is written, regardless of consequences. If the law does not work well, the people can amend it; and inconveniences can be borne long enough to await that process. But, if the legislature or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary, in enlarging the powers of the government, opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them. Oakley v. Aspinwall, 3 N.Y. 547, 568."
In this case, Clark had a constitutional right " 'to a remedy by due process' for any injury done him, in his . . . person." Constitution, § 13. "Remedy" is defined as "[t]he means by which a right is enforced or the violation of a right is . . . compensated." Black's Law Dictionary, 1294 (6th ed. 1990). Clark had demanded a jury for the trial of his action; therefore, Clark had a right (" 'a capacity residing in one man of controlling, with the assent and assistance of the state, the actions of others,' " Black's Law Dictionary, supra) to have the jury determine whether a compensable injury had been done him, in his person; and, if so, to determine the amount necessary to compensate him for that injury.
Therefore, the right that an individual, as a party to civil litigation, has to a trial by jury is protected by § 11 of the Constitution from the legislative, executive, and judicial departments of government and by § 6.11 of Amendment 328 from the judicial department. It is the right to have a jury of 12 impartial people unanimously resolve disputed facts.
Not only does Ala. Code 1975, § 6-11-3, remove from the jury the function of factually determining the amount of a plaintiff's remedy for an injury done to the plaintiff's person, but it also requires all defendants to pay an excessive amount on the first $150,000 of future damages when future damages are assessed. Defendants who are required to pay any future damages (and in the briefs accompanying this certified question there is an unsubstantiated statement that evidence was presented to the Alabama legislature prior to the enactment of § 6-11-3 that awards of future damages in most cases did not exceed $150,000) do not have the initial $150,000 of future damages reduced to present value, either by the jury or by the trial court. Therefore, § 6-11-3, as written, provides a remedy in excess of that due a plaintiff under the common law, as to any future damages not exceeding $150,000. We do not mean to imply that the legislative department cannot by another general act abolish the procedure or rule requiring that all damages for a decrease in future earnings be reduced to present value or even abolish all damages for loss of future earnings,Gasoline Products Co. v. Champlin, supra. That is not before us, for § 6-11-6
provides: "Nothing in this article shall be construed to alter or affect the nature, elements, form, or amount of damages recoverable in any action."
Act No. 87-183, Acts of Alabama 1987 (Ala. Code 1975, §§6-11-1 through 6-11-7), contains a severability clause (§ 7):
"If any section, clause, provision, or portion of this act shall be held invalid or unconstitutional by any court of competent jurisdiction, such holding shall not affect any other section, clause, or provision of this act which is not in or of itself invalid or unconstitutional."
ANSWER TO CERTIFIED QUESTION:
The sentence in §
6-11-1 providing that "The fact-finder shall not reduce any future damages to present value"; all of §
6-11-3; and, consequently, all of §
6-11-4, since it has no operative effect apart from §
6-11-3; and all of §
6-11-5
violate §§ 11 and 13 of the Constitution, when a jury has been demanded, and as applied to the case of
Billy Ray Clark andHalliburton Industrial Services Division v. ContainerCorporation of America, Inc.
We have a real concern about § 6-11-4(4) ("No certificate of judgment shall issue or be recorded against any defendant for that portion of an award of future damages which is structured") on several constitutional grounds; however, that sentence is inoperative without § 6-11-3; therefore, we omit any separate discussion of that sentence.
We also omit any discussion of whether § 6-11-3 violates Article I, § 6, or Article III, § 42, of the Constitution, because such a discussion is not necessary for the resolution of the case before the United States District Court for the Southern District of Alabama.
CERTIFIED QUESTION ANSWERED.
SHORES, ADAMS, STEAGALL, KENNEDY and INGRAM, JJ., concur in the result.
MADDOX, J., dissents.