Commonwealth of Kentucky, Cabinet for Health and Family Services Ex Rel., Adam Meier, in His Official Capacity as Secretary of the Cabinet for Health and Family Services v. Ezra Claycomb a Minor, by and Through His Next Friend, Natural Guardian and Parent

• Court: Kentucky Supreme Court
• Decided: November 15, 2018
• Docket: 2017-SC-0615
• Status: Unpublished

Opinion

RENDERED: NOVEMBER 15, 2018 TO BE PUBLISHED

2017-SC-000614-TG 2017-SC-000615-TG

COMMONWEALTH OF KENTUCKY, APPELLANT CABINET FOR HEALTH AND FAMILY SERVICES, EX REL. ADAM MEIER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE CABINET FOR HEALTH AND FAMILY SERVICES

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2017-CA-001770 FRANKLIN CIRCUIT COURT NO. 17-CI-00708

EZRA CLAYCOMB, A MINOR, BY AND APPELLEES THROUGH HIS NEXT FRIEND, NATURAL GUARDIAN AND PARENT, TONYA CLAYCOMB AND TONYA CLAYCOMB, ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

OPINION OF THE COURT BY CHIEF JUSTICE MINTON

AFFIRMING

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,

1 Thomas R. Phillips, The Constitutional Right to a Remedy, 78 N.Y.U. L. Rev. 1309, 1310 (2003). 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(l) 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

2 KRS 216C.005.

2 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.010(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

3 KRS 216C.020(1).

3 (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

4 KRS 216C.020(2). 5 A party to the action or a panel member may invoke the jurisdiction of a court of the Commonwealth that would otherwise have subject-matter jurisdiction over the case but only for the limited purpose of ruling on certain motions allowed by Chapter 216C, none of which allow adjudication of a claimant’s case. See KRS 216C.240; KRS 216C.250. 6 See KRS 216C.180. 7 See KRS 216C.030(l).

4 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

8 It appears that Claycomb has abandoned his Section 51 challenge in this appeal. 9 Because we find a violation of Section 14, which results in the striking down of Chapter 216C in its entirety, we need not reach Claycomb’s other constitutional challenges.

5 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.

10 Thomas Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky.L.J. 953, 964-65 (1991-92). 11 Id. (emphasis added).

6 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. Williams14 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

12 Michael L. Buenger and Paul J. De Muniz, American Judicial Power: The State Court Perspective, 200-01 (2015) (quoting Davis v. Ballard, 1 J.J. Marsh. 563, 568 (Ky. 1829)). 13 280 S.W.2d 214 (Ky. 1955). 14 14 Ky. 34 (Ky. 1823). 15 14 Ky. 47 (Ky. 1823). 16 Werner, 280 S.W.3d at 215.

7 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. Higgins18 and Barkley v. Glover19 “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

17 Id. (citing Arndt Mathias Stickles, The Critical Court Struggle in Kentucky, 1819- 1829 (1929)) (quoting George Robertson, Scrap Book of Law and Politics, Men and Times (1855)). 18 60 Ky. 566 (Ky. 1861). 19 61 Ky. 44 (Ky. 1862). 20 Werner, 280 S.W.2d at 215 (internal citations omitted). 21 49 S.W.2d 347, 351 (Ky. 1932).

8 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

22 Werner, 280 S.W.2d at 216. 23 Id. at 216. 24 Jonathan M. Hoffman, By the Courts of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or. L. Rev. 1279, 1301 (1995) (discussing Britain’s perceived interference with American colonial courts leading up to the American Revolution and comparing colonial grievances over royal abuses with conflict between Coke and Crown 150 years earlier). “Lord Coke was a fervent advocate of parliamentary supremacy, whereas the colonists ended up resisting parliamentary as well as royal authority.” Id.

9 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, “[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 judiciaiy 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

25 Gordon S. Wood, Foreword: State Constitution-Making in the American Revolution, 24 Rutgers L.J. 911, 920 (1993) (citing The Crisis, No. XI, 81-87 (New York 1775)). 26 Phillips, supra note 1 at 1323; see also, William C. Koch, Jr., Reopening Tennessee’s Open Courts Clause: A Historical Reconsideration of Article I, Section 17 of the Tennessee Constitution, U. Mem. L. Rev. (1997) (“Few courts continue to insist that the open courts provision has no application to legislative actions.”). 27 Buenger and De Muniz, supra note 12 at 200 (emphasis added).

10 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

28 Id. (quoting Fisher’s Negroes v. Dabbs, 14 Tenn. 119, 137-38 (Tenn. 1834)) (emphasis added). 29 Phillips, supra note 1 at 1304.

11 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 long­

standing 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

30 Ky Const. Art. XII, § 28 (1792). 31 Utility Mgmt. Grp, LLC v. Pike Cnty Fiscal Court, 531 S.W.3d 3, 12 (Ky. 2017) (citing Curd v. Ky. State Bd. of Licensure, 433 S.W.3d 291, 305 (Ky. 2014)). 32 Harris v. Commonwealth, 338 S.W.3d 222, 229 (Ky. 2011) (quoting Rust v. Sullivan, 500 U.S. 173, 183 (1991)).

12 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

33 Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 982 S.W.2d 493, 499 (Ky. 1998). 34 O’Bryan v. Hedgespeth, 892 S.W.2d 571, 578 (Ky. 1995). 35 Fireman’s Fund Ins. Co. v. Government Emps. Ins. Co., 635 S.W.2d 475, 477 (Ky. 1982) (internal citations omitted) (overruled on other grounds by Perkins v. Northeastern Log Homes, 808 S.W.2d 809 (Ky. 1991)). 36 Phillips, supra note 1 at 1310. 37 Id. (citing A.E. Dick Howard, The Road from Runnymeade: Magna Carta and Constitutionalism in America, 6-8 (1968)). 38 See William Sharp McKechnie, Magna Carta: A Commentary on the Great Charter of King John 51-52, 120 (2d ed. 1914).

13 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

39 Phillips, supra note 1 at 1320 n.35. (quoting David Schuman, Oregon’s Remedy Guarantee: Article I, Section 10 of the Oregon Constitution, 65 Or. L. Rev. 35, 37 (1986)) 40 Buenger and De Muniz, supra note 12 at 200. 41 1 Debates of the Constitutional Convention of 1890, 732, (1890)(J. Proctor Knott, Madison County). 42 Phillips, supra note 1 at 1320 (citing Hastings Lyon & Herman Block, Edward Coke: Oracle of the Law, 348 (1929)).

14 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:

[Ejvery 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 . . . .[Jjustice 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

43 Phillips, supra note 1 at 1320 (quoting Edward Coke, The Second Part of the Institutes of the Laws of England, 45 (photo reprint 1986) (London, W. Clarke 8s Sons 1817) (1641)). 44 Phillips, supra note 1 at 1320 (quoting Coke, supra note 38). 45 Phillips, supra note 1 at 1320. 46 Phillips, supra note 1 at 1320 (quoting Coke, supra note 38). 47 Phillips, supra note 1 at 1321 (citing William Blackstone, Commentaries on the Law of England, 124 (1765)). 48 Phillips, supra note 1 at 1321 (citing Blackstone, supra note 42 at 125 and 129). 49 Phillips, supra note 1 at 1321.

15 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 subordinate right of ‘applying to the courts of justice for redress of

injuries.’”54

Coke and Blackstone observed that included among the rights protected

by the remedies guarantee are “the rights of subjects in their private relations

50 Phillips, supra note 1 at 1321 (citing Blackstone, supra note 42 at 141-44). 51 Phillips, supra note 1 at 1322 (citing Blackstone, supra note 42 at 116). 52 Phillips, supra note 1 at 1322 (quoting Blackstone, supra note 42 at 109). 53 Phillips, supra note 1 at 1322 (citing Blackstone, supra note 42 at 141). 54 Id.

16 with one another,”55 which includes the “absolute right[] of personal

security.”56 “Personal security include[s] the right to life and limb, and ... to

body (freedom from assault), health, and reputation.”57 In order to protect

against violations of such rights, Coke and Blackstone identified the necessary

remedy that immediately attaches upon injury done to a person: “[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 . . . speedily without delay.”

Indeed, “[t]he placement of access to [courts] provisions in states’ bills of rights

suggests that the drafters of state constitutions did not view the right as merely

an operational detail of the courts but rather as an individualized,

particularized and positive right. . . .”58

The General Assembly, through Chapter 216C, has created a mandatory

delay affecting the ability of all medical-malpractice claimants to seek any

redress, unless all parties either “validly agree[] ... to a binding arbitration

procedure”59 or agree to bypass the medical review panel process.60 Chapter

216C takes away the ability of medical-malpractice claimants to seek

immediate redress in the forum of the claimant’s choosing. Chapter 216C

contravenes one of the main purposes of Section 14—to prohibit legislatively

55 Phillips, supra note 1 at 1320. 56 Phillips, supra note 1 at 1321 (citing Blackstone, supra note 42 at 125 and 129). 57 Phillips, supra note 1 at 1321 n. 44 58 Buenger and De Muniz, supra note 12 at 202. KRS 216C.020(l). 50 60 KRS 216C.030(1).

17 created delays in the ability of a claimant to seek immediate redress in the

courts of the Commonwealth for common-law personal injury, i.e., to prevent

the people from being “ordered . . . not to proceed with particular cause s[] and

[from] justice [being] delayed.”61

Section 14 provides for courts to be “open.” Section 14 affords “every

person for an injury done him in his . . . person . . . remedy by due course of

law, and right and justice administered without. . . delay.” Forcing a medical-

malpractice claimant seeking immediate redress for an alleged common-law

personal-injury to be at the mercy of the other parties involved when

attempting to bypass the panel process cannot satisfy Section 14’s mandate

that “[a]ll courts ... be open” and every Kentuckian “shall have remedy by due

course of law, and right and justice administered without. . . delay.”

Admittedly, delays are inherent in every adjudicatory proceeding. What

makes the delay imposed by Chapter 216C unconstitutional is the General

Assembly’s usurpation of a claimant’s freedom to access the adjudicatory

method of his or her choosing at the time of his or her choosing. Chapter 216C

is in contravention of Section 14 because no adjudication whatsoever takes

place of a medical-malpractice claimant’s claim unless a valid agreement has

been made to arbitrate or bypass the panel process. Claimants may only seek

immediate redress for their common-law personal-injury claims through

arbitration or the courts if, and only if, the adverse parties agree to proceed

through arbitration or the courts. This is an untenable restriction on the

61 Buenger and De Muniz, supra note 12 at 200-01 (quoting Dabbs, 14 Tenn. at 137- 38).

18 exercise of the individual’s right to receive “remedy by due course of law, and

right and justice administered without. . . delay” from an “open” court

system.62

The mandatory imposition of a delay in seeking immediate redress for a

common-law personal-injury claim in the adjudicatory forum of the claimant’s

choosing cannot amount to “due course of law,” because it is as though no

“course of law” is taking place whatsoever. No “right and justice” is being

“administered” at all. And, not only have the courts become closed, in

contravention of the mandate that they “shall be open,” but seemingly every

dispute-resolution process for malpractice claims has been closed, unless all

parties agree to arbitrate or bypass the panel process.

Justice Keller suggests that we have failed to consider what the phrase

“due course of law” was intended to entail, seemingly glancing over the wise

words of the Kansas Supreme Court that we borrow:

It is not an easy task to deduce either from reason or the authorities a satisfactory definition of. . . “due course of law.” We feel safe, however, ... in saying these terms do not mean any act that the Legislature may have passed if such act does not give to one opportunity to be heard before being deprived or property, liberty, or reputation, or having been deprived of either does not afford a like opportunity of showing the extent of his injury and give an adequate remedy to recover therefor. Whatever these terms may mean more than this, they do mean due and orderly procedure of courts in the ascertainment of damages for injury, to the end that the injured one “shall have remedy”—that is, proper and adequate remedy—thus to be ascertained. To refuse hearing and remedy for injury after its infliction is small remove from infliction of penalty before and without hearing.63

62 Ky. Const. § 14. 63 Hanson v. Krehbiel, 75 P. 1041, 1043 (Kan. 1904).

19 Chapter 216C “refuse[s] hearing and remedy for injury after its infliction”64 by

forcing alleged wronged claimants to wait before they can begin the process of

seeking redress. “Those terms . . . ‘due course of law’... do not mean merely

an act of the General Assembly. If they did, every restriction upon legislative

authority would be at once abrogated.”65

Chapter 216C is an unacceptable deviation from the “[t]he right of every

individual in society to access a system of justice to redress wrongs.”66 Instead

of affording claimants the ability to choose the process of redress they wish at

the time they wish to exercise it, Chapter 216C forecloses all immediate access

to any system of justice unless the other side agrees. Access to the

adjudicatory method of their choice for immediate redress of common-law

personal-injury claims is a constitutional right that all claimants have, unless

they choose to give it up; the government cannot take away that right.

We do note, however, that proceeding through an alternative means of

adjudication of a claim is not per se unconstitutional under Section 14.

Whether through arbitration, mediation, administrative proceedings, or some

other form of dispute-resolution process, if a claimant (1) has voluntarily

agreed to seek redress of their common-law claims through that process and

(2) has meaningfully waived access to the courts, then proceeding through a

dispute-resolution process outside the court system that resulted in a delayed

adjudication of a claim would, nevertheless, seem to pass constitutional muster

Id. 65 Hoke v. Henderson, 15 N.C. 1, 15 (N.C. 1833). 66 O’Bryan, 892 S.W.2d at 578.

20 under Section 14. But under Chapter 216C, common-law personal-injury

claimants have no ability to seek any immediate redress from the adjudicatory

forum of their choosing unless all parties agree to bypass the panel process.

Under these circumstances, with their backs against the wall, claimants

choosing to arbitrate cannot be said to have meaningfully waived their right to

immediate access to the courts.

We must also point out that the remedy guarantee of Section 14 applies

only to claims, “for an injury done [to a claimant] in his lands, goods, person or

reputation.”67 And the protections of Section 14 apply only to claims originating

out of the common law.68 If the legislature affords a right to claimants outside

the common law, then a delay in adjudication of that claim is not per se

unconstitutional under Section 14. Section 14 only prevents the legislature

from encroaching upon the realm of the judiciary, the creator of the common

law, by imposing mandatory delays in the adjudication of common-law claims

grounded in claims “for an injury done [to the claimant] in his lands, goods,

67 Ky. Const. § 14; see Mullins v. Manning Coal Corp, 938 S.W.2d 260, 263 (Ky. 1997) (“An employee’s right to occupational disease benefits is purely statutory in nature and does not fall under the ambit of § 14 of the Kentucky Constitution.”); see also Adkins v. R & S Body Co., 58 S.W.3d 428 (Ky. 2001); Shamrock Coal Co. v. Maricle, 5 S.W.3d 130 (Ky. 1999). 68 See Adkins, 58 S.W.3d at 430 (“Unlike the common law remedy for personal injury, the statutory remedy for injured workers is not predicated on redressing a tortious act .... Any rights that a worker acquires to a remedy under Chapter 342 are purely statutory and, therefore, do not come within the ambit of Section 14 of the Kentucky Constitution . . . .”); Shamrock Coal, 5 S.W.3d at 134 (“There was no common law cause of action for non-disabling category one pneumoconiosis in existence at the time of the adoption of the present Constitution; therefore, the jural rights doctrine is inapplicable.”).

21 person or reputation.”69 Here, medical-malpractice claims, a subset of

personal-injury and wrongful-death claims, have been a recognized part of the

common law for centuries,70 and as such, the legislature cannot delay

claimants from seeking immediate redress of such claims through the courts.

Lastly, there is no support, either from the text of Section 14, or from

case law interpreting that provision, to interpose a “reasonableness” evaluation

of the delay to determine if a delay can, in some circumstances, be

constitutionally tolerable. “Where a constitutional provision is free from all

ambiguity there is no room for interpretation or addition. It must be accepted

by the courts as it reads.”71 “The basic rule ... is to interpret a constitutional

provision according to what was said and not what might have been said;

according to what was included and not what might have been included.”72

“Neither legislatures nor courts have the right to add to or take from the simple

words and meaning of the constitution.”73 Finally, “It is hornbook law that in

interpreting Constitutions the words employed therein should be given the

meaning and significance that they possessed at the time they were employed,

69 Ky. Const. § 14; see Mullins, 938 S.W.2d 260 at 263 (“An employee’s right to occupational disease benefits is purely statutory in nature and does not fall under the ambit of § 14 of the Kentucky Constitution.”); Adkins v. R & S Body Co., 58 S.W.3d 428 (Ky. 2001); see also Shamrock Coal Co. v. Maricle, 5 S.W.3d 130 (Ky. 1999). 70 Kathy Kendall, Latent Medical Errors and Maine’s Statute of Limitations for Medical Malpractice: A Discussion, of the Issues, 53 Me. L. Rev. 589 (2001) (tracing the origin of medical malpractice claims to 4050 B.C. Sumer, which required negligent healers to pay their victims an amount of money proportional to the degree of disability incurred). 71 Talbott v. Public Serv. Commn., 163 S.W.2d 33, 38 (Ky. 1942). 72 Pardue v. Miller, 206 S.W.2d 75, 78 (Ky. 1947). 73 Jefferson Cnty. ex rel. Grauman v. Jefferson Cnty. Fiscal Court, 117 S.W.2d 918, 924 (Ky. 1938).

22 and the one that the delegates of the convention that framed the instrument,

and the people who voted their approval of it, intended to express and

impart.”74 Section 14, originally written and adopted in 1792, does not

proscribe the creation of “undue” or “unreasonable” delay on a Kentuckian’s

access to due course of law; Section 14 plainly proscribes delay.

The Commonwealth argued at oral argument that this Court has never

interpreted Section 14 in such an absolutist way. But our research fails to

uncover a single case where the General Assembly attempted to foreclose a

common-law personal-injury claimant’s right to immediate adjudicatory

redress. This Court has never interpreted Section 14 in such an absolutist way

because this Court has never been called upon to interpret Section 14 against

a statutory framework like Chapter 216C.

Justice Keller questions our ability to reconcile the strict reading of

Section 14 in this case versus our reading of Sections 59 and 60 in Zuckerman

v. Bevin.75 The reconciliation is this: there is no ambiguity in the word delay,

while the word special found in Sections 59 and 60 is fraught with ambiguity.

Special legislation is a vague term that has been defined and refined by

precedent from this Court. Such is not the case with the terms without delay in

Section 14.

74 City of Lexington v. Thompson, 61 S.W.2d 1092, 1096 (Ky. 1933). 75 2018-SC-000097-TC (Ky. Nov. 15, 2018).

23 We must acknowledge that the majority of our sister courts have upheld

the constitutionality of statutes establishing medical review panels.76 But a

minority of our sister courts have struck down the entirety or some provisions

of medical review panel acts based on the same open-courts doctrine we apply

to strike down Chapter 216C here.77 And a review of the laws of the 17 states

and U.S. territories currently having medical review panels further reveals

support for our holding.78

Alaska, Hawaii, Virginia, and the Virgin Islands do not have an open-

courts provision in their constitutions and governing documents. Louisiana

and Delaware’s respective open-courts provisions specifically modify “delay”

with the word “unreasonable.”79 The highest courts in Indiana, Maine, and

Montana read into their open-courts provisions a “reasonableness” evaluation

of delay.80 The highest courts in Massachusetts and New Hampshire did not

76 See Validity and construction of state statutory provisions relating to limitations on amount of recovery in medical malpractice claim and submission of such claim to pretrial panel, 80 A.L.R.3d 583 (originally published in 1977, continuously updated). 77 See State ex rel. Cardinal Glennon Mem’l Hosp. for Children v. Gaertner, 583 S.W.2d 107 (Mo. 1979); Jiron v. Mahlab, 659 P.2d 311 (N.M. 1983). North Dakota and Wyoming struck down their medical review panels, but not for reasons completely attributable to the open-courts doctrine. SeeAmeson v. Olson, 270 N.W.2d 125 (N.D. 1978); Hoem v. State, 756 P.2d 780 (Wyo. 1988). However, Wyoming subsequently amended its constitution, see Wyo. Const. Art. X, § 4(b), to allow for the creation of a medical review panel, which is now in place. Illinois struck down its version of the medical review panel, but that statutory framework is so different from Kentucky’s that it is unwise to make such a comparison. See Wright v. C. Du Page Hosp. Ass’n, 347 N.E.2d 736 (Ill. 1976). 78 Although several other states have other kinds of pretrial restrictions on the ability to hear medical malpractice suits, i.e., mandatory mediation or arbitration, the only issue before this court is the validity of the medical review panel process at hand. 79 See La. Const. Art. I, § 22 (“unreasonable delay”); Del. Const. Art. I, § 9 (“unreasonable delay”). 80 See Johnson v. St. Vincent Hosp., Inc., 404 N.E.2d 585 (Ind. 1980); Irish v. Gimbel, 691 A.2d 664 (Me. 1997); Linder v. Smith, 629 P.2d 1187 (Mont. 1981).

24 conduct an open-courts analysis regarding delay in their decisions.81 The

highest court in Idaho does not believe the open-courts doctrine applies to

constrain the legislature’s power to modify common-law personal-injury

actions.82 In Nebraska, the medical review panel process is not mandatory

because the claimant may affirmatively waive his or her right to panel review,

and for that reason, the Supreme Court determined the open-courts doctrine

was not violated.83 Kansas and Utah have not faced constitutional challenges

to their respective medical review panel statutes. And as stated earlier, New

Mexico struck down a portion of its medical review panel statutory framework

as being unconstitutional, while Wyoming went so far as to amend its

constitution to allow for such panels.

Indiana, Maine, and Montana have dealt with this issue, have similar

language in their open-courts provisions to Section 14, and have chosen to

apply a reasonableness standard to open-courts challenges.84 Yet, we find the

reasons these jurisdictions have done so unavailing.

Indiana has interpreted the pertinent part of its open-courts provision—

“Justice shall be administered freely, and without purchase; completely, and

without denial; speedily, and without delay”—as only applying to the

81 Paro v. Longwood Hosp., 369 N.E.2d 985 (Mass. 1977); In re S. New Hampshire Med. Ctr., 55 A.3d 988 (N.H. 2012). 82 See Jones v. State Bd. of Med., 555 P.2d 399 (Ida. 1976). 83 See Prendergast v. Nelson, 256 N.W.2d 657 (Neb. 1977) (noting that Neb. Rev. St. § 44-2840(4) states, “The claimant may affirmatively waive his or her right to a panel review, and in such case the claimant may proceed to file his or her action directly in court.”) 84 See Johnson u. St. Vincent Hosp., Inc., 404 N.E.2d 585 (Ind. 1980); Irish v. Gimbel, 691 A.2d 664 (Me. 1997); Linder v. Smith, 629 P.2d 1187 (Mont. 1981).

25 legislature, and not the judiciary.85 For the reasons stated in this opinion, we

reject that interpretation. Montana believes “that access to the courts is not an

independent fundamental right,” and for that reason has applied rational-basis

review when analyzing open-courts challenges in cases not involving other

fundamental rights.86 As explained above, however, an understanding of the

history surrounding Section 14 and the reasons for its adoption satisfy us that

immediate access to courts for the purpose of seeking redress of a common-law

personal-injury claim is a positive right afforded by the framers of the Kentucky

Constitution to all Kentuckians.

The Supreme Court of Maine has taken a statement by the U.S. Supreme

Court in Logan v. Zimmerman Brush Co.87 and used it in interpreting the

language of the state’s constitution. In Logan, the U.S. Supreme Court stated,

“The State may erect reasonable procedural requirements for triggering the

right to an adjudication . . . .”88 These words have been the basis for Maine’s

adoption of a reasonableness requirement in its open-courts provision.89 But

Logan dealt with the Fourteenth Amendment of the U.S. Constitution,

specifically, procedural due process, not an open-courts provision.90 As

Buenger and De Muniz note:

85 Smith v. Indiana Dept. of Correction, 883 N.E.2d 802, 807 (Ind. 2008). 86 Linder v. Smith, 629 P.2d 1187, 1190 (Mont. 1981). 87 455 U.S. 422 (1982). 88 Id. at 437. 89 Irish v. Gimbel, 691 A.2d 664, 672 (Me. 1997) (citing Giberson v. Quinn, 445 A.2d 1007, 1009 (Me. 1982)) (citing Logan, 455 U.S. at 437))). 90 Id. at 428.

26 There is no textual analogue to [the open-courts provision] in the Federal Constitution. A federal right “was not contained in the United States Constitution or in the federal Bill of Rights, no doubt because the law governing rights, duties, and liabilities between individuals with respect to the protection of ‘person, property, or reputation’ was deemed to be committed or reserved exclusively to the states.’”91

Chief Justice Phillips notes the same.92 And the claimant in Logan was

challenging federal agency procedures used for adjudicating a claimant’s

statutorily-created right for alleging employment discrimination.93 In other

words, Logan had nothing to do with a claimant’s right to access the state

courts for redress of a common-law personal-injury claim.

The entirety of Chapter 216C violates Section 14, and there is “no set of

circumstances . . . under which the Act would be valid.”94 Therefore, we must

declare the entire Act void as unconstitutional.

III. CONCLUSION.

Because Chapter 216C violates Section 14 of the Kentucky Constitution,

the Act is void in its entirety. Accordingly, we affirm, for the reasons stated in

this opinion, the judgment of the trial court.

All sitting. Hughes, VanMeter, and Venters, JJ., concur. Cunningham,

J., concurs in result only by separate opinion. Keller, J., concurs in result only

by separate opinion, in which Cunningham and Wright, JJ., join.

91 Buenger and De Muniz, supra note 12 at 200 (quoting Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 974 P.2d 1194, 1208 (Utah 1999)). 92 Phillips, supra note 1 at 1309-10. 93 Id. at 426-27. 94 Harris, 338 S.W.3d at 229 (quoting Rust, 500 U.S. at 183)

27 CUNNINGHAM, J., CONCURRING IN RESULT: I agree that the Medical

Review Panel Act (“MRPA”) violates our state constitution. But, the infraction is

our constitutional prohibition against special legislation.

Section 59(5) of the Kentucky Constitution states in pertinent part that:

“The General Assembly shall not pass local or special acts concerning any of

the following subjects, or for any of the following purposes, namely: ... To

regulate the limitation of civil or criminal causes . . . ” (emphasis added).

Having reviewed the Appellee’s argument and the record of the case, it

appears the MRPA is a special act designed to benefit health care providers as

opposed to the classification of all other defendants facing tort claims. This

special legislation benefits and protects health care professionals without

affording the same protection to other tort defendants—even other types of

malpractice targets. And it does so to the detriment of claimants against them

by regulating the limitation of civil causes of action.

This Court has clear precedent concerning the purpose of Section 59 of

the Kentucky Constitution:

The primary purpose of Section 59, and by extension Section 60, is to “prevent special privileges, favoritism, and discrimination, and to [ejnsure equality under the law.” Ky. Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 452 (Ky. 1994). These two sections of our Constitution prevent the enactment of laws that do not “operate alike on all individuals and corporations.” Jefferson Cnty. Police Merit Bd. v. Bilyeu, 634 S.W.2d 414, 416 (Ky. 1982) (citing City of Louisville v. Kuntz, 104 Ky. 584, 47 S.W. 592, 592-93 (1898)).

Louisville/Jefferson Cnty. Metro Gov’t v. O’Shea's-Baxter, LLC, 438 S.W.3d 379, 383 (Ky. 2014).

Stated differently, “[a] special law is legislation which arbitrarily or

beyond reasonable justification discriminates against some persons or objects

28 and favors others.” Board of Ed. of Jefferson Cnty. v. Board of Ed. of Louisville,

472 S.W.2d 496, 498 (Ky. 1971).

“In order for legislation to be permissible under Section 59 of the

Kentucky Constitution: ‘(1) It must apply equally to all in a class, and (2) there

must be distinctive and natural reasons inducing and supporting the

classification.’” Yeoman v. Commonwealth, 983 S.W.2d 459, 466 (Ky. 1998).

Analogous precedent relating to Section 59(5) “limitations” on bringing

lawsuits is embodied by Tabler v. Wallace, 704 S.W.2d 179 (Ky. 1985). Tabler

was a case involving the unconstitutional violation of Section 59(5) by a statute

granting a special limitation on an action for losses suffered as a result of

construction errors. In that case, under KRS 413.135, individuals involved in

“design, planning, supervision, inspection or construction of any improvement

to [the] real property” were immune from suit if claims were not brought within

five years of completion of the construction project. Because the statute

effectively barred litigation of losses from construction—as those losses often

occurred after the five-year period—this Court struck down that legislation as

violating Section 59(5). Tabler, 704 S.W.2d at 180-85.

The Tabler court cited other precedents for violations of Section 59. See,

e.g., Gorley v. City of Louisville, 47 S.W. 263 (Ky. 1898); City of Louisville v.

Kuntz, 47 S.W. 592 (Ky. 1898); City of Louisville v. Louisville Taxicab & Transfer

Co., 238 S.W.2d 121 (Ky. 1951); Commonwealth v. McCoun, 313 S.W.2d 585

(Ky. 1958); City of Louisville v. Klusmeyer, 324 S.W.2d 831 (Ky. 1959).

Lastly, a bit of history drives this point home. It is no secret to those

who have studied the original construction of our state constitution that much

29 of this 1891 ratification was composed to lessen the undue influence of

corporate interests, primarily railroads, upon our legislature. Section 59 was

aimed at preventing railroads from receiving the same kind of favored

treatment that medical providers are given in the legislation at bar.

Times change, and the railroad’s status as a powerful political lobbyist

has faded. But new economic interests have arisen to take its place. Here, the

economic interest of the medical profession seeks special favor. All one has to

do to see how the proscriptions of Section 59 fit the current case is to think

medical provider, rather than railroad.

I, therefore, concur in result.

KELLER, J., CONCURRING IN RESULT ONLY: The majority opinion

holds that, pursuant to Ky. Const. § 14, any delay to bringing a personal injury

or wrongful death action is unconstitutional. I cannot wholly concur in such a

holding because I believe the ramifications of such a broad holding are, at this

time, unknown and unforeseeable. Kentucky Constitution § 14 states, in toto:

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.

We can clearly see a constitutionally-mandated reverence for Kentuckians’

rights to access the courts within these provisions. I agree with the majority’s

respectful stance of our Constitution’s guarantee of every citizen’s right to open

courts.

In recognizing this fundamental right to open courts through § 14,

however, the majority has decided that this constitutional provision guarantees

30 that right without any delay. The majority has held that there is no

“reasonableness” standard within § 14 and the provision “plainly proscribes

delay” of any kind. I cannot fully concur in this holding. The provision states

that there can be no delay and every person “shall have remedy by due course

of law.” But what is “due course of law”? I would posit that such a phrase

could possibly embrace procedural requirements that the legislature creates.

Such requirements must, of course, comport with the remaining constitutional

provisions. But I am not so convinced that the framers intended the General

Assembly to be so restricted from placing otherwise constitutionally sound

processes for litigants to gain access to the courts.

I would also add that the majority’s strict, fundamentalist interpretation

of § 14 is at odds with the majority holding and separate concurring opinion in

our case rendered today, Zuckerman v. Bevin, Nos. 210-SC-000097-TG and

2018-SC000098-TG. There, the majority of the Court determined that there

was no violation of § 59, the special legislation provision of Kentucky’s

constitution. The majority opinion dismissively states that the Right to Work

Act (RTWA), at issue there, “does not single out any particular union, industry

or employer.”

I fervently disagree with such a statement, which is why I dissented from

the majority opinion in that case. In Zuckerman, the majority employs a loose

interpretation of § 59 to determine that the RTWA is constitutional. Rather

than strictly applying § 59, prohibiting “special acts ... for ... the purpose[] ...

[t]o regulate labor, trade, mining or manufacturing,” the majority of this Court

has held that we must draw the class more narrowly to sustain the validity of

31 the RTWA. In a separate concurring opinion, some of this Court has

determined that the test developed to interpret the application of § 59 is

“untenable.” As that opinion states, whether a law is constitutional depends

on how the class is drawn; the test is criticized and the concurring opinion

finds that “special legislation requires a flexible analysis.”

Yet, in the case at bar, the majority of this Court insists on an austere,

authoritarian interpretation of § 14, prohibiting any and all delay prior to

bringing an action for personal injury or wrongful death. How can this Court

reconcile these two separate interpretations? I fail to perceive how, with

consistent constitutional interpretation, this Court can be more “flexible” in its

approach to § 59 yet adhere to a strict and rigorous interpretation of §14. I

interpret § 59 in accordance with the 1891 Constitutional debates, plain

reading of the constitutional language, and our case law. Such an

interpretation leads to the conclusion that the intent of the RTWA is to

negatively impact unions and is, thus, unconstitutional special legislation. I

interpret § 14 from the language of the Constitution, as an entire section.

Kentucky Constitution § 14 prohibits delay without “due course of law.” The

majority here fails to consider what that phrase was intended to entail.

I concur in the result, here, because the MRPA clearly interferes with a

fundamental right to access the courts in an unreasonably broad way.

However, I cannot say that any measure the legislature may create to impose

procedural steps prior to the bringing of an action under § 14 would always be

unconstitutional. By thus holding, we begin to invade the role of the

legislature and tie the General Assembly’s hands. The MRPA overstepped

32 constitutional bounds. But I do not agree that any similar measure will, ipso

facto, violate §14 because it creates any delay before bringing an action.

Therefore, I concur in the majority’s result only.

Cunningham and Wright, JJ., join.

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 APPELLEE: EZRA CLAYCOMB, A MINOR, BY AND THROUGH HIS NEXT FRIEND, NATURAL GUARDIAN AND PARENT, TONYA CLAYCOMB AND TONYA CLAYCOMB, ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

J. Guthrie True True Guarnierie Ayer, LLP

Paul A. Casi II Jeffrey Wayne Adamson Paul A. Casi, II, P.S.C.

COUNSEL FOR AMICUS CURIAE: ST. ELIZABETH HEALTHCARE AND LEADINGAGE KENTUCKY

David V. Kramer Mark David. Guilfoyle Michael Enzweiler Dressman Benzinger LaVelle PSC

33 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 MEDICAL ASSOCIATION AND THE AMERICAN MEDICAL ASSOCIATION

Sarah Spurlock Charles J. Cronan IV Bethany A. Breetz Stites & Harbison PLLC

COUNSEL FOR AMICUS CURIAE: KENTUCKY ASSOCIATION OF HEALTH CARE FACILITIES

Bryan Todd Thompson Mitchel Terence Denham Joseph Wright Thompson Miller & Simpson PLC

COUNSEL FOR AMICUS CURIAE: KENTUCKY HOSPITAL ASSOCIATION

Wesley Reed Butler Holly Iaccarino Barnett Benvenuti & Butler PLLC