The right to remedy by due course of law - a historical exploration and an appeal for reconsideration.

Author:DeBoer, Michael J.
Position:III. Five Indiana Supreme Court Cases Interpreting the Indiana Right to Remedy Provision D. Martin v. Richey through IV. Conclusion, with footnotes, p. 166-196 - Faulkner Law Symposium: From the Magna Carta to the March from Selma to Montgomery
  1. Martin v. Richey

    In Martin, the court determined that the statute of limitations provision of the Indiana Medical Malpractice Act violated Article I, Section 12 because the statute of limitations, as applied to the plaintiff, deprived her of any meaningful opportunity to file an otherwise valid claim within the statutory time period by requiring her to file the claim before she could reasonably discover that she was injured and had a claim. (111) Justice Selby wrote the opinion for the court, and Justices Dickson and Boehm concurred in her opinion. Justice Sullivan concurred in result and wrote a separate opinion, but Chief Justice Shepard dissented with a separate opinion. (112)

    In her opinion, Justice Selby declined to "explore the outer bounds of Section 12 in this case." (113) Rather, she undertook to issue a ruling no broader than what was "required by the precise facts at issue" and determined to focus upon the statute as applied to the plaintiff. (114) In evaluating the Article I, Section 12 claim, she began with the text of the provision. (115) She observed that the court had not recognized "a 'fundamental right' of access to the courts or to bring a particular cause of action to remedy an asserted wrong," and that the legislature may modify and abrogate "common law rights provided that such change does not interfere with constitutional rights." (116) She explained that the statute of limitations limits, but "does not abrogate[,] the [substantive] right to seek redress in court because the bar does not fall until a reasonable time for filing has expired." (117)

    In reviewing the court's precedents that applied to the plaintiffs claim, Justice Selby observed that a legislative enactment violates Article I, Section 12 and the right of access to the courts when "it unreasonably den[ies] citizens the right to exercise this right" or "deprives a person of a complete tort remedy arbitrarily and unreasonably." (118) A violation of this constitutional guarantee and an "offense to lay concepts of justice" would likely occur if a statute of limitations were to preclude "all malpractice actions under all circumstances unless commenced within two years from the act complained of (discoverable or otherwise)." (119) She noted that the court had invalidated, as applied to a mentally and physically incapacitated plaintiff, a statutory occurrence-based notice provision that required the claimant to give notice to a municipality within sixty days of an incident. (120) Under the court's precedents, she wrote, a legislative restriction of the right of access to the courts "must be a rational means to achieve a legitimate legislative goal." (121)

    Seeking to issue a ruling carefully tailored to the case before the court, Justice Selby held that "[e]ven a restrained interpretation of Section 12 warrants the conclusion that an application of the two-year statute of limitations on the facts of this case violates both Section 12 and 'lay concepts of justice.'" (122) Thus, "the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiffs access to courts and ability to pursue an otherwise valid tort claim." (123) She also observed that the court's application of Article I, Section 12 was consistent with the rulings of courts in other states that have provisions similar to Indiana's. (124)

    Justice Sullivan, in his concurrence, expressed his view that Indiana Supreme Court precedent established that the statute of limitations in the Indiana Medical Malpractice Act does not violate Article I, Section 12, and thus he disagreed with the court in that respect. He agreed with the court, however, that summary judgment for the defendant was not warranted because issues of material fact existed as to whether the doctrine of active fraudulent concealment tolled the statute of limitations. (126) Chief Justice Shepard, agreeing with Justice Sullivan, stated his belief that the court had already determined that the statute of limitations does not violate Article I, Section 12. (127)

  2. McIntosh v. Melroe Co., a Division of Clark Equipment Co.

    In McIntosh, the court exhibited profound disagreement regarding the meaning and the application of Article I, Section 12. The court held that the ten-year statute of repose provision of the Indiana Products Liability Act did not violate the due course of law provision of the Indiana Constitution and that the plaintiffs had no legally cognizable injuries for which a remedy existed. (128) Justice Boehm wrote the opinion for the court, (129) and Chief Justice Shepard concurred in his opinion. (130) Justice Sullivan concurred in part and concurred in result, and he wrote a separate opinion. Justice

    Dickson dissented and wrote a separate opinion, in which Justice Robert D. Rucker concurred. (131)

    Justice Boehm began his opinion with a brief review of the court's methodology of interpreting the state constitution. This methodology requires the court to study the constitutional text, the history of the times when the constitutional text was drafted and ratified, the purpose and structure of the constitution, the intent of the framers, and the case law interpreting specific provisions. (132) As to Article I, Section 12, he observed that he found "no relevant guideposts on this point" other than "the text itself, precedents of this Court, and precedents from other states with similar provisions" and that "there appears to be no unique Indiana history surrounding the adoption of this Clause in 1816 or its redrafting in 1851." (133)

    Justice Boehm then turned to the line of decisions in which the Indiana Supreme Court had treated as interchangeable the federal Due Process Clauses and the Indiana due course of law provision. (134) He explained that the federal and state provisions share the following commonalities: they prohibit state action that deprives a person of a protectable interest without a fair proceeding, and they require that claimants have a protectable interest. (135)

    Although he observed that the federal and state provisions share some things in common, he went on to identify several differences. The federal provisions guarantee procedural and substantive due process rights. The federal procedural due process guarantee applies in both civil and criminal contexts and requires notice and a meaningful opportunity to be heard at a meaningful time. The federal substantive due process guarantee prohibits some outlandish government actions that shock the conscience, and these actions "cannot be accomplished by any procedure." (136)

    Justice Boehm then noted that Article I, Section 12 also has "multiple strains," but that they "are not the same as" the two federal strains. (137) First, Article I, Section 12 has a substantive strain that, according to Justice Boehm's understanding, "is analogous to federal substantive due process." (138) This substantive doctrine requires "that legislation interfering with a right bear a rational relationship to a legitimate legislative goal, but [it] does not preserve any particular remedy from legislative repeal." (139)

    Second, Article I, Section 12 has a procedural strain. The first sentence of Article I, Section 12, which includes the Open Courts Clause and the Remedy Clause, requires procedural fairness, but it only applies in the civil context. (140) It guarantees '"remedy by due course of law' for injuries to 'person, property, or reputation,"' but it does not reference any "deprivation of 'life, liberty, or property,"' which triggers the federal due process requirements in the criminal context. (141) Likewise, the Open Courts Clause, which requires that all "courts shall be open," "seems meaningful only to civil litigants." (142) As for the "procedural right to 'remedy by due course of law' in a civil proceeding," the "body of law" that has developed is "essentially identical to federal due process doctrine." (143) He observed that the second sentence of Article I, Section 12, the Administration of Justice Clause, had provided the basis for criminal speedy trial claims, but that "[n]o other criminal rights have been derived from Section 12 except by the loosest mention, without analysis, of 'due process.'" (144) Instead, under the Indiana Constitution, criminal procedural doctrines and protections "have almost uniformly developed, not by reference to Article I, Section 12, but rather under the various other more specific provisions that make up our state Constitution's counterpart to the [federal] Bill of Rights," and thus Indiana constitutional criminal procedural protections differ from federal due process criminal procedural protections. (145)

    Applying this understanding of the substantive and procedural strains of Article I, Section 12, Justice Boehm concluded that the statute of repose in the Indiana Product Liability Act does not violate the state constitutional provision. As to the substantive strain, he expressed his view that the Indiana General Assembly may eliminate a common law remedy without transgressing this provision, (146) and that the statute of repose is rationally related to a legitimate legislative objective. (147) As to the procedural strain, he opined that the statutory provision does not regulate the procedure in courts, (148) and that the legislature has the authority to identify legally cognizable claims for relief and may by law provide no remedy. (149)

    In his concurring opinion, Justice Sullivan expressed his agreement with Justice Boehm that the statute of repose does not violate Article I, Section 12. (150) He thought, however, the court had already determined that the statute of repose does not violate this state constitutional provision. (151)...

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