Earley continued from page 47
the Separation of Powers Doctrine, and the Constitutionality of Tort Reform in Arkansas, 59 Ark. L. Rev. 781, 790 (2006). 24. Kimberly Frazier, Arkansas Civil Justice Reform Act of 2003: Who’s Cheating Who? 57 Ark. L. Rev. 651, 672 (2004). 25. Id. (citing statutes). 26. The United States and Arkansas Constitutions contain provisions guaranteeing within their respective spheres that no person shall be deprived “of life, liberty, or property without due process of law.” U.S. Const. amend XIV, § 1; Ark. Const. art. II, § 8. The limitations imposed by due process are of two distinct types – procedural and substantive. Parker v. BancorpSouth Bank, --S.W.3d ----, 2007 WL 853459 (Ark. March 22, 2007); Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999). Procedural due process commands that when the government acts to deprive a person of life, liberty, or property, it must do so in accord with procedures that are fair. See Matthews v. Eldridge, 424 U.S. 319 (1976) (articulating the familiar “notice and opportunity to be heard” standard for procedural due process). In contrast to procedural due process, substantive due process “serves the goal of preventing governmental power from being used for purposes of oppression.” Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir.1996) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). Thus, a law which comports with procedural due process because a person is given a notice and a full opportunity to be heard might, nonetheless, violate substantive due process if it offends notions of personal liberty in a way which “shocks the conscious” of the court. Howard, 82 F.3d at 1349-50. Substantive due process serves to protect individual rights inherent in the Constitution that are not specifically enumerated in the document. Id. 27. The Montana Supreme Court endorsed this notion in Plumb v. Fourth Jud. Dist. Ct., 927 P.2d 1011 (Mont. 1996). 28. Billings v. Aeropres Corp., 522 F. Supp.2d 1121, 1130-31 (E.D. Ark. 2007). 29. Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999). 30. Id. 31. Id. 32. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 88 (1978); see also White v. City of Newport, 326 Ark. 667, 672, 933 S.W.2d 800 (1996) (holding that General Assembly may alter common law for the purpose of meeting a public policy objective). 33. Legislation that concerns an economic interest, such as the liberty to contract, is subject to rational basis review. Honeywell 48
The Arkansas Lawyer
www.arkbar.com
v. Minn. Life & Health Ins. Guar. Ass’n, 110 F.3d 547, 554-55 (8th Cir. 1997), cert. denied, 522 U.S. 858 (1997). Under a rational basis review, the legislation must be rationally related to achieving a legitimate governmental objective. Id.; see also Winters v. State, 301 Ark. 127, 131, 782 S.W.2d 566, 568 (1990). If the legislation deals with a fundamental liberty interest, strict scrutiny applies. Singleton, 176 F.3d at 425 (“the protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.”); see also Jegley v. Picado, 49 Ark. 600, 608, 80 S.W.3d 332, 334 (2002) (holding that Arkansas’s anti-sodomy statute unconstitutionally infringed upon the right to privacy). Fundamental rights are only those “rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Singleton 176 F.3d at 425; Jegley v. Picado, 349 Ark. at 608, 80 S.W.3d at 334. 34. Church v. Rawson Drug & Sundry Co., 842 P.2d 1355, 1362-64 (Ariz. 1992) (upholding statute that abolished joint and several liability and allowed non-party apportionment as economic legislation subject to rational basis review); Haff v. Hettich, 593 N.W.2d 383, 390 (N.D. 1999) (“We conclude that [the non-party provision of the North Dakota tort reform statute] bears a reasonable relation to the desired result of apportioning liability and damages among those persons responsible for another person’s injuries and is not arbitrary, unreasonable, or discriminatory”); see also Evans v. Kutch, 56 P.3d 1046, 1052 (Alaska 2002) (upholding statute capping damages and allowing non-party apportionment as economic legislation subject to rational basis review); Salazar v. Am. Sterilizer Co., 5 P.3d 357 (Col. Ct. App. 2000) (upholding nonparty statute under rational basis substantive due process review); Smiley v. Corrigan, 638 N.W.2d 151, 152 (Mich. Ct. App. 2001) (upholding non-party statute under rational basis review). 35. During the infamous “Lochner era,” the United States Supreme Court put economic interests on an equal footing with personal liberties. See Lochner v. New York, 198 U.S. 45 (1905) (holding law that sought to protect health of bakers arbitrarily infringed upon the right to contract). The Court subsequently rejected strict scrutiny review of laws dealing with economic interests, opting for a rational basis review of such laws. U.S. v. Carolene
Prod. Co., 304 U.S. 144 (1938). 36. See cases cited supra, Note 32. The one appellate decision to the contrary has been roundly rejected. Plumb v. Fourth Jud. Dist. Ct., 927 P.2d 1011 (Mont. 1996). In Billings v. Aeropres Corp., the trial court found that plaintiffs have a fundamental liberty interest in the “truth-determining of a trial” which subjects non-party apportionment to strict scrutiny review. 522 F. Supp.2d 1121, 113031 (E.D. Ark. 2007). 37. Church, 842 P.2d at 1363-64 (citing Brown v. Keill, 580 P.2d 867, 874 (Kan. 1978)). 38. An act of the General Assembly will be overturned under the separation of powers doctrine when it irreconcilably conflicts with one of the Arkansas Supreme Court’s rules of pleading. Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007) (holding the Arkansas Medical Malpractice Act’s requirement that an affidavit of reasonable cause be filed within thirty days after filing the complaint unconstitutional because it directly conflicted with Rule 3 of the Arkansas Rules of Civil Procedure regarding commencement of litigation). 39. Billings, 522 F. Supp.2d at 128-29. 40. Id. 41. Id. 42. In order to avoid ruling the statute unconstitutional, Judge Wilson interpreted it to simply reaffirm existing third-party practice and comparative fault rules. Id. 43. Bohannon v. Johnson Food Equipment, Inc., 2008 WL 2685719, * 2 (E.D. Ark. 2008). 44. Black’s Law Dictionary 247 (6th ed. 1990). 45. Id. at 419-20. 46. Reiter v. Cooper, 507 U.S. 258, 265 (1993). 47. Ark. Code Ann. § 16-55-202(c). 48. White v. City of Newport, 326 Ark. 667, 671-72, 933 S.W.2d 800, 802-03 (1996). 49. In decisions subsequent to White, the Court has continued to show deference to the General Assembly’s authority to alter common law. See Nelson, supra Note 21. 50. The Arkansas Supreme Court’s decisions on these issues have been somewhat inconsistent. For example, the Court struck down a law which granted prime contractors immunity even when those prime contractors were not the employers of the injured workers. Stapleton v. M.D. Limbaugh Const. Co., 333 Ark. 381, 392, 969 S.W.2d 648, 653 (1998). It appears the Court will tolerate laws that leave an injured person an avenue to recovery, but will strike down laws that limit recovery in some absolute fashion. Non-party apportionment should survive constitutional scrutiny under such an analysis.