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Re: Wisconsin Caps cappedFrom: Robert J. Carpenter, Jr. MD (zygote@icsi.net)Sun Jul 31 12:40:55 2005
A little perspective is required to understand the Wisc decision. In the normal course of review of a state statute by either a state or a federal court including the supreme courts of a state or the US, a statute only has to pass on of the three tests for constitutionality. The first is a "rational relationalship to a legitimate state purpose." If the court finds that legitimate state or federal action is justified by the legislation then the court will find the legislation is constitutional. This is not a high hurdle for a piece of legislation. Most pieces of legislation will infact fulfil this criteria and will then be maintained as component of law - state or federal. The second and higher hurdle to pass us "necessary for a substantial state purpose." The is often targeted at civil rights issues based of race, color, creed, religion, sex, but not age. Statutes would be violative of this level or intermediate degree of constitutional scrutiny if it impaired under either the 5th amendment (applicable to the US government) or the the 14th amendment applicable to the states for either substantive or procedural due process. The highest level of scrutiny applies to those laws that apply to those rights of citizens which form the core of the bill of rights such as freedom of religion or expression under the first etc etc etc. "The law must pass a degree of strict scrutiny "which is narrowly tailored for a compelling governental purpose" at either state or federal level. If the court (at any level) finds that a basic liberty or "fundamental" right has been violated by the legislation and does not pass the compelling strict scrutiny examination it will be held unconstitutional. I have not read the opinion and thus can not give you a 3rd year law student's perspective, but many caps in a number of states have been considered to not pass constitutional muster has it prevents an adequate adjudication of the plaintiff's right by the court and the jury. Since standard tort law allows a suit (non-frivolous) to be decided by the jury of their peers and this is enshrined within most state and in the federal constitution, limitations can only be imposed if the state constitution does not preclude the cap limitations. In Texas, proposition 12 in 2003, did that very thing. The state constitutional allowed cap limits in specific tortuous litigation applicable primarily to medical malpractice suits as placed statutorily in Chapter 74 of the Texas Civil Practice and Remedies code. If the constitution had not been change the Texas caps of $250,000 for pain and suffering damages against ALL physicians involved in a civil action and the max of $500,000 for 2 or more hospitals or institutions would not have been considered constitutionally valid. I will try to download the specific case and report back in the next week. I hope this helps for the non-lawyers in the group. I would not consider that rational basis test to be low esteem since it is THE major test applied to and under which most statutes pass constituional muster. The basic thought is that the legislature is wise and providing appropriate changes or additions to the law of the state or the land when they pass legislation. However, we all know that many times they are neither wise or beneficent. Bob On 31 Jul 2005 at 11:00, Garry E. Siegel, M.D. wrote:
> Joe: What is a rational basis review, and why is it held in such low
-- Robert J. Carpenter, Jr. MD 6624 Fannin, #2720 St. Luke's Medical Tower Houston,TX 77030-2339 713-795-4600
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