Coppernoll v. Reed

• Decision Date: 08 September 2005
• Docket Number: No. 76818-8.,76818-8.
• Citation: 155 Wn.2d 290,119 P.3d 318
• Court: Washington Supreme Court
• Parties: Camile Hope COPPERNOLL, a minor child, through her Guardian and parents Karin and James Coppernoll; Geraldine A. King and Richard King, wife and husband; Russell G. Foster and Marilyn Foster, husband and wife; C.G. and M.G-P, two minor children, through their parent, K.G-P, Petitioners, v. Sam REED, in his official capacity as Secretary of State of the State Washington, Defendant/Respondent, and Dr. Jeffrey B. Collins, on behalf of Washington State Medical Association, and Doctors for Sensible Lawsuit Reform, Intervenors/Respondent.

Page 318

119 P.3d 318

155 Wn.2d 290

Camile Hope COPPERNOLL, a minor child, through her Guardian and parents Karin and James Coppernoll; Geraldine A. King and Richard King, wife and husband; Russell G. Foster and Marilyn Foster, husband and wife; C.G. and M.G-P, two minor children, through their parent, K.G-P, Petitioners, v. Sam REED, in his official capacity as Secretary of State of the State Washington, Defendant/Respondent, and Dr. Jeffrey B. Collins, on behalf of Washington State Medical Association, and Doctors for Sensible Lawsuit Reform, Intervenors/Respondent.

No. 76818-8.

Supreme Court of Washington, En Banc.

Argued June 30, 2005.

Decided September 8, 2005.

John Budlong, Edmonds, Reed Philip Schifferman, Stritmatter Kessle Whelan Withey, Seattle, John Robert Connelly, Gordon Thomas Honeywell et al., Tacoma, for Camille Hope Coppernoll, et al.

Jeffrey Todd Even, Jay Douglas Geck, Maureen A. Hart, Olympia, for Sam Reed.

Mary H. Spillane, William Kastner & Gibbs, Seattle, for Jeffrey B. Collins.

Carol Sue Janes, Bennett Bigelow & Leedom PS, Seattle, for Amicus Curiae (Wash. Defense Trial Lawyers).

Tim M. Higgins, Winston & Cashatt, Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, for Amicus Curiae (Wash. State Trial Lawyers Assoc.).

Judy Irene Massong, Peterson Young Putra et al., Seattle, for Other Parties (Marilyn Foster and Russekk G. Foster).

J.M. JOHNSON, J.

¶ 1 Petitioners seek reversal of a King County Superior Court order dismissing their action to enjoin the secretary of state from placing three sections of Initiative 330 (I-330) on the general election ballot. Petitioners argue that these sections would be unconstitutional if enacted, and thus exceed the scope of the legislative power under article II, section 1 of the Washington Constitution. We hold that I-330 does not exceed the scope of the legislative power and that the secretary of state must place it on the general election ballot. We express no opinion as to the general constitutionality of the initiative's challenged provisions.

I. FACTS AND PROCEDURES

¶ 2 In July 2004, Jeffrey Collins, M.D., on behalf of the Washington State Medical Association and Doctors for Sensible Lawsuit Reform filed with the secretary of state proposed I-330 to the legislature.¹ The attorney general's office prepared a ballot title, which the Washington State Trial Lawyers Association (WSTLA) subsequently challenged in Thurston County Superior Court. The statement of subject, concise description, and ballot summary that emerged from this legal challenge are as follows:

Statement of Subject . . .

[Initiative Measure No. 330 concerns] claims for personal injury or death arising from healthcare services.

Concise Description . . .

[This measure would] change laws governing claims for negligent healthcare, including restricting noneconomic damages to $350,000 (with exception), shortening time limits for filing cases, limiting repayments to insurers and limiting claimants' attorney fees.

Ballot Summary . . .

This measure would change healthcare liability laws by: limiting recovery for noneconomic damages; limiting attorney fees; requiring advance notice of lawsuits; shortening time for filing cases; expanding evidence of payment from other sources and eliminating subrogation for those sources; authorizing mandatory arbitration without trial; authorizing periodic payments of future damages and terminating those payments under certain circumstances; eliminating liability for other persons or entities in some cases; and limiting damage recovery from multiple healthcare providers.

Br. of Intervenors/Resp't, App. A, Ex. 2 (Order Aug. 6, 2004) (alterations in original).

¶ 3 In August 2004, as the I-330 sponsors were about to commence signature gathering, Camille Coppernoll, Geraldine King, Richard King, Russell Foster, Marilyn Foster, C.G., and M.G.-P. (collectively petitioners²) filed an action in King County Superior Court against respondent secretary of state seeking declaratory and injunctive relief on the grounds that three sections of I-330 were unconstitutional and thus should not be placed on the November 2005 ballot. Initiative sponsor Jeffrey Collins, M.D., on behalf of the Washington State Medical Association and Doctors for Sensible Lawsuit Reform (collectively intervenor medical groups) intervened.

¶ 4 As is relevant here, the complaint challenged three of the twenty sections of I-330: sections 1, 2, and 4(2). Section 1 imposes a formula limiting recovery of noneconomic damages for personal injury or death in medical malpractice suits. "[I]n no action seeking damages for personal injury or death may a claimant recover a judgment for noneconomic damages exceeding an amount determined by multiplying 0.43 by the average annual wage and by the life expectancy of the person incurring noneconomic damages. . . ." Br. of Petitioners, App. 2, 2.

¶ 5 Section 2 imposes a cap on noneconomic damages (in addition to the limit in Section 1): "In any action or arbitration for damages for injury or death occurring as a result of health care or related services . . . the total combined civil liability for noneconomic damages for all health care professionals. . . shall not exceed three hundred fifty thousand dollars for each claimant. . . ." Id. at 2-3.

¶ 6 Section 4(2) limits attorneys' fees in cases involving medical injury or death resulting from healthcare or related services as summarized in the following schedule:

• 40 percent of the first $50,000 recovered;

• 33.3 percent of the next $50,000 recovered;

• 25 percent of the next $500,000 recovered;

• 15 percent of any amount recovered above $600,000.

Id. at 7.

¶ 7 By December 2004, the supporters of I-330 had gathered the requisite signatures for the initiative and filed them with the secretary of state. Accordingly, the secretary of state certified I-330 to the legislature for the 2005 session. During the session, the legislature did not adopt, reject, or propose an alternative to I-330. Thus, the initiative must appear on the ballot for the November 8, 2005 general election. See Const. art II, § 1(a).

¶ 8 In the trial court, petitioners moved for summary judgment on their claim for declaratory relief. They asserted that, if I-330 were enacted, (1) the limits on noneconomic damages in sections 1 and 2 would violate article I, section 21 of the Washington Constitution by unduly infringing on the right to trial by jury, and (2) the restrictions on attorney contingency fees in section 4(2) would violate separation of powers principles derived from article IV, section 1 of the Washington Constitution. They further alleged that because these sections would be unconstitutional if enacted, they exceed the scope of the legislative power under article II, section 1 of the Washington Constitution.³

¶ 9 Respondent secretary of state cross-moved for summary judgment and intervenor medical groups cross-moved to dismiss the complaint for lack of a justiciable controversy, standing, and ripeness, or in the alternative, on the grounds that the challenged provisions of I-330 did not exceed the legislative power and were in fact constitutional. The trial court denied the petitioners' motion for summary judgment and granted the intervenor medical groups' cross-motion to dismiss without explaining the grounds for dismissal. Petitioners successfully sought our discretionary review.

II. STANDARD OF REVIEW

¶ 10 We engage in the same inquiry as the trial court when reviewing an order of summary judgment; all facts and reasonable inferences are considered in a light most favorable to the nonmoving party, while all questions of law are reviewed de novo. Berger v. Sonneland, 144 Wash.2d 91, 26 P.3d 257 (2001). Additionally, we may sustain such an order on any basis supported by the record. LaMon v. Butler, 112 Wash.2d 193, 200-201, 770 P.2d 1027 (1989).

¶ 11 The trial court simultaneously considered both petitioners motion for summary judgment and the secretary of states and intervenor medical groups cross-motions. The material facts were undisputed and the trial court considered the pleadings submitted by all parties. Accordingly, we review the trial courts order of dismissal as a summary judgment and engage in the same inquiry as the trial court.

III. ANALYSIS

¶ 12 The initiative is the first power reserved by the people in the Washington Constitution. Const. art. 2, § 1(a). Adopted in 1911, the right of initiative is nearly as old as our constitution itself, deeply ingrained in our state's history, and widely revered as a powerful check and balance on the other branches of government. Accordingly, this potent vestige of our progressive era past must be vigilantly protected by our courts. See In re Estate of Thompson, 103 Wash.2d 292, 294-95, 692 P.2d 807 (1984) ("In interpreting the provisions of the constitution which preserve the right of initiative to the people, this court has consistently applied the rule that such provisions will be liberally construed to the end that the right of initiative be facilitated.").⁴

¶ 13 It has been a longstanding rule of our jurisprudence that we refrain from inquiring into the validity of a proposed law, including an initiative or referendum, before it has been enacted. Seattle Bldg. & Constr. Trades Coun. v. City of Seattle, 94 Wash.2d 740, 745, 620 P.2d 82 (1980) (citing State ex rel. O'Connell v. Kramer, 73 Wash.2d 85, 436 P.2d 786 (1968) and State ex rel. Griffiths v. Superior Court, 92 Wash. 44, 159 P. 101 (1916)). We have recognized two narrow exceptions to this general rule against preelection review. The availability of these exceptions depends upon the type of review sought.

¶ 14 Preelection challenges to statewide initiatives and referenda fit into three categories: "(1) the measure, if passed, would be substantively invalid because it conflicts with a federal or state constitutional . . . provision; (2) the procedural requirements for...