State Damage Caps and Separation of Powers
By Jeffrey A. Parness.
In 2010, the Illinois Supreme Court invalidated certain statutory caps on noneconomic damages in medical cases because they “unduly” infringed “upon the inherent power of the judiciary” theretofore recognized (albeit in judicial dictum). Such judicial authority originated within the separation of powers clause of the Illinois Constitution. The caps were deemed to “encroach” on the judiciary’s “sphere of authority” because they impeded “the courts in the performance of their function.”
Elsewhere, American state statutory damage caps have also been challenged on state constitutional separation of powers grounds. These challenges included setting where the caps operate for nonmedical cases and where the limits extend beyond noneconomic damages.
Are there core separation of powers principles guiding all American state statutory damage caps? If so, do they apply similarly to all types of cases and all forms of damage caps? With or without such core principles, are there other doctrines that better speak to damage caps when conflicts arise between the legislative and judicial branches?
This paper first explores the Illinois precedents on damage caps and separation of powers. It then explores other state precedents, finding they usually involve state constitutional allocations of procedural lawmaking powers. It also finds that caps on “statutory causes of action” or during “special proceedings” are often treated differently, as are caps on punitive damages. The paper then posits that separation of powers analyses should usually be replaced in damage cap cases with judicial rulemaking analyses. It finds no core principles involving separation of powers provisions that implicate damage caps. Interstate differences in constitutional allocations of procedural rulemaking authority (and, at times, justiciable matters) should be recognized more often in damage cap settings. These observations have implications beyond damage caps. Other civil litigation issues prompt tensions between the judicial and legislative branches, such as evidence privileges. Here, too, separation of powers analyses should generally not be employed, and often should be replaced by judicial rulemaking analyses.