This past Tuesday, the Missouri Supreme Court struck down a portion of the state’s tort-reform laws, declaring in Lewellen v. Franklin that a cap on punitive damages violates the right to trial by jury. If this movie sounds familiar, you may be remembering Watts v. Lester E. Cox Medical Centers from 2012, when the same court struck down Missouri’s cap on medical-malpractice damages (at least noneconomic damages) on the same theory.

These cases are the latest manifestation of the trial lawyers’ domination of the Missouri Bar and the so-called “merit selection” process. It won’t surprise you to know that the trial lawyers are big fans of “merit selection” because it gives them the power to choose which candidates for Missouri Supreme Court are ultimately presented to the governor for nomination. Conflict of interest, anyone?

In any event, Lewellen is the latest in a series of cases striking down tort-reform statutes based on a faux-originalist theory that Judge Michael Wolff originally introduced in State ex rel. v. Diehl (Mo. banc 2003). The theory goes something like this: The state constitution guarantees that “the right of trial by jury as heretofore enjoyed shall remain inviolate.” This means what it did in 1820, when the Missouri’s constitution was adopted. For causes of action that have come into existence after 1820, the court must analogize the cause of action to a common-law cause of action that would have existed in 1820. No legislative limits on damages existed in 1820, and the jury decided damages at the time. Ergo, any legislative limit on damages violates trial by jury. Effectively, this freezes the legislature out from affecting any of Missouri’s substantive law of damages.

There are many logical and practical problems with this faux-originalist approach (other than its utter subjectivism). Two problems are immediately evident upon close examination of the constitution’s text. First, the provision guarantees who hears the trial, not which post-trial motions are permitted, or what substantive law is applied. Second, unlike the Bill of Rights’ jury-trial guarantee, Missouri’s right of jury trial has the further qualification that it be protected “as heretofore enjoyed.” That means that Judge Wolff’s forward-projection approach has it exactly backwards: The language preserves existing common-law rights of trial by jury but says nothing about yet-to-be-established causes of action.

An enormous fourth problem with this theory lurks in the background. The common law has long recognized the ability of a trial judge to set aside an excessive damages award and/or order a new trial. Blackstone notes the use of that power as early as 1655 and a Missouri Supreme Court case from 1831 finds nothing improper about using it. Even two years ago (in a case involving the same defendant, incidentally), the court explicitly defended its own continued use of remittitur. The court’s objection is not to modifying damage awards in principle; it’s just that the judiciary thinks the legislature can’t do anything about it.

Think about that for a moment: Missouri judges, who are screened by the trial lawyers who appear before them, now claim to have exclusive power over damages awards. The fox thinks it owns the henhouse.

Although this week’s decision had no recorded dissent, Watts, the precedent it relies on, threw out 20 years of contrary precedent by a one-vote margin of 4–3. A Republican-appointed judge recused himself for unknown reasons, but then the chief justice, who was appointed by a Democrat, appointed another Democrat-appointed judge to fill his spot. The replacement judge, Judge Sandra Midkiff, cast the deciding vote.

Oddly, Judge Patricia Breckenridge, the judge who wrote the opinion in Lewellen, joined the vigorous dissent in Watts. Yet she doesn’t seem to have any lingering concerns about extending that precedent to other areas. In an ironic twist, Breckenridge was appointed by the champion of Missouri tort reform, Republican Matt Blunt, over vigorous conservative opposition.

I wish I could say I wasn’t worried about where this line of cases will go. The whole thing keeps getting weirder and weirder.

[UPDATED: Watts was in 2012, not 2013 as this post originally stated.]

[UPDATE] I should also note that in fairness to Governor Blunt, he picked the least bad option. The state’s bar-dominated nominating commission sent him three lousy nominees to choose from, and he selected the best of the three. If he hadn’t picked Breckenridge, the commission itself would have made its own choice, which probably would have been much worse. The fact that the least-bad candidate still turned out to be aligned with the state’s trial lawyers shows how awful the Missouri Plan is, not that Governor Blunt made a bad choice.