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It’s not a scheme: Judiciary a necessary pyramid

New Mexico’s judicial system is a pyramid.

At the wide base, many lower court judges serve on numerous trial courts, including magistrate, metropolitan and district court.

Above them, where the pyramid narrows, are the 10 judges sitting on the Court of Appeals and, at the top, the five justices of the state Supreme Court.

Like most lawyers, I have a settled expectation that judges in the fat part of the pyramid will follow orders from judges at the top. It’s a strictly hierarchical system, like the military. Or, at least, it’s supposed to be.

I doubt I was the only lawyer in the state to be startled by a district judge’s open defiance.

A little background information will set the scene. Forty-five years ago, when a major medical malpractice insurer announced it was withdrawing from New Mexico, members of the state Legislature became convinced they faced a looming crisis.

In the immediate term, loss of insurance coverage exposed local medical providers to potentially ruinous liability. In the longer term, inadequate or unduly expensive coverage would surely discourage young doctors from moving to perennially physician-poor New Mexico. It would give doctors a reason to turn away difficult cases. Besides, bankrupting doctors wouldn’t help injured patients, anyway.

And so our Legislature enacted comprehensive medical malpractice reform. Among other things, the 1976 act capped the amount of damages plaintiffs can recover for things like pain and suffering, although medical costs can still be recovered in full.

Currently, the cap is set at $600,000. It will rise to $750,000 next year and be adjusted for inflation after that.

Despite the 45 years that have passed since passage of the Medical Malpractice Act, questions about its constitutionality refuse to go away.

Traditionally in tort cases, the jury is free to set damages at whatever dollar amount seems right. (There are some safety valve mechanisms if it gets carried away.) Our state Constitution, in force since 1912, reads: “The right of trial by jury as it has heretofore existed shall be secured to all and remain inviolate.”

“Inviolate” is a pretty strong word. “Heretofore” can only refer to conditions that existed up to 1912. Putting them together, the constitutional provision can be read to mean that everything about civil jury trials was frozen for all time in 1912.

If so, the damages cap is clearly an unconstitutional limit on the jury’s traditional power.

Two malpractice cases decided in the past eight years considered whether that reading was correct. Both involved unsuccessful surgeries. In the first, the jury assessed damages in the amount of $1 million. In the second, the jury awarded $2.6 million.

The first trial judge reduced the award of damages to the statutory limit of $600,000. The plaintiff appealed, challenging the cap’s constitutionality. In 2013, the Court of Appeals rejected the argument, upholding the damages cap.

Three years later, the second case was tried in Albuquerque. Post-trial proceedings were handled by District Judge Victor S. Lopez. Judge Lopez disagreed with the Court of Appeals. He thought the damages cap violated the state Constitution. And so he refused to reduce the jury’s award of damages, entering judgment for the full $2.6 million.

Now the case raised a second big question: Does a lower court judge have the power to overrule his superior court?

At the time of the founding, John Adams defined a republic as “a government of laws, and not of men.” He meant that in a republic, powerful government officials comply with the law even when they don’t want to. Or, to put it another way, the very purpose of law is to constrain power, including the power of judges.

In a common law system such as ours, one source of law is precedent. Decisions made at the higher levels of the judicial pyramid control the actions of judges sitting in the lower tiers, so that all parts of the legal system enforce the same set of laws.

This March, the Supreme Court reversed Judge Lopez, explaining blandly that he “erred by declining to apply binding precedent.” The extreme mildness of the response is almost funny, like a parent saying, “Mommy doesn’t like being poked in the eye.”

As for the underlying issue, the Supreme Court reached the same ultimate result previously reached by the Court of Appeals.

It concluded that the “inviolate” constitutional right to civil jury trial means only that a jury decides disputed issues of fact. Everything else about juries is subject to modification.

Because the damages cap doesn’t encroach on the jury’s fact-finding authority, it doesn’t violate the constitutional right to jury trial. The court ordered Judge Lopez to revise his judgment to conform to the law.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at