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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Evans v. State (8/30/2002) sp-5618

Evans v. State (8/30/2002) sp-5618

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.



            THE SUPREME COURT OF THE STATE OF ALASKA


BETTY EVANS, on her own       )
behalf and on behalf of her   )    Supreme Court No. S-9313
minor son, DAVID "BUDDY"      )
KUTCH, JR.; SHARON CROSS, on  )    Superior Court No.
her own behalf and on behalf  )    4BE-98-32 CI
of her minor daughter,        )
LARONSIA CROSS; RAYMOND       )    O P I N I O N
NEALY, SR.; and LILLIAN A.    )
WOOD,                         )    [No. 5618 - August 30, 2002]
                              )
             Appellants,      )
                              )
     v.                       )
                              )
STATE OF ALASKA,              )
                              )
             Appellee.        )
______________________________)




          Appeal  from the Superior Court of the  State
          of Alaska, Fourth Judicial District, Bethel,
                  Charles R. Pengilly, Judge.


          Appearances:   Robert  H.  Wagstaff  and  Wm.
          Grant   Callow,  Anchorage,  for  Appellants.
          Gary  M. Guarino, Assistant Attorney General,
          Anchorage,   Bruce   M.   Botelho,   Attorney
          General,  Juneau,  and  Ronald  W.  Lorensen,
          Simpson,  Tillinghast, Sorensen,  Lorensen  &
          Longenbaugh,  Juneau, for Appellee.   Amy  S.
          Gurton, Robertson, Monagle & Eastaugh,  P.C.,
          Juneau,   for  Amicus  Curiae  Alaska   State
          Hospital and Nursing Home Association.  Roger
          F.   Holmes,  Anchorage,  for  Amicus  Curiae
          Alaska State Chamber of Commerce.


          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          FABE, Chief Justice.
          BRYNER,   Justice,   with   whom   CARPENETI,
          Justice, joins, dissenting in part.
          CARPENETI, Justice, dissenting in part.


I.   INTRODUCTION

          This  appeal  is  a challenge to the 1997  tort  reform

legislation enacted by the Alaska Legislature in chapter 26,  SLA

1997.   The  plaintiffs, all injured parties  contemplating  tort

actions, asked the superior court for a declaratory judgment that

this legislation is void under the Alaska Constitution.  However,

the  superior  court granted summary judgment to  the  State  and

refused to grant the relief sought by the plaintiffs.  We  affirm

the  trial  court's  decision that the  legislation  is  facially

constitutional.

II.  FACTS AND PROCEEDINGS

          In  1997  the  Alaska  Legislature enacted  legislation

including  tort reform provisions, in chapter 26, SLA 1997.   The

legislation  was  later  codified into various  sections  of  the

Alaska  Statutes  and became effective on  August  7,  1997.   It

included  many  new  tort  law  provisions,  including  caps   on

noneconomic and punitive damages,1 a requirement that half of all

punitive damages awards be paid into the state treasury,2 a  ten-

year  "statute of repose,"3 a modified tolling procedure for  the

statute   of  limitations  as  applied  to  minors,4  comparative

allocation of fault between parties and non-parties,5  a  revised

offer  of judgment procedure,6 and partial immunity for hospitals

          from vicarious liability for some physicians' actions.7

          The  appellants, all allegedly injured persons who have

filed  or plan to file tort actions, filed this action seeking  a

declaratory  judgment that all of chapter 26, SLA  1997  is  void

under the Alaska Constitution.  The case was assigned to Superior

Court  Judge Charles R. Pengilly.  The plaintiffs and  the  State

filed  opposing motions for summary judgment.  The  Alaska  State

Chamber  of  Commerce and the Alaska Hospital  Association  filed

amicus briefs in support of the legislation.  The superior  court

heard  oral  argument on these motions, and subsequently  granted

the   State's  motion  for  summary  judgment  and   denied   the

plaintiffs' motion in all respects, upholding all of chapter  26,

SLA 1997.  The plaintiffs appeal this decision.

III. STANDARD OF REVIEW

          This  appeal requires us to review a grant  of  summary

judgment;  this  review  is de novo.8   We  will  affirm  summary

judgment if there are no genuine issues of material fact  and  if

the  moving  party is entitled to judgment as a matter  of  law.9

When  making  this  determination, we will  draw  all  reasonable

inferences in favor of the non-moving party.10  This appeal raises

constitutional issues, which are issues of law subject to de novo

review.11

IV.  DISCUSSION

          In   this   appeal,  the  plaintiffs  challenge   seven

provisions  within  chapter  26,  SLA  1997:  (1)  the   cap   on

noneconomic and punitive damages under AS 09.17.010 and .020; (2)

the  requirement that half of all punitive damages awards be paid

          to the State under AS 09.17.020(j); (3) the comparative

apportionment  of  damages under AS 09.17.080;  (4)  the  revised

offer   of  judgment  procedure  under  AS  09.30.065;  (5)   the

limitations tolling procedure under AS 09.10.070(a)(2) and  .140;

(6)  the  partial tort immunity for hospitals under AS 09.65.096;

and (7) the "statute of repose" under AS 09.10.055.

          In  addition  to  the  specific challenges  above,  the

plaintiffs  claim  that the entire act is unconstitutional  under

the  "one  subject" rule of article II, section 13 of the  Alaska

Constitution.  The plaintiffs also claim that, once all of  these

constitutional  infirmities are exposed, nothing in  chapter  26,

SLA  1997  remains severable, and that therefore, the entire  act

must  be struck as unconstitutional.  These two final issues will

be addressed in Part IV.H of this opinion.

          Before these provisions are discussed in turn, we  note

that these are facial challenges.  The plaintiffs do not complain

of  specific  application  of  the challenged  statutes  to  tort

actions brought by the plaintiffs.  Instead, the plaintiffs  seek

a  declaratory judgment "in order that they may better  determine

how to proceed" with their contemplated tort actions.  The result

we  reach in this opinion might be different if we were presented

with  challenges  to  the law as applied in  a  particular  case.

Therefore,  our  ruling is limited to the facial  import  of  the

challenged provisions of chapter 26, SLA 1997.

     A.   The  Caps on Noneconomic and Punitive Damages Under  AS
          09.17.010 and .020 Are Facially Constitutional.

          Chapter  26, SLA 1997 modified AS 09.17.010 to place  a

cap  on the amount of noneconomic damages that may be awarded  in

tort actions "for personal injury and wrongful death."12  The new

AS  09.17.010 lists specific claims for which noneconomic damages

shall  be  recoverable and specifies financial limits for  damage

awards  for  each claim.  Availability of noneconomic damages  is

first    limited   to   "compensation   for   pain,    suffering,

inconvenience,  physical  impairment,  disfigurement,   loss   of

enjoyment  of  life,  loss of consortium, and other  nonpecuniary

damage."13   These  damages  are further  limited  in  amount  to

$400,000  or  $8,000  multiplied by  the  injured  person's  life

expectancy in years, whichever is greater, for each single injury

or  death.14  When the damages are awarded for "severe  permanent

physical impairment or severe disfigurement," the cap is extended

to  $1,000,000 or, in the alternative, $25,000 multiplied by  the

injured person's life expectancy in years, whichever is greater.15

          Chapter 26, SLA 1997 also modified AS 09.17.020(f)-(h)16

to  limit  the amount of punitive damages in most cases to  three

times  compensatory damages, or $500,000, whichever is greater.17

If  the  defendant  knowingly caused the injuries  for  financial

gain,  the  cap  is expanded to four times compensatory  damages,

four times the amount of financial gain, or $7,000,000, whichever

is greater.18  A different cap applies when the action is against

an  employer  to  recover  damages  for  an  unlawful  employment

practice  prohibited by AS 18.80.220; in that  case  the  cap  is

$200,000 if the employer has fewer than 100 employees in  Alaska,

$300,000  for 100-200 employees, $400,000 for 200-500  employees,

and $500,000 for 500+ employees.19

          The  plaintiffs claim that the caps on noneconomic  and

punitive   damages   violate  six  provisions   of   the   Alaska

Constitution:  (1) the right to a jury trial; (2)  the  right  to

equal  protection; (3) the right to substantive due process;  (4)

the  separation of powers; (5) the right of access to the courts;

and  (6)  the  ban  on  "special  legislation."   Each  of  these

arguments will be addressed in turn.

          1.   The damages caps do not infringe on the right to a
               trial by jury.

          The  plaintiffs' first argument concerning the  damages

caps  is  that  the caps constitute a violation of the  right  to

trial  by  jury  granted by article I, section 16 of  the  Alaska

Constitution  and  the  Seventh Amendment to  the  United  States

Constitution.   The  plaintiffs argue  that  the  calculation  of

damages is the exclusive province of the jury -- subject  to  the

judicial  power  of  remittitur -- and that the  legislature  has

unconstitutionally invaded this province by enacting the  damages

caps.   The superior court rejected the plaintiffs' argument  and

held  that  the damages caps did not invade the province  of  the

jury.

          We have not previously examined the scope and extent of

the  right to a trial by jury under article I, section 16 of  the

Alaska  Constitution.20   However, the  language  of  the  Alaska

Constitution's  trial by jury provision mirrors the  language  of

the  Seventh  Amendment to the United States Constitution,21  and

proposals  to  create  a right to trial by  jury  with  different

language   were   rejected  during  the   Alaska   Constitutional

          Convention.22

          We  agree  with  the reasoning employed  by  the  Third

Circuit Court of Appeals, which interpreted the Seventh Amendment

to  the  United  States Constitution to allow damages  caps.   In

Davis  v.  Omitowoju, the court held that a damages cap  did  not

intrude on the jury's fact-finding function, because the cap  was

a  "policy decision" applied after the jury's determination,  and

did  not  constitute a re-examination of the factual question  of

damages.23

          Other state courts have similarly interpreted trial  by

jury  provisions  to allow damages caps.  In Pulliam  v.  Coastal

Emergency Services of Richmond, Inc.,24 and Etheridge v.  Medical

Center Hospitals,25 the Virginia Supreme Court drew a distinction

between  the jury's exclusive province of fact-finding,  and  the

legislature's power to alter the law that applied to  the  jury's

determination:   "Once  the jury has ascertained  the  facts  and

assessed  the  damages  .  .  .  the  constitutional  mandate  is

satisfied, [and] it is the duty of the court to apply the law  to

the facts."26  That is, the Virginia court held that the jury has

the   power  to  determine  the  plaintiff's  damages,  but   the

legislature  may  alter the permissible recovery available  under

the law by placing a cap on the award available to the plaintiff.27

Eight  other  courts have upheld damages caps using the  same  or

similar reasoning.28

          We  agree  with Davis, Pulliam, and the other decisions

that   have   held   that  damages  caps  do  not   violate   the

constitutional right to a trial by jury.29  The decision to place

          a cap on damages awarded is a policy choice and not a re-

examination of the factual question of damages determined by  the

jury.  Therefore, the damages caps under AS 09.17.010 and .020 do

not  violate article I, section 16 of the Alaska Constitution  or

the Seventh Amendment to the United States Constitution.30

          2.   The  damages  caps do not constitute a  denial  of
               equal protection.

          The plaintiffs claim that the damages caps constitute a

violation  of equal protection because two classes of  successful

tort  plaintiffs are treated differently: (1) those  who  receive

"full"  compensation, and (2) those who do  not,  because  "full"

compensation would be in excess of the caps.

          To  analyze the right to equal protection under article

I,  section  1 of the Alaska Constitution, we apply a  three-part

"sliding scale" test:

          [W]e  first determine the importance  of  the
          individual   interest   impaired    by    the
          challenged  enactment.  We then  examine  the
          importance  of the state interest  underlying
          the  enactment, that is, the purpose  of  the
          enactment.  Depending upon the importance  of
          the individual interest, the equal protection
          clause  requires  that the  state's  interest
          fall  somewhere  on  a  continuum  from  mere
          legitimacy   to   a   compelling    interest.
          Finally,  we  examine the nexus  between  the
          state  interest  and  the  state's  means  of
          furthering  that  interest.  Again  depending
          upon   the   importance  of  the   individual
          interest,   the   equal   protection   clause
          requires that the nexus fall somewhere  on  a
          continuum  from  substantial relationship  to
          least restrictive means.[31]

          Under  this  test we must weigh the relative importance

of  the  plaintiff's interest and the State's interest.   If  the

plaintiff's interest is not very important, the State  need  only

          show that its objectives were "legitimate"; if the plaintiff's

interest  is important, the State must show a "compelling"  state

interest.   If  the  State  demonstrates  a  sufficiently  strong

interest, it must also show the required "nexus" or "fit" between

its  regulations and its objectives.  Depending on the importance

of  the  plaintiff's  interest, the State  may  have  to  show  a

different degree of "fit" along a continuum of possibilities.  If

the plaintiff's interest is not very important, this fit must  be

merely  "a  substantial  relationship between  means  and  ends";

however,  if  the  plaintiff's interest is  very  important,  the

regulation  must  be  the least restrictive  means  available  to

achieve the objective.32  We will apply each of the three steps of

this analysis in turn.

               a.   The   plaintiffs'  interests   in   unlimited
                    damages are economic interests.

          The   plaintiffs   characterize  their   interests   in

unlimited  damages in two different ways.  The  plaintiffs  first

claim  that they have a "right to full redress" -- the  right  to

have  their  damages fully determined by a jury,  and  that  this

right  is  impaired by artificial damages caps  that  impair  the

jury's  ability to do this.  Secondly, the plaintiffs claim  that

the  damages  caps  infringe on the rights of rural  Alaskans  --

because the damages caps are uniform throughout the state and  $1

"does not go as far [in rural Alaska] as in urban Alaska."

          As for the first characterization, the plaintiffs claim

that  their  interest in unlimited damages is  related  to  their

interest  in access to the courts, and is therefore an  important

          interest requiring "strict scrutiny," placing a greater burden on

the State to justify its regulation.

          The  right  of  access to the courts  is  an  important

interest  requiring  enhanced scrutiny; however,  that  right  is

impaired  only  by  state action that actually limits  or  blocks

access  to the courts.33  The damages caps at issue here  do  not

actually limit access to the courts; rather, they simply limit  a

plaintiff's recovery in civil court.

          The  plaintiffs'  interests in  unlimited  damages  are

merely economic, as the superior court correctly determined.   As

we  held  in  Reid  v. Williams34 and Gilmore v. Alaska  Workers'

Compensation  Board,35 restrictions on the types  or  amounts  of

damages  that a plaintiff can pursue in court only infringe  upon

economic  interests.  Such economic interests  do  not  count  as

"important" interests under our equal protection analysis.36

               b.   The  State's  "tort  reform"  objectives  are
                    legitimate.

          The  next step in our equal protection analysis focuses

on   the  adequacy  of  the  State's  objectives  underlying  the

regulation.   Since  we  have  determined  that  the  plaintiffs'

interests  in unlimited damages are merely economic, the  State's

objectives  need only be "legitimate" -- not "compelling"  --  to

justify  the State's action.37  The superior court held that  the

legislature's  stated  goals  underlying  the  damages  caps  are

"plainly legitimate."

          The  plaintiffs  claim that the State's  objectives  in

enacting  the  damages caps were not legitimate, because  chapter

          26, SLA 1997 as a whole was enacted to deal with problems that do

not  actually exist: a dramatic increase in personal  injury  and

malpractice  cases, "runaway juries," and out-of-control  damages

awards.

          The  legislative goals underlying the damages caps,  as

well  as the rest of chapter 26, SLA 1997, are explicitly  stated

in  chapter  26,  section 1, SLA 1997.  Specifically,  section  1

states  that  the  legislation was  intended  to  (1)  discourage

frivolous litigation and decrease the costs of litigation;38  (2)

stop  "excessive" punitive damages awards in order  to  foster  a

"positive"  business environment;39 (3) control the  increase  of

liability  insurance  rates;40 (4) encourage  "self-reliance  and

independence    by   underscoring   the   need    for    personal

responsibility";41  and  (5)  reduce  the  cost  of   malpractice

insurance for professionals.42

          In  our  past decisions, we have accepted as legitimate

very  similar  legislative  goals.   In  McConkey  v.  Hart,   we

considered  the constitutionality of a statute that  limited  the

accrual of prejudgment interest for victims of particular  torts,

including the medical malpractice plaintiff in that case.43   The

purposes  of the statute in McConkey were very similar  to  those

expressed by the legislature here, and we noted the legitimacy of

such  "tort reform" objectives:  "Reducing health care costs  and

encouraging the provision of health care services are  legitimate

goals which can reasonably be thought to be furthered by lowering

the  amount  of medical malpractice judgments."44  Similarly,  in

Reid   v.   Williams,  we  noted  that  the  stated  purpose   of

          "alleviat[ing] the medical malpractice insurance crisis" was a

legitimate legislative goal.45

          We  decline  the plaintiffs' invitation to second-guess

the  legislature's  factual findings.   After  examining  various

evidence  and  testimony, the legislature found that  there  were

problems with tort litigation that needed to be solved, including

frivolous  litigation,  excessive damages awards,  and  increased

costs  for  malpractice  and  other liability  insurance.46   The

plaintiffs,  pointing  to  other contrary  evidence,  ask  us  to

independently review this conclusion and find that  the  evidence

instead  showed  that these problems did not really  exist.   The

plaintiffs  ask us to delve into questions of policy  formulation

that  are  best  left  to  the legislature.   As  we  have  noted

previously,  "[i]t  is not a court's role  to  decide  whether  a

particular statute or ordinance is a wise one; the choice between

competing  notions  of public policy is to  be  made  by  elected

representatives of the people."47

               c.   The  nexus between the legislative objectives
                    and the damages caps is adequate.

          Finally,  we  must evaluate the nexus or "fit"  between

the  legislature's goals and the means employed to achieve  those

goals.   Because we have already established that the plaintiffs'

interests are economic and are therefore at the "low end" of  the

"sliding scale," the fit required here is minimal and there  must

only  be  a  "substantial relationship" between  the  legislative

objectives and the damages caps.48  The superior court found that

the  nexus  was  adequate,  noting that  "the  causal  connection

between  a  limitation  on  the size of  awards  for  noneconomic

damages    and   lower   insurance   premiums   hardly   requires

elaboration."

          The  plaintiffs  contend that there is no  "substantial

relationship," and they make essentially two arguments to support

this conclusion.  First, they claim that there is no evidence  of

any connection between the damages caps and the legislative goals

underlying chapter 26, SLA 1997.  The plaintiffs claim that  "the

record  is  devoid of any evidence" that the damages  caps  would

have   a   positive  effect  on  insurance  rates  and  frivolous

litigation.

          Second, the plaintiffs claim that the uniformity of the

damages caps across the state has no substantial relationship  to

the  legislature's  goals.  The plaintiffs claim  that  the  caps

discriminate against rural Alaskans because those Alaskans should

receive adjusted damages in light of their higher cost of living.

The  plaintiffs  argue that the failure to  adjust  for  cost  of

living  has  no  "substantial relationship" to the  legislature's

objectives.

          The record indicates that the legislature considered at

least some evidence tending to show that damages caps, as well as

the  other  provisions  of chapter 26, SLA  1997,  could  have  a

positive  effect on the legislature's objectives.   For  example,

some industry representatives testified that chapter 26, SLA 1997

would  "improv[e]  the  business climate"  by  lowering  business

          costs.49 Several insurance company representatives claimed that

liability insurance rates would go down if a damages cap were  to

be enacted; one representative included statistics that tended to

show  that  in California, where similar tort reforms  have  been

enacted,  insurance  premiums have in fact  gone  down.50   Small

business  owners and representatives of health care organizations

testified, respectively, that chapter 26, SLA 1997 would  have  a

positive  impact  on liability insurance rates51 and  malpractice

insurance rates.52  Finally, evidence was submitted supporting the

conclusion that the availability of high punitive damages  awards

tended to lengthen litigation in civil suits generally.53

          The  legislature  was also presented  with  contrasting

testimony -- notably, from the Governor's Advisory Task Force  on

Civil  Justice  Reform.   The Task Force  Report  concluded  that

damages   caps  would  not  have  a  clear  effect  on  frivolous

litigation   or  insurance  rates.   The  legislature  apparently

weighed  the competing evidence and decided that the evidence  in

favor of creating the damages caps justified enacting the caps.

          The   plaintiffs  allege  that  much  of  the  evidence

presented  to  the legislature was false or misleading  and  they

invite   us  to  examine  contrasting  evidence  and  impeachment

evidence, arguing that the legislature should not be allowed  "to

do  whatever  it  wishes  regardless of  the  factual  basis  for

legislative action."  However, that weighing of the evidence is a

task  that is properly left to the legislature.  The "substantial

relationship" requirement was met in this case.

          We  must  also  briefly address the plaintiffs'  second

          argument -- that the uniformity of the caps across the state is

unconstitutional,  because  that uniformity  is  not  fairly  and

substantially  related to the legislative goals of  tort  reform.

The  plaintiffs  did not provide any authority to  support  their

argument.  However, at least one other court has refused to  find

an  equal  protection  violation  merely  because  a  law  has  a

different  economic  impact on urban and  rural  residents  of  a

state.54   There is also no violation of equal protection  merely

because  the  damages  caps do not provide  for  cost  of  living

adjustments.

          3.   The  damages  caps do not infringe on  substantive
               due process rights.

          The plaintiffs also argue that the damages caps violate

their  substantive  due process rights.  However,  this  argument

fails because we have already found that the damages caps do  not

violate  equal protection.  As recognized by the superior  court,

our substantive due process test is a more deferential version of

the  equal  protection test already discussed.  We  explained  in

State  v.  Niedermeyer that "[s]ubstantive due process is  denied

when a legislative enactment has no reasonable relationship to  a

legitimate governmental purpose."55  Our equal protection test is

similar  but less deferential: because the plaintiffs'  interests

are  economic,  the State had to show that the regulation  had  a

"fair   and  substantial"  relationship  to  a  legitimate  state

objective.   Because  we  found  that  there  was  a   fair   and

substantial  relationship,  there  is  necessarily  a  reasonable

relationship as well.  Therefore, the damages caps  do  not  deny

          substantive due process.

          4.   The damages caps do not violate the separation  of
               powers.

          The plaintiffs also claim that the damages caps violate

the  principle of the separation of governmental powers, as  that

principle  is  defined by article IV, section  1  of  the  Alaska

Constitution.   The  plaintiffs argument is  that  the  power  of

remittitur  --  the power to reduce damages by altering  a  jurys

findings  of fact -- is an exclusive power of the judiciary  that

cannot be usurped by the legislature.  The damages caps allegedly

usurp  this  power  by remitting damages automatically  to  fixed

levels.   The superior court rejected this argument,  and  stated

that "[t]his claim relies upon an even weaker and more outlandish

assumption  than  the  others that precede  it:  that,  for  some

reason,  damages fall within the exclusive province of the  court

system."   The superior court noted that the legislatures  action

was  better characterized as the "modification and limitation  of

causes  of  action,"  which is "an activity that  falls  squarely

within  the  legislatures competence, and one  that  is  properly

reserved for members of the voting public speaking through  their

legislators."

          The  damages  caps  cannot violate  the  separation  of

powers,  because the caps do not constitute a form of remittitur.

We  agree  with the reasoning of the federal court  that  decided

Franklin  v. Mazda Motor Corp., interpreting Maryland law.56   In

Franklin,  the  court  considered  the  constitutionality  of   a

noneconomic  damages  cap under the Maryland  Constitution.   The

          court held that the damages cap did not violate the separation of

powers, because the power of the legislature to modify or abolish

the  common law "necessarily includes the power to set reasonable

limits on recoverable damages in causes of action the legislature

chooses  to recognize."57  At least six other courts have reached

similar  conclusions.58   We agree with  these  authorities,  and

decline  to follow other authorities that stand for the  contrary

proposition,59 because the legislature does in fact have the power

to  alter common law remedies,60 and that is what the legislature

has  done in enacting the damages caps.  This alteration  is  not

remittitur  because  it is a general alteration  applied  to  all

cases, and is not case- and fact-specific like remittitur.

          5.   The  damages caps do not infringe on the right  of
               access to the courts.

          The   plaintiffs  also  argue  that  the  damages  caps

infringe upon their constitutional right of meaningful access  to

the courts, as guaranteed by the due process clause in article I,

section  7 of the Alaska Constitution.  The plaintiffs'  argument

here is similar to arguments made earlier in the equal protection

and substantive due process contexts.  Their argument is that the

right  of  meaningful  access includes a "right  to  an  adequate

remedy,"  and  that  the damages caps infringe  upon  this  right

because, for some plaintiffs, adequate compensation would  be  an

amount  in excess of the caps.  The superior court rejected  this

argument.

          In  Bush v. Reid, we recognized a constitutional "right

of  access" under the due process clause in article I, section  7

          of the Alaska Constitution.61  In In re K.A.H., we stated that the

right  of  access is infringed when there are "direct impediments

to  court  access."62  We held in that case that Alaska  Rule  of

Professional Conduct 1.8(e), which prohibits lawyers from loaning

money to their clients for living expenses, does not infringe  on

the  right  of  access because this rule does nothing  to  impede

actual  access  to the courts: "nothing in Rule 1.8(e)  expressly

prohibits  plaintiffs from filing suit or requires plaintiffs  to

pay for court access."63  And in Peter v. Progressive Corp.,64 we

considered  whether  the imposition of fees to  retain  a  master

infringes on the right of access; we stated that an imposition of

fees   may   violate  the  right  of  access  if  the  fees   are

"prohibitively high," but that reasonable fees will not  infringe

on the right of access.65

          The damages caps are not like the restraints considered

in  K.A.H. and Peter because the caps do not impede actual access

to  the  courts.  Moreover, the damages caps do not  violate  the

right  of  access  because  they are not  so  drastic  so  as  to

eliminate  the tort remedies that they modify.66  Therefore,  the

damages caps do not violate the right of access to the courts.

          6.   The  damages  caps  do  not  violate  the  ban  on
               "special legislation."

          The plaintiffs also claim that the damages caps violate

the ban on "special legislation" under article II, section 19  of

the  Alaska  Constitution.  Article II, section  19  states  that

"[t]he  legislature  shall pass no local  or  special  act  if  a

general  act can be made applicable."  The plaintiffs claim  that

          the damages cap constitutes a prohibited "special act."

          The  plaintiffs' contention fails, because our test for

whether a provision violates the "ban on special legislation"  is

identical to the equal protection test already discussed.67  That

is, "special legislation" is constitutional as long as it bears a

"fair   and   substantial  relationship"  to   legitimate   state

objectives.68   We have already held that a fair and  substantial

relationship exists.

     B.   The  Provision Requiring Payment of Half of a  Punitive
          Damages  Award  to  the  State,  AS  09.17.020(j),   Is
          Facially Constitutional.

          Under   AS  09.17.020(j),  successful  plaintiffs   who

receive any type of punitive damages must pay half of that  award

to the state treasury.69

          The  plaintiffs challenge AS 09.17.020(j)  under  three

different  constitutional theories: (1) substantive due  process,

(2)  the takings clause, and (3) the right to a jury trial.  Each

of these theories will be discussed in turn.

          1.   Alaska Statute 09.17.020(j) does not constitute  a
               violation of substantive due process rights.

          The  plaintiffs  argue  that  the  provision  requiring

payment of half of a punitive damages award to the State violates

substantive due process.  Arguing that "cases will occur in which

the  State's conduct would make it unjust for it to receive  half

of the punitive damages," plaintiffs proffer the following:

          The  state is a defendant along with  several
          private  parties.  All defendants  act  in  a
          manner  which  meets  the  appropriate  legal
          standard  for  an award of punitive  damages.
          Despite  the  state's florid and  blameworthy
          behavior, it benefits from the wrongdoings of
          its  co-tortfeasors to the extent of  50%  of
          the punitive damages award.

The  superior  court held that AS 09.17.020(j) does  not  violate

substantive due process rights.

          We  have held that "[s]ubstantive due process is denied

when a legislative enactment has no reasonable relationship to  a

legitimate governmental purpose."70  Punitive damages are assessed

as  a deterrent to prevent future harm to the public, and setting

aside a portion of the damages collected for the public's use  is

reasonably related to the deterrence goal.71

          Nevertheless, the plaintiffs claim that it is  "unjust"

that  the practical effect of AS 09.17.020(j) is to cut  in  half

all punitive damages awards assessed against the State, since  in

all  such cases the State will get half of the award back via  AS

09.17.020(j).    However,  the  effect  of  AS  09.17.020(j)   is

consistent  with  the  rule that "punitive  damages  may  not  be

awarded  against governmental entities [including the  State]  in

the   absence  of  explicit  statutory  authorization."72   Since

punitive  damages  can  only  be awarded  against  the  State  in

specific  situations authorized by statute, the  legislature  may

further limit punitive damages awards through another statute, AS

09.17.020(j).

          2.   Alaska  Statute  09.17.020(j) does  not  effect  a
               taking  without just compensation under the United
               States and Alaska Constitutions.

          The plaintiffs also argue that AS 09.17.020(j) violates

the  federal  and  Alaska Takings Clauses.  The plaintiffs  claim

that  a punitive damages judgment is a property interest that  is

subject to the Takings Clause, and cannot be subject to a "forced

          contribution."

          Alaska  Statute 09.17.020(j) does not effect  a  taking

unless  the  statute  affects  a property  interest  in  punitive

damages that has already vested.  If AS 09.17.020(j) is construed

as  a  cap  on  punitive damages, limiting them before  they  are

awarded  to  successful  plaintiffs,  no  constitutional  problem

exists.  This construction of AS 09.17.020(j) is consistent  with

the legislature's power to limit or abolish punitive damages,73 as

well as with decisions from other courts that have considered the

issue.74   So  construed,  AS 09.17.020(j)  does  not  effect  an

unconstitutional taking.

          3.   Alaska  Statute 09.17.020(j) does not violate  the
               right to a trial by jury.

          The plaintiffs also argue that AS 09.17.020(j) violates

the  right to a trial by jury under article 1, section 16 of  the

Alaska  Constitution.   The  plaintiffs  simply  claim  that  the

forfeiture  provision, like the damages caps  discussed  earlier,

unconstitutionally  interferes with  the  jury's  calculation  of

damages, a matter within the exclusive province of the jury.

          This  issue is resolved by our earlier conclusion  that

the  damages caps under AS 09.17.010 and .020 do not violate  the

right  to  a trial by jury.  Like those statutes, AS 09.17.020(j)

limits  punitive  damages;  as  we  held  above,  a  policy-based

statutory limitation on damages does not violate the right  to  a

jury trial because it does not constitute a re-examination of the

factual issue of damages.

     C.   The Comparative Apportionment of Damages Provision,  AS

     09.17.080, Is Facially Constitutional.

          Alaska  Statute  09.17.080 is a comparative  negligence

statute  that requires the finder of fact to assign a  percentage

share of responsibility for damages to each responsible party and

non-party,  and  mandates  that liability  for  damages  must  be

apportioned  between the responsible parties in  accordance  with

their    percentage   of   responsibility.    Specifically,    AS

09.17.080(a) requires the fact-finder to assign fault percentages

to  all  parties to the suit, as well as to non-parties  released

from  liability  or  "responsible  for  the  damages."   However,

potentially responsible non-parties are not included  within  the

apportionment   of  fault  if  the  parties  had  a   "sufficient

opportunity" to join them but "chose not to" do so.75   Under  AS

09.17.080(c) and (d), the court must then determine each  party's

equitable  share of the damages and enter judgment in  accordance

with that party's percentage of fault.  The statute provides:

               (c)  The court shall determine the award
          of  damages  to  each claimant in  accordance
          with  the findings and enter judgment against
          each  party  liable.  The  court  also  shall
          determine  and  state in  the  judgment  each
          party's equitable share of the obligation  to
          each   claimant   in  accordance   with   the
          respective percentages of fault as determined
          under (a) of this section. . . .
               (d)   The  court  shall  enter  judgment
          against  each  party liable on the  basis  of
          several  liability  in accordance  with  that
          party's percentage of fault.

No  judgment  is entered against non-parties; the  allocation  is

used   only   as  "a  measure  for  accurately  determining   the

percentages of fault of a named party."76  Chapter 26,  SLA  1997

added  the  requirement that fault be assigned to all non-parties

"responsible for the damages."77

          The plaintiffs challenge the allocation of fault to non-

parties on two grounds:  They claim that (1) it is a violation of

due process because it is void for vagueness, and (2) it violates

the  plaintiffs' substantive due process rights.  These arguments

will be considered in turn.

          1.   The  allocation of fault to non-parties  provision
               is not void for vagueness.

          We  have  recognized that a law is "void for vagueness"

and  violates due process when it "either forbids or requires the

doing of an act in terms so vague that men of common intelligence

must  necessarily  guess at its meaning  and  differ  as  to  its

application."78

          The  plaintiffs  claim  that AS  09.17.080(a)  contains

ambiguities  that render it unconstitutionally  vague.   Each  of

these alleged ambiguities will be separately discussed in turn.

          First,  the plaintiffs claim that the statute  requires

that  the  fact-finder assign a fault percentage to every  person

that  is  alleged  to  be  responsible  for  the  damages.    The

plaintiffs imply that there is an ambiguity because the  language

of  the  statute  seems to require that no  such  person  may  be

assigned a percentage of zero.

          We   reject   this  argument.   The  language   of   AS

09.17.080(a)  does not state or imply that a percentage  of  zero

cannot  be  assigned.79   The  plaintiffs  do  not  provide   any

legislative history to counter the plain and unambiguous language

of  AS 09.17.080(a), which does not preclude a percentage of zero

          from being assigned.80

          The  other ambiguities claimed by the plaintiffs  arise

from  the exception in AS 09.17.080(a)(2) that excludes some non-

parties  from  the  allocation of fault.  As the  superior  court

noted,  the  general rule, or "presumption," established  by  the

statute is that all parties and non-parties "responsible for  the

damages"  may be assigned a fault percentage. However, there  are

exceptions  to that general rule: fault may not be  allocated  to

any   non-party   that   (1)   is  identified   as   "potentially

responsible," (2) is not protected by the statute of repose,  and

(3)  is  a  person or entity that the parties had  a  "sufficient

opportunity" to join, but "chose not to."

          [T]he court . . . shall instruct the jury  to
          answer  special interrogatories or, if  there
          is no jury, shall make findings, indicating .
          . . the percentage of the total fault that is
          allocated to each claimant, defendant, third-
          party defendant, person who has been released
          from  liability, or other person  responsible
          for the damages, unless

               [1]   the  person  was identified  as  a
          potentially responsible person,

               [2]    the   person  is  not  a   person
          protected  from  a  civil  action  under   AS
          09.10.055, and

               [3]    the   parties  had  a  sufficient
          opportunity to join that person in the action
          but chose not to.[81]

          The  State,  while  urging us to  affirm  this  "common

sense"  interpretation of the statute, also observes that,  under

the  statute, a non-party can only be included in the  allocation

of fault if (1) the defendant identifies the non-party as someone

who  the  defendant will argue is at fault, and (2) the defendant

          shows that the person could not be joined.  This is also correct.

In  order  to  include  a non-party in the  fault  allocation,  a

defendant  must  identify  the  non-party  as  someone  who   the

defendant  will  argue is at fault, because otherwise  that  non-

party cannot be a "person responsible for the damages" under  the

general  rule of AS 09.17.080(a)(2).  And, even if the  defendant

argues  that a non-party was at fault, that non-party  cannot  be

included  in  the allocation of fault if there was a  "sufficient

opportunity"  to  join  that  non-party,  because  a  "sufficient

opportunity" to join triggers the exception in AS 09.17.080(a)(2)

defining  non-parties that cannot be assigned  an  allocation  of

fault.82    The  statute  states  that  there  is  a  "sufficient

opportunity"  to  join  when the non-party  is  "(A)  within  the

jurisdiction of the court; (B) not precluded from being joined by

law or court rule; and (C) reasonably locatable."83  Thus, as the

State correctly maintains:

          [A]s  finally  enacted . . .  [AS  09.17.080]
          allows the allocation of fault to a non-party
          only  if  certain conditions  are  met.   The
          defendant first has to identify the person as
          someone the defendant will argue is at fault.
          While   no   method   of  identification   is
          specified, the procedures in the Alaska Rules
          of   Civil   Procedure   will   govern   this
          identification.   Next,  the  defendant  will
          have  to  show that the person could  not  be
          added   as  a  third-party  defendant  either
          because   that   person   is   outside    the
          jurisdiction of the court or because  by  law
          or court rule the person cannot be named as a
          party.   Thus,  a  defendant  who  wishes  to
          allocate  fault  to  a person  must  add  the
          person as a party if the defendant is legally
          able to do so.[84]

(Citations omitted.)

          The   plaintiffs  claim  that  the  first   and   third

components  of the exception in AS 09.17.080(a)(2) are ambiguous.

First,  the  plaintiffs claim that the statute  does  not  define

sufficiently  the  term  "potentially responsible  person."   The

plaintiffs  claim  that  this term is  ambiguous  because  it  is

unclear   who   is   responsible  for   identifying   potentially

responsible persons, what the standard of proof is, or  what  the

procedure should be for such an identification.

          The  plaintiffs also claim that the third component  of

the  exception is ambiguous.  The plaintiffs impliedly argue that

it  is  possible  that  a  non-party could  be  identified  as  a

potentially responsible party without the defendant's knowledge -

-  and that therefore this third condition may not apply to  that

defendant  because  the  defendant did  not  have  the  knowledge

required  to "choose" not to join the non-party.  The  plaintiffs

also claim that the exception may create an ambiguous duty to try

to ascertain potentially responsible persons, and that the phrase

"sufficient opportunity to join" is not clear.

          There is no unconstitutional ambiguity in the exception

contained   in   AS  09.17.080(a)(2).   It  is   true   that   AS

09.17.080(a)(2) does not define the term "potentially responsible

person."   However,  this  does not  create  an  unconstitutional

ambiguity.    The  identification  of  "potentially   responsible

persons"  can  be made by any party and will be  managed  by  the

trial  court.   Our  rule-making  process  will  provide  further

guidance if such guidance is needed.

          The  third  component of the exception,  including  the

phrase   "sufficient   opportunity  to   join,"   is   also   not

unconstitutionally ambiguous.  The exception does not  implicitly

or explicitly create any duties -- it simply creates an exception

to  the  general  rule that all responsible non-parties  will  be

assigned a fault percentage.

          Our  conclusion that AS 09.17.080(a) does  not  contain

unconstitutional ambiguities is supported by our prior  decisions

in  Lazy Mountain Land Club v. Matanuska-Susitna Borough Board of

Adjustment  &  Appeals,85 and Williams v.  State,  Department  of

Revenue.86   In  Lazy Mountain, we stated that there  are  "three

principal  considerations in determining  whether  a  statute  is

unconstitutionally  vague": (1) whether the statute  operates  to

inhibit  the exercise of First Amendment rights, (2) whether  the

statute gives adequate notice of what conduct is prohibited,  and

(3)  whether  there has been a history or a strong likelihood  of

uneven  application.87   In  Williams,  a  workers'  compensation

claimant  was  denied  benefits and claimed  that  the  governing

statute  defining  "injury" was unconstitutionally  vague.88   We

noted  in  Williams  that  the three Lazy  Mountain  factors  had

"little or nothing to do" with the situation in Williams:

          These   factors  obviously  have  little   or
          nothing  to do with the present case.   First
          Amendment  rights  are  not  involved[;]  the
          statutes in question prohibit no conduct; and
          the    statutes   give   rise   to    neither
          prosecutorial  action in a  criminal  context
          nor  a  civil  enforcement  action  where   a
          litigant   may  be  at  risk  of  losing   an
          important   right  because   the   litigant's
          conduct did not meet a certain standard.[89]

          We   rejected  the  vagueness  challenge  in  Williams,

          because "the statute merely set[] a dividing line between

instances  where compensation is payable and those  where  it  is

not."90   We noted that "a lower degree of exactitude is required

for  civil [as opposed to criminal] statutes," and that a reading

of  the  entire  statute clarified the meaning of the  challenged

terms.91

          Similarly, AS 09.17.080(a) merely sets a dividing  line
between  non-parties who may be assigned a fault  percentage  and
those  who  may  not.   Also,  first  amendment  rights  are  not
involved, AS 09.17.080 prohibits no conduct, and the statute does
not give rise to criminal liability or possible civil enforcement
where  "a  litigant may be at risk of losing an  important  right
because the litigant's conduct did not meet a certain standard."92
And  the  language of AS 09.17.080(a) is "not so conflicting  and
confused  that  it  cannot be given meaning in  the  adjudication
process."93  The ambiguities identified by the plaintiffs do  not
make AS 09.17.080(a) unconstitutionally vague.

          2.   The  allocation of fault to non-parties  does  not
               violate  the  plaintiffs' substantive due  process
               rights.

          The  plaintiffs  also argue that AS 09.17.080  violates

their substantive due process rights because it forces plaintiffs

to  defend  responsible non-parties who may share  in  the  fault

allocation  but  who by definition will not appear  at  trial  to

defend   themselves.   Plaintiffs  would  have  an  interest   in

defending these non-parties because an allocation of fault to non-

parties  would reduce the amount of damages recoverable from  the

defendants.

          The  superior court rejected the plaintiffs'  argument,

holding  that the "empty chair" problem does not give rise  to  a

constitutional violation, and stated that it is "inevitable" that

someone  will be disadvantaged by the presence of "empty  chairs"

in multi-party tort cases.  The superior court noted that under a

          system of "joint and several liability" (the former system in

Alaska), the defendants are prejudiced because they face the risk

of  paying  more than their fair share of damages, and  must  sue

other  co-defendants  for contribution to remedy  the  situation.

Under  the AS 09.17.080 comparative negligence scheme, plaintiffs

are  prejudiced  because they risk getting less than  their  fair

share  of compensation.  The superior court noted that the choice

between  a  system which disadvantages defendants  and  a  system

which  disadvantages plaintiffs is a "pure public policy"  choice

that  was  made  by  the  legislature and  is  not  one  that  is

"vulnerable to constitutional attack."

          We  have held that "[s]ubstantive due process is denied

when a legislative enactment has no reasonable relationship to  a

legitimate governmental purpose."94  The only relevant authorities

cited  by  the  parties are two Montana Supreme Court  decisions,

Plumb  v.  Fourth Judicial District Court, Missoula County95  and

Newville v. State, Department of Family Services,96 in which  the

court applied a substantive due process standard identical to our

own.97   The Montana court considered two versions of  a  Montana

comparative negligence statute mandating that fault be  allocated

to  responsible non-parties and that party liability for  damages

be  reduced accordingly.  In Newville, the court struck down  the

first  version of the statute because it "unreasonably mandate[d]

an allocation of percentages of negligence to non-parties without

any  kind  of procedural safeguard."98  That is, even though  the

comparative   negligence  statute  was  enacted   for   a   valid

governmental purpose, the statute was not reasonably  related  to

          that purpose because it "arbitrarily and unreasonably" prejudiced

plaintiffs who risked diminished recovery if they did not  defend

non-party defendants.99

          In  the later Plumb decision, the Montana Supreme Court

again  implied that the allocation of fault to non-parties  would

be constitutional if there were adequate procedural safeguards.100

The   court  considered  the  next  version  of  the  comparative

negligence  statute  passed  by  the  Montana  legislature  as  a

response  to Newville.101  In the second statute, the legislature

created some procedural safeguards, but the court stated in Plumb

that  these  safeguards  were  not enough  to  make  the  statute

constitutional.102  The second statute included requirements that

(1) the defendant had the burden to show non-party liability; (2)

the  non-party defense had to be affirmatively pled; and (3)  the

non-party  had  to be notified that it was being blamed  for  the

injuries.103  The court held that these procedural safeguards were

constitutionally insufficient because they did  not  provide  the

non-party  with  an  opportunity to  appear  and  defend  itself;

without this opportunity, "nonparties are likely to be assigned a

disproportionate  share  of  liability,  and  [the   plaintiff's]

recovery is likely to be reduced."104

          Newville and Plumb are distinguishable from this appeal

because  AS  09.17.080(a)  contains  safeguards  that  adequately

address  the  Montana Supreme Court's concerns.   Alaska  Statute

09.17.080(a) does not allow allocation of fault to non-parties if

the three conditions of its exception are all met: if (1) the non-

party is identified as potentially responsible, (2) the non-party

          is not protected by AS 09.10.055, and (3) the parties had a

sufficient opportunity to join the non-party but did not  do  so.

This  exception provides the "opportunity" for the  non-party  to

appear  and defend itself that the Montana statute lacked because

under  AS  09.17.080(a), a defendant must  join  any  potentially

responsible  non-parties  as  long  as  there  is  a  "sufficient

opportunity"  to do so, or else no fault will be  apportioned  to

non-parties.    Because  of  these  procedural  protections,   AS

09.17.080(a)  is reasonably related to a legitimate  governmental

purpose and does not violate substantive due process.105

     D.   The  Offer  of  Judgment Procedure,  AS  09.30.065,  Is
          Facially Constitutional.

          Alaska   Statute  09.30.065,  the  offer  of   judgment

procedure, penalizes parties who receive an offer of judgment for

some  sum, refuse that offer, and win a judgment after trial that

is less favorable than the offered sum by five percent or more.106

The  penalty is that the offeree is required to pay all costs and

between  thirty percent and seventy-five percent of the offeror's

attorney's fees, depending on when the offer was made.107  The 1997

legislation altered but did not create this scheme.108

          The  plaintiffs challenge the entire statute,  claiming

that  it  is  unconstitutional.  The  plaintiffs  claim  that  AS

09.30.065  violates both (1) the right of access to  the  courts,

and  (2)  the right to a jury trial.  These contentions  will  be

addressed in turn.

          1.   Alaska  Statute  09.30.065 does  not  violate  the
               right of access to the courts.

          The  plaintiffs claim that AS 09.30.065 violates  their

          right of access to the courts, guaranteed by article I, section 7

of  the  Alaska  Constitution because "in some  circumstances  it

renders victorious plaintiffs penniless."  The plaintiffs discuss

a  hypothetical example, in which a plaintiff who recovers almost

the  same amount at trial as was contained in a defendant's offer

is  greatly punished because she is forced to pay the defendant's

attorney's  fees.   The  superior court rejected  this  argument,

stating that it was a "frivolous policy argument."

          As  we  noted  earlier  in this opinion,  in  our  past

decisions considering the right of access to the courts, we  have

been concerned with impediments to actual access to the courts.109

We  decline to expand the right of access to prohibit an offer of

judgment scheme.  We note that this is consistent with the United

States  Supreme  Court's  rejection of  a  similar  challenge  to

Federal  Rule of Civil Procedure 68 in Marek v. Chesny, in  which

the Court noted that "[m]erely subjecting civil rights plaintiffs

to  the  settlement provision of Rule 68 does not  curtail  their

access  to the courts, or significantly deter them from  bringing

suit."110

          2.   Alaska  Statute  09.30.065 does  not  violate  the
               right to a trial by jury.

          The plaintiffs also recast the preceding argument under

the  rubric  of the right to a trial by jury, claiming  that  the

disincentive  provided  by  AS  09.30.065  and  the  accompanying

"chilling  effect" is so great that it effectively deprives  some

plaintiffs of their right to a jury trial.

          We  have held that a party is entitled to a jury  trial

          if the right to a jury trial was preserved by the enactment of

article  I,  section 16 of the Alaska Constitution  --  that  is,

there is such a right in suits "at law" where the plaintiff seeks

damages.111  Without citing any authorities, the plaintiffs ask us

to hold that the right to a jury trial also includes the right to

be  free  from  financial disincentives that might  persuade  the

parties  not  to seek the jury trial to which they are  entitled.

We decline to do so.

     E.   The  Limitations Tolling Procedure for Minors,  Defined
          by AS 09.10.140, Is Facially Constitutional.

          Alaska Statute 09.10.140 tolls the two-year statute  of

limitations  for  tort  actions.  The parties  dispute  both  the

meaning  and constitutionality of AS 09.10.140 as it  applies  to

minors.

          The  plaintiffs  contend that AS 09.10.140  treats  two

different   classes   of   minor   personal   injury   plaintiffs

differently: (1) those less than eight years of age at  the  time

of  injury,  and (2) those older than eight years of age  at  the

time  of  injury.  The plaintiffs claim that AS 09.10.070(a)  and

09.10.140(c)  together  provide  that  those  plaintiffs  injured

before  their eighth birthday have until their tenth birthday  to

file  a  personal injury action, while those injured after  their

eighth  birthday are treated more favorably, since  their  claims

are tolled until they reach the age of majority.

          The  State  claims  that these statutes  do  not  treat

minors  over  the  age  of  eight at  the  time  of  injury  more

favorably.  The State contends that the tolling provisions of  AS

          09.10.140 only apply to minors under the age of eight at the time

of  injury.  Therefore, minors over the age of eight at the  time

of  injury  have two years after their injury in  which  to  file

suit, like all other tort plaintiffs.

          When  interpreting  the  language  of  a  statute,   we

normally give unambiguous language its plain meaning.112  We  may

also  rely  on  legislative history as a guide to interpretation,

"[b]ut  the  'plainer  the  language  of  a  statute,  the   more

convincing  contrary legislative history must be' to interpret  a

statute in a contrary manner."113

          At  the  outset, it is important to bear in  mind  that

three  separate but interrelated sections of AS 09.10 govern  the

time  limits  for  a  minor to sue for personal  injury:  (1)  AS

09.10.070, (2) AS 09.10.140, and (3) AS 09.10.055.  In  order  to

understand the purpose and effects of section .140, it  is  vital

to  consider  how sections .140 and .055 interact  and  how  both

relate to section .070.

          The first of these provisions, AS 09.10.070, creates  a

general  two-year  statute of limitations for various  causes  of

action, including personal injury actions.

          The second provision, AS 09.10.140, overrides the first

by tolling the two-year personal injury statute in certain cases.

Subsection  .140(a) broadly exempts all minors,  including  those

with  potential  personal injury claims,  from  all  statutes  of

limitation established in AS 09.10, including section .070's two-

year  personal  injury limit.  The period of tolling  under  this

subsection continues throughout the years of minority,  and  when

          minors reach majority at age eighteen, subsection (a) gives them

two  years  to  sue, regardless of the nature of their  cause  of

action.  But subsection .140(c) carves out an exception to  these

broad  tolling provisions.  Focusing narrowly on minors who  have

potential  personal injury claims and are less than  eight  years

old  when injured, it specifies that subsection .140(a) will toll

section  .070's two-year time bar as to these minors  only  until

they reach their eighth birthday.

          The third provision, AS 09.10.055, overrides the second

(section  .140's  tolling provision) by establishing  a  ten-year

time limit for all personal injury actions, including actions  by

all    minors.    Subsection   .055(a)   thus   specifies   that,

notwithstanding  subsection  .140(a)'s   provision  tolling   the

statute  of  limitations for minors, no  person  may  commence  a

personal  injury action more than ten years after  the  last  act

that  causes  injury.  Subsection .055(b) goes on to establish  a

number  of  exceptions  to  the  statute  of  repose,  describing

situations in which subsection .055(a)'s ten-year time  bar  will

not apply.  Two exceptions are important here.

          First, paragraph .055(b)(3) specifies that the ten-year

limit never applies if a shorter period of limitation attaches:

               This section does not apply if

               . . . .

               (3)    a  shorter  period  of  time  for
          bringing the action is imposed under  another
          provision of law.

This exception makes section .070's usual two-year time limit for

personal  injury claims controlling if it would otherwise  apply;

the  exception thereby clarifies that section .055 operates as  a

statute  of repose, setting outer limits for commencing  personal

injury actions, even when the statute of limitations would  allow

them.

          Second,  paragraph .055(b)(5) establishes  a  discovery

rule  governing  injured minors that tolls the period  of  repose

based   on  the  reasonable  perceptions  of  their  parents   or

guardians:

               This section does not apply if

               . . . .

               (5)   the  facts  that would  constitute
          accrual  of a cause of action of a minor  are
          not   discoverable   in   the   exercise   of
          reasonable  care  by the  minor's  parent  or
          guardian.

As  can  be  seen,  this discovery provision treats  all  injured

minors equally and does not depend on the date of injury.114

          The   interplay  of  the  foregoing  provisions   sheds

considerable light on subsection .140(c)'s purpose.  In drawing a

line  between minors who are injured before and those injured  on

or  after  their  eighth  birthdays, subsection  .140(c)  tacitly

acknowledges both the underlying purpose of subsection  .140(a)'s

tolling  provision  and the overriding effect of  section  .055's

statute of repose.

          By   tolling   section  .070's  two-year   statute   of

limitations  until  a child reaches majority, subsection  .l40(a)

seeks  to enable injured minors to age to majority without losing

their  claims, so that they will be able sue on their own instead

of  through their parents or guardians.  But this purpose can not

          be attained when minors are injured before reaching their eighth

birthdays.   An  injured minor who is less than eight  years  old

must  wait  more than ten years before reaching majority.   Since

the  ten-year  outer limit of the statute of repose  specifically

overrides  subsection  .140(a)'s provision tolling  the  two-year

statute of limitations for personal injury claims, the statute of

repose  will  always bar these children from suing in  their  own

right  unless  their  claims fall within one  of  the  exceptions

contained  in the statute of repose itself.  But in  that  event,

subsection  .055(b)  specifies that subsection  .055(a)  will  no

longer  cancel subsection .140(a)'s tolling provisions  --  which

will once again govern the minors' claims.115

          In  short,  subsection .140(c) simply  separates  those

children  for  whom  tolling  the statute  of  limitations  would

preserve the ability to sue as adults from those whose ability to

sue  on  their own will necessarily depend on exceptions included

in the statute of repose.

          The line itself is logical, then.  And once the line is

drawn,  there  is good reason for subsection .140(c)'s  disparate

treatment of younger minors:  The ten-year limit imposed  by  the

statute  of  repose will eventually require all  minors  who  are

under  eight  years old when injured (provided that they  do  not

fall within one of the statute's exceptions, in which event their

claims are tolled) to sue through their parents or guardians;  if

these  minors  ultimately  must  sue  through  their  parents  or

guardians,  then it serves no useful purpose, and only encourages

stale  claims, to let their parents or guardians wait  ten  years

          before commencing an action.

          Thus,  subsection  .140(c)'s  disparate  treatment   of

minors  under  the age of eight is rationally based and  furthers

legitimate state interests.

     F.   The   Provision  Granting  Partial  Tort  Immunity   to
          Hospitals, AS 09.65.096, Is Facially Constitutional.

          Alaska  Statute  09.65.096 grants partial  immunity  to

hospitals for actions taken by emergency room physicians who  are

not employees but are rather independent contractors.116  Under AS

09.65.096,   hospitals  are  responsible  only   for   exercising

reasonable care in granting and reviewing privileges to  practice

in  the  hospital.  Hospitals are not otherwise  responsible  for

actions  taken  by emergency room physicians who are  independent

contractors, as long as the hospital provides notice,117 and  the

physicians have prescribed levels of malpractice insurance.118

          Alaska Statute 09.65.096 was created in response to our

decision  in  Jackson v. Power, in which we held  that  hospitals

have  a non-delegable duty to provide non-negligent care in their

emergency  rooms,  and  that hospitals  cannot  avoid  respondeat

superior  liability  by  making  their  emergency  room   doctors

"independent contractors."119

          The  plaintiffs challenge AS 09.65.096 on one basis  --

they  claim  that  the statute is a violation of substantive  due

process.    The   plaintiffs   claim   that   the   legislature's

modification of the common law, as it was interpreted in Jackson,

is   a   violation  of  substantive  due  process   because   the

legislature's  action is in violation of "sound  public  policy."

          Specifically, the statute is allegedly against public policy

because  it  is  a  "legislatively  imposed  exculpatory   clause

inserted in an adhesion contract" -- the contract formed  when  a

patient is forced to go to an emergency room.

          However,  the  plaintiffs' argument fails  because  the

legislature  was  free  to override our decision  in  Jackson  v.

Power.   Our  decision in Jackson was based on our interpretation

of  the  common  law.120   As  we  have  stated  previously,  the

legislature  has the power to modify the common law.121   Indeed,

this  principle is itself enshrined in AS 01.10.010, which states

that  the  law  to be applied by courts is "the  common  law  not

inconsistent with the Constitution of the State of Alaska or  the

Constitution of the United States or with any law passed  by  the

legislature   of   the  State  of  Alaska."   (Emphasis   added.)

Therefore, the legislature was well within its rights to enact AS

09.65.096.

     G.   The  Statute  of  Repose,  AS  09.10.055,  Is  Facially
          Constitutional.

          The statute of repose, AS 09.10.055, imposes a ten-year

limitations  period,  in  addition to  the  two-year  statute  of

limitations under AS 09.10.140, for actions for personal  injury,

death,  or  property  damage.  Even if the  two-year  limitations

period  of  AS  09.10.140 is tolled, the ten-year  period  of  AS

09.10.055 may separately bar an action.

          Specifically, under AS 09.10.055, actions must be filed

within   ten   years  after  the  earlier  of  (1)   "substantial

completion" of construction that allegedly caused the injury,  or

          (2) the last act alleged to have caused the personal injury.122

There  are exceptions for certain types of injuries,123  and  the

limitations period is tolled during a period in which a  "foreign

body" upon which a cause of action is based remains undetected in

a plaintiff's body.124  Chapter 26, SLA 1997 altered the statute of

repose,  which formerly applied only to actions based on injuries

in connection with improvements to real property,125 and shortened

the period from fifteen to ten years.126

          The  plaintiffs  offer two arguments to  challenge  the

constitutionality  of  the statute of  repose:  (1)  the  statute

violates  equal  protection; and (2)  the  statute  violates  due

process  because  it  overturns  the  "discovery  rule."    These

arguments will be discussed in turn.

          1.   The  statute  of  repose does  not  violate  equal
               protection.

          The   plaintiffs  claim  that  the  statute  of  repose

constitutes a violation of equal protection because it treats two

classes  of  minor plaintiffs differently.  Minors who  are  less

than eight years old at the time of injury will have their claims

barred before they reach the age of majority under the statute of

repose,  while minors who are more than eight years  old  at  the

time of injury will have their claims barred after they reach the

age  of  majority.   The plaintiffs claim that  this  constitutes

differential treatment of similarly situated minors  because  the

first  group of minors must rely on others to bring suit on their

behalf, if suit is to be brought before the claim is lost.

          However,  we  need  not subject AS 09.10.055  to  equal

          protection analysis because the plaintiffs have failed to make

the threshold showing necessary for an equal protection violation

claim.  As we stated in Matanuska-Susitna Borough School District

v. State, "[w]here there is no unequal treatment, there can be no

violation of the right to equal protection of law," and "we  need

not subject the challenged laws to sliding scale scrutiny."127  The

statute of repose does not treat minors differently:  It subjects

all  minors,  as  well  as all other plaintiffs  in  actions  for

personal  injury,  death,  or  property  damage,  to  a  ten-year

limitations  period.  As the plaintiffs imply, the  statute  does

have  an  effect  on  the  tolling  for  minors  imposed  by   AS

09.10.140(a).  Under AS 09.10.140(a), discussed earlier  in  this

opinion,  the normal two-year limitations period is tolled  until

the  plaintiff  reaches  the  age of  majority.   Alaska  Statute

09.10.055  limits this tolling for plaintiffs injured before  the

age  of eight by barring their actions ten years after the injury

when  they  have  not yet reached the age of majority.   However,

this is not differential treatment since the ten-year statute  of

repose  applies  to  all  plaintiffs.  Instead,  the  legislature

simply  made  a policy decision to create a separate  statute  of

repose in addition to the statute of limitations.128

          2.   The   statute  of  repose  does  not  violate  due
               process.

          The  plaintiffs also claim that the statute  of  repose

violates  due  process by effectively abolishing  our  "discovery

rule,"  which provides that the statute of limitations  does  not

start running until the plaintiff discovers, or reasonably should

          discover, the existence of all of the elements of his cause of

action.129  In some cases a plaintiff might not discover a cause of

action until after the ten-year limitations period in the statute

of  repose has run, and therefore the claim would be lost  before

the  discovery  rule could operate to fully toll the  limitations

period under AS 09.10.070(a).  The plaintiffs argue that this  is

a  violation  of due process because it departs from  the  common

law.   We  reject this argument.  The discovery rule is a  common

law  rule  created  by  this court,  and  is  not  based  on  any

constitutional principles.130  As noted earlier in this  opinion,

the legislature is free to modify or abolish common law rules.131

Therefore, to the extent that AS 09.10.055 limits the traditional

discovery  rule,132 the legislature had the power  to  do  so  in

enacting the statute.

     H.   Chapter 26, SLA 1997 Does Not Violate the "One Subject"
          Rule   of   Article  II,  Section  13  of  the   Alaska
          Constitution.

          In addition to all of the facial challenges to specific

components  of  the  tort  reform legislation  considered  above,

plaintiffs   claim  that  all  of  chapter  26,   SLA   1997   is

unconstitutional  because it violates the "one subject"  rule  of

article II, section 13 of the Alaska Constitution.

          We  have  stated that legislation will not violate  the

"one  subject"  rule  as  long as it embraces  a  single  general

subject:

          To  determine  if a bill is confined  to  one
          subject,  all that is necessary is  that  the
          act  should embrace some one general subject;
          and  by  this  is  meant,  merely,  that  all
          matters treated . . . should fall under  some
          one  general  idea, be so connected  with  or
          related to each other, either logically or in
          popular understanding, as to be part  of,  or
          germane to, one general subject.[133]

The  purpose  of  the one-subject rule is to prevent  legislative

"log-rolling" -- the practice of "deliberately inserting  in  one

bill  several  dissimilar or incongruous  subjects  in  order  to

secure the necessary support for passage of the measure."134   The

plaintiffs  argue  that  chapter 26, SLA 1997  violates  the  one

subject  rule because its provisions are "scattered" and  do  not

embrace a common subject.

          However, we have also stated that "what constitutes one

subject  for  purposes of article II,  13 is broadly  construed,"

and  that  only a "substantial and plain" violation  of  the  one

subject  rule  will  lead us to strike down legislation  on  this

basis.135  In past decisions, this court and the court of appeals

have  considered legislation that was in some cases  very  broad:

We  have  held in each case that the legislation was  within  one

subject,  such as "land" or "the criminal law."136  We have  only

struck down legislation once on this basis, in a unique situation

wholly  unrelated to the circumstances of this  appeal.137   Even

though  the provisions of chapter 26, SLA 1997 concern  different

matters,  they  are  all  within the  single  subject  of  "civil

actions."138

V.   CONCLUSION

          For the reasons stated above, we reject the plaintiffs'

facial  challenges  and  hold that the challenged  provisions  of

chapter 26, SLA 1997 are facially constitutional under the Alaska

and  United  States  Constitutions.139  We therefore  AFFIRM  the

          superior court's decision as to all elements of chapter 26, SLA

1997.

BRYNER,  Justice, with whom CARPENETI, Justice, joins, dissenting

in part.

          I  disagree  with those parts of the plurality  opinion

that  would uphold the 1997 tort reform act's noneconomic damages

cap  and punitive damages forfeiture provision.  In my view,  the

cap on noneconomic damages violates Alaska's jury trial and equal

protection  clauses,  and the provision requiring  plaintiffs  to

forfeit  half  their  awards of punitive  damages  to  the  state

violates   substantive  due  process  and  the  takings   clause.

Although  the  plurality opinion has limited  impact  and  leaves

these points open to future consideration,1 I think that they are

sufficiently  important to require me to explain my  reasons  for

disagreeing.

     The Noneconomic Damages Cap Is Unconstitutional.

          Jury Trial

          Although  cases  from other states  are  split  on  the

issue,2  I  think  that  the better-reasoned  cases  support  the

conclusion  that  AS  09.17.010's  cap  on  noneconomic   damages

violates   the   right  to  a  jury  trial   under   the   Alaska

Constitution.3  Construing  constitutional  provisions  that  are

textually and historically similar to Alaska's, courts in Kansas,

Oregon,  Washington,  and  Alabama  have  held  that  noneconomic

damages caps violate a plaintiff's right to a jury trial.4  These

courts   observe  that  the  jury's  function  has  traditionally

included  determining the amount of damages  a  plaintiff  should

actually  receive;  and  since  the  demand  for  damages  itself

triggers  the  right  to a jury trial under their  constitutional

          provisions, these courts reason that, regardless of whether the

jury's decision is technically characterized as a finding of fact

or conclusion of law, "[i]t would be illogical . . . to find that

a  jury, empaneled because monetary damages are sought, could not

then fully determine the amount of damages suffered."5

          In  contrast,  the  cases relied on  by  the  plurality

opinion   --  chiefly  Davis,6  Pulliam,7  and  Etheridge,8   are

readily  distinguishable.  The two Virginia opinions  --  Pulliam

and  Etheridge   interpret  a unique provision  of  the  Virginia

constitution stating that a "trial by jury is preferable  to  any

other";9  moreover, they draw heavily on the status of the  right

to  a  jury trial under Virginia law when that state adopted  its

constitution in the late 1700s.10  And the federal case --  Davis

--  bases  its  decision on the Seventh Amendment's reexamination

clause;11  yet  the  Alaska Constitution's jury  trial  provision

contains  no reexamination clause, and the Seventh Amendment  has

no application in state-court civil jury cases.

          Accordingly, I would follow the well-reasoned decisions

in  Kansas, Oregon, Washington, and Alabama and would  hold  that

Alaska's   noneconomic   damages   cap   violates   the    Alaska

Constitution's guarantee of a jury trial.

          Equal Protection

          Despite  the strength of the plaintiffs' argument  that

the damages cap deprives them of their constitutional right to  a

jury  trial,  it  seems to me that their argument under  Alaska's

equal  protection clause12 provides an even more compelling basis

for holding the damages cap unconstitutional.

          Many  state cases addressing challenges to damages caps

have considered equal protection arguments; these cases are about

evenly split, and their outcome usually centers on what level  of

equal  protection  scrutiny the court chooses  to  apply  to  the

issue.   Almost all courts that have upheld damages caps  against

equal  protection challenges have done so under the lowest  level

of  scrutiny: the "rational basis" test, which asks only  if  the

legislature  might have had any logical reason for  adopting  the

cap.13  Conversely, cases that have applied heightened, mid-level

equal  protection  scrutiny have uniformly  declared  noneconomic

damages caps invalid, concluding that the caps run aground on the

mid-level  scrutiny  test's means-to-end-fit  requirement;  these

cases   typically  ask  whether  a  substantial   or   legitimate

legislative  reason  actually existed  for  adopting  a  cap  and

whether  the  adopted cap actually bears a close and  substantial

relationship to the legislature's underlying interest.14

          In  the  present case, the plurality opinion  describes

the  interest  asserted  by  the plaintiffs  as  an  interest  in

"unlimited  damages"; the plurality then dismisses this  interest

as  "merely economic" -- too trifling to deserve anything but the

lowest level of constitutional scrutiny.15

          But  in truth the plaintiffs assert a considerably more

fundamental  and  focused interest: their  interest  in  a  civil

justice  system  that  affords all similarly situated  negligence

victims an equal opportunity to seek full compensation for  their

injuries.   To  be  sure, this interest can be  characterized  as

economic.  Yet it is hardly the selfish and unbounded interest in

          "unlimited damages" that the plurality opinion ascribes to the

plaintiffs.  Rather, the asserted interest is properly limited to

personal  injuries that the legislature has expressly  recognized

to  be  real  and  that plaintiffs can prove that  they  actually

suffered.

          Furthermore,  despite the plurality opinion's  contrary

assumption,   Alaska's  test  of  equal   protection   does   not

automatically  relegate  all  economic  interests  to   low-level

scrutiny.16   Instead, because it incorporates  a  pure  sliding-

scale approach, Alaska's equal protection test eschews such rigid

categories  and  recognizes "a continuum of available  levels  of

scrutiny."   In this continuum, the importance of any  particular

interest -- whether economic or not -- is a relative matter to be

judged   by   realistically  applying  "an  adjustable  'uniform-

balancing'  test"  that considers the overall importance  of  the

specific   interest  at  issue  in  relation  to  other  societal

interests.17   And  notably,  in  applying  this  test  on  prior

occasions, this court has not hesitated to identify some economic

interests  as  ranking  sufficiently high  in  the  continuum  of

societal interests to deserve close scrutiny.18

          Here,  when  considered against  a  backdrop  of  other

imaginable economic interests, the plaintiffs' specific  interest

in  access  to the courts to seek full recovery for their  actual

injuries  easily  qualifies  as an important  economic  interest.

Whether  labeled  "a  mere  economic  interest"  or  an  interest

implicating  plaintiffs' constitutional right of  access  to  the

courts,  then, this interest deserves considerably more  scrutiny

          under Alaska's sliding-scale test than the minimal glance that

the plurality chooses to give it.19

          Persuasive decisions from other states strongly support

this  conclusion.  Courts considering equal protection challenges

to  damages  caps  often identify two offensive features  --  one

involving  disparate  treatment  of  tortfeasors  and  the  other

involving  disparate treatment of negligence victims.   First,  a

noneconomic   damages   cap  like  Alaska's   treats   wrongdoers

disparately  by  requiring those who negligently cause  minor  or

modest  injuries to pay fully, while allowing those  who  inflict

the  most serious injuries to pay only partial damages.20  Second

--  and  worse, I submit -- the cap treats victims of  negligence

disparately  by  allowing  those  who  suffer  slight  or  modest

personal injuries to recover their full measure of damages, while

forcing those who suffer the most serious injuries to accept only

partial damages and to absorb the rest of the loss themselves.21

          In   finding  that  this  form  of  disparity   compels

heightened  scrutiny, the Utah Supreme Court stressed  that  low-

level equal protection review is particularly "inappropriate when

dealing with a fundamental principle of American law that victims

of wrongful or negligent acts should be compensated to the extent

that they have been harmed."22  Similarly, in deciding to use mid-

level  scrutiny to review a damages cap challenged under the  New

Mexico  constitution's equal protection clause,  the  New  Mexico

Supreme Court explained,

          these  classifications effect  a  substantial

          injustice  in this case.  The classifications

          infringe  an individual's important  interest

          to  be  compensated fully for  his  injuries,

          especially when, as is alleged in the instant

          case,  they are a result of no fault  of  his

          own.   This  interest, in our view, certainly

          is amply important and substantial to justify

          the  invocation  of at least the  heightened,

          intermediate  test  instead  of  the  minimum

          rationality test.  We are persuaded also that

          the  class  of tort victims affected  by  the

          damage  cap  is  "sensitive"  enough  to  the

          injustice  wrought  to warrant  applying  the

          heightened test.  Consequently, we  take  the

          intermediate   approach   and   analyze   the

          constitutional challenge in this  case  under

          heightened scrutiny.[23]

          Yet  even if we reject these thoughtful assessments and

choose  to  apply  the lowest level of scrutiny  permitted  under

Alaska's  equal  protection  clause,  a  correct  application  of

Alaska's  sliding-scale test would still  compel  the  conclusion

that the plaintiffs' equal protection challenge is meritorious.

          As already noted, other courts that have rejected equal

protection  challenges to damages caps have invariably  used  the

highly  deferential  "rational basis" test.   This  test  asks  a

single hypothetical question: whether the legislature might  have

had  any legitimate reason to act; if any legitimate interest  is

conceivable, the challenged statute is valid.24  But  in  Isakson

          v. Rickey,25 Alaska expressly repudiated this formulation of the

rational   basis  standard,  choosing  to  replace   its   single

hypothetical question with a twofold inquiry that requires courts

to   determine,   first,  whether  a  legitimate  objective   for

legislative  action  actually existed and,  second,  whether  the

specific  legislation  adopted  bears  a  close  and  substantial

relationship to the underlying state interest.26

          In   State   v.  Erickson,  we  expressly  incorporated

Isakson's standard as the test that defines the lowest  level  of

scrutiny   permissible   under   Alaska's   sliding-scale   equal

protection  analysis.27  Thus, even assuming that the plaintiffs'

economic  interests  in  this  case  implicate  only  the  lowest

possible  level of scrutiny on Alaska's sliding scale, our  equal

protection  standard  still requires us to consider  two  issues:

First  we  must  ask whether the legislature actually  sought  to

further a legitimate goal in adopting a noneconomic damages  cap;

second,  if we decide that it did, we then must determine whether

the legislatures chosen means -- the statute at issue -- bears  a

substantial relationship to its ostensible purpose.  This  latter

determination  requires us to undertake a  narrow  evaluation  of

"the state's interest in the particular means employed to further

its  goals."28  Thus, as Justice Rabinowitz emphasized  in  Kenai

Peninsula  Borough  v.  State,  Alaska's  sliding-scale  test  is

especially  demanding  in cases at the lower  end  of  the  equal

protection  spectrum:  "On  several  occasions  we  have  .  .  .

explained that where there is no fundamental right at stake,  the

equal  protection  clause of the Alaska  Constitution  imposes  a

          stricter standard than its federal counterpart."29

          In  the  present case, the plurality opinion  fails  to

apply  this more rigorous test.  While acknowledging the  correct

standard,  the  plurality effectively applies  a  rational  basis

test,  finding that the damages cap passes both parts of Alaska's

equal   protection   test  --  the  legitimate   state   interest

requirement  and  the  substantial  relationship  requirement  --

solely  because  the  damages cap might serve  the  legislature's

general  tort  reform  goals:  "The  record  indicates  that  the

legislature  considered at least some evidence  tending  to  show

that  damages  caps  . . . could have a positive  effect  on  the

legislature's objectives."30

          Although   the  plurality's  rational  basis   analysis

certainly identifies a potentially legitimate state interest,  it

falls short of complying with Alaska's low-level scrutiny test in

two  ways: by neglecting to ask whether the rational purpose that

the  plurality  has  identified was a goal that  the  legislature

actually sought to advance by enacting the damages cap and,  more

important, by neglecting to look for a fair and substantial means-

to-end   fit  between  the  damages  cap  and  the  legislature's

ostensible  goal -- that is, by failing to examine  "the  state's

interest  in  the  particular  means  employed  to  further   its

goals."31

          The plurality opinion likewise ignores the case law  of

other states: virtually every case that has applied this narrower

means-to-end-fit  test  has  concluded  that  damages  caps   are

unconstitutional.   Almost  all  states  besides  Alaska  use   a

          conventional, three-tier equal protection analysis.  Because that

analysis  applies  the deferential, rational basis  test  at  the

lowest  level of scrutiny, the means-to-end-fit test these  other

states  use  for mid-level scrutiny is functionally identical  to

the  standard required under Alaska's sliding-scale test for low-

level scrutiny.  As the plurality opinion itself acknowledges  in

describing Alaska's test, "[a]t the low end of the sliding scale,

we  have  held that a substantial relationship between means  and

ends is constitutionally adequate."32  Compare this, for example,

to the mid-level standard of scrutiny described by the New Mexico

Supreme  Court  in  requiring the state  to  demonstrate  that  a

challenged  damages  cap  had "a substantial  relationship  to  a

legitimate  or important governmental purpose."33  Applying  this

standard  to  a  noneconomic damages  cap  that  was  similar  to

Alaska's, the New Mexico court found itself "unable to fathom"  a

substantial  relationship between the  cap  and  any  conceivably

legitimate or important purpose.34

          New  Mexico's  description of the  applicable  standard

typifies  the formulation of mid-level scrutiny applied by  other

courts   using  a  conventional  three-tier  approach  to   equal

protection  review.   And  as already  noted,  courts  that  have

applied  mid-level  scrutiny instead of the rational  basis  test

have  almost  invariably concluded that damages caps violate  the

test's means-to-end-fit requirement.

          Because  these  cases  apply a  standard  identical  to

Alaska's  lowest  level of constitutional scrutiny,  they  should

guide  our  decision in the present case.  As they  explain,  the

          arbitrary nature of the means-to-end fit under this test is

apparent:

          [I]t  is  not  enough that the statute  as  a
          whole   might  tend  to  serve  the  asserted
          purpose.    Each   statutory   classification
          "'must be reasonable, not arbitrary, and must
          rest upon some ground of difference having  a
          fair  and substantial relation to the  object
          of  the  legislation,  so  that  all  persons
          similarly  circumstanced  shall  be   treated
          alike.'"

               There is no logically supportable reason
          why  the  most  severely injured  malpractice
          victims  should  be singled out  to  pay  for
          special  relief  to medical  tortfeasors  and
          their   insurers.   The  idea  of  preserving
          insurance  by imposing huge sacrifices  on  a
          few victims is logically perverse.  Insurance
          is  a  device for spreading risks  and  costs
          among large numbers of people so that no  one
          person  is  crushed  by  misfortune.   In   a
          strange  reversal  of  this  principle,   the
          statute  concentrates the costs of the  worst
          injuries on a few individuals.

               . . . .

               Such   arbitrary  treatment  cannot   be
          justified  with reference to the  purpose  of
          the  statute.   Without  speculating  on  the
          wisdom  of the possible alternatives,  it  is
          plain   that   the  Legislature  could   have
          provided   special  relief  to  health   care
          providers and insurers without imposing these
          crushing   burdens  on  a   few   arbitrarily
          selected victims.[35]

          In  the  present  case,  the state  offers  nothing  to

justify   the   seemingly   absolute   disconnect   between   the

legislature's  stated  tort reform goals  --  reducing  insurance

costs,  discouraging  frivolous claims, and preventing  excessive

verdicts  --  and the particular means it chose to  attain  those

goals  when  it enacted the damages cap.  Nor does the  plurality

opinion discuss -- or even acknowledge -- this breach of Alaska's

          particularized nexus requirement.

          Because  I  see  no  substantial relation  between  the

specific means chosen by the legislature and the legitimate  ends

it  ostensibly  sought  to  achieve, I would  conclude  that  the

noneconomic damages cap violates Alaska's equal protection clause

--  even assuming that the plaintiffs' economic interests are  so

unimportant as to qualify only for the lowest allowable level  of

scrutiny under the Alaska Constitution.36

     The Punitive Damages Forfeiture Statute Is Invalid.

          I  further believe that the plurality opinion fails  to

make  a  persuasive case for upholding AS 09.17.020(j)'s punitive

damages forfeiture requirement.

          Substantive Due Process

          The  plurality  opinion accepts without any  meaningful

analysis  the  state's  position that the forfeiture  statute  is

minimally   rational  --  and  thus  passes  muster   under   the

substantive  due process requirement -- because it  serves  as  a

general  "deterrent to prevent future harm."37  But  the  state's

general deterrence goal fails to withstand even minimal, rational

basis scrutiny.

          Of  course  nobody questions the truth of  the  general

proposition that punitive damages do in fact deter future  public

harm.  But this undisputed deterrent effect cannot itself justify

the  challenged  forfeiture  provision,  for  an  award  of  full

punitive damages to the plaintiff serves to deter future harm  as

fully  as  an award that splits the punitive damages between  the

state and the plaintiff.  The legislature's mandate to award half

          the jury's verdict to the state thus results in no greater

deterrence  than  awarding the entire verdict to  the  plaintiff.

(In fact, as discussed more fully below, the forfeiture provision

results  in  less  deterrence  by  discouraging  future  punitive

damages  claims.)   Because  the  deterrent  effect  of  punitive

damages  flows from taking money away from wrongdoing defendants,

a  statute  designating  who gets that  money  bears  no  logical

relation to the stated goal of enhanced deterrence.

          The  plurality's  reliance  on  general  deterrence  of

public   harm  thus  begs  the  key  question:   What  legitimate

objective  did  the legislature have for replacing  the  existing

law,  which achieved general deterrence by awarding full punitive

damages  to  the  plaintiff,  with a  forfeiture  provision  that

achieved  no  greater deterrence but required  the  plaintiff  to

surrender  half  the award to the state?  The  plurality  opinion

offers no answer to this question.  The legislature, however, did

suggest another objective as being legitimate:  Its statement  of

purposes  in the 1997 tort reform act incorporates as a goal  the

need   to  discourage  frivolous  claims.38   The  state  tacitly

espouses this goal by citing cases from other jurisdictions  that

cite  the  discouragement of frivolous claims as a  justification

for  similar  forfeiture statutes.39  But this  goal  fares  even

worse under scrutiny than the goal of general deterrence.

          Because  the state receives its fifty-percent share  of

punitive  damages under AS 09.17.020(j) only if the jury's  award

of punitive damages withstands scrutiny by the trial judge and is

upheld  on  appeal,  the actual source of  forfeiture  under  the

          statute will always consist of punitive damages that have been

conclusively  established to be factually and legally  justified.

While  purporting to target frivolous and excessive claims, then,

the  forfeiture statute paradoxically does just the opposite:  it

attacks  only meritorious judgments, supposedly deterring abusers

of  the  punitive  damages system solely by punishing  legitimate

users.  As a deterrent to frivolous claims, then, this regime  is

worse than irrational; it is perverse.

          Alaska's Takings Clause

          The  apparent lack of a tenable purpose underlying  the

forfeiture  statute  feeds directly into  the  issue  of  taking.

Alaska's  "takings  clause"  prohibits  the  taking  of   private

property for public purposes without fair compensation:  "Private

property  shall  not be taken or damaged for public  use  without

just compensation."40

          The forfeiture statute's tacit premise seems to be that

the  state has an automatic stake in all punitive damages  awards

because those awards serve the public interest.  But this premise

is   staggeringly  overbroad,  for  it  essentially  posits  that

plaintiffs  who sue individually for punitive damages  become  de

facto  public  servants who donate their efforts and  half  their

causes of action to the state.  Yet Alaska's constitution forbids

state  government from wielding this kind of absolute power  over

its citizens: whether its actions affect property in the form  of

land,  money, a legal cause of action, or personal services,  the

state  may  not confiscate private property without  notice,  due

process, and just compensation.41

          And  under  AS  09.17.020(j), the state's fifty-percent

share  of  a  punitive  damages award  is  undeniably  somebody's

property  --  property  that  the state  obtains  by  legislative

compulsion.   It  seems  necessary  to  ask,  then,   where   the

legislature derives this power to authorize state confiscation of

judgments  awarding  punitive damages in  civil  actions  between

private parties.

          The  plurality  opinion tries  to  duck  the  issue  of

confiscation  by proclaiming subsection .020(j) to  be  merely  a

"cap"  that  limits  damages "before"  they  are  awarded  --  an

approach  evidently  premised  on the  tacit  assumption  that  a

punitive damages "cap" of this kind would raise no constitutional

problems.42  Yet the pluralitys approach generates more  problems

than  it  resolves.         To begin with, it is  unrealistic  to

characterize  subsection  .020(j)  as  a  provision  that  simply

creates a punitive damages cap.  An ordinary damages "cap" merely

limits  a  plaintiff's  recovery:  it  neither  takes  from   the

defendant  nor  gives  to the state, as does subsection  .020(j).

Moreover, in AS 09.17.020(f) -- a provision that appears  shortly

before  subsection .020(j) -- the tort reform act already imposes

an  express cap on punitive damages;43 to read subsection (j)  as

placing a second cap on top of the first cap thus carries us into

a Seussian realm.44

          And to construe subsection .020(j) as a cap that occurs

before  the plaintiff receives an award of damages flies  in  the

face   of   the  subsections  plain  language.   Alaska   Statute

09.17.020(j)  allows a forfeiture to occur only  when  "a  person

          receives an award" and further commands that "50 percent of the

award  be deposited into the general fund."45  By specifying  the

source  of forfeiture as "the award" and by defining an award  to

be both something that "a person receives" and something that can

be  "deposited  into  the general fund," the  statute's  language

unequivocally contemplates a transfer of funds to the state  that

will occur only when the defendant becomes obliged to make actual

payment  to  the  plaintiff -- an event that necessarily  follows

entry of judgment in the plaintiff's favor.

          Although  these  arguments identify  important  textual

flaws   in   the  plurality  opinion's  attempt  to  characterize

subsection  .020(j) as a mere damages cap, those  flaws  pale  in

comparison  to the opinion's flawed premise that a  cap  of  this

kind  would  avoid  constitutional  problems.   For  even  if  we

conceptualize the statutory forfeiture of punitive damages as  an

event that merely caps the plaintiff's recovery because it occurs

before  money changes hands from the defendant to the  plaintiff,

the forfeiture still is a taking.

          In  approving the punitive damages forfeiture  statute,

the  plurality  opinion essentially adopts the state's  reasoning

that  a  jury's  award of punitive damages is  merely  a  factual

finding that has no actual significance until a court order gives

it  legal  effect.46  This reasoning splits  an  award  into  two

separate components, both of which are necessary before the award

becomes binding: a finding of fact, which ordinarily falls within

the  province of the jury, and a formal order by the  court  that

implements  the jury's factual finding and gives it  significance

          as a matter of law.

          But  this  dichotomy  fails  to  avoid  the  forfeiture

statute's basic takings problem: while the dichotomy changes  the

identity of the owner whose property is taken, it does nothing to

alter the fact that the statute authorizes an uncompensated state

taking  of private property.  For if the jury's verdict is merely

a  factual  finding that cannot by itself "vest" damages  in  the

plaintiff, then neither can it legally "divest" the defendant  of

any  property  interest.  And while courts may have authority  to

negate  improper factual findings by declining to  implement  any

legally  impermissible aspect of a jury's  verdict,  they  surely

have  no raw legal power to dispose of property without a  proper

factual  basis  --  that  is,  when the  jury  returns  a  partly

unauthorized  verdict, courts have no authority  to  preempt  the

jury's  factfinding role by commanding a disposition of  property

that  the  jury has neither specifically addressed nor authorized

as a matter of fact in its verdict.

          Nor can a punitive damages verdict in a dispute between

private  litigants properly be characterized as a general finding

of  fact that broadly authorizes a defendant's punishment --  the

kind of finding that might enable a judge to divest the defendant

of  property without heeding the jurys desire to award it to  the

plaintiff.   A verdict awarding punitive damages is personalized:

it  is the product of a deliberative process that translates  the

seriousness  of  a  particular  plaintiff's  injuries   and   the

outrageousness of a specific defendant's conduct into a  monetary

sum  that  reflects the jury's felt need both to  reward  and  to

punish.

          Under  subsection .020(j), the jury  is  not  asked  to

award  anything to the state; nor does it determine how much  the

state  might deserve.  Its verdict takes money from a  particular

defendant  and gives it to a specific plaintiff; it settles  each

party's  private rights and responsibilities only in relation  to

the  other's.  It no more obliges the defendant to pay  money  to

anyone  but  the  plaintiff  than it entitles  the  plaintiff  to

receive  money  from anyone but the defendant.  And  the  private

process that leads to this verdict requires neither participating

party to surrender its rights against other parties.

          It  follows that if a court declines to give part of  a

verdict  for  punitive damages legal effect for extrinsic  policy

reasons,  the  unawarded  part  of  the  money  must  remain  the

defendant's.   If  the jury finds as a matter of  fact  that  the

plaintiff deserves a certain sum as punitive damages, a  law  may

properly allow the court to effectuate only part of this finding.

But  if  the verdict includes no express finding that  the  state

deserves  part  of the money, there is no factual predicate  that

allows  the  court  to  go  beyond  declining  to  implement  the

impermissible  part  of the jury's verdict and  that  enables  it

instead  to  divert  half the plaintiff's  award  to  the  state.

Regardless  of whether we conceptualize a verdict  as  vesting  a

property  interest  in  the  plaintiff  or  leaving  it  in   the

defendant, then, an order awarding half the verdict to the  state

necessarily results in an impermissible taking.  After  all,  the

state  has  no  greater  authority  to  summarily  confiscate   a

defendant's money than a plaintiff's.

          Neither the state nor the plurality opinion suggests  a

plausible way around this conceptual problem, and none is readily

apparent.   Indeed,  AS 09.17.020(j)'s theoretical  underpinnings

seem impossible to square with our traditional system of justice.

Alaska's  courts offer a public forum for resolving a vast  array

of  private  and  public disputes.  Within this forum,  the  tort

system  allows individual litigants to resolve disputes involving

private harms between themselves, without calling on the state to

intervene  on  behalf  of either party.  Most  of  these  private

disputes raise few if any issues of substantial concern to  state

government.   Even when these cases include claims  for  punitive

damages,  the  conduct at issue typically falls below  prevailing

thresholds  for  state  regulation or is  subject  to  government

regulation  through separate administrative, civil,  or  criminal

channels.   For this reason, even though all awards  of  punitive

damages involve a theoretical element of public harm and serve to

protect  the  general  welfare, few will implicate  the  kind  of

particularized governmental concerns that are needed to trigger a

participatory state interest or to support a formal  state  claim

to the proceeds at issue.

          Indeed,  it  is  precisely because our  system  invites

individual  litigants to advance the common good through  private

initiative  that the state can have no automatic  or  presumptive

claim  to  the pot when a civil judgment for punitive damages  is

entered between private parties.  To be sure, the state does have

a  compelling  interest in the system of punitive  damages  as  a

whole;  and  to  that  extent the legislature unquestionably  has

broad  power  to  define and limit both the  circumstances  under

which  punitive damages can be awarded and the amounts of damages

that  can  be recovered.  But this systemic interest alone  gives

the  state  no  legitimate stake in any part of a specific  award

that  falls  within established legal limits and  issues  from  a

lawful judicial proceeding between private litigants.

          Moreover,  though  the  legislature  may  have  plenary

authority  to  regulate punitive damages,47 that authority  alone

cannot justify AS 09.17.020(j)'s deeply flawed summary forfeiture

mechanism.   While  the  legislature  may  choose  to  reduce  or

completely  eliminate  a plaintiff's right  to  collect  punitive

damages  from a defendant through a civil proceeding, it may  not

exercise this zero-sum power in a one-sided manner: that  is,  it

may  not reduce the plaintiff's right to collect punitive damages

without  correspondingly expanding the defendant's right  not  to

pay;  it  may  not  substitute the state for  the  plaintiff  who

recovers  the verdict, while leaving intact the defendant's  duty

to  pay.  Because this effectively adds a new party to the action

and  creates  a new right of recovery, the affected  parties  are

entitled  to  notice, due process, and an opportunity  to  defend

against the state's claim.

          It seems to me, then, that AS 09.17.020(j)'s forfeiture

provision  necessarily  takes money  without  just  compensation.

There  is  simply  no  room in between a  jury's  verdict  for  a

particular  plaintiff and a court's entry  of  judgment  on  that

verdict  where the state can receive without taking  --  no  such

          thing as an immaculate reception.  Either the state confiscates

the defendant's money while it still belongs to the defendant  or

it  usurps  the  plaintiff's cause of action by taking  from  the

award after it vests in the plaintiff.  One way or the other, the

automatic forfeiture works an impermissible taking.

          Because  no  interest asserted by the  state  justifies

summary state forfeiture of either party's property, I would hold

that AS 09.17.020(j) is invalid.48

          I therefore dissent.

CARPENETI, Justice, dissenting in part.

          I  agree with Justice Bryner that the 1997 tort  reform

act's  noneconomic  damages cap and punitive  damages  forfeiture

provisions  are unconstitutional.  I write separately  because  I

would  also  hold that the limitations tolling procedure,  as  it

applies to minors under eight years of age, is unconstitutional.

          Alaska  Statute  09.10.070(a) states the  general  rule

that  the  limitations  period for tort  actions  is  two  years.

Alaska Statute 09.10.140 provides that this period will be tolled

for  minors  until  they  reach the age  of  majority,  which  is

eighteen years of age.1  The parties dispute both the meaning and

constitutionality of AS 09.10.140.

          1.   AS 09.10.140 creates two classes of child personal injury
               plaintiffs.
               
          The  court  correctly sets out the parties'  positions:

The  plaintiffs contend that AS 09.10.140 treats two  classes  of

child  personal  injury  plaintiffs differently,  treating  those

younger  than  eight  years of age at the  time  of  injury  less

favorably than those older than eight years of age at the time of

injury.    The   plaintiffs  claim  that  AS   09.10.070(a)   and

09.10.140(c)  together  provide that the  younger  children  have

until  their  tenth  birthday to file a personal  injury  action,

while  the older children are treated more favorably, since  they

have until their twentieth birthday to file an action.

          The  state  rejects  this  view,  contending  that  the

tolling  provisions of AS 09.10.140 only apply to children  under

the  age  of  eight  at the time of injury.   Therefore,  in  the

          state's view, children over the age of eight at the time of

injury  have two years after their injury in which to file  suit,

like all other tort plaintiffs.

          I agree with the court's observation in today's opinion

that

          [w]hen   interpreting  the  language   of   a
          statute,   we   normally   give   unambiguous
          language  its plain meaning.112  We may  also
          rely  on  legislative history as a  guide  to
          interpretation,   "but   the   'plainer   the
          language  of  a statute, the more  convincing
          contrary  legislative  history  must  be'  to
          interpret a statute in a contrary manner."113
          [2]
          ______________________

               112   See In re Johnstone, 2 P.3d  1226,
          1231 (Alaska 2000).

               113    Id.   (quoting  Ganz  v.   Alaska
          Airlines,  Inc., 963 P.2d 1015, 1019  (Alaska
          1998)).

          While  today's opinion nowhere explicitly says  so,  it

flatly rejects the state's view.  It is correct to do so, because

the  state's interpretation is impossible to reconcile  with  the

unambiguous  language of AS 09.10.140.  Alaska Statute  09.10.140

creates   a  tolling  provision  for  the  two-year  statute   of

limitations   in  AS  09.10.070(a).   Alaska  Statute   09.10.140

contains  a general rule and an exception.  The general rule,  in

AS  09.10.140(a),  tolls  the  statute  of  limitations  for  all

children  until they reach the age of majority, which is eighteen

years of age:

          Except as provided under (c) of this section,
          if  a  person  entitled to  bring  an  action
          mentioned in this chapter is at the time  the
          cause  of action accrues . . . under the  age
          of   majority  .  .  .  the  time   of   [the
          plaintiff's minority] . . . is not a part  of
          the  time limit for the commencement  of  the
          action.
          
This  general rule existed in former AS 09.10.140.3  Chapter  26,

SLA 1997 modified this tolling procedure with an exception to the

general   rule,  now  codified  in  AS  09.10.140(c).4    As   AS

09.10.140(a)  states,  the tolling for  the  plaintiffs  minority

applies  "except  as  provided under [AS 09.10.140](c)."   Alaska

Statute 09.10.140(c) provides:

          In  an action for personal injury of a person
          who  was under the age of eight years at  the
          time  of  the injury, the time period  before
          the person's eighth birthday is not a part of
          the  time limit imposed under AS 09.10.070(a)
          for commencing the civil action.
          
The  unambiguous  language of subsection (c)  indicates  that  it

applies to personal injury plaintiffs who were "under the age  of

eight  years at the time of the injury," and creates a  different

tolling  rule  for these plaintiffs.  For those plaintiffs  under

the  age  of  eight  at  the  time  of  injury,  the  statute  of

limitations is only tolled until those plaintiffs reach  the  age

of eight.  Therefore, AS 09.10.140 distinguishes between children

and  creates  two  different classes  of  minor  personal  injury

plaintiffs:   (i) those who were under the age of  eight  at  the

time  of injury; and (ii) those who were eight years old or older

at  the  time of injury.  Children under the age of eight at  the

time  of  injury have until their tenth birthday  to  file  suit,

while  children over the age of eight at the time of injury  have

until  their  twentieth  birthday,  subject  to  the  statute  of

repose.5

          2.   The tolling provision in AS 09.10.140 violates equal
               protection.
               
          The plaintiffs contend that AS 09.10.140 violates equal

protection,  because  it creates two classes  of  child  personal

injury plaintiffs who are treated differently.6

          As  noted  earlier in the court's opinion,7  under  our

equal  protection test the relative importance of the plaintiff's

interest   and  the  state's  interest  are  weighed.    If   the

plaintiff's interest is not very important, the state  need  only

show  that  its objectives were "legitimate"; if the  plaintiff's

interest  is important, the state must show a "compelling"  state

interest.   If  the  state can meet this part  of  the  test,  to

satisfy the next part the state must show the required "nexus" or

"fit"  between its regulations and its objectives.  The  required

nexus depends on the importance of the plaintiff's interest,  and

a continuum of possibilities exists.  If the plaintiff's interest

is  not  very  important, this fit must be merely "a  substantial

relationship between means and ends"; however, if the plaintiff's

interest  is  very important, the regulation must  be  the  least

restrictive means available to achieve the objective.8

          Alaska  Statute 09.10.140 clearly fails the third  part

of  this analysis, because even if the plaintiffs' interests  are

unimportant, and the state's interest is compelling, there is  no

substantial   relationship   between   AS   09.10.140   and   the

legislature's goals.  The state only offers one legislative  goal

underlying AS 09.10.140 -- the state claims that the statute  was

enacted  "to  provide  finality and to  protect  the  courts  and

defendants  from  the difficulties and unfairness  of  litigating

stale  claims."   But as noted earlier, AS 09.10.140  treats  two

          classes of minors differently.

          To  take  the most dramatic example, a personal  injury

plaintiff who was injured one day before her eighth birthday  has

only  until her tenth birthday to file suit before her  claim  is

barred;  however, a plaintiff who was injured one day  after  her

eighth  birthday has ten years in which to file suit  before  the

claim  is  barred, and will be able to make the decision herself.

The  state has not supplied any reasons for why these two classes

of  children should be treated differently, and a review  of  the

legislative  history  reveals  no  discussion  of  any   possible

rationale.   The required nexus does not exist here, because  the

differential  treatment of these two groups of  children  has  no

substantial relationship to the goal of "provid[ing] finality and

protect[ing] the courts and defendants from the difficulties  and

unfairness of litigating stale claims."

          While  the  state  is unable to justify  the  disparate

treatment  of children below eight years of age and  those  eight

and  above  at the time of injury, the court purports to  find  a

justification  in  the  statute of  repose,  AS  09.10.055.   But

reading  the  statute of repose in conjunction with section  .140

creates  two more classes of minors: those minors who  are  given

the opportunity to file suit themselves and those minors who must

rely on a parent or guardian to take action on their claims.  The

court's  opinion does not view this distinction among  minors  as

problematic and finds the line drawn in subsection .140  logical:

It  serves  to  separate those children for whom the  statute  of

repose would block the child's ability to make the decision as an

adult  from  those  who, because they were within  ten  years  of

adulthood when injured, would be able to decide for themselves.

          I would find the individual injured child's interests -

-  the interest in being able to make the decision whether to sue

for  oneself,  as a competent adult -- to be quite important.   I

would  also  find  that  the state has a legitimate  interest  in

minimizing  stale claims.  But even assuming that the plaintiffs'

interests  here  are  unimportant, there  is  not  a  substantial

relationship  between  the classification  of  children  and  the

state's  goals.   The importance of being able to  file  suit  on

one's  own, rather than being forced to rely on a third-party  --

parent  or  guardian  --  is sufficient  to  justify  tolling  AS

09.10.070's  limit for children above the age  of  eight.   While

potential  tortfeasors would be subject to  a  longer  period  in

which they may be subject to suit for children under eight,  that

increased  length would be, at most, eight years.   There  is  no

justification   offered   by   the   state   to   support    this

differentiation  when the impact on children  under  the  age  of

eight  is  considered.  Further, the court's suggestion that  the

statute of repose furnishes a sufficient reason is unpersuasive.

          It  is  unpersuasive  for three  reasons:  First,  this

classification  works a perverse twist. Those  children  who  are

unlikely  to  realize  that  they have  a  potential  claim,  the

youngest,  are  those that receive the least  protection  of  the

laws.  The closer a child is to reaching the age of majority, the

more likely that he or she is better able to understand the basic

workings of the legal system and any potential claims he  or  she

may  have.   By giving these older children more time to  realize

their  potential  claims, but denying the same right  to  younger

children,  today's  decision compromises the  rights  of  younger

children.   At age eight, when the statute of limitations  begins

running  under the court's view, these children will have  barely

graduated  from  their Big Wheels.  Such a  child  is  absolutely

dependent upon a parent or guardian to protect his or her rights.

Conversely, a fifteen- or sixteen-year-old, who may well have  at

least an inkling of the need to sue to protect one's rights,  has

additional   years  to  consider  the  matter:  the  statute   of

limitations  will not begin to run until that child's  eighteenth

birthday and will not expire until the twentieth.  To deprive the

younger  children of their claims while protecting the claims  of

those  children who are better able to understand their situation

and  to articulate their thoughts creates an impermissible divide

within the group of injured children.

          Second,  today's decision utterly ignores what the  law

has,  in  other respects, historically recognized: that children,

by  definition, are in their formative years.9  If any group  can

lay  strong  claim to the need for additional time to assess  the

effects of physical, emotional, and other types of injury, surely

it  is  young  children.  Yet in consigning the youngest  injured

children  to  a  two-year limitations period, the court  deprives

them  and  their parents or guardians of an important opportunity

to fully know the extent of the injured children's injuries.

          Finally,  in  hypothesizing  that  the  effect  of  the

statute  of  repose  provides a justification for  the  disparate

          treatment of injured children, the court ignores that the statute

of  repose treats other persons under disability differently than

it  treats  children.   Alaska  Statute  09.10.140(a)  tolls  the

statute  of  limitations  for  both  the  disability  of   mental

incompetence and the disability of minority.  But the statute  of

repose,  AS  09.10.055, provides only that  the  statute  applies

"[n]otwithstanding the disability of minority described under  AS

09.10.140(a),"10  making no mention of the disability  of  mental

incompetence.  No reason appears why those people suffering  from

a mental disability are not subject to the same statute of repose

as  children  under  the  age  of eight  are.   This  failure  is

especially anomalous given that there is a definite time at which

children  will  be  relieved of their  disability  whereas  those

suffering  from  incompetency may  never  be  relieved  of  their

disability.  In these circumstances, the courts reliance  on  the

statute  of repose to justify the disparate treatment of  injured

children seems problematic.

          For  these  reasons, I would find the tolling provision

for  children,  when  read in conjunction  with  the  statute  of

repose,  to  be  a  deprivation of equal protection  for  injured

children under the age of eight and, therefore, unconstitutional.

_______________________________
     1    See AS 09.17.010, .020; ch. 26,  9-10, SLA 1997.

     2    See AS 09.17.020(j); ch. 26,  10, SLA 1997.

     3    See AS 09.10.055; ch. 26,  5, SLA 1997.

     4    See AS 09.17.140; ch. 26,  7-8, SLA 1997.

     5    See AS 09.17.080; ch. 26,  11-13, SLA 1997.

     6    See AS 09.30.065; ch. 26,  16-17, SLA 1997.

     7    See AS 09.65.096; ch. 26,  30, SLA 1997.

     8     See  State v. Alaska Civil Liberties Union,  978  P.2d
597, 603 (Alaska 1999).

     9     See  Moore  v. Allstate Ins. Co., 995  P.2d  231,  233
(Alaska 2000); Alaska Civil Rule 56(c).

     10    See id.

     11    See Alaska Civil Liberties Union, 978 P.2d at 603.

     12    See ch. 26,  9, SLA 1997.  The 1997 legislation revised
a previous $500,000 cap, created by the legislature in 1986.  See
former   AS   09.17.010   (1986).    We   never   addressed   the
constitutionality of the former $500,000 cap.

     13    AS 09.17.010(a).

     14    See AS 09.17.010(b).

     15    AS 09.17.010(c).

     16    See ch. 26,  10, SLA 1997.

     17    See AS 09.17.020(f).

     18    See AS 09.17.020(g).

     19    See AS 09.17.020(h).

     20    In Loomis Electronic Protection, Inc. v. Schaefer, 549
P.2d  1341, 1343-45 (Alaska 1976), we interpreted this  provision
to  reflect  the  law/equity distinction  found  in  the  Seventh
Amendment  to the United States Constitution, finding that  suits
seeking  "compensatory and punitive damages"  are  suits  at  law
giving  rise  to  the  right to a jury  trial  under  the  Alaska
Constitution.  In Keyes v. Humana Hospital Alaska, Inc., 750 P.2d
343,  346-48  (Alaska 1988), we held that expert panels  used  in
medical  malpractice cases did not violate the right  to  a  jury
trial under the Alaska Constitution because the jury retained the
power  to weigh and assess all of the evidence presented  to  it,
including the panel's conclusions.

     21     Article  I,  section  16 of the  Alaska  Constitution
provides:

               In  civil  cases  where  the  amount  in
          controversy   exceeds   two   hundred   fifty
          dollars,  the  right of trial by  a  jury  of
          twelve is preserved to the same extent as  it
          existed at common law.

The Seventh Amendment to the United States Constitution provides:

               In  suits at common law, where the value
          in  controversy shall exceed twenty  dollars,
          the   right  of  trial  by  jury   shall   be
          preserved, and no fact tried by a jury, shall
          be  otherwise re-examined in any court of the
          United States, than according to the rules of
          the common law.
          
     22    At the constitutional convention, there were proposals
to  extend  the right to all suits in superior court, or  to  all
civil  suits.   See  2  Proceedings of the Alaska  Constitutional
Convention  1351-52,  1355  (January 6,  1956).   However,  these
proposals were not adopted.

     23    883 F.2d 1155, 1159-65 (3d Cir. 1989).

     24    509 S.E.2d 307 (Va. 1999).

     25    376 S.E.2d 525 (Va. 1989).

     26    Id. at 529.

     27    See id.; Pulliam, 509 S.E.2d at 312-15.

     28    Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115, 1119-
20 (Idaho 2000) (upholding damages cap because, even though fact-
finding is in the exclusive province of the jury, the court  must
apply  the  law, which is formulated by the legislature,  to  the
facts found by the jury); Murphy v. Edmonds, 601 A.2d 102, 116-18
(Md.  App. 1992) (same); Peters v. Saft, 597 A.2d 50, 53-54  (Me.
1991)  (same;  noting that a "drastic" damages cap might  violate
the  right to a jury trial because it would effectively eliminate
the  remedy altogether); English v. New England Med. Ctr.,  Inc.,
541  N.E.2d  329, 331-32 (Mass. 1989) (same); Adams v. Children's
Mercy Hosp., 832 S.W.2d 898, 906-07 (Mo. 1992) (same); Wright  v.
Colleton  County Sch. Dist., 391 S.E.2d 564, 569-70  (S.C.  1990)
(same);  Robinson v. Charleston Area Med. Ctr., 414  S.E.2d  877,
887-88  (W. Va. 1991) (same); Guzman v. St. Francis Hosp.,  Inc.,
623  N.W.2d 776, 783-85 (Wis. App. 2000) (same), rev. denied, 629
N.W.2d 783 (Wis. 2001).

     29    Our conclusion is also supported by the Supreme Court's
recent  decision  in Cooper Industries, Inc. v.  Leatherman  Tool
Group,  Inc., 532 U.S. 424 (2001), in which the Court  held  that
the  de  novo  standard of review must be applied when  appellate
courts  review the constitutionality of punitive damages  awards.
See id. at 436.  The Court noted that punitive damages awards are
not  findings  of  fact, and that appellate  review  of  a  trial
court's  determination  that  an award  is  consistent  with  due
process  does not implicate the Seventh Amendment.   See  id.  at
437.

     30     We  decline  to follow those state courts  that  have
interpreted analogous constitutional trial by jury provisions  to
prohibit damages caps.  See Moore v. Mobile Infirmary Ass'n,  592
So.  2d 156, 159-65 (Ala. 1991) (holding that the calculation  of
damages is within the exclusive province of the jury, subject  to
remittitur  only  when  the calculation is  "flawed";  because  a
damages  cap  applies  automatically  and  absolutely,  with   no
consideration of the particular facts, and is not used to correct
a  "flawed"  verdict, a damages cap is unconstitutional);  Kansas
Malpractice Victims Coalition v. Bell, 757 P.2d 251, 258-60 (Kan.
1988)  (same); Lakin v. Senco Prods., Inc., 987 P.2d 463,  469-75
(Or. 1999) (same); Sofie v. Fireboard Corp., 771 P.2d 711, 719-23
(Wash.  1989) (same); see also Smith v. Department of  Ins.,  507
So.  2d 1080, 1088-89 (Fla. 1987) (without analysis, holding that
a damages cap violates the right to trial by jury); State ex rel.
Ohio  Academy of Trial Lawyers v. Sheward, 715 N.E.2d 1062, 1090-
91 (Ohio 1999) (holding that calculation of damages is within the
exclusive province of the jury).

     31    Wilkerson v. State, Dep't of Health & Soc. Servs., Div.
of  Family  &  Youth  Servs., 993 P.2d 1018, 1023  (Alaska  1999)
(quoting  State,  Dep'ts  of Transp. & Labor  v.  Enserch  Alaska
Constr., Inc., 787 P.2d 624, 631-32 (Alaska 1989)).

     32     See Gilmore v. Alaska Workers' Compensation Bd.,  882
P.2d 922, 926 (Alaska 1994).

     33     See Patrick v. Lynden Transport, Inc., 765 P.2d 1375,
1379  (Alaska 1988) (holding that statute requiring security bond
for  nonresident plaintiffs in civil court "restricts  access  to
Alaska   courts"  and  violates  equal  protection);  Wilson   v.
Municipality  of  Anchorage,  669 P.2d  569,  572  (Alaska  1983)
(holding   that  statute  blocking  recovery  against  government
tortfeasors  did not infringe right of access to  courts  because
plaintiffs could still recover against private tortfeasors); Bush
v.  Reid,  516  P.2d  1215, 1220-21 (Alaska 1973)  (holding  that
statute  directly  barring  parolees'  access  to  civil   courts
infringed right of access to courts).

     34     964 P.2d 453, 458 (Alaska 1998) (holding that statute
limiting medical malpractice damages affects "economic" interests
and justifies only "minimal" equal protection scrutiny).

     35     882  P.2d  922,  926-27 (Alaska 1994)  (holding  that
statute  limiting workers' compensation infringed  only  economic
interest  which, like the interest in unemployment  benefits,  is
"only entitled to review at the low end of the scale").

     36    Under the plaintiffs' second characterization of their
interest  in  unlimited  damages -- as  an  interest  in  uniform
recovery  statewide  --  the plaintiffs themselves  concede  that
their interest is economic and warrants only minimal scrutiny.

     37    Reid, 964 P.2d at 458.

     38    Ch. 26,  1(1), SLA 1997.

     39    Ch. 26,  1(2), SLA 1997.

     40    Ch. 26,  1(3), SLA 1997.

     41    Ch. 26,  1(4), SLA 1997.

     42    Ch. 26,  1(5), SLA 1997.

     43    930 P.2d 402 (Alaska 1996).

     44    Id. at 408.

     45    964 P.2d 453, 457 (Alaska 1998).

     46    See ch. 26,  1(1-5), SLA 1997.

     47     Concerned Citizens of South Kenai Peninsula v.  Kenai
Peninsula  Borough,  527 P.2d 447, 452 (Alaska  1974);  see  also
Griswold v. City of Homer, 925 P.2d 1015, 1019 (Alaska 1996) ("We
have   repeatedly   held  that  it  is  the   role   of   elected
representatives  rather  than the  courts  to  decide  whether  a
particular statute or ordinance is a wise one.").

     48     Gilmore v. Alaska Workers' Compensation Bd., 882 P.2d
922, 926 (Alaska 1994).

     49    See ch. 26,  1(2), SLA 1997.

     50    See ch. 26,  1(3), SLA 1997.

     51    See id.

     52    See ch. 26,  1(5), SLA 1997.

     53    See ch. 26,  1(1), SLA 1997.

     54    Massachusetts Gen. Hosp. v. Weiner, 569 F.2d 1156, 1161
(1st Cir. 1978) (holding no denial of equal protection where, for
purposes of setting medicare rates, there is uniform treatment of
urban teaching hospitals and rural hospitals).

     55     14  P.3d  264,  267 (Alaska 2000) (quoting  Concerned
Citizens  of  S. Kenai Peninsula v. Kenai Peninsula Borough,  527
P.2d 447, 452 (Alaska 1974)).

     56    704 F. Supp. 1325 (D. Md. 1989).

     57    Id. at 1336.

     58     See  Pollard v. E.I. DuPont de Nemours Co., 213  F.3d
933,  945-46  (6th  Cir. 2000) (holding that  federal  Title  VII
damages cap did not violate separation of powers because Congress
created  the  remedies under Title VII, and may  therefore  limit
them  as  well),  rev'd on other grounds, 532  U.S.  843  (2001);
Kirkland v. Blaine County Med. Ctr., 4 P.3d 1115, 1121-22  (Idaho
2000)  (holding  that  noneconomic damages cap  did  not  violate
separation  of  powers  because  Idaho  Constitution  grants  the
legislature the power to "modify or abolish common law causes  of
action");  Edmonds v. Murphy, 573 A.2d 853, 861 (Md.  App.  1990)
(holding  that  noneconomic  tort damages  cap  did  not  violate
separation  of  powers), aff'd sub nom., Murphy v.  Edmonds,  601
A.2d  102  (Md.  1992); Pulliam v. Coastal  Emergency  Servs.  of
Richmond,  Inc.,  509  S.E.2d 307, 319 (Va. 1999)  (holding  that
medical  malpractice  damages cap did not violate  separation  of
powers, because under Virginia law the legislature "has the power
to  provide, modify, or repeal a remedy"); Verba v. Ghaphery, 552
S.E.2d  406, 411, (W. Va. 2001) (holding that medical malpractice
damages  cap did not violate separation of powers because,  under
West  Virginia law, the legislature has the power  to  alter  the
common  law,  and damages cap is mere limitation  of  common  law
remedies); Guzman v. St. Francis Hosp., Inc., 623 N.W.2d 776, 785-
86 (Wis. App. 2000) (holding that noneconomic damages cap did not
violate  separation of powers because cap did not interfere  with
judicial power of remittitur), rev. denied, 629 N.W.2d 783  (Wis.
2001).

     59     See Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1080
(Ill.  1997)  (holding that statutory cap on noneconomic  damages
was  unconstitutional, in part because cap infringed on  judicial
power of remittitur); Lucas v. United States, 757 S.W.2d 687, 691
(Tex.  1988)  (holding that statutory cap on medical  malpractice
damages  was  unconstitutional under "open courts"  provision  of
Texas  Constitution  and  noting in dicta  that  cap  might  also
violate separation of powers); Williams v. State, 707 S.W.2d  40,
45-46  (Tex.  Crim.  App. 1986) (holding  that  statute  imposing
requirements   for  remittitur  of  bail  bond   forfeiture   was
unconstitutional  as legislative intrusion on "the  judiciary['s]
power over remittiturs of bond forfeitures"); Sofie v. Fibreboard
Corp.,  771 P.2d 711, 721 (Wash. 1989) (holding statutory cap  on
noneconomic   damages  unconstitutional,  in  part  because   cap
infringed on judicial power of remittitur).

     60     See  Bauman  v. Day, 892 P.2d 817, 828 (Alaska  1995)
(implicitly holding that, "in the absence of a statute  directing
a  contrary rule," courts were empowered to interpret the  common
law); Surina v. Buckalew, 629 P.2d 969, 973 (Alaska 1981) (noting
that this court has the power "to explicate the common law . .  .
unless and until the Alaska legislature acts to modify it").

     61    516 P.2d 1215, 1217-20 (Alaska 1973).

     62    967 P.2d 91, 95 (Alaska 1998).

     63    Id.

     64    986 P.2d 865 (Alaska 1999).

     65    Id. at 872-73.

     66     See  Peters  v. Saft, 597 A.2d 50, 53-54  (Me.  1991)
(declining  to  find a violation of the right of  access  because
damages cap was not so drastic so as to eliminate tort remedies);
Hale v. Port of Portland, 783 P.2d 506, 523-24 (Or. 1989) (same).

          We decline to follow those jurisdictions that have held
that damages caps violate the right of access merely because they
have some partial effect on the "right of redress."  See Smith v.
Department of Ins., 507 So. 2d 1080, 1088-89 (Fla. 1987) (holding
that a damages cap violated the right of access under the Florida
Constitution,   and   noting  that,  "if  the   legislature   may
constitutionally   cap  recovery  at  $450,000,   there   is   no
discernible  reason  why it could not cap the  recovery  at  some
other  figure, perhaps . . . even $1."); Lucas v. United  States,
757  S.W.2d  687, 691-92 (Tex. 1988) (holding that  damages  caps
violate  plaintiffs' right to redress even though  there  was  no
"total  abolition  of  the  right  of  access"  under  the  Texas
Constitution).

     67    See Baxley v. State, 958 P.2d 422, 430 (Alaska 1998).

     68    Id.

     69     AS  09.17.020(j) provides: "If a person  receives  an
award  of  punitive  damages, the court  shall  require  that  50
percent  of the award be deposited into the general fund  of  the
state."  AS 09.17.020(j) was added to AS 09.17.020 by chapter 26,
10, SLA 1997.

     70     State v. Niedermeyer, 14 P.3d 264, 267 (Alaska  2000)
(quoting  Concerned  Citizens  of S.  Kenai  Peninsula  v.  Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).

     71     We decline to follow the only authority cited by  the
plaintiffs,  McBride v. General Motors Corp., 737 F. Supp.  1563,
1579 (M.D. Ga. 1990) (implying that a punitive damages forfeiture
provision  violated due process because there was  no  legitimate
governmental purpose "for a state to involve itself in  the  area
of  civil  damage  litigation  between  private  parties  wherein
punitive  damages  are a legitimate item of recovery,  where  the
State,  through the legislative process, preempts  for  itself  a
share of the award").

     72     Alaska  Hous. Fin. Corp. v. Salvucci, 950 P.2d  1116,
1123 (Alaska 1997).

     73     See Meech v. Hillhaven West, Inc., 776 P.2d 488,  504
(Mont. 1989) (noting that the legislature has "plenary power .  .
. in determining the availability of punitive damages"); see also
AS  09.17.020 (limiting punitive damages to "outrageous"  conduct
or  conduct  involving "reckless indifference," and  requiring  a
"separate   proceeding"  to  determine  the  issue  of   punitive
damages).

     74     Gordon  v.  State, 585 So. 2d 1033, 1035  (Fla.  App.
1991),  aff'd, 608 So. 2d 800 (Fla. 1992) (holding that  punitive
damages  forfeiture  provision was not a taking  because  statute
simply   limited   punitive  damages,   which   is   within   the
legislature's power, because punitive damages are "based entirely
upon  considerations of public policy"); see  also  Mack  Trucks,
Inc.  v.  Conkle,  436 S.E.2d 635, 639 (Ga. 1993)  (holding  that
punitive  damages forfeiture provision was not a  taking  because
potentially  successful plaintiffs can have  no  vested  property
interest  in punitive damages awards); Shepherd Components,  Inc.
v.  Brice  Petrides-Donohue & Assocs., Inc., 473 N.W.2d 612,  619
(Iowa 1991) (same).

          Because  we interpret AS 09.17.020(j) to limit punitive
damages before the award is made to successful plaintiffs, a case
cited by the plaintiffs, Kirk v. Denver Publ'g Co., 818 P.2d  262
(Colo.  1991), is distinguishable.  In Kirk, the Colorado Supreme
Court  held  that a punitive damages forfeiture provision  was  a
taking  because,  under the court's interpretation,  the  statute
applied  after  a  final judgment was entered in the  plaintiff's
case.   See  id.  at  272-73.  Therefore, in  Kirk  the  property
interest  in  the  punitive  damages  award  vested  before   the
forfeiture was taken by the state.

     75    See AS 09.17.080(a)(2).

     76    AS 09.17.080(c).

     77    See ch. 26,  11-13, SLA 1997.

     78    Halliburton Energy Servs. v. State, Dep't of Labor,  2
P.3d  41,  51 (Alaska 2000) (quoting Connally v. General  Constr.
Co., 269 U.S. 385, 391 (1926)).

     79    AS 09.17.080(a) provides:

          [T]he court . . . shall instruct the jury  to
          answer  special interrogatories or, if  there
          is no jury, shall make findings, indicating .
          . . the percentage of the total fault that is
          allocated to each claimant, defendant, third-
          party defendant, person who has been released
          from  liability, or other person  responsible
          for the damages . . . .
          
     80    If the language of a statute is plain and unambiguous,
we  will follow this meaning unless strong legislative history is
presented:  "the  plainer the language of  a  statute,  the  more
convincing contrary legislative history must be to interpret  the
statute  in  a contrary manner."  In re Johnstone, 2  P.3d  1226,
1231  (Alaska 2000) (quoting Ganz v. Alaska Airlines,  Inc.,  963
P.2d 1015, 1019 (Alaska 1998)).

     81    AS 09.17.080(a) (numeration added).

     82    The exception also requires that the person must not be
"protected  from a civil action under AS 09.10.055," the  statute
of repose.  AS 09.17.080(a)(2).

     83    AS 09.17.080(a)(2).

     84     Because  we accept the State's interpretation  of  AS
09.17.080,  we reject that plaintiffs' argument that a reasonable
interpretation  of  the language of AS 09.17.080(a)  is  actually
contrary  to its "intended purpose," making it unconstitutionally
vague.   Without  citation to any legislative  history  or  other
evidence,  the plaintiffs claim that the "apparent intention"  of
the  statute is to require that non-parties receive an allocation
of   fault  if  the  exception  in  AS  09.17.080(a)(2)  applies.
However,  as  already  noted,  the unambiguous  language  of  the
statute indicates that non-parties will not receive an allocation
of fault if the three conditions are met.

          We  reject this vagueness challenge.  The plaintiffs do
not  support their interpretation of the "apparent intention"  of
the  statute  with any legislative history, or  any  evidence  or
argument,  and the unambiguous language of the statute  does  not
support their interpretation.

     85    904 P.2d 373 (Alaska 1995).

     86    895 P.2d 99 (Alaska 1995).

     87      904   P.2d   at  383  (quoting  State   v.   O'Neill
Investigations, Inc., 609 P.2d 520, 531 (Alaska 1980)).

     88     895  P.2d  at  105.  Specifically, the  plaintiff  in
Williams  claimed  that the phrase "extraordinary  and  unusual,"
used  to  describe the "work stress" sufficient to  rise  to  the
level of a compensable injury, was unconstitutionally vague.

     89    Id.

     90    Id.

     91    Id. at 105-06.

     92    Id. at 105.

     93    Id.

     94     State v. Niedermeyer, 14 P.3d 264, 267 (Alaska  2000)
(quoting  Concerned  Citizens  of S.  Kenai  Peninsula  v.  Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).

     95    927 P.2d 1011 (Mont. 1996).

     96    883 P.2d 793 (Mont. 1994).

     97    See Plumb, 927 P.2d at 1016.

     98    883 P.2d at 802.

     99    Id. at 803.

     100    See 927 P.2d at 1019-21.

     101    See id. at 1018.

     102    See id. at 1019-21.

     103    See id. at 1019.

     104    Id. at 1020.

     105    We decline to find a substantive due process violation
merely  because some responsible non-parties may be employers  of
the  plaintiff.   The  plaintiffs argue that AS  09.17.080(a)  is
"especially unfair" to plaintiffs who sue multiple defendants  in
connection with injuries sustained at work.  The plaintiffs claim
that an employer may automatically be a non-party because of  its
immunity under AS 23.30.055 (workers' compensation).  In  such  a
situation,  the  defendants  may  "collude"  with  the  non-party
employer  to  increase  the employer's  share  of  fault.   These
circumstances are wholly theoretical, and we decline  to  find  a
substantive  due process violation based on such  a  hypothetical
scenario,    since    the   plaintiffs'    challenge    of    the
constitutionality of AS 09.17.080 is facial.

     106     The rule is slightly different if there are multiple
defendants;  in that case the penalty applies if the judgment  is
less favorable than the offer by ten percent or more.

     107    See AS 09.30.060(a).

     108    See ch. 26,  16, SLA 1997.

     109     See Peter v. Progressive Corp., 986 P.2d 865, 872-73
(Alaska 1999); In re K.A.H., 967 P.2d 91, 95 (Alaska 1998); Keyes
v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 358-59 (Alaska 1988).

     110    473 U.S. 1, 10 (1985).

     111     Loomis Elec. Protection, Inc. v. Schaefer, 549  P.2d
1341, 1344-45 (Alaska 1976).

     112    See In re Johnstone, 2 P.3d 1226, 1231 (Alaska 2000).

     113     Id. (quoting Ganz v. Alaska Airlines, Inc., 963 P.2d
1015, 1019 (Alaska 1998)).

114   This  exception  also is important in connection  with  the
plaintiffs'   related  argument  that  the  statute   of   repose
impermissibly abolishes the discovery rule.  Paragraph (b)(5) and
other  provisions of subsection .055(b) combine  to  establish  a
somewhat   narrowed,  but  still  reasonably   broad,   statutory
approximation of the common law discovery rule.  Moreover,  these
provisions  only  govern subsection .055's  ten-year  statute  of
repose;  they do not affect the common law discovery rule  as  it
applies to subsection .070's two-year statute of limitations.

     115     Although  reinstating subsection  .140(a)'s  tolling
provisions would not affect subsection .140(c), which  tolls  the
two-year  statute  for younger children only until  their  eighth
birthdays,  the  two-year statute would not  be  triggered  under
subsection  .140(c)  for any child whose  case  fell  within  the
traditional  discovery  rule at the time of  the  child's  eighth
birthday.

     116    AS 09.65.096(a) provides, in part:

          A hospital is not liable for civil damages as
          a   result  of  an  act  or  omission  by  an
          emergency  room  physician  who  is  not   an
          employee  or actual agent of the hospital  if
          the   hospital  provides  notice   that   the
          emergency  room  physician is an  independent
          contractor  and the emergency room  physician
          is  insured  as described under (c)  of  this
          section.   The  hospital is  responsible  for
          exercising   reasonable  care   in   granting
          privileges  to practice in the hospital,  for
          reviewing  those  privileges  on  a   regular
          basis,  and for taking appropriate  steps  to
          revoke  or restrict privileges in appropriate
          circumstances.  The hospital is not otherwise
          liable  for  the  acts  or  omissions  of  an
          emergency   room   physician   who   is    an
          independent contractor.
          
     117    See AS 09.65.096(a)(1-4).

     118    See AS 09.65.096(c).

     119     743  P.2d 1376, 1382-85 (Alaska 1987); see  ch.  26,
1(6), SLA 1997.

     120    See 743 P.2d at 1382-85.

     121     See  Bauman v. Day, 892 P.2d 817, 828 (Alaska  1995)
(implicitly holding that, "in the absence of a statute  directing
a  contrary rule," courts were empowered to interpret the  common
law); Surina v. Buckalew, 629 P.2d 969, 973 (Alaska 1981) (noting
that this court has the power "to explicate the common law . .  .
unless and until the Alaska legislature acts to modify it").
     122    AS 09.10.055(a).

     123     AS  09.10.055(b) exempts certain injuries caused  by
hazardous  waste,  intentional  acts,  gross  negligence,  fraud,
breach of an express warranty, defective products, and breach  of
trust  or fiduciary duty.  There is also an exception where  "the
facts  that would give notice of a potential cause of action  are
intentionally concealed," or, in the case where the injured party
is  a  minor, the facts are "not discoverable in the exercise  of
reasonable care by the minor's parent or guardian."

     124    See AS 09.10.055(c).

     125    See former AS 09.10.055(a) (providing that fifteen-year
limitations period applies to actions based on "a defect  in  the
design,  planning, supervision, construction,  or  inspection  or
observation of construction of an improvement to real property").

     126    See ch. 26,  5, SLA 1997.

     127    931 P.2d 391, 397 (Alaska 1997).

     128     We  also note that former AS 09.10.055 had the  same
differential impact on minors that the plaintiffs challenge here.
Former AS 09.10.055(a), with its fifteen-year limitations period,
would  apply to plaintiffs under the age of three at the  injury,
and  would have had the effect of barring their claims before the
age of majority.

     129    See Pedersen v. Zielski, 822 P.2d 903, 906-07 (Alaska
1991).

     130    See City of Fairbanks v. Amoco Chemical Co., 952 P.2d
1173, 1177 n.8 (Alaska 1998); Pedersen, 822 P.2d at 906-07.

     131     See  Bauman v. Day, 892 P.2d 817, 828 (Alaska  1995)
(implicitly holding that, "in the absence of a statute  directing
a  contrary rule," courts were empowered to interpret the  common
law); Surina v. Buckalew, 629 P.2d 969, 973 (Alaska 1981) (noting
that this court has the power "to explicate the common law . .  .
unless and until the Alaska legislature acts to modify it").

     132    See note 114, supra.

     133    State v. First Nat'l Bank of Anchorage, 660 P.2d 406,
415 (Alaska 1982) (internal quotations and citations omitted).

     134    Gellert v. State, 522 P.2d 1120, 1122 (Alaska 1974).

     135    First Nat'l Bank of Anchorage, 660 P.2d at 415.

     136    See Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173,
1175-77,   1181   (Alaska   1985)  (initiative   proposing   both
deregulation  of Alaska's intra-state air and motor carriers  and
deregulation  of federally regulated interstate sea  carriers  is
within  one  subject,  "transportation");  First  Nat'l  Bank  of
Anchorage, 660 P.2d at 414-15 (legislation relating to fraudulent
sale  of  land,  interests in and dispositions  of  subdivisions,
leases, and rents is within one subject, "land"); Short v. State,
600  P.2d  20,  24  (Alaska 1979) (legislation relating  to  bond
projects for correctional and public safety facilities is  within
one  subject, "general public safety function of protecting  life
and property"); North Slope Borough v. Sohio Petroleum Corp., 585
P.2d  534, 545-46 (Alaska 1978) (act dealing with matters of both
municipal  and  state  taxation is  within  one  subject,  "state
taxation"); Gellert, 522 P.2d at 1123 (legislation including both
boat  harbor and flood control projects is within one subject,  a
"cooperative  water  resources development  program");  Suber  v.
Alaska State Bond Comm., 414 P.2d 546, 556-57 (Alaska 1966)  (act
concerning  disaster  relief  that  contained  both   grants   to
homeowners and criminal penalties to protect the integrity of the
grants  is within one subject, "grants to homeowners"); Galbraith
v.  State,  693 P.2d 880, 885-86 (Alaska App. 1985)  (legislation
modifying  various diverse aspects of the criminal law --  sexual
assault,  assault,  presumptive  sentences  for  certain   felony
offenders,  telephonic search warrants, disposal  of  seized  and
recovered   property,  the  insanity  defense,  the  defense   of
necessity, joyriding, immunity, sentencing procedure -- is within
one  subject, "criminal law"); Van Brunt v. State, 646 P.2d  872,
874-75  (Alaska App. 1982) (statute relating to sale  of  alcohol
and  to  drunk  driving  is  within  one  subject,  "intoxicating
liquor").

     137    In State v. A.L.I.V.E. Voluntary, 606 P.2d 769 (Alaska
1980),  we  struck  down a statute enabling  the  legislature  to
exercise  a  "legislative veto" by annulling agency  regulations.
Because  this  would allow the legislature to  legislate  without
observing  normal  enactment  procedures,  including   the   "one
subject" rule, we struck down the statute.  Id. at 771-74.

     138     In addition to its "tort reform" provisions, chapter
26,  SLA  1997 includes provisions affecting other civil actions,
see,  e.g.,   11-14, 16-19; statutes of limitations for  property
and   contract  actions,  see   3-4;  payment  of  claims   after
liquidation of a state bank, see  2; and eminent domain, see  21.

     139    Because we find the entire Act constitutional, we need
not  address  appellants' argument that the Act is not  severable
and therefore must be struck down as unconstitutional.

1     Because  we  are  equally  divided  on  these  points,  the
decision  favoring  affirmance has  the  effect  of  a  plurality
opinion:   it  will  affirm the superior court's  ruling  in  the
present  case but will not be binding in future cases.  Our  case
law  establishes  that "[a] decision by an evenly  divided  court
results in an affirmance."  Ward v. Lutheran Hosps. & Homes Soc'y
of America, Inc., 963 P.2d 1031, 1037 n.11 (Alaska 1998) (quoting
Thoma v. Hickel, 947 P.2d 816, 824 (Alaska 1997)).  Moreover, "an
affirmance  by an equally divided court is not precedent."   City
of Kenai v. Burnett, 860 P.2d 1233, 1239 n.11, 1246 (Alaska 1993)
(Compton, J., concurring).

     2     Compare  Moore v. Mobile Infirmary Ass'n, 592  So.  2d
156,  159-65 (Ala. 1991)(holding that damage cap statute violated
state  constitutional right to trial by jury), Smith v. Dep't  of
Ins.,  507  So.  2d  1080,  1088-89 (Fla.  1987)  (same),  Kansas
Malpractice Victims Coalition v. Bell, 757 P.2d 251, 258-60 (Kan.
1988)  (same), Lakin v. Senco Prods., Inc., 987 P.2d 463,  469-75
(Or.  1999) (same), and Sofie v. Fireboard Corp., 771  P.2d  711,
719-23  (Wash.  1989) (same), with Davis v. Omitowoju,  883  F.2d
1155,  1159-65 (3d Cir. 1989) (holding that damage caps  did  not
violate  the  Seventh Amendment), Kirkland v. Blaine County  Med.
Ctr., 4 P.3d 1115, 1119-20 (Idaho 2000) (holding that damage caps
did  not  violate the state's constitutional right  to  trial  by
jury),  Peters  v.  Saft, 597 A.2d 50, 53-54 (Me.  1991)  (same),
Murphy  v. Edmonds, 601 A.2d 102, 116-18 (Md. App. 1992)  (same),
English  v.  New England Med. Ctr., Inc., 541 N.E.2d 329,  331-32
(Mass.  1989) (same), Adams v. Children's Mercy Hosp., 832 S.W.2d
898,  906-07  (Mo. 1992) (same), Wright v. Colleton  County  Sch.
Dist.,  391  S.E.2d  564, 569-70 (S.C. 1990) (same),  Pulliam  v.
Coastal Emergency Servs. of Richmond, Inc., 509 S.E.2d 307,  314-
315  (Va. 1999) (same), Etheridge v. Med. Ctr. Hosps. 376  S.E.2d
525,  528-29 (Va. 1989) (same), Robinson v. Charleston Area  Med.
Ctr., 414 S.E.2d 877, 887-88 (W. Va. 1991) (same), and Guzman  v.
St.  Francis Hosp., Inc., 623 N.W.2d 776, 783-85 (Wis. App. 2000)
(same), rev. denied, 629 N.W.2d 783 (Wis. 2001).

     3     The  right  to trial by jury in Alaska is  secured  by
article I, section 16 of the Alaska Constitution: "In civil cases
where  the  amount  in  controversy  exceeds  two  hundred  fifty
dollars,  the right of trial by a jury of twelve is preserved  to
the same extent as it existed at common law."

     4    See Moore, 592 So. 2d at 159-65; Bell, 757 P.2d at 258;
Lakin, 987 P.2d at 473-74; Sofie, 771 P.2d at 721-22.

     5    Bell, 757 P.2d at 258.

     6    883 F.2d at 1159-65.

     7    509 S.E.2d at 314-15.

     8    376 S.E.2d at 529.

     9    Va. Const. art. I,  11 (emphasis added).

     10   See 509 S.E.2d at 314; 376 S.E.2d at 528-29.

     11   883 F.2d at 1159-65.

     12   Alaska Const. art. I,  1.

13    See,  e.g.,  Peters v. Saft, 597 A.2d 50,  53  (Me.  1991);
Murphy  v.  Edmonds, 601 A.2d 102, 111-12 (Md. 1992); English  v.
New England Med. Ctr., 541 N.E.2d 329, 333 (Mass. 1989); Adams v.
Children's Mercy Hosp., 832 S.W.2d 898, 903-05 (Mo. 1992); Wright
v.  Colleton County Sch. Dist., 391 S.E.2d 564, 570 (S.C.  1990);
Pulliam,  509  S.E.2d  at  317; Etheridge,  376  S.E.2d  at  533;
Robinson v. Charleston Area Med. Ctr., 414 S.E.2d 877, 886-88 (W.
Va. 1991); Guzman v. St. Francis Hosp., Inc., 623 N.W.2d 776, 788
(Wis. App. 2000).

     14    See, e.g., Moore v. Mobile Infirmary Ass'n, 592 So. 2d
156,  166-70 (Ala. 1991); Wright v. Central Du Page Hosp. Assoc.,
347 N.E.2d 736, 743-44 (Ill. 1976); Sibley v. Bd. of Superiors of
La.  State  Univ., 477 So. 2d 1094, 1107-09 (La. 1985); Brannigan
v. Usitalo, 587 A.2d 1232, 1233-36 (N.H. 1991); Carson v. Maurer,
424  A.2d  825, 831, 835-36 (N.H. 1980); Richardson  v.  Carnegie
Library  Rest., Inc., 763 P.2d 1153, 1163-65 (N.M. 1988); Arneson
v. Olson, 270 N.W.2d 125, 132-33 (N.D. 1978); Condemarin v. Univ.
Hosp., 775 P.2d 348, 353-56 (Utah 1989).  In addition, some cases
have invalidated caps under state constitutional provisions other
than equal protection that impose essentially identical means-to-
end  tests.   See, e.g., Kansas Malpractice Victims Coalition  v.
Bell,  757  P.2d 251, 259 (Kan. 1988)("Due process requires  that
legislative  means selected have a real and substantial  relation
to  the  objective  sought."); Best v. Taylor  Mach.  Works,  689
N.E.2d 1057, 1076 (Ill. 1997) (special legislation clause);  Ohio
Acad. of Trial Lawyers v. Sheward, 715 N.E.2d 1062, 1089-90 (Ohio
1999)(due process); Morris v. Savoy, 576 N.E.2d 765, 770-71 (Ohio
1991)(same).

     15   See Plurality Opinion at 13-14.

16    See  Alaska  Pac.  Assurance Co. v. Brown,  687  P.2d  264,
269 (Alaska 1984).

     17   Id.

     18    See,  e.g.,  State, Dep't of Labor v.  Enserch  Alaska
Const., Inc., 787 P.2d 624, 632-33 (Alaska 1989).

19   See id. at 633 n.17:

          We   now   state  the  proper   inquiry   for
          enactments  impairing rights as important  as
          the right to engage in economic endeavor.  We
          do not question the fundamental nature of our
          state equal protection analysis: it remains a
          single, flexible test and not a rigid, tiered
          approach  like that employed in  interpreting
          the  equal  protection  clause  of  the  U.S.
          Constitution.   Enactments  impairing  rights
          more  or  less  important than the  right  to
          engage  in  economic endeavor  shall  receive
          more  or less scrutiny when challenged  under
          the  equal  protection clause of  the  Alaska
          Constitution.
          
     20    See,  e.g., Richardson v. Carnegie Library Rest.,  763
P.2d 1153, 1163 (N.M. 1988).

     21   Id.; see also Carson v. Maurer, 424 A.2d 825, 838 (N.H.
1980).

     22    Condemarin  v. Univ. Hosp., 775 P.2d  348,  354  (Utah
1989).

23   Richardson, 763 P.2d at 1163-64.

     24   See cases cited in footnote 13 above.

25   550 P.2d 359 (Alaska 1976).

     26   See id. at 362-63.

     27    574  P.2d  1, 12 (Alaska 1984); see also  Alaska  Pac.
Assurance Co. v. Brown, 687 P.2d 264, 269-70 (Alaska 1984).

     28    Alaska  Pac. Assurance Co., 687 P.2d at 269  (emphasis
added).

29   743 P.2d 1352, 1371 (Alaska 1987).

     30   Plurality Opinion at 18.

     31    Alaska  Pac. Assurance Co., 687 P.2d at 269  (emphasis
added).

32   Id. at 269-70.

     33    Richardson v. Carnegie Library Rest., 763  P.2d  1153,
1164 (N.M. 1988).

     34   Id.

35    Fein  v.  Permanente  Med.  Group,  695  P.2d  665,  690-91
(Cal.  1985) (citations omitted)(Bird, C.J., writing in a dissent
that  unsuccessfully advocated a tiered equal protection standard
that  would  have  required -- much like  Alaska's  sliding-scale
standard  does -- a substantial relation between means  and  ends
even in low-level review).

36    Because  punitive  damages  do  not  reflect  reimbursement
for  injuries actually suffered by a plaintiff, I agree with  the
plurality opinion that the punitive damages cap is valid.

     37   Plurality Opinion at 26-27.

38   See ch. 26,  1, SLA 1997.

     39    See,  e.g.,  Gordon v. State, 608 So. 2d  800,  801-02
(Fla.  1992)(holding  that  forfeiture  provision  "discourage[s]
punitive damages claims by making them less remunerative  to  the
claimant and the claimant's attorney").

     40   Alaska Const. art. I,  18.

     41   Cf. DeLisio v. Alaska Superior Court, 740 P.2d 437, 442
(Alaska  1987)("Imposing . . . a requirement which  would  demand
the  rendering  of  personal services without  just  compensation
would in itself be an impermissible infringement of Alaska's  due
process clause and, thus, may not serve as the basis for avoiding
the provisions of the takings clause.").

42   Plurality Opinion at 28.

     43   See AS 09.17.020(f).

     44    See  Dr.  Seuss,  The 500 Hats of Bartholomew  Cubbins
(Reissue ed., Random House 1989).

45   AS 09.17.020(j) (emphasis added).

     46   See Plurality Opinion at 29.

47   See Plurality Opinion at 28.

     48    See  Kirk  v. Denver Publ'g Co., 818 P.2d  262  (Colo.
1991).

1      AS  25.20.010;  see  also  Neary  v.  McDonald,  956  P.2d
1205, 1209 n.3 (Alaska 1998) (noting that the age of majority  is
eighteen years of age).

2    Opinion at 45.

     3    Former AS 09.10.140 (1996) provided, in part:

          Disabilities  of  minority and  incompetency.
          (a)  If  a person entitled to bring an action
          mentioned in this chapter is at the time  the
          cause  of action accrues . . . (1) under  the
          age  of  majority  . . . the  time  of  [the]
          disability [of minority] is not a part of the
          time  limit  for  the  commencement  of   the
          action.
          
     4    Ch. 26,  8, SLA 1997.

     5     Since AS 09.10.140(c) by its own terms does not  apply
to  minors  over  the  age of eight at the  time  of  injury,  AS
09.10.140(a)  applies and tolls the statute  of  limitations  for
those minors until the age of majority.  However, the statute  of
repose,  AS  09.10.055,  also  applies  and  imposes  a  ten-year
limitations period.  Therefore, minors injured between  the  ages
of  eight  and ten would have ten years to file suit, instead  of
until their twentieth birthday.

6     The  state  argues that we need not reach  the  plaintiffs'
constitutional   challenge,   because   the   plaintiffs'   claim
concerning AS 09.10.140 is not ripe.  However, the state does not
discuss the requirements for ripeness, or cite a single authority
in  support of this argument.  Therefore, the argument is  waived
for  lack  of  sufficient briefing.  See  In  re  Dissolution  of
Marriage  of  Alaback,  997 P.2d 1181,  1184  n.3  (Alaska  2000)
("Points  given only a cursory treatment in the argument  portion
of a brief will not be considered, even if developed in the reply
brief.").

     7    Opinion at 11-12.

     8    Gilmore v. Alaska Workers' Comp. Bd., 882 P.2d 922, 926
(Alaska 1994).

9     Cf.  State  v.  F.L.A.,  608  P.2d  12,  18  (Alaska  1980)
(quoting  Belotti  v. Baird, 443 U.S. 622, 635  (1979),  for  the
proposition  that,  during  formative  years  of  childhood   and
adolescence,  children  often  lack experience,  perspective  and
judgment);  P.H.  v.  State,  504 P.2d  837,  841  (Alaska  1972)
(stating that principal precept behind children's courts is  that
children do not have mature judgment).

     10   AS 09.10.055(a) (emphasis added).