Tuesday, July 26, 2011

Law School: First Writing Assignment -- Birth of a Strict Constructionist

I entered law school in late August 1979.  Like first-year students in most law schools I was required to take a course in legal research and writing that culminated in a moot court brief and argument in the spring: Introduction to Law: Legal Research & Writing Section A (Makibe).  The following is a copy of my first significant legal writing assignment that I completed in October 1979.  It is a mock opinion issued by the Supreme Court of Iowa upholding interspousal tort immunity and was termed a "synthesis assignment."  The instructor, Michael Makibe, assigned the grade of 3.70 and stated: "I would have preferred that you write an opinion abrogating the doctrine rather than affirming it."  Well, yes, but I'm sure Chief Justice Roberts would agree with my legal reasoning; he's a strict constructionist, after all.  Mr. Makibe now practices law in Hawaii.  

Oddly enough, the following case -- involving as it does a husband and wife who both perished when an aircraft, piloted by the husband, crashed -- parallels the fate of a friend of Vernon Jordan.  The son of President John F. Kennedy, John F. Kennedy, Jr., died in a plane crash along with his wife, Carolyn, on July 16, 1999, in a plane Mr. Kennedy piloted.

Be that as it may.

The following is the text of my first law school writing assignment:
The evidence of this case shows that a husband and wife both perished when an aircraft, owned and piloted by the husband, crashed.  This is an action by the plaintiff, as executor of the wife’s estate, for damages for the death of the wife against the estate of the husband.  Plaintiff alleged that the wife’s death was the result of the negligent operation of the aircraft by the husband.  The trial court granted the husband’s estate’s motion for summary judgment on the ground that the action was barred by the doctrine of interspousal immunity.

The principal question posed on this appeal is whether a wife may maintain an action against her husband for wrongful death resulting from the negligence of her husband.  Even though there were no survivors of the plane crash, the survival aspect of our wrongful death statute brings squarely before this court the issue of the continued vitality of the interspousal immunity doctrine.  Although this doctrine has never been abrogated by judicial decision or by statutory enactment this court would be remiss if it did not reexamine interspousal immunity, especially in view of the fact that a majority of jurisdictions have modified or abolished this common law restriction.

The defendant, executor of the husband’s estate, argues that the abolition of interspousal immunity involves a determination of public policy more properly subject to legislative enactment rather than judicial action.   In the absence of a statute whose language explicitly abrogates the doctrine, the defendant argues that the plaintiff’s action cannot lie.  This is a position consistently adhered to in the four precedent cases decided by this court.  In each of the precedent cases this court construed various statutes dealing with the rights of married women.  The plaintiffs in these cases argued that the common law restriction of interspousal immunity had been abrogated by such statutes.  The court steadfastly denied this argument and held that the statutes, although conferring certain rights upon married women, did not explicitly confer the right of one spouse to maintain an action for injuries negligently or willfully inflicted on the other.

We concur with these past decisions and with the trial court ruling in the instant case.  Our affirmation is not based solely on adherence to past rulings, but on the fact that the legislature in codifying and recodifying statutes relating to the rights of married women has consistently omitted reference to any right of one spouse to sue another for tortious acts, either negligent or intentional.

In in Re Estate of Dolmage, 203 Iowa 231, 212 N.W. 553, at 554 and 555, decided in 1927, the court held that “It would have been an easy matter for the legislature, if it had intended to restore the status of married women, as to the rights to maintain actions against their husbands for damages, to that of unmarried women, to have so stated in clear language, and not have left the matter to doubt or judicial construction.”  Again, in Aldrich v. Tracy, 222 Iowa 84, 269 N.W. 30, at 33 (1936) we find the court stating “In view of the previous history of legislation of this kind, and in view of the decision of this court construing prior statutes in connection with the very question here involved, with all of which the Legislature must be presumed to have been familiar we think it but natural and reasonable to expect that, if the legislature thereafter attempted to change the legal status of women, and it intended to obviate the effect of the decisions of this court in previous cases and give a married woman the right to maintain an action for tort against her husband, it would have been able to find language which would express its meaning, and it would have expressed its meaning as to leave no doubt in the mind of anyone.”  It is our present view that if the legislature, in all these years, has consistently failed to confer on married women the right in question, that it is its intention not to do so.

In support of this, we offer a review of the statutes relied on in the precedent cases in which plaintiffs argued that the common law restriction on interspousal tort remedy had been abrogated.  It will be shown that these statutes contain no provisions authorizing a wife to sue her husband for tort.  In in Re Estate of Dolmage, plaintiff relied on a section of Code 1924, which states: “When any woman receives an injury caused by the negligence or wrongful act of any person, firm, or corporation including a municipal corporation, she may recover for loss of time, medical attendance, and other expenses incurred as a result thereof in addition to any elements of damages recoverable by common law.”  In Aldrich v. Tracy, plaintiff relied on the following 1931 statute: “In any action for damages because of the wrongful or negligent injury or death of a woman, there shall be no disabilities or restrictions, and recovery may be had on account thereof in the same manner as in cases of damage because of the wrongful or negligent injury or death of a man.  It is the purpose of this section to remove any common law disabilities or restrictions upon women, or the rights of women, whether single or married, and to give women the same rights and same status as are possessed by men.  In Flogel v. Flogel, 257 Iowa 547, 133 N.W.2d 907, decided in 1965, plaintiff relied on Code section 613.11 I.C.A., which was a 1941 amendment of the previously quoted statute.  In Wright v. Daniels, 164 N.W. 2d 180 (1969), plaintiff relied on a section of Code 1966, which equalized the measures of damages for wrongful injury or death of a woman and those attendant upon the injury or death of a man. 

And thus we see that statutes relating to the rights of married women, spanning the 46 years from 1924 through 1969, give no indication of any legislative attempt to abrogate the interspousal tort immunity rule.

In summary, we hold that any doubts regarding the interpretation of married women’s acts must be laid to rest when one considers that in each subsequent codification of these statutes, the legislature has omitted any denial of interspousal tort immunity  We must infer, therefore, that in the absence of explicit denial it is the legislature’s intent to affirm the immunity. And as held in Flogel, at 910, “We are committed to the majority holding that unless the common law rule of spousal immunity is clearly abrogated by statute it applies in Iowa.”

This court has consistently refused claims for interspousal damages in both intentional and negligent tort cases.  Dolmage and Aldrich involved intentional torts, Flogel involved negligent torts, and Wright alleged both intentional and negligent torts.  In each of these cases remedy was denied.  In the case at bar, plaintiff seeks damages for negligence.  We believe our opinion in Wright, at 181, is relevant to the instant case. “Logically, there would be far more reason to recognize a claim based on willful and malicious conduct than one based on mere negligence.  If there was no cause of action under Division II [willful and malicious conduct] of plaintiff’s petition there could be no cause of action under Division I [negligence].”  In the dissenting opinion in Wright at 185, the author, though making a plea for modification of interspousal immunity, is only willing to go so far as altering the doctrine in cases “(1) where the injury complained of is willful; (2) where the marriage has been terminated; and (3) where both willful injury and termination of the marriage by death are alleged.” Certainly, not even this dissenter would find grounds for reversal in the instant case.

The plaintiff at bar would have us consider the possibility of limiting our holding to the situation where one or both of the spouses is dead, thus terminating the marriage.  It is on these grounds that the Supreme Court of Michigan modified the defense of interspousal immunity.  In Mosier v. Carney, 376 Mich. 532, 138 N.W.2d 343 (1965), the Michigan court held in part “that a suit may be maintained predicated upon injuries to one spouse during marriage arising out of an allegedly wrongful act of the marital partner, when the allegedly wrongful act resulted in termination of the marriage by death.”  It must be pointed out, however, that the Mosier decision comports with Michigan law in that that state’s wrongful death statute is not a survival statute.  Under Michigan law a new cause of action is created for the deceased estate.  Thus, there is nothing in that jurisdiction’s law that militates against permitting prosecution of interspousal suits such as Mosier.  This jurisdiction’s wrongful death statute is a survival statute.  As we pointed out in Wright, at 181, “Iowa was one of the early states to abolish the common law rule that civil liability of a tortfeasor died with the death of the injured party, but ours are survival statutes. . . .  These statutes do not create new causes of action.  They preserve rights.  In the case before us if no cause of action existed in favor of the deceased wife there was nothing preserved for her administratrix.”  The avenue that was open the Michigan court in Mosier is not open to us.  Given the survival aspect of our wrongful death statutes, to allow an action for the plaintiff in the situation he suggests would contravene our holding barring interspousal suits.

Plaintiff would also have us consider the ruling of Wisconsin’s Supreme Court in Goller v. White, 20 Wis.2d 402, 122 N.W.2d 193 (1963), which abrogated parental immunity in that state.  The author of the concurring opinion in Goller, at 198, states “there is no difference in principle between the right of action of a wife against her husband, a right presently recognized, and a similar right of action by a child against its parent, a right which the court now says ought to be and now will be recognized.  When the legislature considered that public policy made advisable rights of action by wives against their husbands the legislature stated that right by statute.  Till then this court refrained from announcing a public policy in this field previously coming within the legislative function.”  The author of that opinion was in fact criticizing the court’s action in abrogating parental immunity.  However, taken on its face, the argument presents a syllogism that actually bolsters our present position.  If there is no difference in principle between parental immunity and interspousal immunity, i.e., if parental immunity equals interspousal immunity, and if interspousal immunity is abrogated by statute, the court is justified in abrogating parental immunity.

The Goller holding indicates that the Wisconsin court was willing to overturn parental immunity, but only after the legislature had taken the initiative in abrogating the equal doctrine of interspousal immunity.  The Goller decision supports our view that the initiative for modifying interfamily tort immunity must emanate from the legislature.  If the Iowa legislature were to modify an area of interfamily tort immunity we would have to seriously consider modifying our decision regarding interspousal immunity.  But the first steps must be taken by the legislature.