By Doug Alexander, Executive Director, Partnership for Commonsense Justice

March 05, 2009

Lexington, KY - Everyone in state government is concerned about their piece of the state budget. Every agency head also thinks the inevitable cuts ought to be made somewhere else.

Department of Public Advocacy director Ed Monahan recently expressed concern that the state will be unable to adequately provide for public safety due to a lack of funding for prosecutors and public defenders. Monahan touched on a valid issue, but his perspective is limited. The problems facing Kentucky's judicial system go far beyond the prosecution of criminals and the need for public defenders. Our state judicial system is drowning in a rising tide of civil suits that negatively impacts Kentucky's economy and ultimately stifles our ability to attract new jobs.

Supreme Court Chief Justice John Minton recently reported that 1.23 million lawsuits were filed in Kentucky in Fiscal 2008, an increase of 40,000 over the previous year. While the criminal caseload in the circuit courts increased by about 37 percent from 2001 to 2008, civil actions increased over 75 percent in the same period. The civil caseload in the district courts increased 60 percent, while the combined caseload of felony, misdemeanor and juvenile cases actually declined (Administrative Office of the Courts, www.courts.ky.gov/research).

Litigation is a growth industry in Kentucky and throughout the United States. The estimated cost to our nation's economy runs into the billions of dollars. It would be nice to think that every lawsuit represents a meaningful effort to correct an injustice or compensate some aggrieved individual for a legitimate claim, but unfortunately that it is often not the case.

Occasionally, an extreme example of the kind of lawsuits that are too often finding their way into the courts will attract attention, like the customer who sued his laundry for $67 million because it lost a pair of pants. We laugh about such foolishness, but the lawsuit, which started in 2005, was still in the appeals process in September of last year. The cleaners has had to go out of business, the former owners are probably still piling up legal bills, and the court system is still having to process the dispute.

In another case, a woman has sued because she fell after being startled by geese which had taken up residence in front of a business, even though the business owner had no responsibility for the geese and couldn't have done anything about them had he wanted to because they are protected by the Migratory Species Act. Yes, these are extreme examples, but there are too many of them piling up in the courts.

And the costs keep mounting. Businesses and individuals wind up paying for more insurance because they never know when they are going to be the target of a frivolous suit. Doctors practice defensive medicine, driving up health care costs by ordering unnecessary tests, while paying higher and higher premiums for malpractice insurance. Small businesses, often the easiest targets, simply go out of business.

There are also intangible costs that have to be considered. The U.S. Chamber of Commerce's Institute for Legal Reform ranks Kentucky 29th among the 50 states in the fairness of our litigation environment. The Pacific Research Institute ranks Kentucky the 40th least friendly state for business and free enterprise. We are 46th in per capita income and have one of the highest rates of unemployment in the nation. In other words, Kentucky is at a huge disadvantage whenever we compete for new jobs and investment.

The legitimate right of individuals to seek redress in the courts versus the growing appetite for litigation is a balancing act, but one that must be addressed. There are plenty of issues that warrant discussion and consideration. Does the fact that fewer Kentuckians vote in judicial races than vote for legislative and executive positions affect the quality of our court system? Are there ways to reduce the number of lawsuits? Can the rights of patients be balanced against the effects of increasing premiums for malpractice insurance? How much is defensive medicine driving up the cost of health care?

Having a fair and efficient system of justice means more than adequately funding the prosecution and defense of misdemeanor and felony offenders. It means electing the most qualified individuals to serve as judges. It means making more people aware of who is running for judicial offices in our commonwealth and encouraging them to review and understand their qualifications. It means addressing a myriad of issues that are driving up the cost of doing business in Kentucky and draining Kentucky's economy.

Prosecuting criminals is important, as is the public advocacy program. But if we don't do something to address our diminishing economic base and the effect the judicial environment has on our ability to conduct business and grow the economy, eventually there won't be anyone to prosecute because there won't be anything left to steal.