A pending bill (SB 4) – which establishes medical review panels as a means of vetting medical malpractice claims prior to litigation – will become law (it has already passed in the Senate) and then almost certainly face a constitutional challenge from the Kentucky Justice Association (the leading plaintiffs’ bar group). In fact, a KJA representative recently opposed the legislation in testimony before a Senate committee. Not surprisingly, the KJA’s primary argument concerned the allegedly unconstitutional impediments such legislation would pose to the right to trial by jury. The challenge would likely be premised on the so-called “jural rights doctrine,” found not in the Kentucky Constitution, but as a judicial construct supposedly emanating from Sections 14, 54, and 241 of the Kentucky Constitution, first recognized in Ludwig v. Johnson, 243 Ky. 533, 495 S.W.2d 347 (1932) (holding automobile guest statute unconstitutional). Compare, Griswold v. Connecticut, 381 U.S. 479 (1965), in which Justice Douglas, writing for a seven member majority, identified a constitutionally protected right to privacy emanating from the “penumbras” of other provisions in the Bill of Rights. Similarly, the jural rights doctrine has been invoked to strike down statutes arguably impairing the right to recover for death, personal injury, or property damage as those common law rights existed (again even arguably) at the time of Kentucky’s 1891 constitution. See, e.g., Williams v. Wilson, 972 S.W.2d 260 (1998) (striking portion of Kentucky tort reform act, KRS 411.184(1)(c), concerning recovery of punitive damages; Court held that right to recover punitive damages for gross negligence was recognized in 1891, and thus constitutionally protected from future legislative action). In effect, the jural rights doctrine makes such common law rights off limits to legislative action. In fact, the doctrine has even been read, albeit only once, to preclude legislative action impairing common law rights the Court had ever recognized, not just those recognized in 1891. See, Perkins v. Northeastern Log Homes, 808 S.W.2d 809 (Ky. 1991) (striking statute of repose for products liability actions against builders, holding that through the above constitutional provisions “our founding fathers were protecting the jural rights of the individual citizens of Kentucky against the power of the government to abridge such rights, speaking to theirrights as they would be commonly understood by those citizens in any year, not just in 1891”) (emphasis added). See also, O’Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995) (striking another tort reform act provision, KRS 411.188(3), requiring jurors to be made aware of collateral source payments; although Court suggested that to the extent the provision would serve to limit damages available to a plaintiff, it would violate the jural rights doctrine, and specifically the damages limitation found in Section 54, the precise holding was premised on violation of Sections 27, 28, and 116, concerning separation of powers among the three branches of government, finding that the legislature had unconstitutionally intruded into the judicial prerogative for establishing practice and procedure in the state’s courts).
The jural rights doctrine is ripe for a challenge eliminating it from this state’s jurisprudence. Former Justice Cooper wrote, dissenting in Williams v. Wilson, 972 S.W.2d at 269-76, citing Lewis, Jural Rights Under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953, 964, 976, 980 (1991-92), that the “doctrine is nothing more nor less than a judicial usurpation of a traditional legislative prerogative”; Justice Cooper added that “this Court has now assumed for itself the sole power to make any meaningful changes in the area of tort law”). The doctrine is intellectually flimsy, and has impeded the exercise of legislative power on many occasions. Although Kentucky courts purport to honor separation of powers principles, the jural rights doctrine serves as a thinly veiled judicial check on legislative prerogatives, in effect elevating the judicial branch above all others, particularly the duly elected representatives in the General Assembly whose job it is, in the Court’s words on another occasion, to establish the Commonwealth’s public policy. See, e.g., Commonwealth ex rel. Cowan v. Wilkinson, 828 S.W.2d 610, 614 (Ky. 1992) (holding that “the establishment of public policy is not within the authority of the courts” but is, instead, consistent with constitutional separation of powers, “granted to the legislature alone . . .”; Court added that “Judicially created common law must always yield to the superior policy of legislative enactment and the Constitution”).
Brent R. Baughman practices labor and employment law. He is a partner at Greenebaum Bingham Doll, LLP, in Louisville, Ky.
This opinion-editorial originally appeared in the August 24, 2016 print edition of the Winchester Sun.
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