Kentucky Senate Should Reject Proposed Amendment Allowing Limits On Recovery Of Damages For Pain and Suffering Posted: February 16, 2018
AN OPEN LETTER TO KENTUCKY'S SENATORS REQUESTING A "NO" VOTE ON SB 2
I’m writing to express my serious concerns regarding Senate Bill 2 SCS, a proposed constitutional amendment that would amend Section 54 of the Kentucky Constitution in order to allow the General Assembly to impose limitations on recovery of “non-economic” damages for wrongful death and personal injury. In personal injury cases, “non-economic damages” are usually defined as pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury.
I respectfully oppose the proposed constitutional amendment, both because it is fundamentally unfair to artificially place an upper-bound limit on damages recovered for personal injury, death, or property damage, and because it violates protected “jural rights.”
In the areas of environmental protection and occupational health, resort to the courts for damages in the event of wrongful or negligent actions by polluters or employers is an important tool for discouraging violation of standards established to protect public and workplace health, safety, and the environment.
As noted, I oppose the amendment for a second reason, which is that the adoption of the amendment would violate bedrock principles firmly established in the Kentucky Constitution that cannot be abridged by later constitutional or statutory revision.
Section 54 of the Kentucky Constitution provides that “[t]he General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.”
The language of Section 54 is a constraint on the legislature that is one of three constitutional sections creating the “jural rights” doctrine of Kentucky’s Constitution, which prohibits the General Assembly from abolishing or restricting a common law right of recovery for personal injury.
Proposed Senate Bill 2 appears to be in direct violation of Section 14 of the Kentucky Constitution, which provides that:
All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.
Ky. Const. Sec. 14.
The “jural rights” doctrine has long been recognized by Kentucky Courts as flowing from Sections 14, 54, and 241 of the Kentucky Constitution. Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998). These provisions have been construed as preventing the General Assembly from eroding or extinguishing causes of action or recovery for negligent infliction of death or injury to persons or property.
The proposed constitutional amendment seeks to create a legislative power to limit damages in such actions, and while amending Section 54 of the Kentucky Constitution, remains in conflict with Sections 14 and 241.
Further, while certain provisions of the Kentucky Constitution are amenable to later amendment, the Bill of Rights in the Kentucky Constitution, which is comprised of Sections 1 through 26, and which includes the protection of the right of access to the courts for injuries in Section 14, are not amenable to later amendment such as SB 2 would allow. Section 26 makes this clear, in providing that:
To guard against transgression of the high powers which we have
delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws to the contrary thereto, or contrary to this Constitution, shall be void.
Ky. Const. Sec. 26.
Finally, the proposed constitutional amendment authorizing the General Assembly to limit recovery of damages for injuries to person or property violates the strict separation of powers in the Kentucky Constitution by infringing on the province of the judiciary, in contravention of Sections 27, 28 and 29 of the Kentucky Constitution.
Section 14, read in conjunction with Section 26 of the Kentucky Constitution, has been construed to act as a restraint on the legislative as well as the judicial branch of state government, and as such, the determination of the appropriate amount of recovery for a particular injury to person or property, being a quintessential function of the judiciary, and being protected by Sections 14 and 26, cannot be abridged in the manner proposed in Senate Bill 2. Commonwealth ex rel Tinder v. Werner, 280 S.W.2d 214 (Ky. 1955) (noting that “section 14, when construed in the light of section 26, prohibits the legislature from invading the province of the judiciary and that the prohibition of section 14 applies to the legislative branch of the government as well as to the judicial.”)
Thank you for your consideration of these concerns. I respectfully urge you to vote against the proposed constitutional amendment.