KyKurmudgeon

Sunday’s column:

Three years ago this past Thursday, Comair Flight 5191 tried to take off from the wrong runway at Blue Grass Airport — a tragic error that resulted in 49 fatalities.

Survivors of some Flight 5191 victims chose the third anniversary of the crash to issue a “Lessons From 5191” open letter to the Federal Aviation Administration, the National Transportation Advisory Board and others.

Included in the letter were several suggested safety initiatives, which the writers acknowledged “are not novel proposals. Indeed, many were known to the aviation industry prior to the crash of Comair Flight 5191. … Had the warnings been heeded and the recommendations implemented, the crash of Comair Flight 5191 likely would not have occurred.”

The third anniversary of the Flight 5191 crash also prompted additional discussion of a permanent memorial to its victims, a memorial organizers hope to have in place in the Arboretum on Alumni Drive by the fourth anniversary of the tragedy.

Both the “Lessons” letter and discussion of a memorial were apt ways to commemorate Flight 5191. But an opportunity for an even more meaningful commemoration was missed Thursday — by the seven justices of the Kentucky Supreme Court.

In addition to exposing some flight safety issues, the Flight 5191 crash also brought a nonsensical defect in Kentucky law into the spotlight.

As spouses of the crash victims learned, prevailing case law in this state does not allow survivors to claim damages for loss of spousal companionship (“consortium” in legal terms) in wrongful death cases.

Parents can sue for loss of companionship when the victim is their child. Children can seek damages when the victim is their parent. And a spouse can claim loss of companionship when a partner is injured but survives.

But even though KRS 411.145 says in part, “Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person,” Kentucky courts have ruled just the opposite in regard to cases of wrongful death.

In 2007, some spouses of Flight 5191 victims asked the General Assembly in essence to tell the courts KRS 411.145 means what it says regarding spousal consortium claims. The legislation they proposed passed the House by a 93-7 vote.

But their quest for fairness and justice was ignored by Senate Republicans, whose idea of tort reform tends toward protecting responsible parties against the claims of victims.

As a result, the flawed prevailing case law remains in effect.

However, just over five months ago, the Supreme Court heard oral arguments in a case that brought the issue of spousal consortium in instances of wrongful death before it again. A case that gives the court an opportunity to overturn the questionable rulings of the past and bring Kentucky law into compliance with that of the more than 40 states where damages for loss of spousal consortium are allowed.

No one can predict how the Supreme Court will rule in a given case, even after listening to the justices’ questions during oral arguments. And it is entirely possible that the court will uphold the past decisions in this area of the law.

But if a majority of the justices are headed toward recognizing spousal consortium, how fitting it would have been if the decision had come on Thursday, when the court’s chosen date for issuing August rulings coincided with the third anniversary of the tragedy that helped educate Kentuckians about this inequity in prevailing case law.

Give it up for Chief Justice John D. Minton Jr., who reportedly wants to let the sun shine on the judicial branch of state government. A Supreme Court decision exempted the judiciary from the state’s Open Records Act more than 30 years ago. But The Courier-Journal reported Wednesday that Minton plans to propose some open-records rules for the judicial branch later this year. It would be a welcome and long overdue change.

While court proceedings themselves may sometimes warrant confidentiality, the administration of our justice system should be subject to just as much public scrutiny and accountability as the executive and legislative branches are. But Herald-Leader reporters researching the “Law and Mortar” series about a 10-year, $880 million courthouse construction program encountered difficulty obtaining details about financing and contractor selection from the Administrative Office of the Courts even though the same details would be readily available for construction projects handled by other state agencies.

Such a lack of transparency is unacceptable when any amount of taxpayers’ money is being spent, much less $880 million. Minton’s proposed rules should assure total public access to this type of information in the future.

Sunday’s column:

FRANKFORT — Kentucky statutes seem to say clearly that a surviving spouse may seek damages for loss of companionship (consortium, in legalese) in wrongful death cases. “Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person,” KRS 411.145 says in part.

But Kentucky case law holds just the opposite. Prevailing case law allows a parent to sue for loss of consortium when a child dies because of an accident or negligence. It allows a child to seek damages for that reason when a parent is the victim.

Even a spouse can claim such damages if their mate survives the incident and remains injured. However, that same spouse cannot ask for post-death damages, Kentucky courts have ruled despite the fact that there are no such limitations in the language of KRS 411.145, enacted in 1970.

But the Kentucky Supreme Court now has an opportunity to correct what strikes me as a nonsensical inequity in our state’s case law. The court heard oral arguments Wednesday in a case involving the death of an Ohio County woman in which post-death loss of consortium is a prominent issue.

Since justices and judges assume the role of devil’s advocate during oral arguments, one should never jump too far toward any conclusion about how a case will be decided. So I will limit my leap to saying some of the devil’s advocacy going on in the courtroom Wednesday made a good argument for overturning Kentucky’s case law.

Justice Will T. Scott, for instance, noted the “clear trend” in this country toward allowing post-death claims for loss of consortium. Surviving spouses can seek post-death damages in more than 40 states now.

Kentucky’s case law adheres to English common law, which limited spousal claims for loss of companionship to the period of time between the injury and death. But KRS 411.145 contains no such limitation. That prompted Justice Lisabeth Hughes Abramson to suggest that the state’s courts have “grafted a common law restriction” on a statue that has no such restriction.

Justice Wil Schroder noted that an oft-cited 1969 court decision that adhered to the common law restriction on post-death claims may have been the impetus for lawmakers enacting the 1970 law that contained no such restrictions.

Justice Daniel T. Venters followed that same line by suggesting Kentucky courts just haven’t paid attention to what the legislature did in 1970.

Venters also posited a scenario that, to me, most clearly demonstrates the utter absurdity of the current inequity in the law. Under present case law, Venters noted, it would be in the financial interest of a spouse whose partner had been comatose for 20 years to keep that person alive as long as possible so the damages for loss of consortium continue.

To someone who desperately wants the plug pulled quickly if I ever go into a permanent vegetative state, the thought that Kentucky case law might encourage the husband or wife of a vegetative spouse to do otherwise to keep the money flowing is an abomination of reason.

Again, you can’t judge a justice by his/her devil’s advocate questions. But the simple fact that the Supreme Court is hearing a case involving loss of consortium gives me hope that some extremely unjust case law may soon be overturned.

If that should happen, it would be at least a small, if belated, consolation for the surviving spouses of the Flight 5191 victims. They came to Frankfort two years ago, asking lawmakers to tell the state’s courts that KRS 411.145 means what it says. They had success in the House, which passed their proposed legislation 93-7. But they were met with insults in the Republican-controlled Senate, where they were accused of having a “lottery mind-set.”

Senate Republicans, so often obsessed with marriage when it’s about homosexual unions or adoptions by gay or lesbian couples, spat on marriage in 2007 with their insulting treatment of Flight 5191 widows and widowers. Here’s hoping the Kentucky Supreme Court rectifies that wrong with the case it heard Wednesday.

Recent retirements have created 12 judicial vacancies across Kentucky. A 13th opening exists due to the death of Jefferson Circuit Judge Kathleen Montano. All but one of the retiring judges took senior status, which means among other things they could continue handling cases in their former divisions until their replacements are selected by voters in November.

On the other hand, these vacancies gave Gov. Steve Beshear the opportunity to appoint new judges in all 13 instances. But he currently plans to make just six appointments, including a replacement for the late Judge Montano and a replacement for former Chief Justice Joseph Lambert.

Choosing to appoint replacements in those two instances is understandable. What is less understandable is why Beshear chose to fill just four of the 11 other vacancies by appointment. (The four are the circuit and district court vacancies in Fayette County and two district court vacancies in Jefferson County.) By doing so, he creates the appearance of playing favorites in those four instances by giving his appointees the advantage of running as semi-incumbents this fall. “Elect Judge Soandso” or “Keep Judge Soandso on the Bench” carries a bit more gravitas than a simple “Elect Soandso.”

If Beshear had chosen to appoint in all 11 instances, the consistency of that approach would have reduced the appearance that politics were involved. Certainly, leaving it to voters to fill all 11 vacancies would have removed any appearance of political considerations coming into play on his part. But by taking an inconsistent course of appointing four and leaving seven to the voters, he appears to be playing favorites.

In response to questions about Beshear’s decision to appoint in some instances but not in others, the governor’s office issued the following statement:

“We will evaluate judicial openings on a case-by-case basis with one criterion in mind – who will be the best judge, whether that’s a senior judge or through an appointment. Timing is not the issue. Rather, the concern of the governor is with being deliberative and thoughtful so as to pick the best judge. Another complicating factor is that we are experiencing a mass exodus of judges right now to retirement, along with a number of openings on judicial nominating commissions. The sheer volume of those numbers will require us to utilize both senior judges and appointments if we hope to move as expeditiously as possible. The larger issue, ultimately, is creating the best possible judicial system to serve the state of Kentucky. That is Gov. Beshear’s focus. Picking the best judges possible is the cornerstone of creating such a system. That’s how the governor will proceed in making such decisions.”

Gee, I’m glad they cleared that up.