KyKurmudgeon

Sunday’s column:

This and that as the morphing of the state Senate continues:

Frankfort’s worst-kept secret in recent memory produced its expected conclusion when Gov. Steve Beshear picked former Senate Majority Leader Dan Kelly to fill a vacant seat on the 11th Judicial Circuit bench. Funny, isn’t it, how the months of hallway chatter preceding the nominating process proved to be so eerily accurate on this one?

Oh, well, Beshear at least gave the appearance of considering the other two nominees. He let a full weekend go by before naming Kelly to the post, thereby creating another opportunity for Democrats to capture a seat formerly held by a Republican in a special election.

But the Kelly gambit has more potential for exploding in Beshear’s face than the appointment of Republican former Sen. Charlie Borders to the Public Service Commission, which set up the special election won by Democrat Robin Webb.

Although a coveted job with big-time pay, a PSC commissioner essentially serves at the whim of the governor. When Borders’ initial term is up, whoever occupies the governor’s office will decide whether he gets reappointed or gets shown the door.

But appointment to a judicial post invests the lucky recipient with the perks of incumbency when the next election rolls around.

By giving a Republican the opportunity to run a “Keep Judge Kelly on the Bench” campaign in the next election, Beshear upset some members of his own party who thought a Democratic governor should bestow such favors on fellow Democrats. Should they decide to sit out the upcoming 14th District special election, picking up Kelly’s seat would become more problematic even though Democrats’ advantage in voter registration is more than 2 to 1.

All other things being equal, though, the 14th District ought to be receptive to the current Democratic mantra about giving Kentucky’s signature racing industry the expanded gambling options it needs to compete with racino-enhanced purses and breeding incentives that are luring Kentucky trainers and owners to other states.

The 14th isn’t in the heart of horse country, but elements of the racing industry exist there. And it has a significant population of Catholics, who are more accepting of gambling than some other faiths.

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I grew up in the 14th District, in Washington County. I came of age, slightly ahead of legal age, at a couple of Lebanon nightclubs way back in the day.

But I know the two candidates in the special election — Republican Rep. Jimmy Higdon and Democratic former Rep. Jodie Haydon — only through their legislative careers. Both are good guys. And left to their own devices, I would expect them to run a clean campaign.

Unfortunately, their respective parties and assorted other groups rarely let two decent candidates settle the issue by themselves these days.

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Then, there were none.

Entering last week, 11 of the 12 states Kentucky’s racing industry competes with offered some form of expanded gambling. On Tuesday, Ohio voters made it 12 for 12.

Not immediately, of course. A Cincinnati casino isn’t expected to open until 2012. But when it does, the one remaining gap in the line of casinos along Kentucky’s northern border will be closed.

And Kentucky tracks, which recently requested 67 fewer racing dates in 2010 than they initially requested for 2009, will find themselves at an even greater competitive disadvantage.

All the more reason for Kentucky lawmakers to take the legislative route to approving racetrack slots rather than a constitutional amendment process that could delay approval by up to two years.

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“Holiday tree” is too PC by far for the kurmudgeon in me.

But having gone there, Gov. Beshear should have stayed there. Reversing course to “Christmas tree” comes across as a flip-flop.

Sunday’s column:

That didn’t take long.

Prominent members of his party take Senate President David Williams publicly to task for blocking any resolution of the gambling debate, and it suddenly starts raining proposed constitutional amendments sponsored by Senate Republicans. One of them even comes from the obstructionist himself.

Of course, Williams’ amendment wouldn’t resolve the gambling issue. On the contrary, it’s a delaying tactic. If his proposal to ban expanded gambling absent the passage of a constitutional amendment wins legislative and voter approval in 2010, the earliest an amendment authorizing slots at racetracks or any other form of gambling could pass would be 2012.

(Yeah, I know it’s technically possible voters could approve both Williams’ amendment and the one proposed by Sen. Damon Thayer — that actually would authorize racetrack slots — next year. But let’s be real. Kentucky voters aren’t bipolar, which they would have to be to pass both of these measures at one time.)

But delay is secondary to the real motive behind Williams’s proposal — a desire to have an amendment on the ballot that brings conservative voters out in a crucial election that will determine which party controls the Senate during the legislative and congressional redistricting following the 2010 census.

You can say the same for Thayer’s amendment, but he at least wrapped it up in prettier packaging for the racing industry. Still, the horse crowd isn’t rushing to unwrap this present either, and with good reason.

Slots legislation passed by the House in June limits this form of gambling to the grounds of existing racetracks and one track that may be licensed later. Except for that one available license, the bill would have limited slots to locations where gambling already occurs on a near daily basis.

Under Thayer’s proposal one license would be auctioned off to the highest bidder in each of the seven counties with existing tracks. It’s conceivable tracks could be outbid for these licenses. That not only would expand the locations where legalized gambling occurs, it would also put the tracks in competition with other gambling venues in their own counties.

Kentucky needs a geographic expansion of its gambling options — if it involves destination resort casinos, some of which are owned by the tracks. That’s the best way to recapture the $500 million or so Kentuckians now gamble in other states each year. But slots halls competing with tracks within the same county? Uh, no.

In addition, implementation of Thayer’s plan simply takes too long for a signature Kentucky industry that is, as Ellis Park’s Ron Geary told lawmakers in March, “fading away, folks, before our very eyes.”

Assuming Thayer’s  amendment wins approval from state voters in November 2010, local option elections in those seven counties could push the start-up of slots operations well into 2011 or beyond. By then, the circuit that has provided Kentuckians year-round jobs for decades could resemble a half-circuit, if we’re lucky.

Not to mention the fact that the details of Thayer’s plan would be added to an antiquated constitution that hinders governance in a modern society because it already contains, like, 9,000 too many details. If this bombs, the fix can only be made with another amendment.

Kentucky racing being a “red” industry, the state’s horse farms traditionally have provided fertile ground for Republican fund-raising. But despite a wet growing season this year, word is that particular cash crop has dried up a bit because the Republican state Senate killed the slots bill passed by the House during the June special session. Neither of these proposals is apt to get those greenbacks blooming again.

Sunday’s column:

“Due to (Senate President David) Williams’ utter mismanagement, this (gambling) issue now pits Republicans against Republicans, not Republicans against Democrats, as he would have us believe,” Lane’s End Farm general manager Bill Farish wrote in a column published by the Herald-Leader in late September.

“Sadly, Williams seems less concerned about helping our (racing and breeding) industry and more concerned about maintaining control over his Senate fiefdom,” the son of former President George W. Bush’s ambassador to Great Britain added later in the piece.

Last week, Williams drew criticism from Louisville lawyer John David Dyche, author of the recently released Republican Leader: A Political Biography of Senator Mitch McConnell.

Williams’ “hard-line posture and strong-arm tactics on gambling are counterproductive,” Dyche wrote in The Courier-Journal, adding that “Williams has put several GOP legislators in difficult political positions.”

Of the two blows delivered to Williams by fellow Republicans, Dyche’s was perhaps the more telling. Farish, after all, has a stake in the push to keep Kentucky racetracks competitive with their counterparts in states where purses and breeding incentives are supplemented by revenue from alternative gambling. His displeasure with Williams’ obstructionism on this issue could be expected.

Dyche, on the other hand, is one of Kentucky’s better known Republican pundits who tends to reflect mainstream thinking in the party.

So, when he writes about the need for Republicans to “put gambling behind them — preferably by letting the public vote on a constitutional amendment,” you have to believe he’s speaking for a lot of like-minded Republicans. And you have to consider the possibility that pressure from within his own party might force Williams to allow a floor vote on gambling in 2010.

If it does, it likely would take the form of a constitutional amendment, perhaps sponsored by one or more of the Republican senators from horse country who have been put at risk by Williams’ current stance.

The thing is, though, a constitutional amendment on the 2010 ballot is the last thing Democrats should want if they’re truly committed to winning back control of the Senate.

With former state Rep. Robin Webb’s win in a special election for the 18th District seat formerly held by Republican Charlie Borders, Democrats have reduced the Republican Senate majority to 20-17, with one independent. They hope to whittle it down a bit more in another special election later this year, assuming Williams’ oft-voiced prediction that Majority Floor Leader Dan Kelly will get a judicial appointment comes true.

(Republican Rep. Jimmy Higdon has already filed papers with the Registry of Election Finance for a 2010 race in Kelly’s district. Democrat Jodie Haydon, a former state representative, also has filed with the Registry. So, both parties apparently believe Kelly will get a judgeship.)

If Democrats succeed in picking up Kelly’s seat, they would go into the 2010 elections — which will determine who controls the post-census redistricting — down to just 19-18-1 with a few Senate Republicans from horse country at risk because of their anti-gambling votes earlier this year and at least one Republican seat open due to the announced retirement of Sen. Gary Tapp.

Under those circumstances, Democrats would have to be politically brain dead to go along with putting an amendment on the ballot that would draw conservatives to the polls to vote against gambling. Better to just sit back and watch the Republican squabbling on the subject continue.

FRANKFORT — Call it vindication for the surviving spouses of the Comair Flight 5191 crash, mining disasters and other accidents who came to the Capitol in 2007 seeking to right a legal wrong, only to be rudely, insensitively, insultingly rebuffed by the Republican-controlled state Senate.

Call it an affirmation of those survivors’ recognition that Kentucky case law regarding loss of spousal companionship (consortium in legal language) in wrongful death cases turned reason on its head.

Most of all, call it justice at last. Not so much for those survivors who passionately and eloquently argued their case in the Capitol halls more than two years ago. (For instance, only one suit stemming from the Flight 5191 crash remains unsettled.) But justice for Kentucky’s future survivors whose lives are shattered when their wives and husbands die as the result of “a negligent or wrongful act” of a third party.

Since 1970, KRS 411:145 clearly has stated that surviving spouses can seek damages for loss of companionship in these cases. But Kentucky’s prevailing case law has disagreed, nonsensically allowing loss of companionship claims when a spouse is injured and survives but denying such claims when a spouse suffers a wrongful death.

Thursday, the Kentucky Supreme Court corrected this injustice by ruling that the statute means exactly what it says.

“The courts have been exhorted that ‘common sense must not be a stranger in the house of the law,’” Justice Mary Noble wrote in the unanimous opinion. ” … It defies common sense to put a value on such losses while a spouse is lying incapacitated, but to say the loss is worthless after death.”

Later in the opinion, Noble posed this question: “Can it reasonably be said that one whose spouse survives suffers more loss of consortium than one whose spouse dies?”

The answer, of course, is no, a resounding no. If anything, the loss is greater in instances of death.

As the opinion pointed out, the flawed logic of the prevailing case law — which traced its origins back to English common law — could cause people to make sure the victims of their negligent or wrongful acts do not survive “as only by instantly killing them can the (responsible party) be guaranteed to owe no loss of consortium damages. While this logically follows the common law rule, it is obviously absurd.”

Unaddressed in the opinion is an opposite absurdity that is of just as much concern for people who, like me, desperately want the plug pulled as soon as it’s evident they have slipped into a permanent vegetative state. Prior to Thursday, Kentucky law encouraged people to keep vegetative spouses alive if it meant they could collect loss of consortium damages, a prospect I find abhorrent.

While justice in this instance was delivered to Kentuckians through the wise ruling of a unanimous Supreme Court, I firmly believe credit also goes to those surviving spouses — of Flight 5191, of mine disasters, of other accidents — who brought their crusade to the halls of the Capitol back in 2007.

They brought the injustice of prior case law to the attention of the public. They started the conversation about its absurd consequences, a conversation that reached a proper conclusion Thursday in a case unrelated to any of their losses.

They struck me as heroes then. They still do.

Excuse the unexplained absence of columns the past couple of Sundays. I decided to take some time off on the spur of the moment, and failed to post a notice about when I would be back. Well, I’m back now. And here’s Sunday’s column:

Kentucky pays its state legislators the same way many farmers pay field hands — as day laborers.

During General Assembly sessions, lawmakers earn a daily base rate of $186 and change seven days a week. Between sessions, they receive the same amount for each day spent attending committee meetings or other authorized legislative functions.

As The Courier-Journal’s Tom Loftus recently reported, House members also can get paid for up to two “Stumbo Days” a month — days spent handling office work in Frankfort — under a new policy implemented by House Speaker Greg Stumbo.

But paying legislators day wages can lead to abuse.

In a recent story on legislative travel by Herald-Leader staffers John Cheves and Linda J. Johnson, Senate President David Williams acknowledged that some legislators may receive extra pay by lengthening official trips.

“The guidelines say you get paid a per diem on your travel days,” Williams said. “Let’s say there’s an opening reception on a Tuesday. They’ll want to travel in on Monday and get paid for the day before the conference starts and then go to a reception the next day.”

Stumbo and Williams are developing a formal travel policy for lawmakers that presumably will address such abuses. But I’m less concerned with how much the General Assembly spends on travel — which Williams correctly noted can be “broadening” for Kentucky legislators — than I am with the state’s flawed approach to paying lawmakers.

Simply put, the job we ask them to do is too important, too demanding, too time-consuming to be treated as day labor.

This isn’t the slow-paced, agrarian 1890s when the state’s legislative needs easily could be handled in a few winter months every other year. Here in the 21st century, annual sessions, special sessions, interim committee meetings, constituent services and other duties consume at least half the time of any lawmaker worthy of the title.

We need to pay legislators a salary commensurate with the demands we place on them. I would start that conversation at $60,000 a year, minimum, with a reasonable built-in cost-of-living increase.

Since salaried legislators wouldn’t be able to pad their pay by adding extra days to official trips, they might shorten their trips (and reduce the attendant cost of lodging and food) in the future.

In the long run, though, the most important argument for paying decent legislative salaries is that it would help diversify the General Assembly by making the job of legislator more attractive to a wider variety of Kentuckians, including some who may now feel they can’t serve without giving up too much of their private sector earning power.

Adages become adages because they contain kernels of truth. We really do get what we pay for. If we want better lawmakers passing better laws, we need to offer them better salaries.

Paying lawmakers day wages isn’t the only flawed aspect of their compensation package. The rules regarding the expenses they receive during sessions are just plain unfair.

Each lawmaker gets a standard daily expense payment, currently $119.90, in addition to their pay. This, too, covers seven days a week during sessions.

For lawmakers from Western Kentucky and Eastern Kentucky who have to pay for lodging and meals while in Frankfort, that amount or more is justified.

But many lawmakers from the central part of the state commute to the Capitol on a daily basis. They sleep in their own homes, and eat many of their meals there as well. For them, much of that $119.90 amounts to supplemental pay, a windfall that legislators from the far ends of the state don’t get.

Between sessions, legislators have to submit vouchers justifying expenses. That’s more fair. And if it works for most of the year, it can work during sessions just as easily.

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.

Sunday’s column:

Republicans who shopped state Rep. Robin Webb’s story to various media outlets in recent days no doubt hoped the focus would be on the suspension of her law license, her bankruptcy and her bout with post-traumatic stress and depression.

Turns out, though, the full story behind those events from years ago establishes Webb as a sympathetic figure — a victim of domestic violence who went through some serious hell, survived it and emerged a stronger person.

But even though it may backfire on them, the fact that R’s tried to use her misfortunes against her shows how desperately they want to hold onto the 18th District Senate seat vacated by former Sen. Charlie Borders, who accepted an appointment to the Public Service Commission.

If Webb beats Dr. Jack Ditty in the Aug. 25 special election, it could confirm a couple of Republican fears.

First, a Webb win would validate Gov. Steve Beshear’s use of his appointment power to create opportunities for flipping R seats in the Senate.

More appointments could be expected. For instance, Majority Floor Leader Dan Kelly might get the judicial appointment that has been the subject of much Frankfort chatter, opening up a seat in a district where Democrats should be very competitive.

A second fear arises from the racetrack slots legislation killed in Senate committee during the June special session of the General Assembly.

Webb voted for the measure in the House and can expect financial support from the horse industry in her race against Ditty. If a Democrat backed by horse money successfully flips an R seat in Eastern Kentucky, some Republican senators from horse country who opposed racetrack slots could get a bit nervous about the prospect of the industry coming after them the next time they’re on the ballot.

Of course, a Webb victory in the 18th District is far from guaranteed. And if she does lose, some observers expect Beshear to adopt a “what’s the use” attitude about a judgeship for Kelly. I disagree.

Should Kelly run for judge next year, as some expect him to do if he doesn’t get an appointment, that would mean trying to pick up his seat in an election that might feature Secretary of State Trey Grayson at the top of the Republican ballot as a U.S. Senate candidate who can get his party’s voters to the polls.

Better for Beshear and the Democrats to try to pick up Kelly’s seat in a special election because, if they’re successful, the D winner would then run as an incumbent in 2010. And incumbents generally win.

Given recent events, one might assume all of this maneuvering over Senate seats by both parties arises from Beshear’s desire to pass expanded gambling legislation and Republicans’ desire to thwart him.

That is a factor, but there is a much bigger end game for both parties — the legislative and congressional redistricting that comes after the 2010 census.

If the Democrats can pick up a couple of seats in special elections this year, they would only need to flip two more in 2010 to retake the Senate and have total control of redistricting. But if Republicans can retain a majority, no matter how slim, they will be able to control Senate redistricting and force House Democrats to negotiate on congressional districts.

Kentucky may well lose a congressional district after the next census. If that happens, 2nd District Rep. Brett Gutherie could be the odd man out no matter who controls the Senate. He’s the newest member of the delegation. And Warren County, where he lives, is nearly surrounded by the 1st District already.

Of course, if Democrats retake the Senate, they could create a Tennessee border district stretching from Somerset to Hopkinsville, lumping Gutherie with fellow Republican Reps. Ed Whitfield and Hal Rogers. But they wouldn’t be that diabolical, would they?

Gov. Steve Beshear today appointed three new members of the Judicial Nominating Commission for the 11th Judicial Circuit and District. He also reappointed one existing member. Senate Majority Leader Dan Kelly reportedly has an interest in an open judicial seat in that circuit. Could this be the first step in the process of appointing Kelly to that seat and opening up another Republican-held Senate seat for a special election?

The three new appointees are:

Blanche C. Minor, of Mannsville, is a retired state employee.  The appointment replaces Ruth T. Hagan, whose term has expired.  Minor shall serve for a term expiring Jan. 1, 2010.

Vernon E. Bagby, of Greensburg, is a retired funeral director.  The appointment replaces Wilma D. Grigsby, whose term has expired.  Bagby shall serve for a term expiring Jan. 1, 2012.

David R. Carney, of Springfield, is a factory technician with Trim Masters, Inc.  The appointment replaces Bobby G. Curry, whose term has expired.  Carney shall serve for a term expiring Jan. 1, 2012.

The reappointed member of the commision is:

Shiela W. Newcomb, of Campbellsville, is a field business office manager for Kentucky Utilities Company.

Oops! Got my Republican members of Congress mixed up in Sunday’s column. I mistakenly wrote that Patrick Neely, now the executive director of the Kentucky Equine Education Project, was once an aide to U.S. Sen. Mitch McConnell. Although Neely volunteered in a couple of McConnell campaigns, he never served on the senator’s staff. He did serve as an aide to former U.S. Rep. Anne Northup and ran a couple of her congressional races. My bad. Senior moments are hell.

Sunday’s column:

Lexington’s Convention and Visitors Bureau stirred up a bit of controversy recently by choosing a blue depiction of seminal Thoroughbred stallion Lexington as the image representative of the Horse Capital of the World.
Bluegrass, blue horse. I get it, but it was way cutesy for me.

More important, though, it misses the reality mark by light years because Kentucky’s Thoroughbred industry bleeds as red — as in Republican — as a raw steak.

Sure, there are exceptions. Former Gov. Brereton Jones and Tracy Farmer, a former Democratic Party state chairman, come to mind.

But the exceptions fill the roles of crazy uncles and aunts at Thoroughbred clan reunions. Most of the family are as proud of their R designation as they are of the colors the jockeys of their horses wear.

Until now.

Now, in the aftermath of a special General Assembly session in which racetrack slots legislation died at the hand of the Republican-controlled state Senate, this scarlet red industry feels betrayed by its own party. And it feels particularly betrayed by horse-country Republican senators who played Brutus to the industry’s Caesar during the session.

At a Wednesday evening rally in Keeneland’s sales pavilion, two of those senators got called out by name. A third got called out by district.

“Elections matter,” Patrick Neely, executive director of the Kentucky Equine Education Project told the crowd of about 1,000. “Who we have representing us in Frankfort matters.

“We cannot forget that people like (Sen.) Alice Forgy Kerr, who represents so many horse farms and Keeneland, voted no. My own state senator, Ernie Harris, who represents Jefferson County — home of Churchill Downs — and Oldham County with so many horse farms, also voted no.”

In case you’re unfamiliar with Neely’s political leanings, his resume includes a stint as an aide to U.S. Sen. Mitch McConnell, the reigning godfather of Republican politics in Kentucky.

Later in the program, state Senate Minority Leader Ed Worley drew a roar from the crowd when he took a dig at Sen. Damon Thayer by asking, “Would the senator from Scott stand up if he’s here?”

If Thayer, Kerr and Harris had dared to attend the rally, the clear message they would have heard was that they now have targets on the backs of their political careers. In their next election cycle, they can expect the horse industry to come after them and other Republican opponents of letting Kentucky tracks compete on an equal footing with racinos in other states.

And it won’t necessarily involve a red industry backing blue political horses. While it could come to that later, I expect the industry’s first option would be to use well-financed primary challengers as a means of making the Senate more horse-friendly.

Wednesday’s rally also showed that, although the industry feels betrayed by its favored political party, it does not feel beaten. The crowd may have been mad, but it wasn’t in mourning. Nor should it have been.

As a political issue, expanded gambling may not be ripe in the General Assembly. But it’s a lot riper than it just was two weeks ago. Progress was made when it passed the House for the first time.

But getting it through the Senate will require meeting the challenge Gov. Steve Beshear laid down at the rally: “We’ve either got to change some of the senators’ minds, or we’ve got to change some of the senators.”

On Wednesday at least, the horse industry seemed committed to doing just that.