Courier-Journal sizes up Ky. Sup. Ct. races. Discusses direction the Court may take. Pre-Impact fright tort may be affected by the election.

   Andrew Wolfson, a feature writer for the Courier-Journal, has published a detailed and illuminating discussion of the candidates for the four open Supreme Court seats and the direction the court might take depending on the Nov. election.  It is interesting to note that Wolfson starts his article with reference to a case pending before the Supreme Court in which I, while sitting as Gallatin Circuit Judge, held that the plaintiff was entitled to an instruction for  pre-impact fear.  Justice Minton, in his dissent when reviewing this decision at the Court of Appeals level, objected that that I had created a new Tort.
The decedent was crushed to death by a coil of steel that had fell off a tractor trailer.  An emergency medical technician who happened to live in a house at the accident scene came to the aid of the decedent and testified that she found the decedent dead but with a scream on her face.  The jury awarded $100,000 damages for this pre-impact fright. Since the death was instantaneous the plaintiffs request for a pain and suffering instruction was denied.  The jury awarded $2.6 million for wrongful death, loss of consortium, and another million dollars was added for punitive damages making the total award $3.7 million.  –LawReader Senior Editor Stan Billingsley-
Supreme Court’s future up to voters  -  Four seats could shift state rulings
By Andrew Wolfson  Reprinted from The Courier-Journal
After Melissa Congleton was killed in October 2002 by a 37,000-pound steel coil that flew off a truck into her vehicle, a jury awarded her estate damages that included $100,000 for “pre-impact fear” — the terror she experienced in the moments before her death.
It was the first time such a verdict had been allowed in Kentucky, and it’s been appealed to the state Supreme Court, which will decide if it’s justified or frivolous.
The decision, which could affect wrongful death suits for years to come, is one of the many legal issues whose fate may turn on the Nov. 7 election. Voters could elect as many as four new faces to the seven-member Kentucky Supreme Court.
A new pro-business group, the Partnership for Commonsense Justice, says the contested elections – — in Louisville, Lexington, and Western and Northern Kentucky — promise the biggest changes in the court’s 30-year-history.
And lawyers of various stripes agree the races come at a crossroads for a court increasingly torn by politics and dissension.
“These seven people will shape the future of Kentucky law, and this is really important to Kentucky citizens,” said Louisville attorney Edward Stopher. “As a practical matter, they have the last word on obligations, duties and damages in our state … so we need to cast our votes carefully.”
The new court will decide such questions as whether:
A criminal lawyer denies his client effective counsel by walking out of the courtroom during his testimony because the attorney knows the defendant is lying.
A foundation that runs a university’s dormitories is liable when a student is raped, sodomized and set on fire in one of them.
A Kentucky doctor was guilty of negligence when he slipped in a hospital operating room and grabbed a patient to keep from hurting himself — injuring the patient.
Many law professors and other legal experts predict the court will move slightly to the left on criminal and civil law because of the justices who are leaving it, regardless who replaces them.
Professor William Fortune of the University of Kentucky noted, for example, that two of the justices most likely to affirm criminal convictions, Donald Wintersheimer of Covington and Bill Graves of Paducah, are among those retiring.
Defense attorneys have joked that Wintersheimer votes to reverse one conviction a year — just so nobody can accuse him of reversing none. “You aren’t going to get more pro-prosecution than Don,” said former Justice James Keller of Lexington.
Court observers also say they expect the court to empathize more with plaintiffs in personal injury, medical malpractice and product liability cases because its staunchest voice for business, William Cooper, has retired.
He has been succeeded by former Court of Appeals Judge John D. Minton Jr. of Bowling Green, who was appointed to the court and faces no opposition as he seeks a full term. Practicing lawyers and professors describe Minton as a moderate and a scholar likely to be a leader on the court.
Predicting a court’s future complexion is like playing a roulette wheel, Stopher says. And justices can be hard to pigeon-hole.
As Court of Appeals Judge Tom Wine quipped at a recent forum, “A strict constructionist is a judge who rules for you; while an activist judge is one who rules against you.’”
But lawyers and professors say the court could tilt to the right if voters retain Justice John Roach, who was appointed to the District 5 seat last year, and elect Republican activist Marcus Carey of Erlanger in District 6, who says on his Web site that “fundamental to my core philosophy is the unyielding belief that every right we have is given to us by God.”
They would join Republicans Joseph Lambert of Mount Vernon and Deputy Chief Justice Will T. Scott of Pikeville.
Supreme Court justices serve eight-year terms and are paid $132,012 a year. Here is a closer look at the contested races:
DISTRICT 1Court of Appeals Judge Rick Johnson vs. Circuit Judge Bill Cunningham
Cunningham and Johnson are running to succeed Graves, who has endorsed Johnson, citing in part his “family values.”
Johnson actually has rung up a moderate record in 14 years on the Court of Appeals, trial lawyers say. But at the Fancy Farm picnic in August, he noted that he opposes abortion except in case of “serious endangerment to the life of the mother” and supports display of the Ten Commandments, “the right to pray freely at school,” the right to bear arms, the death penalty and marriage limited to one man and one woman.
The Kentucky Judicial Campaign Conduct Committee, a private watchdog group, rebuked him for violating a pledge not to make any statements committing him to rule a certain way on an issue likely to come before the court.
In private practice, Johnson worked in the Paducah office of a liberal Louisville labor firm headed by Herb Segal, and has been endorsed by from several labor union political action committees, including the United Mine Workers. He’s also gotten contributions from trial attorneys who represent both plaintiffs and insurance companies.
Criticizing his opponent for being soft on criminals, Johnson cited Cunningham’s 1993 opinion ordering the release of eight convicted rapists serving sentences of life without parole because that sentence for rape was later abolished. Cunningham held it was unjust to keep them locked up on an “abandoned sanction.” His ruling later was reversed.
Cunningham points out that he’s been endorsed by the Kentucky Association of Commonwealth’s Attorneys and that, as commonwealth’s attorney for Caldwell, Livingston, Lyon and Trigg counties, he prosecuted more than 1,000 felonies and six death penalty cases.
Shannon Ragland, editor of Kentucky Trial Court Review, said either candidate is likely to be more sympathetic to plaintiffs than Graves. Criminal law experts also say both are more likely to reverse convictions based on errors by prosecutors or judges.
DISTRICT 4Jefferson Circuit Judge Ann O’Malley Shake vs. Justice William E. McAnulty Jr.
Court watchers say the outcome of this contest may have the least impact because the candidates are so similar — they even pray at the same church, Highland Presbyterian.
“We have both been careful to follow the law as we perceive it,” said Shake, who has spent 16 years on the circuit and district bench.
McAnulty, who was a district and circuit judge before his election to the Court of Appeals in 1998, said, “If you analyze my opinions you wouldn’t conclude I’m a plaintiffs’ guy or a defense guy.”
UK law professor Paul Salamanca said that both are slightly more plaintiff-oriented than Martin Johnstone, who retired from the seat, and criminal law experts say either would be slightly more likely to reverse convictions.
The main spice in the race has come from McAnulty’s decision to accept an interim appointment to the seat from Gov. Ernie Fletcher while the governor was under indictment for alleged merit-system law violations; the charges have been dismissed.
Shake said the appointment left him beholden to Fletcher, which McAnulty denied. Shake is hoping to become the only woman on the court, while McAnulty is seeking to retain his seat as its first African American.
DISTRICT 5Justice John Roach vs. Fayette Circuit Court Judge Mary C. Noble
Roach and Noble are running for the seat held by Keller, who was one of the more liberal recent members of the court. Keller has endorsed Noble, whom he considers his protege.
If voters keep Roach on the bench, the seat will have a more conservative flavor, said UK professor Bob Lawson, who taught both candidates when they were law students.
Roach declined to comment on the direction in which he might move the court, although he told the Commonsense Judiciary group that his favorite jurist is U.S. Supreme Court Justice Antonin Scalia, arguably its most conservative member.
Since his appointment in June 2005, Roach has been more likely than his colleagues to find prosecutorial errors “harmless,” according to law professors and criminal attorneys. However, he has written majority or concurring opinions reversing at least six convictions.
Roach has been endorsed by the state commonwealth’s attorneys association and state FOP lodge, but Noble said that can’t be because of his criminal law experience. She noted he practiced law only six years before becoming a “political operative” and in comparison touts her experience hearing an array of 14,000 cases.
DISTRICT 6Marcus Carey vs. Court of Appeals Judge Wilfrid Schroder
Carey, a former radio talk show host and local Republican Party chairman whom Fletcher appointed to the state Board of Tax Appeals in 2004, makes no secret of his beliefs.
On his Web site, he said he promotes “the sanctity of marriage” and “counsels youthful offenders to recognize their situation as a wake-up call from God.” In an interview, he cited his “deep and abiding respect for the life and the values of the individual family.”
He won a federal court ruling earlier this month allowing candidates to proclaim their party affiliation, and to solicit money directly.
Schroder, who has been a judge for 22 years, has run a more traditional campaign. “The difference between my opponent and me is that I have no political or personal agenda,” he said.
The two are vying to succeed Justice Donald Wintersheimer, who is retiring.
Carey has the endorsement of Right to Life, which lawyers say can be important in heavily Roman Catholic Northern Kentucky.
But he must overcome the stigma of a 1971 conviction for negligent homicide in a Kenton County auto accident that killed his 16-year-old passenger. Carey, who was 18 at the time, has said he was drinking the night of the crash, though he was not charged with driving under the influence.
Reporter Andrew Wolfson can be reached at (502) 582-7189.

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