Juris Disaster
Is our legal system broken?

Key to the genius of American government is the structure of three equal and balanced segments: legislative, executive and judicial. If one of these becomes ineffective or broken the whole structure is jeopardized. The judicial branch has all the earmarks of being shaky, if not broken.

The sixth amendment to our constitution stipulates “the right to speedy and public trial.” Following the Kentucky attorney general’s investigation of Paul Patton’s 1995 gubernatorial election, a special grand jury indicted two Patton aides and two Teamsters officials for illegal campaign finance activities. Seven years have passed. Gov. Patton has been re-elected and is midway through his second term. Yet, as of this writing, the election finance fraud case is still unresolved. It awaits the Kentucky Supreme Court’s decision on whether the indictments will stand.

Who can deny that “justice delayed is justice denied” – denied to the defendants, the plaintiffs and the people of Kentucky? After seven years, there are no consequences for any party involved.

While justice system problems are numerous, some are beacons screaming for solutions: The flood of frivolous lawsuits, judicial activism, judge or jurisdiction shopping, the doctrine of joint and several liability where the party with the “deep pockets” is sued and held responsible for 100 percent of the damage (even when that party is only one percent negligent), punitive damages with astronomical awards and dockets so lengthy that plaintiffs, defendants or witnesses die before the case is considered.

Citizens with genuine injuries and claims deserve redress through the courts, but damage done by frivolous suits is incalculable. Particular courts and judges are notorious for extravagant awards and this encourages filers of frivolous suits to “shop” for certain jurisdictions. Litigation adds 2.5 percent to the cost of each new product purchased in America. The figure is much higher for advanced technology and medical goods and services.

Activist judges have micro-managed prison overcrowding at the cost of hundreds of millions of tax dollars. In 1995 alone, 65,000 prisoners filed lawsuits in federal courts, more than the total number of criminal prosecutions in all federal jurisdictions for the same year. In 1996, federal legislation addressed this flood of prisoners’ lawsuits. It requires stricter standards for lawsuits brought by inmates, caps on attorney fees in such cases, proof of actual violations before judicial decrees regarding prison conditions can be issued, and serious consideration of public safety when decreeing changes in the operation of the criminal justice system. In federal court cases, only three-judge panels can order early release for prisoners, then only as a last resort.

Judicial activism creates major problems in the system, particularly in the federal courts. In Arkansas, 60 percent of the voters approved term limits for their U.S. senators and representatives. In California, 54 percent of voters approved an initiative outlawing discrimination and preference on the basis of race or gender for public employment. These issues were removed from the democratic process and public debate when the courts struck down both initiatives on constitutional grounds, without specifics. Such activism destroys the idea of state and local government and destroys Americans’ confidence that their votes count. It also destroys constitutional limits on judicial power.

Dockets are crowded. Courts are understaffed and judges are overbooked, especially in federal courts. More than 100 judicial vacancies exist. This crisis is acute in the Sixth Circuit Court of Appeals, which includes Kentucky. The Sixth Circuit has eight sitting judges, plus eight vacancies. It averages 15.3 months to resolve cases there, compared with the national rate of 10.9 months.

Still, the U.S. Senate plays politics and refuses to even schedule timely hearings on judicial nominees for these vacancies. Meanwhile, doctors in critical areas retire rather than face frivolous lawsuits where it’s cheaper to settle than to contest. Corporations become defunct. The court system continues to bog down. Justice delayed is justice denied.

Is our judicial system broken?

Pat Freibert is a former Kentucky state representative from Lexington
editorial@lanereport.com

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