The Richmond Register

March 26, 2013

‘Tort reform’ is not conservative

By Maresa Taylor Fawns
Executive Director, Kentucky Justice Association

— After reading the recent article by Mr. Jim Waters of the Bluegrass Institute, “Blessed be the caretakers,” I couldn’t help but feel a mix of emotion ranging from outrage to sheer astonishment. In just a few paragraphs, Mr. Waters ever so eloquently blamed Kentucky attorneys for the dismal state of the commonwealth’s nursing homes, as opposed to the lack of staffing, best practices, etc.

The measure he is referring to is Senate Bill 9, a piece of legislation brought by the state’s nursing home industry with the goal of hampering our senior citizens and others who have been harmed in these facilities in their quest to exercise their constitutional right to a trial by jury.

This legislation is part of a broader effort by some lobbyists to enact measures they refer to as “tort reform.” This movement is nothing new but at its core, its goal is to keep those who have been harmed out of the courtroom, and I couldn’t help but think about a recent conversation I had with a strong conservative.

On a recent business trip, I had the opportunity to speak with an attorney from a nearby state who has taken on a crusade to educate his fellow conservatives about so-called “tort reform.”

As you may know, this issue is one that has been trumpeted by conservatives for years; however, this particular conservative believes strongly that his colleagues have taken the wrong approach to this issue.

His first point was that conservatives believe in less government. However, he argues that “tort reform” contains arbitrary, government-mandated limits on individual rights and limits on the efficacy of our judicial system. He believes that this represents a government intrusion, which increases their scope and authority. So how can conservatives support an issue that so blatantly grows the size of government?

Interestingly, I have had similar conversations with some of my conservative friends about SB 9, which would lead to an unnecessary increase in the size of government, and once you discuss that with conservatives, many are quick to rethink their positions.

Waters goes on to state that conservatives believe in local control. Yet, “tort reform” takes power and control away from local citizens. There is no smaller, more committed or more effective form of government than a jury of 12 unbiased citizens who listen to the specific facts of a case and decide among themselves what is right. “Tort reform” places that power in the hands of legislators and bureaucrats, which flies in the face of personal responsibility. Conservative? Not at all.

And speaking of responsibility, that is something about which conservatives have strong convictions. They believe in holding others accountable for their actions. Yet “tort reform” puts arbitrary limits on how much a wrongdoer can be held personally accountable. How does that promote personal responsibility? It doesn’t, and it’s not conservative.

Along those same lines, Waters says that conservatives believe people should solve their own problems rather than have “big government” get involved to “bail out” one side or the other. Our justice system allows people the freedom to resolve their disputes fairly and evenhandedly. Undermining the court system through “tort reform” causes the public to demand greater governmental regulation of our conduct.

Waters says conservatives believe those who are responsible for something should pay for it. We teach our children, “If you break it, you fix it.”

Yet, “tort reform” tells wrongdoers they will only have to fix part of the harm they caused, leaving taxpayers to pick up the tab for the rest of the harm.

Everyone remembers the old story of the kid who throws the baseball through his neighbor’s window, right? The parents use it as lesson to teach the young man about owning up to one’s mistakes and taking responsibility for one’s actions.

Well, in the case of “tort reform,” the same story would be changed with the parents telling the child that even though he threw the ball through the window, he’d only have to take responsibility for a small part of it, if at all.

Finally, and this is a message I have used on a regular basis, Waters says that “tort reform” runs counter to one of the major principles of the conservative movement: protection of the Constitution. Limiting an American’s right to hold wrongdoers accountable for their actions through the civil justice system is an affront to the Seventh Amendment of the U.S. Constitution. That’s where our right to a civil trial by jury was embedded by the Founding Fathers.

If we’re going to fight for other amendments, shouldn’t the Seventh be protected, too?

I hope my conservative friends will take this message to their colleagues and spread the word that “tort reform” is in fact, not a conservative principle. I hope Mr. Waters will realize that protecting the constitution is not something of which we should be ashamed and protecting life is something of which to be proud.