Despite range of Kansas tort ruling Friday, KU law professor sees potential path back to constitutionality, if statute is written differently

The Kansas Supreme Court has ruled a law limiting non-economic damages violates the state’s constitution.

“Non-economic damages are pain and suffering damages, as well as what are called punitive damages. A punitive damage is in a civil lawsuit, when the defendant has been found liable and was found to be egregiously negligent and sometimes even purposeful, that the jury can award the plaintiff additional money beyond the damages, a multiplier,” said Lumen “Lou” Mulligan, director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University
of Kansas. “Traditionally, that multiplier is three.”

This ruling is based on wording in Section 5 of the Bill of Rights in the Kansas Constitution.

“The Kansas Constitution is Section 5 of the Bill of Rights states that your right to jury, as it existed at common law, remains inviolate,” said Mulligan. “The Court’s reasoning was, because of that language in the Kansas Constitution, and because, at common law, juries had this power to award non-economic damages and punitive damages, that the Kansas Legislature cannot put caps on that.”

Justice Caleb Stegall, in his concurring opinion, appears to give the Legislature a bit of a roadmap to where a law might be written to get him to come down differently in a future case, however. He explains that the Legislature wrote the law to allow for juries to award damages that were then capped by statute, but wouldn’t allow the juries to know about the cap when deciding how much to award.

Quoting from the opinion, Justice Stegall wrote, “The legislative refusal to let the jury know about the damage cap tips the balance of consideration in my mind from a substantive modification of the cause of action to a procedural interference with the inviolate right to a jury protected by section 5.”

“I suspect that if I was lawyer for the Kansas Chamber of Commerce, I would be working on a bill to present next session that might try to conform to Justice Stegall’s point of view that would still give me my caps, but not run afoul of the parameters that he thought were important,” Mulligan said.

Given that the decision was supported by a one-vote majority, this might be the quickest way to get back to where a conservative legislature would want to be, without trying to rewrite the Constitution at all, provided they can get a more centrist governor to sign such a statute or allow it to become law without her signature.

Justice Stegall is seeming to invite a stronger discussion of exactly where the walls lie in the separation of powers between the Legislature, the Court and the Executive branch at some future point, given an appropriate set of facts. The overturned statute, as it was written, does not satisfy that, as of his writing Friday.