In March 2023, Kentucky enacted KRS 29A.080, a new law that allows persons 70 and older to voluntarily opt out of jury service. Under the new law’s elective opt out scheme, a person 70 or older need only check a box on the juror questionnaire form to be immediately excused from jury service. While some may agree that allowing senior citizens to elect to escape the inconvenience of jury service is a good thing, public policy decisions still must satisfy constitutional requirements. Whether KRS 29A.080 complies with either constitution is unclear.
First, a serious argument can be made that KRS 29A.080 violates Kentucky’s jural rights doctrine. That doctrine, which arises from Sections 1454 and 241 of the Kentucky Constitution, provides that the General Assembly has no authority to abolish or restrict a common law right of recovery for personal injury or wrongful death. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 822–23 (Ky. App. 2008).
It is not illogical to wonder whether a law permitting a large section of Kentucky’s population to excuse themselves from jury service “restrict[s] a common law right of recovery for personal injury or wrongful death.” Take a recent medical negligence trial defended by our law firm, for example. In that case, 82% of jurors 70 and older voluntarily opted out of serving on the jury. Only 9% of the prospective jurors in the jury pool were persons 70 years or older despite persons 70 years or older comprising 17% of that county’s population. Was that limited jury pool constitutional?
There is also a question of whether KRS 29A.080 violates the United States Constitution’s fair cross section requirement. Under the fair cross section requirement, petit juries must be drawn from a source “fairly representative” of the community. Are persons 70 and older fairly and reasonably represented in Kentucky jury panels when they are systematically permitted to exclude themselves from the jury selection process?
As jury trials go forward in Kentucky, parties likely have a good faith basis to argue that Kentucky’s new statute limiting the service of persons over 70 years of age in jury duty violates Kentucky’s Constitution and/or the United States Constitution. When such an objection is raised, the trial judge will then be required to choose whether to utilize the court’s existing jury panel, thereby potentially creating reversible error, or starting over. This will require summonsing those persons 70 and older who previously opted out of jury service back into court for jury selection purposes.
We are also interested to see if the civil jury verdicts begin to change as fewer older Kentuckians serve on juries. Older jurors are generally viewed as more conservative in their opinions on assessing fault against defendants and in awarding significant monetary damages to injured parties. Will Kentucky’s new elective opt out scheme increase the likelihood of verdicts in favor of plaintiffs? Will the likelihood of larger damage awards being returned by juries increase? We will be looking for trends as future juries are empaneled with fewer older citizens.
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