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At long last, the widow of a New Haven Superior Court judge has won a round in her epic legal battle to prove her late husband was literally worked to death by the state of Connecticut. Representing the estate of Frank J. Kinney Jr., Joan Kinney has spent 15 years pursuing a claim against the state. Ruling in the case May 29, New Haven Superior Court Judge Richard E. Arnold determined that a legislative bill allowing Kinney’s particular negligence claim against the state is not unconstitutional as a “special emolument” lacking in any broader public purpose. Arnold found a broader purpose did exist, after invoking the state Supreme Court’s recent controversial State v. Courchesne decision on statutory interpretation. Arnold built upon statements by lawmakers in 1994 to extrapolate a public purpose the legislators had never voiced in so many words. He concluded the legislature, in allowing Kinney’s negligence suit, “is sending a message to the public, employees and employers that those who go above and beyond the line of duty, and indeed work so hard as to endanger their health, are persons that the state must recognize in order to foster worker productivity and worker morale, and that workers everywhere, who give more than their jobs require, will not receive short shrift from the state.” In addition, Arnold found a public purpose in lawmakers’ interest in resolving the unexamined public policy question of whether an employer can be held negligent for overworking an employee. When he died of a heart attack on Sept. 27, 1986, Frank J. Kinney was presiding criminal and administrative judge for New Haven, the chief administrative judge for the state court system’s criminal division and chairman of the Commission to Study Alternative Sentences. (His son, Frank J. Kinney III, was New Haven County’s high sheriff before the sheriff system was abolished.) Testifying in a 1988 workers’ compensation case initiated by Kinney’s family after his death, former Chief Court Administrator Aaron Ment described Kinney as “indispensable.” Kinney, Ment noted, “didn’t think it was possible to replace him with another individual, that it would take several judges to fill the various roles that he had undertaken for us.” In an attempt to gain restitution for a life shortened by overwork, his estate first won a claim with the Workers’ Compensation Board. Three previous judges had won and been paid for comp claims, but Kinney’s win was appealed to a final 1990 state Supreme Court conclusion. In Kinney v. State, the high court ruled that judges are not “employees” and cannot bring claims under the workers’ comp system. Time limits had expired for the estate’s efforts to sue through the state claims commissioner, but it lobbied for and won passage of Special Act 94-13, which allowed it to sue anyhow. The General Assembly cited compelling equitable circumstances and found a “public purpose for not penalizing a person who exhausts his or her administrative and judicial remedies” before filing against the claims commissioner. In the 16 years since Kinney’s death, the estate has pursued this claim in state and federal court, including appeals to the 2nd U.S. Circuit Court of Appeals and a petition for certiorari to the U.S. Supreme Court. After the 1994 special act, the estate sought relief from the claims commissioner, who denied permission to sue on Dec. 6, 2000. The Kinney estate subsequently returned to the legislature, which passed a resolution rejecting the claims commissioner’s decision, declaring “Joan A. Kinney is authorized to institute and prosecute to final judgment an action against the state to recover damages for the death of Frank J. Kinney Jr.” Opposing the state’s motion to dismiss the matter as an unconstitutional individual perk or emolument, the Kinney estate contended the judge worked from 7:30 a.m. to 11 p.m., breaking only for dinner with his family. Assistant Attorney General Michael R. Bullers in his Nov. 29, 2001 motion to dismiss the estate’s resulting action on constitutional grounds, noted Kinney was a hard-working judge, but that he’d received his salary and his widow received her death benefit. The legislative reversal of the claims commissioner was unconstitutional, violating Article First, Section One of the state constitution, Bullers argued, contending the court therefore lacked jurisdiction and that the state’s sovereign immunity had not been waived. TOO MUCH OF A STRETCH? Judge Arnold looked behind the legislature’s 1994 and 2000 actions. He cited the 3-month-old doctrine of State v. Courchesne, which abandoned the “plain meaning rule” of statutory construction, so far as it requires a court to find ambiguity in a legislative enactment before considering its underlying history. Arnold quoted Rep. Michael P. Lawlor, D- East Haven, remarking on March 17, 1994, “If there ever was a public servant who met his death because of the amount of time he spent on the job, it was Judge Kinney.” Lawlor added, “There couldn’t have been a more compelling case of work-related death in my opinion and I would certainly support this initiative to test out the theory of negligence on the part of the state.” A month later, Rep. Robert M. Ward, R-North Branford, commented: “Many of us at least wouldn’t have anticipated that you could not, as a judge, make a workers’ compensation claim.” And Sen. George C. Jepsen, D-Stamford, argued that “one of the proper functions of our state is to show reasonableness and humanity.” Judge Arnold’s interpretation of the legislature’s “message” and public purpose sounds more like the brief of the estate’s lawyer, Roger J. Frechette, of New Haven’s Frechette & Frechette. His Nov. 20, 2002, objection to dismissal said the legislature is sending “a message” that public servants, who “work so hard that their life is shortened, are persons that the State must recognize in order to increase the productivity of every worker.” Wesley W. Horton, a Hartford appellate lawyer who testified in April against a legislative bill to abolish the Courchesne doctrine, said Arnold’s finding of a legislative purpose was excessive. “It’s what the dissenters [in Courchesne] were worried might happen, and I think even the majority in Courchesne would consider this an abuse of what the decision was saying,” Horton said.

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