Proposed amendment to Arkansas Constitution sparks debate

By Thomas Saccente, Times Record Uncategorized Source

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  • April 27, 2018

A proposed amendment to the Arkansas Constitution has elicited strong opinions from both proponents and detractors.

Annabelle Imber Tuck, a retired Arkansas Supreme Court justice who is chairman of the Defending Your Day in Court, or D-Day, Legislative Question Committee, spoke to the Sebastian County Bar Association in Fort Smith on Monday about Issue 1.

Tuck said Issue 1, which will be on the ballot in the Nov. 6 general election, has several parts. The first part is limiting the percentage that attorneys can charge clients in contingency fee contracts. Tuck also discussed a provision that limits awards of non-economic damages in lawsuits for personal injury, property damage or wrongful death to $500,000 for each claimant, or $500,000 for all beneficiaries of an deceased person in a lawsuit for wrongful death.

The last part of the proposed amendment, Tuck said, is shifting the authority of court rule-making from the Arkansas Supreme Court exclusively to the Legislature. An official statement from the D-Day Legislative Question Committee provided by Tuck states the shift would allow special interests and politics to directly interfere with due process, access to justice and the fair and impartial administration of justice.

Issue 1 includes the following:

“Providing that the Supreme Court’s power to prescribe rules of pleading, practice, and procedure for courts is subject to the provisions of this amendment; providing that the General Assembly, by a three-fifths vote of each house, may amend or repeal a rule prescribed by the Supreme Court and may adopt other rules of pleading, practice, or procedure on its own initiative.”

Tuck said this provision would amend the judicial article now in place, Amendment 80, which provides that the Supreme Court has exclusive authority to make court rules.

“It’s all about the due process, how cases are litigated, and under the current constitution, which was enacted in 2000, a whole new judicial article, it gave exclusive court rule-making authority to the Supreme Court,” Tuck said.

Tuck said the way it works is there are committees appointed by the Supreme Court that represent all sides of matters.

“All of those committees take suggestions by the bench and the bar for improvements in rules, and we have what’s called a red book, all of us in the profession,” Tuck said. “It’s kind of like your bible on how do you file a lawsuit, how do you get information from the other side, what evidence can I put in, what kind of evidence can I put in. So that is all done deliberatively, and then a report by each committee is made to the Supreme Court, and then the Supreme Court publishes that proposal for comment by lawyers, judges, whomever. It’s published on the web, from the judiciary website.”

Tuck said the whole point of the exercise is to make sure everybody knows what is going to happen and get comments for possible changes if some issue was not considered.

However, Tuck said that is not the way legislation is drafted. Legislation can be drafted in a way that allows for no comment period after the proposal.

“It’s just a bill that goes in, as you know, to hundreds of bills, many of which legislators don’t have time to read,” Tuck said. “They just take their colleagues’ assurance, ‘Oh, you want to vote for this.’ Well, the problem there is that’s not deliberative, and what that will mean is politics will be brought into that process, and so the scales of justice will be tilted in favor of those who have the political wherewithal, money and resources to lobby legislators, and it won’t be the consumer, I guarantee you.”

Tuck said those who benefit will be those who have lobbyists at the Legislature and can pay for them, so it will be big business.

In explaining the D-Day Legislative Question Committee, Tuck said when the proposal was before the Legislature slightly more than a year ago, the Arkansas Bar Association opposed it and explained why.

“Now that it’s going to be on the ballot, we created a separate committee, which you need to do, legislative question committee, that is separate from the Arkansas Bar Association, which only does education, but we are actually telling the voter to vote no,” Tuck said. “So I’m going around to bar associations, to any group, AARP. I’m going around and speaking to educate and inform voters.”

A different view

Issue I also has its advocates. Carl Vogelpohl is the campaign manager for Arkansans for Jobs and Justice, another legislative question committee that was formed in October to support the passage of Issue 1. Vogelpohl said via email that Issue 1 will benefit Arkansas by helping the state compete with surrounding tort reform states to grow jobs and recruit doctors Arkansans need to care for their families.

In addition to limiting awards of non-economic damages, Issue 1 states it would limit punitive damages awards for each claimant in lawsuits for personal injury, property damage, or wrongful death to the greater of $500,000, or three times the amount of compensatory damages awarded. Vogelpohl added these caps could be raised by the Legislature in the future and there would be no punitive damage caps in cases of intentional misconduct.

Issue 1 would also protect Arkansas victims from being lured into huge contingency fee contracts that can pay the lawyer more than the victim, Vogelpohl said.

“Arkansas ranks 48th in the nation in infant mortality and 44th in the nation for maternity mortality,” Vogelpohl said. “Expecting mothers in Arkansas often face long drives past local rural hospitals to deliver their babies. Arkansas is ranked 50th in terms of environment for emergency care and the American College of Emergency Physicians has said, ‘to help combat its workforce shortages and improve overall access to emergency care, Arkansas should enact medical liability reforms.’”

Issue 1 provides a contingency fee for an attorney in a civil lawsuit will not exceed 33.33 percent of the net recovery, with contingency fee being defined as an attorney’s fee that is paid only if the claimant recovers money. The General Assembly may amend this percentage by a two-thirds vote of each house.

Vogelpohl said for economic development, studies have shown lawsuit reform is critical to encourage job creation.

“The president of the Federal Reserve Bank of Dallas cited tort reform as the No. 1 reason that Texas grew 38 percent of all jobs in America during the recession and the governor of Texas was recently awarded for economic development in which he stated that litigation reform was a key component attracting companies to Texas,” Vogelpohl said.

When asked about the shift in court rule-making authority Tuck and the D-Day Legislative Question Committee brought up as a criticism of Issue 1, Vogelpohl said Issue 1 provides a way for the General Assembly with a super majority to appropriately pass laws that will help make Arkansas a better place to grow jobs and live, in addition to changes to stop frivolous lawsuits.

“In a recent outrageous example: an activist judge in Little Rock just ruled that the Legislature couldn’t pass a new law called the Courthouse Dogs Child Witness Support Act that allows child victim of rape to testify in court with a specially trained dog to comfort them,” Vogelpohl said. “Passing Issue 1 would have allowed this law to stand and children victims of awful and monstrous crimes could have had this type of support in a courtroom. This authority is nothing new, and the federal system court system and in 16 other states the Legislature has the authority to approve and/or adopt court rules.”

Arkansans for Jobs and Justice has been developing support through meetings and outreach to educate stakeholders about the importance of lawsuit reform to Arkansas, Vogelpohl said.