Senate Resolution Seeks To Shrink Lawsuits And Independence Of State Judiciary In One Popular Vote
This legislative session, 15 Republican state senators and more than 50 representatives signed onto Senate Joint Resolution 8 — a referendum for voters in 2018 that would cap lawyer fees and plaintiff awards in civil lawsuits. It would also circumscribe the powers of the state Supreme Court.
If SJR8 by state Senator Missy Irvin (R-Mountain View) sounds familiar it’s because it was nearly on the ballot last year as Issue 4. The state Supreme Court struck it down just before the election.
Now, a new initiative seeks to revive the old one but with an added kick — the amendment would give lawmakers (the General Assembly) oversight of the judiciary’s (Supreme Court) rules on pleading, practice and procedure.
Amendment 80 in 2001 says judicial power is vested in the judicial branch, and the state Supreme Court, along with being the state’s high court, is superintendent over all other state courts.
"We’re not making any kind of comment on any other provisions," Supreme Court Chief Justice Dan Kemp said outside a hearing Tuesday of the Senate Committee on State Agencies and Governmental Affairs, and speaking of attorney fees and plaintiff award caps, "but when you get to the rule-making provisions of the court, that’s where we’re addressing our concerns.
Kemp, along with Arkansas Bar Association President Denise Hoggard and lawyer Scott Trotter, and others, argued against the resolution. Arkansas Chamber of Commerce President Randy Zook and a private citizen spoke in favor of the prospective ballot proposal.
"This is a regulation of fee agreements that are used primarily by those folks who can’t [otherwise] afford to hire lawyers," Hoggard said, and "while it regulates contingency fees [to plaintiffs’ attorneys], it does nothing to regulate the other side — the hourly pay attorneys for industry, business or manufacturers.
Inside the hearing a couple of the public speakers’ comments gained the air of a trial cross-examination. Lawyer Scott Trotter, who has successfully argued against ballot issues before the state Supreme Court, got into a heated exchange with state Sen. Bart Hester. (R-Cave Springs) Hester closed his remarks by saying characterizing the measure as "We the People versus the trial lawyers."
Outside the hearing, Trotter responded.
"Sen. Hester thinks this is all about the people versus the trial lawyers. The real movement behind this SJR8 is by corporate Arkansas out of their own self-interest … and they’re going to try to trick Arkansans into voting for it.
Meanwhile, Hester’s Republican desk mate, Sen. Bryan King (R-Green Forest), excoriated Zook for misrepresenting a U.S. Chamber of Commerce ranking of Arkansas’s legal climate for businesses.
Zook came to the hearing to support the resolution armed with a letter signed by more than 50 corporate executives and board chairmen, and the U.S. Chamber of Commerce’s Institute for Legal Policy 2015 report on business's tort liability. It ranks Arkansas one of the ten worst tort liability states in America, and Zook said that was worse than any state bordering it.
King brought the 2015 report up on his smart phone and pointed out that, while it’s true Arkansas is 41st, Texas is also in the top 10 at 40, and Missouri, Mississippi and Louisiana are ranked higher (worse) than Arkansas.
"He just misleads people. He personally did not do a good job representing them. I mean, he was talking about how worse we are than surrounding states. … The guy didn’t even know their own rankings."
"I want the jury system to be as pure a system as possible, and that means keeping politicians out of decision making for a jury of somebody’s peers. And understand, when you see these verdicts that may seem out of line when you don’t hear the facts of the case, there’s a counterbalance, where … [defendants] can appeal it and those verdicts can be reheard and reduced, which has happened in Arkansas.
"I just want the little guy to have a chance in court against the big guy."
Walking out of the hearing room, fellow Sen. Gary Stubblefield (R-Branch) said he genuinely doesn’t know how he’ll vote eventually on the resolution. On the one hand, he himself authored a tort reform bill as a state representative in 2011. He’s talked with former Texas Gov. Rick Perry about that state’s tort reform efforts. He’s serious about the issue.
"And yet, if my grandmother or my mother gets raped in a nursing home, and I know that’s far fetched ... but how do you pay someone for that? $250,000? I don’t think so. I don’t think so."
"I just want to make sure its fair."
The Senate committee voted later Tuesday afternoon 5-3 to send the resolution to the full Senate.
It would have to pass both chambers of the legislature, but not have to be signed by the governor, to go before voters in 2018.