The 91st General Assembly of 2017, in a decision that brought Supreme Court Chief Justice Dan Kemp over to the old Supreme Court chambers in the Capitol — now the scene of Senate committee meetings — decided to put to voters this November a big cap on lawsuit awards as well as a legislative power grab.
Issue 1 asks Arkansans to accept a constititutional amendment that would cap punitive and non-economic damage awards in actions for wrongful death or injury at $500,000 or three-times the compensatory damage award. It would also cap contingency fees attorneys in civil actions can claim at one-third the net recovery. Finally, it would authorize the General Assembly by three-fifths vote of each chamber to adopt rules of pleading, practice and procedure for the courts up to and including the Supreme Court of Arkansas.
Former Supreme Court Justice Annabelle Imber Tuck says both the jury award caps and the rulemaking authority grab by the legislature is tantamount to special-interest groups seeking influence over the courts.
"The giving of the rulemaking authority to the legislature is basically saying, 'We the legislature do not agree with the Supreme Court in how it interprests its rules or what is a rule, and so we are going to be the ones who will decide," she says.
The Assembly is supposed to represent the will of their Arkansas constituents, it's true, "but the judiciary department is not beholden to contributors. It doesn’t represent a constitutency. It represents the [state] constitution and the laws and so, where I’m coming from is, I'm for the little guy to have a courthouse that is open and available, and also has a jury that can do what juries are supposed to do — with the right of appeal by the way."
Republican operative Carl Vogelpohl is heading up a coalition of medical and industry interests in favor of Issue 1. "It's the Arkansas State Chamber [of Commerce], it's the poultry federation, it's the trucking association, it's the Arkansas Health Care Association, it's the Farm Bureau, it's the hospital association, it's the Arkansas Medical Society."
He says the amendment would not end jury awards or even multi-million awards, and it would not cap punitive damage awards in cases of intentional misconduct.
The language does target medical malpractice suits.
Growing jobs and recruiting doctors, it’s not a single issue, but [this issue] is part of the formula. When we look around at job postings for cardiologists for example, for surrounding states, you’ll see headlines that blare, 'Cardiologists wanted for tort reform state.'"
As for courtroom rules, Vogelpohl disputed that the judiciary is the proper venue to decide rules of "pleadings, practice and procedure" for Arkansas's courts.
"I don’t think that many believe rightfully [pleadings, practice and procedure] should be left up to the judiciary. I think Arkansas voters have the opportunity to make decisions for the state."
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