There’s an expression sometimes used in politics: Go big or go home. With Issue 1, the tort reform amendment, the Arkansas Legislature went very big. And at the moment, that amendment is in serious danger of being sent home either by the courts or by the voters.
The wide-ranging measure would make major changes to the state’s legal system. It would limit “non-economic” (pain and suffering) lawsuit awards to $500,000. It would limit punitive damage awards meant to punish and deter wrongdoing to $500,000 or three times compensatory damage awards, whichever is greater. There wouldn’t be a limit if the defendant intentionally caused the harm. The amendment also would limit attorneys’ contingency fees to one-third the net amount awarded their clients. And it would enable the Legislature to override rules made for the state’s courts by the Arkansas Supreme Court.
Legislators referred the measure to the ballot during the 2017 session. Powerful groups support it, including the Arkansas State Chamber of Commerce, the Arkansas Hospital Association and the Arkansas Health Care Association, which represents nursing homes. Naturally, the trial lawyers oppose it.
Huge amounts of money are at stake for both sides. Therefore, huge amounts will be spent on this issue both for and against.
Predictably, the measure led to a lawsuit — this one led by attorney David Couch, who also this year successfully placed on the ballot a measure letting voters decide on raising the minimum wage.
So far, that lawsuit is succeeding. Circuit Judge Mackie Pierce last week ordered Issue 1 off the ballot. Among other reasons, he said its various provisions aren’t “reasonably germane” to each other as required by the Arkansas Constitution.
Now the question will be decided by the Arkansas Supreme Court — whose own rules could be overridden by the Legislature if this passes. Chief Justice Dan Kemp has said he personally opposes Issue 1, though that doesn’t mean he would rule against it being on the ballot. He might recuse from the case because his daughter works for the law firm representing its supporters.
Even if the Supreme Court reverses Pierce’s ruling, Issue 1 would lose badly at the ballot if the election were held tomorrow. In a poll of 1,701 likely voters by Talk Business & Politics and Hendrix College conducted last week, 47 percent said they oppose it while only 25 percent support it. Another 28 percent said they didn’t know.
That means supporters have to change some minds and convince most of the undecideds to back their cause.
If Issue 1 makes the ballot, supporters will argue it’s needed to curb jackpot jury verdicts and bring predictability to the state’s legal climate. They say without reforms, Arkansas will be less competitive economically with other states. Medical providers will continue to face the threat of lawsuits by ambulance-chasing lawyers, reducing their accessibility to patients.
Opponents say it would infringe on the ability of Arkansans to seek legal redress. They say its mandatory, lobbyist-influenced limits would diminish citizen juries’ power to consider each individual case and to punish wrongdoers. Limiting attorneys’ fees would reduce victims’ ability to obtain representation. By capping non-economic and punitive damages but not economic ones, it would prescribe different levels of justice based on a person’s income. They say letting the Legislature make rules for the courts gives it too much power over that branch of government. The timing is particularly good for that argument, as five former legislators recently have been convicted of corruption charges and a sixth has been indicted — so far.
Issue 1 has run into opposition from some unexpected places. The Family Council, a conservative Christian organization associated with social issues like abortion, says it places a price on life. It received $150,0000 in support from the Rainwater, Holt & Sexton law firm to make its case. Arkansas Right to Life, the state’s anti-abortion group, likewise opposes it.
The election is two months away. Perhaps Issue 1’s supporters can persuade the Supreme Court to reverse Judge Mackie’s decision. Then they could mount a comeback in the polls similar to the one Colorado State laid on the Razorbacks in the second half Saturday.
But in politics as in football, you’d rather be ahead than behind — and Issue 1 is behind, in both the courts and in the court of public opinion.
Steve Brawner is a syndicated columnist in Arkansas. Email him at email@example.com. Follow him on Twitter at @stevebrawner.