By Steve Brawner
© 2017 by Steve Brawner Communications, Inc.
Arkansas legislators sometimes cast difficult votes on shades-of-gray issues where values conflict and where it comes down to which side they think is more right or less wrong. In November 2018, so will voters.
That’s because the biggest race on the ballot won’t involve candidates. Instead, it’s looking like the biggest issue will be a proposed constitutional amendment that would limit how much juries can award in a lawsuit. It’s going to be a heck of a fight. In fact, it already is.
Every two years, legislators are allowed under the Constitution to refer three amendments to the voters, but this time they plan to limit it to two, one each from the House and the Senate. Thirty-one amendments were proposed between both chambers, but it’s been clear for a while that the Senate would focus on a tort reform measure. Senate Joint Resolution 8, sponsored by Sen. Missy Irvin, R-Mountain View, has 14 co-sponsors in the 35-member Senate and 53 co-sponsors in the 100-member House. It is backed, strongly, by a coalition of powerful business groups under the umbrella of the Arkansas State Chamber of Commerce.
The amendment would do four things. First, it would cap punitive damages – those that really punish a bad actor – at three times the compensatory damage awarded each claimant, with an exception created for intentional conduct. Legislators could vote to increase the cap with a two-thirds vote. Second, it would cap non-economic damages (pain and suffering) at $250,000 per claimant, or $500,000 to the beneficiaries if the victim dies. Third, it would cap lawyers’ contingency fees at one-third the total judgment. Finally, it would give legislators the final say in various rules for the courts and the Arkansas Supreme Court, a provision included because supporters say the Court otherwise could just ignore the rest of the amendment.
On Tuesday, the all-Republican Senate State Agencies and Government Affairs Committee advanced only that measure to the full Senate, politely hearing but never seriously considering the other Senate proposals. But it only passed 5-3, even though you would think Republicans would be totally for it because it’s pro-business and anti-lawyer. One senator who didn’t raise his hand, Sen. Terry Rice, R-Waldron, said afterwards only that he “wasn’t ready to vote.”
On Thursday, the full Senate approved it, but again, not overwhelmingly. A number of senators initially declined to vote until they saw the initial count, and then one by one, the number rose until it had enough votes. It was pretty dramatic, actually.
It still must pass the House, which it should do. Assuming it makes the ballot, then voters will be lobbied hard by well-funded opponents – the business community and the healthcare community on one side versus the legal community on the other.
Supporters will say that under current laws, businesses and healthcare providers must defend themselves against dubious lawsuits with the threat of a jackpot verdict always hanging over their heads. Small business owners live in fear of a lawsuit that will put them out of business. Doctors and hospitals pay sky-high medical malpractice insurance rates and order unnecessary tests and procedures to keep from being sued. Without tort reform, big employers will bring, or take, their jobs to other states.
Opponents will argue the amendment sets penalties so low that they don’t even amount to a slap on the wrist for big businesses. They’ll say it puts a price tag on human life, weakens a fundamental right to a trial by jury, and assumes Arkansas juries will not make commonsense decisions. Even some Republicans say it interferes with individuals paying their lawyer whatever they want. Finally, the part about the Legislature telling the Arkansas Supreme Court how to set its own rules – that was one of the things troubling Sen. Rice.
Tort reform is a big issue, and it will be fought with big dollars. But for many voters, it will be about the small: the local hardware store owner afraid of losing everything he’s worked for; the rural family doctor contemplating closing her practice and moving to a big-city hospital that will take care of her malpractice insurance; the child who lost his daddy because of a corporation’s negligence.
In other words, there’s a lot of gray, or at least, there’s a lot of black and white on both sides. You ready to vote?