A power play

Lawmakers try for control over courts system

It’s not always apparent when the branches of American government — executive, legislative and judicial — are engaged in the vital process of checks and balances our nation’s Founding Fathers so skillfully envisioned.

Think back to that civics lesson. Our venerable Constitution establishes those branches of government with a system of checks and balances designed to ensure no one branch becomes too powerful. Americans over the nation’s history have seen plenty of situations in which those protections have served them well. Today, it’s easy to appreciate why power must be shared among the trinity of government rather than concentrated in the hands of one.

The legislative body can pass laws but the chief executive can veto them. Lawmakers, if a high number of them agree, can override the veto. And of course, the courts can weigh any law against the standard of the U.S. Constitution to ensure the other branches don’t get too far afield. The courts are answerable to the public in some cases (election of judges) and to the executive branch (appointment), and in the second case, consent of the legislative branch.

That’s not to say each branch doesn’t overreach sometimes. The Founders knew that. Who needs checks and balances if they didn’t?

Arkansans may get a healthy dose of chatter over the next 17 months over differing ideas about what constitutes the appropriate level of checks and balances among branches of government in the state.

State lawmakers during their last session approved a ballot measure to limit jury damages in civil lawsuits, to cap attorneys fees and to grant the Legislature the power to write the rules of the Arkansas Supreme Court. The first two changes would offer protections to businesses by limiting their liability and by making attorneys’ efforts to file lawsuits less attractive. The third change is a power grab in which lawmakers believe they should be able to more strongly control the judiciary.

Republican lawmakers, primarily, have long argued so-called “tort reform” affecting legal damages for harm caused by a person or a business is a necessity to cement the state’s place as one friendly to business. In the last General Election, a measure to cap “non-economic damages” was initially on the ballot, backed heavily by advocates for nursing homes and other health care groups, but the Arkansas Supreme Court removed it because the measure failed to properly define exactly what it did.

The latest proposed constitutional amendment was adopted by the General Assembly over the objections of the Arkansas Bar Association, so now the association appears to be on the verge of striking back. Its members are discussing measures they may want to see on the 2018 General Election and, through Arkansas’ process of proposing constitutional amendments or initiated acts, the group might be able to make that happen by collecting signatures.

A little more than a week ago, the Bar Association discussed possible amendments to the state Constitution to establish new rules on disclosing campaign finances, to block the Legislature from changing tort laws and to make it harder for lawmakers to override a governor’s veto of a bill.

The Bar Association’s House of Delegates will consider their measure in June and, if approved, the group will begin the petition process to get the measure on the November 2018 ballot. It’s the lawyers vs. the lawmakers. If the measures get on the ballot, the Arkansas voter will decide whose vision is the right one for Arkansas government.

It’s sad that it’s come to dueling amendments, but perhaps it was all so predictable. Some of the state’s current crop of lawmakers believe all power — all legitimate power — rests in their hands and, to a lesser extent, in the governor’s. But they can’t abide those “activist” judges who have the audacity to get in the way, sometimes, of what the lawmakers want. Never mind that sometimes the courts are the only place the little guy — most of the folks lawmakers are elected by — has a chance when he is wronged by a business or by the actions of overreaching government agencies.

Still, the Legislature, in a fit of arrogance, moved to free itself from the checks and balances of the judiciary. Lawmakers do not have any involvement in the rules of the courts today, but have proposed giving themselves the authority to amend or repeal rules of pleading, practice and procedure set by the state Supreme Court. The measure would also allow lawmakers, by a three-fifths vote, to enact their own rules over the courts.

If you’ve never seen a power grab, take a look.

We’re not lawyers and don’t want to be, but this measure gives every appearance of a legislative take-over of the courts system. We believe the separation of powers among the three branches of government has served the public — except perhaps corporations and industry groups seeking a government more sympathetic to their needs — exceptionally well.

Is the Bar Association measure an appropriate response? It’s not perfect and it’s hard to know what will ultimately end up on the ballot, but power-hungry lawmakers should certainly expect a reaction when they go too far.

And they’ve gone too far.