Lawyers’ delegates to vote on ballot issue

Multipronged proposal aims to counter Legislature’s bid to limit tort awards

Before Arkansas’ lawyers wrap up their annual meeting in Hot Springs today, a group of them will decide whether to go toe-to-toe with the Legislature in an ongoing feud over the courts.

At stake — depending on

whom one asks — is whether to preserve standards that many lawyers say encourage access to the courts, or whether to rein in damages in civil lawsuits that many businesses, and their attorneys, argue stifle the economy.

The measure before the Arkansas Bar Association’s House of Delegates this afternoon is a proposed constitutional amendment that would touch each branch of government and affect campaign donations. The proposal would outlaw limits being placed on damages awards in lawsuits; require disclosure of donors’ names behind “dark money” in political and judicial races; and stop lawmakers from channeling state money to pet projects.

The proposed amendment also would make it more difficult for legislators to override a governor’s veto and would stop lawmakers from setting rules for state agencies or courts.

The Arkansas Bar Association says the measure, which proponents hope to put before state voters in the November 2018 general election, targets “ethics and good government,” according to a website post by association President Denise Hoggard.

The author of the proposal, lawyer Scott Trotter of Little Rock, says it is about separation of powers among the three branches of state government — legislators, courts and the governor and other executives.

If the 122-member House of Delegates approves the proposal by a three-fourths vote, the state’s largest attorney group will give its blessing as supporters begin the work of attempting to place the measure on the ballot.

To do that, they will need language approved by Republican Attorney General Leslie Rutledge and then begin gathering tens of thousands of signatures of voters on petitions — steps subject to being challenged in court.

That task is daunting enough to draw concerns, even from lawyers who support the policy proposals in the Trotter amendment, said Jon Comstock, a House of Delegates member who runs a conflict resolution firm in Rogers.

Still, he felt attorneys in Arkansas would be willing to throw enough financial muscle behind the proposal. Comstock said he was “thinking” of voting for it.

In the 2016 election year, a battle was fought over a health care industry-backed amendment to set damages caps in medical lawsuits. That proposal saw more than $2.7 million raised by both proponents and opponents. In the end, the vote was never tallied after the Arkansas Supreme Court ruled the 2016 proposed amendment was inadequately defined on the ballot.

As of April, the Bar Association’s political action committee reported having just $600, but a ballot committee supported by many lawyers to oppose last year’s so-called tort reform amendment still has more than $683,000 in its coffers.

During this year’s regular legislative session, the Bar Association’s leadership unsuccessfully fought the approval of a amendment proposal giving the Legislature greater authority to decide court rules, limit attorneys’ fees and set new caps on lawsuit damages.

That measure, Senate Joint Resolution 8, was approved by the Republican-majority Legislature earlier this year. The amendment will be on the 2018 ballot.

The Bar Association’s proposal, already drawing opposition from business and health care facility owners, has mixed reactions from different groups of lawyers.

The Arkansas Association of Defense Counsel remains neutral to both the Trotter proposal and SJR8.

The Arkansas Trial Lawyers Association declined to endorse the Trotter proposal while making its “sole mission” to defeat SJR8, President Joey McCutchen said in a phone interview.

The Arkansas Judicial Council, representing judges across the state, isn’t weighing in on Trotter’s proposal. Arkansas Supreme Court Chief Justice Dan Kemp, however, personally lobbied against SJR8 when lawmakers considered it in committee earlier this year.

While socializing at a cocktail hour Wednesday evening at the Bar Association conference, Kemp declined to discuss the competing amendment before the Bar Association. He said he likely would not bring it up during his “State of the Judiciary” address today. He will speak just before the House of Delegates meets.

But Kemp’s predecessor atop the high court, Howard Brill, was more open. Speaking with a reporter over a lunch of cold- cut hoagies, Brill called SJR8 “dangerous”

but said he worried the Bar Association’s plan was convoluted.

While expressing his preference for making only short, clear-cut amendments to the state constitution, Brill said the broad proposal could attract support from those who like a single part of it, or have the opposite effect by turning people away who like all but one aspect.

“That’s the strategy question,” Brill said. “By putting five things in there, do you attract people or repel people?”

Seated next to Brill, Blytheville attorney Robert Coleman chimed in: He also was not sure about the proposal going before the House of Delegates, but he was clear on SJR8.

“Among the lawyers, everyone I know hates it, hates the whole thing,” said Coleman, an attorney for the firm Reid, Burge, Prevallet and Coleman.

Neither Brill nor Coleman are on the House of Delegates, and Brill said he did not plan a public statement.

Regardless of the House of Delegates’ decision, Coleman said he planned to ask people to vote against SJR8 at the polls, and to raise money to oppose it.

Comstock, the attorney from Rogers, was the chairman of a Bar Association task force that last year proposed an amendment to replace the election of Supreme Court judges with an appointment process. That proposal failed to gain the support of the House of Delegates at a meeting in December.

While that proposal was hinged on concerns over “dark money” — money given by undisclosed donors to pay for political ads — the fight over tort limits dates back even further.

The Legislature in 2003 passed a $1 million cap on punitive damages only to have the Supreme Court overturn major parts of the law.

Michael McCarty Harrison, the president of the Arkansas Association of Defense Counsel, said neither side had the backing of her group.

“The Legislature and the Supreme Court are at war with each other,” Harrison said in a phone interview.

“The back and forth needs to stop.”