The vote of your life

The biggest decision you’ll make on the ballot in November — and you need to know this now — will not concern the governorship or a seat in Congress.

No single officeholder could make the difference in your life that would be made by the enactment of the aptly named Issue 1.

That’s a proposed constitutional amendment referred by our special interest-controlled and currently corrupted state Legislature.

Issue 1 is the self-serving handiwork of nursing homes, doctors, corporations and national right-wing groups — all wanting to limit and budget their legal liability and cut insurance costs.

Wouldn’t we all like to set our own liability limits and cut our insurance costs? But not all of us have the wherewithal to hire lobbyists — whether now in or out of prison — to get our own constitutional amendment on the ballot, then back it with untold millions, largely in out-of-state dark money, to saturate television screens this fall.

Issue 1 would let our Legislature take over the courts and stack the deck of justice against individual plaintiffs seeking compensation for damages from maltreatment.

Annabelle Tuck, the first woman elected to the Arkansas Supreme Court, met me for coffee on Independence Day’s eve to talk about the opposition to Issue 1 that she leads through an organization calling itself Defending Your Day in Court. She said big money will blare a cynically effective poll-tested message this autumn, asserting that the proposal would help “your doctor and your job,” two things precious to everyone. That’s why, she said, she is busy talking now to anyone who will listen, doing what all good lawyers know to attempt, which is to get a leg up in pre-trial.

Her group is not engaging in the headline items of the proposal—to limit contingency fees by plaintiffs’ lawyers to a third of the after-cost settlement (while doctors, nursing homes and corporations will pay whatever they darned well please to their lawyers who don’t need contingency fees); to limit punitive damages to a multiplier of actual damages, and to limit non-economic damages to $500,000.

All of that is designed to deter the shingle-hanging plaintiffs’ attorney from taking your case when you go to him with unreimbursed costs for treatment of injuries in a car wreck or with complaints about negligent treatment of your mom in a nursing home.

It is simply so that Issue 1 puts the value of a human life itself — inherently, outside of earnings potential — at $500,000. It says juries can’t be trusted because they’d be apt to value human life more than that. The pro-life people ought to be worked up about that — about the post-fetus phase of life — and some are.

But Justice Tuck is centering her attention on what she calls the “poison pill” of Issue 1. That is the section saying that the state Legislature — the aforementioned one of corruptive influence — may, by a three-fifths vote, set rules of the courts.

It’s an incursion by the legislative branch on the judicial, thus a violation of the separation-of-powers doctrine. And it’s open-ended. By 60 votes in the 100-member House and 21 in the 35-member Senate, the Legislature could … well, let us count the dangers, some of them.

It could change rules of evidence to favor litigants with better lobbyists. It could mandate counseling in divorce suits in acquiescence to the fundamentalist religion lobby that thinks abusive marriages ought to be protected. It could require you to pay your rich adversary’s attorneys’ fees if you lose.

“It could …” Yes, that’s the problem. The rulemaking authority of the Legislature would be open-ended and fluid.

The key to justice, Justice Tuck said, is an even playing field served by known rules of criminal and civil procedure, now set by the Supreme Court on recommendations of committees made up of lawyers of all sorts and inviting public input.

Issue 1 would make the Legislature not only the umpire, but one who would set the ground rules at home plate at the beginning of the game while reserving the right to change those rules in the fifth or sixth inning if something happened that he didn’t like.

The people will fall for the “doctors and jobs” message bombarding their television screens in October unless they are informed, and perhaps even if they are.

Justice Tuck offers this caution: Do you remember the ethics reform amendment that was referred by the Legislature a few years ago and that the voters approved only to find out afterward that the greater effect was a second section extending term limits?

Don’t make that mistake again, she pleads. Don’t go to the polls in November to protect your job and help your doctor only to find out afterward about that other section by which you inadvertently padlocked yourself out of a courtroom if you ever need one.

John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, was inducted into the Arkansas Writers’ Hall of Fame in 2014. Email him at jbrummett@arkansasonline.com. Read his @john brummett Twitter feed.