‘Tort reform’ measure may face ballot competition

LITTLE ROCK — An effort to limit civil damages in lawsuits and give the Arkansas Legislature control over court rules was already shaping up to be one of the biggest and expensive campaigns in next year’s election. A competing measure the state Bar Association is considering putting on the ballot could upend the debate even further.

The association’s House of Delegates is voting this week on whether to try to put a constitutional amendment on the ballot aimed at counteracting a “tort reform” measure the majority-Republican Legislature referred to voters. In addition to keeping the Supreme Court in charge of court rules and procedures, the measure would — among other things — raise the bar for overriding a governor’s veto, require disclosure of donors to “dark money” campaign groups and try to prevent individual lawmakers from earmarking appropriations for specific entities.

It’s an effort to win over a wide swath of voters and expand the debate beyond court procedure.

But backers of the plan say the provisions are all part of a consistent theme.

“The overriding purpose is to try to find the right balance in our democratic system of government with respect to the separation of powers of the roughly three equal branches of government,” said Scott Trotter, the attorney who is the lead author of the proposal. “All five of these sections pertain to that overriding purpose.”

The proposal is in response to the measure lawmakers placed on the ballot that caps damages awarded in civil suits and attorneys’ fees. That proposed amendment also gives the Legislature control over court rules, pleadings and procedures. The measure drew opposition from the association, the chief justice of the state Supreme Court and others who said it amounted to a legislative takeover of the court.

The competing measure would keep the state Supreme Court in charge of court rules, but would allow the Legislature to make changes with a three-fifths vote to a provision it finds “abridges, enlarges or modifies any substantive right.” The measure would ban the Legislature from limiting damages awarded in civil cases or attorneys’ fees.

The restrictions on appropriations included in the proposal are aimed at addressing concerns over lawmakers directing General Improvement Fund dollars — surplus money that has historically gone toward capital projects — toward specific entities or organizations. Former state Sen. Jon Woods and two others have pleaded not guilty to corruption charges after prosecutors said they participated in a scheme where Woods allegedly directed state money to Ecclesia College in return for kickbacks. Republican former state Rep. Micah Neal pleaded guilty in January to four counts of fraud related to the case.

The proposal also includes language increasing the threshold for overriding a gubernatorial veto from a simple majority to two-thirds of the Legislature and returns to the governor authority for administrative regulations.

If the association decides to move forward with the measure, it’ll face some hurdles before getting the measure on the ballot. Once the language is certified by the attorney general’s office, supporters will need to submit nearly 85,000 signatures from registered voters by July 2018 to qualify. And if recent elections are any indication, it may have to fend off potential challenges in court as well.

The competing measures would also pit some of the state’s biggest lobbying groups against each other in the campaign over the proposals. The state Chamber of Commerce and other industry groups were major proponents of the measure backed by the Legislature, with Republican lawmakers casting it as a way to protect businesses.

Republican Sen. Missy Irvin, who sponsored the proposed amendment in the Legislature, said she expected those same groups to be players in the campaign.

“I think with the huge coalition that supported SJR8, all of those people are going to go to work to get the message out to the voters in the state of Arkansas,” Irvin said.

This week’s vote, however, may determine whether that coalition will have to play defense against a competing measure.

“It’s going to be a whale of a debate, isn’t it, if they’re both on the ballot,” Trotter said. “And I think democracy is going to be better for it, too.”