Attorneys take aim at Issue 1 supporters
Legislators responsible for the proposed constitutional amendment capping contingency fees, limiting punitive damages and transferring rule-making authority from the state Supreme Court to lawmakers heard from attorneys Thursday at the Hot Springs Convention Center.
Arkansas Trial Lawyers Association President Jesse Gibson questioned the Legislature’s motivation for referring the controversial tort reform measure known as Issue 1 to voters in the November general election during a panel discussion at the Arkansas Bar Association’s 120th annual meeting.
Gibson, speaking from the gallery, took issue with Rep. Matthew J. Shepherd’s comment that his south Arkansas constituency informed his support for Issue 1. Gibson said special interests, such as the health care, nursing home, trucking and business concerns behind ballot question committees formed to support the measure, are the actual drivers of tort reform.
“I heard Representative Shepherd talk about how constituents have been clamoring for this,” Gibson told the panel. “That’s funny, because I’ve done
40 townhalls across the state, and I haven’t had one single person, after they’re educated about this bill, think it’s a good idea. Could someone talk about what the constituents want versus what the lobbyists want?”
Speaker-Designate Shepherd, R-District 6, an El Dorado attorney, said many constituents told him they supported Issue 1. Responding to Gibson, he said he had also heard from special interests.
“Were there lobbyists involved?” Shepherd said. “Sure. Were there interest groups involved? Sure. There are certainly people from south Arkansas that called and ask that I support this bill. There’s people on both sides of the issue. That’s the legislative process.”
Rep. Robert A. Ballinger, R-District 97, a Berryville attorney and House sponsor of Issue 1, told the gallery that the ballot measure has galvanized trial lawyers, who have aligned behind ballot question committees that have filed with the Arkansas Ethics Commission to raise money in opposition to Issue 1.
“The truth is I heard from a couple of business owners when they knew we were working on it that had went through particularly bad lawsuits that wanted to see it,” said Ballinger, who, according to campaign contribution reports, received the maximum donation of
$2,700 from the Arkansas Medical Society Political Action Committee, which formed a ballot question committee in support of Issue 1, and $1,500 from the Arkansas Trucking Association PAC, which also has a committee backing Issue 1, in his District 5 Senate Republican primary against incumbent Bryan King.
“On the other side, the only people I heard in opposition to it were trial lawyers, people who had a vested interest in the other side. The only ones who were around the Capitol were trial lawyers.”
Ballinger’s campaign also received maximum contributions from nursing homeowner Michael Morton and nursing home executives David Norsworthy and Jerry Sams. He defeated King for the Republican nomination to represent rural northwest Arkansas in the Senate.
Ballinger said opponents are misrepresenting the provision that gives the Legislature authority to amend, repeal or initiate rules of pleading, practice and procedure through a threefifths vote in both chambers, telling the panel it should not be interpreted as an encroachment on the judiciary.
Rule-making authority currently lies with the Supreme Court, which considers recommendations developed by committees that include attorneys, judges and representatives from the state’s two law schools that are published for public comment before the high court takes action.
Ballinger said judges have used that authority to invalidate the Legislature’s previous attempts at tort reform, such as the 2003 Civil Justice Reform Act.
He said caps limiting an attorney’s contingency fee to one-third of the net recovery and punitive damage awards in personal injury, property damage and wrongful death claims to the greater of $500,000 or three times the compensatory damage award per claimant contained in Issue 1 would suffer the same fate, allowing courts to invoke the rule-making authority granted to them by Amendment 80.
“My hope is the Legislature is not meddling in the business of the judiciary on a regular basis,” Ballinger said. “That’s not what this is about. The only reason we have rule-making in there is that over the years, basically everything the legislators have done for judicial reform has been basically kicked out by the courts.
“That’s policymaking. That’s all they’re wanting to do is have the ability to debate policy and implement policy.”
Ballinger pointed to the invalidation earlier this year of the Courthouse Dogs Child Witness Support Act, a 2015 law allowing a certified facility dog to accompany a child witness testifying in court, as an example of the courts interpreting their rule-making prerogative too broadly.
“Because of our interpretation of Amendment 80, that gets thrown out in court,” he said.
Sen. Will Bond, D-District 32, a Little Rock attorney who opposed Issue 1, questioned why the ballot measure has garnered Republican support, explaining that it’s antithetical to conservative principles.
“How is this conservative policy?” Bond asked his fellow panelists. “Those of us who’ve represented folks who are catastrophically injured and understand that when they can’t make a recovery that’s close to making them whole, then they are moved to the public’s responsibility.
“And the folks who didn’t cause their injury are now caring for them. My understanding of conservatism is it’s about personal responsibility, and if you do something wrong, you’re responsible for that. This bill chips away at that.”
Retired Paragould Circuit Judge David Goodson, speaking from the gallery, told the panel if he lost a family member to another’s negligence, he would rather have a jury of his peers in Greene County decide the value of that life than legislators in Little Rock.
He also reminded Ballinger that judges, like legislators, are held accountable through the ballot box, challenging Ballinger’s premise that lawmakers should make judicial policy as a result of the scrutiny they face as elected officials.
“I agree judges are elected,” Ballinger countered. “However, judges are not elected to represent people. They’re elected to protect justice. It’s not to effectuate policy. That’s not what they do. But that is what we do as legislators. That’s our job.”