A proposed state constitutional amendment would put a price cap on human suffering. It also would replace lawyer-judge adjudication of legal disputes with lobbyist-legislator fraternization.
It is sufficiently bad to appear almost a cinch for referral by the Legislature to voters for the general election of 2018.
Where once one needed a lawyer to file briefs and argue a case and serve notice of appeal, one would, by Senate Joint Resolution 8, be better off with a lobbyist arrayed with a carte-blanche credit card and a winning way of ingratiating himself with good ol' boys sent to Little Rock to do some God-fearin', Sharia Law-resistin', woman-discriminatin', gay-disapprovin', late-night partyin' legislatin'.
Oh, and about those supposedly co-equal three branches of government--the executive meaning the governor, the legislative meaning the General Assembly and the judicial meaning the courts--they wouldn't be equal anymore under this amendment. The Legislature would set the rules for the Supreme Court.
Not even this state Supreme Court is so bad as to be improved by legislators taking over the writing of rules of criminal, civil and appeal procedure for the state court system.
What we have in SJR8 is all the conservative rage. It's an abomination to justice under the guise of tort "reform." It's to create a supposedly more business-friendly environment, meaning a less person-friendly environment.
The cap would apply to damages beyond the actual ones encompassing calculable factors such as lost earnings. It would apply in all civil suits, meaning all damage-seeking commercial litigation, not merely matters of medical malpractice.
The purpose is to provide that businesses could budget without unknowns and better afford liability insurance no matter the harm they might cause to a person. It is to do that by interceding between a person alleging harm and the alleging person's peers on a jury.
A maimed man could still get a jury of his peers, but his peers couldn't reward him more than $500,000--$250,000 in punitive damages and $250,000 in other non-economic ones--beyond actual damages.
But it's the little section down near the end of SJR8--the one where the Legislature would pull a coup on the state Supreme Court--that somehow manages to offend me even more.
Alas, principles always seem to interest me more than money.
The Legislature passed a bill like this a few years ago, but the state Supreme Court threw it out on the basis that it violated the constitutional principle of separation of powers among those three branches.
That's what set former state Sen. Gilbert Baker of Conway on a mission to throw together willy-nilly political action committees to collect big nursing-home money to support judge candidates who would support tort reform.
It's a matter now presumably under federal investigation. It's the case in which Baker was creating mechanisms for donations by a nursing-home owner to a now-convicted local judge. The donations arrived about the same time the local judge was doing a little tort reform of his own by reducing a jury award against one of that nursing-home owner's facilities from $5.2 million to $1 million.
Then, last year, the nursing-home industry tried to push its own measure as a ballot initiative, but the proposal got thrown out by that danged state Supreme Court because of a faulty ballot title.
Now this new proposal, primarily sponsored by Sen. Missy Irvin of Mountain View and possessed of almost enough co-sponsors to pass for referral pre-emptively, is the one that the state's business community has been waiting for.
By getting legislative referral, it would escape the ballot-title review applied to public initiatives. The section on rulemaking would write into the state Constitution that the Legislature ultimately makes the rules for the courts.
It couldn't be unconstitutional, you see, because it would be in the Constitution.
The separation of powers among the three branches of government isn't sacred. It's just a sound and treasured constitutional doctrine of longstanding federal and state application that is in effect only if it isn't negated by something new in the Constitution.
What the offending section provides is that the Supreme Court, in promulgating rules for all courts on civil, criminal and appeal procedure, would be required to run those rules by the Legislature.
By a three-fifths vote, the Legislature could throw them out and compose new ones.
The purpose is to keep the Supreme Court from designing rules of evidence that might somehow serve the courtroom interests of price-tagged maimed plaintiffs.
Business interests like their chances of keeping court rules written on their terms if they can leverage their glad-handing lobbyists entertaining legislators more than they rely on their lawyers seeking to persuade judges with, you know, legal citations and stuff.
------------v------------
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 [email protected]. Read his @johnbrummett Twitter feed.
Editorial on 02/07/2017