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By just three votes, the Arkansas Bar Association last week backed off a 2018 ballot war.

The closeness of the vote by the bar's House of Delegates suggests the issue hasn't completely been put to bed, however.

Under consideration was a proposed constitutional amendment that would compete directly with another constitutional amendment that has been proposed by the state Legislature.

The Legislature's proposal is one of three it has referred to the electorate in 2018.

For the bar's proposal to get to the ballot, the organization would have to circulate petitions and gather thousands of valid signatures. It is no easy task.

Newly elected president of the Bar Association, Tony Hilliard, in fact told the delegates last week to vote against the proposal if they were not willing to be responsible for collecting 1,000 signatures each. The bar association, he said, does not have enough money to hire professional canvassers.

For the record, Hilliard was one of the 56 delegates present who supported the measure. The proposal needed 59 votes, or three-quarters of the delegates present.

The tally was so close, yet so far from the number needed.

Significantly, only 78 of the eligible 120 members of the House of Delegates were present for the vote, which came at the Bar Association's annual convention in Hot Springs last week.

Scott Trotter, the Little Rock lawyer who drafted the proposal at the direction of bar leaders, came away from the defeat suggesting there might still be some way to get the proposal to voters -- with or without the Bar Association's playing a direct role.

Individual lawyers or law firms or others could take up the challenge to petition for a vote on the measure.

Trotter calls it a "good government" amendment, noting provisions to address such issues as "dark money" contributions to campaigns, legislative spending scandals and making it harder for the Legislature to override a governor's veto. And that's all in addition to upending the Legislature's proposed constitutional amendment.

What the Legislature has referred would change the state Constitution to limit contingency fees and awards of punitive and non-economic damages in civil lawsuits.

It would also change the powers of the Legislature and the Supreme Court when it comes to court rules of pleading, practice and procedure.

The full language is in Senate Joint Resolution 8, which passed the Legislature by healthy margins in both the state House and Senate and with strong support from the business community.

If some of this sounds familiar, there was an amendment proposed for the 2016 ballot that would have limited awards in medical injury cases. The Supreme Court threw the initiative off the ballot.

Trotter says what the Legislature is proposing now is "much worse, much broader." It applies to all civil lawsuits and lets the Legislature control court rules.

"The big business community brought us SJR8," said Trotter, emphasizing that the proposal ignores the separation of powers that has guided this state.

SJR8 is anathema to lawyers and the Arkansas Bar Association has pledged to oppose the amendment. So has the Arkansas Trial Lawyers Association.

Trotter is convinced the best way to do that is still with a competing amendment.

He's willing to chance that both might pass because the one he wrote for the bar is designed to counter the Legislature's proposal. If his amendment gets more votes, anywhere the two conflict, his would control, Trotter said.

Trotter also notes that, when given the chance, Arkansas voters have approved ethics proposals in the past.

He expects the provisions in his draft addressing legislative spending scandals and dark money in political campaigns to boost the vote for his multi-faceted amendment.

That is, of course, if the proposal ever finds its way to the ballot.

Unfortunately, it missed its best chance last week by three votes.

Commentary on 06/21/2017

Print Headline: Ballot battle rebuffed

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