Until I began to prepare for an interview with retired Arkansas Supreme Court Justice Annabelle Imber Tuck, I gave little thought to the third part of Issue 1, a proposed amendment to the Arkansas Constitution that will appear on the Nov. 6 general election ballot. As I understood it, the proposed tort reform amendment would limit attorneys fees to slightly more than 33 percent of the net recovery in a lawsuit and cap awards in non-economic damages to $500,000. You can read SJR8, which became Issue 1, here.

But it’s the third part of the proposed amendment that interests Tuck.

The third part would give the Arkansas Legislature, upon three-fifths vote, the authority to make court rules, something Tuck believes is legislative overreach.

“Besides the attorney fees part of the issue, supporters basically are saying ‘We the legislature, know better than the juries, the bench and the bar, how to process court cases,'” she said. “Mind you, the courts don’t tell them how to make laws, their rules of procedure, nor do we tell the executive branch how to make regulations, other than if it’s not constitutional. My point here is this: it is about separation of powers and checks and balances.”

Tuck believes it is an attempt by the Legislature to take over control of the courts and that money and politics will start running the courts. “It will close the courthouse doors to regular people,” she said.

The Arkansas Bar Association, Tuck said, did not oppose Issue 1 on the capping damages and attorneys fees sections, it opposed it on the court rule-making authority.

“These are the volumes of court rules,” Tuck said as she picked up two large volumes of court rules. “These rules are everything from the code of judicial conduct, the rules for civil cases, the rules for criminal cases, the rules for district court, the rules of evidence — you name it, it’s in here,” she said. “All those rules have been developed through committee process with the Supreme Court.”

Before the Supreme Court adopts a rule the proposed rule goes through a committee process and is published for public comment.

Meanwhile, in the Legislature, legislation can be drafted in a way that allows for no comment period after the proposal, according to Tuck. “That’s not the way it’s done in due process,” she said.

The bottom line, Tuck said, is the Legislature is not happy because the Arkansas Supreme Court, under Amendment 80, has exclusive authority to make court rules and has basically told the Legislature when it has tried to do tort reform in the past was that what they were doing was unconstitutional because it was a court rule.

She cited several examples of how the Legislature could potentially change court rules.

Arkansas currently operates under the American Rule where litigants pay their own legal costs, unless a statute provides otherwise. The proponents, however, want to change to the English Rule in which the loser pays.

The Legislature could also change court rules to restrict what evidence the court can see at trial. It could also change rules to require that a case be heard by a screening panel before the case can go to court, according to Tuck.

“Court procedure,” Tuck said, “is about due process, fair and impartial administration of justice. It’s about access to courts.”

Tuck believes Issue 1, if approved by the voters, would tilt justice in favor of big companies and powerful lobbies.

Amendment supporters include the Arkansas Trucking Association, Arkansas Medical Society, Arkansans for Jobs and Justice, Pulaski County Medical Society, Arkansas Health Care Association, and the Arkansas Hospital Association.

Opponents include Protect AR Families, Liberty Defense Network, the Family Council Action Committee and Defending Your Day in Court. Tuck chairs the Defending Your Day in Court Legislative Question Committee.

Tuck, who was on the Arkansas Supreme Court 13 years, trial court for eight years, and practiced law for 11 years, says the issue of due process was all that she cared about as a judge.

“I have to speak up,” she said, “because I care about the court system and access to fair and impartial justice for people here in Arkansas. They deserve it and they don’t deserve to have their court system completely — for lack of a better word — emasculated by politics.”

Proponents, however, say Issue 1, if approved by the voters, would allow the Legislature to pass laws that will stop frivolous lawsuits and help the state compete with tort reform states, like Texas, to create jobs and recruit doctors.

You can read more about about Issue 1 from a couple of the proponents:
Arkansans for Jobs and Justice
Arkansas Medical Society

More information – another opponent:
Protect AR Families