Within the next two weeks, Arkansas House and Senate committees will determine which of the 31 constitutional amendments proposed by lawmakers should be considered for legislative referral to voters in the 2018 general election.
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http://www.arkansas…">Lawmakers' proposed amendments
One such proposed amendment would limit attorneys' contingency fees and punitive damages, and give the Legislature control over the state Supreme Court's rules of pleading, practice and procedure for all courts.
Sen. Jeremy Hutchinson says he opposes that amendment, but "you look at the sponsors, and it's pretty close to a fait accompli" that the 2017 Legislature will refer that proposal to voters.
In the House, a proposal on voter identification is a leading candidate for making the ballot.
The other 29 proposals pertain to a range of issues, such as the courts, some state agencies, legislative sessions, and the process by which the public can propose laws and amendments.
"People sign onto tort reform bills because tort reform is popular. They probably didn't understand all the inner workings of it," said Hutchinson, a Little Rock Republican and an attorney. "I'm not voting for it, but I'm not going to spend a lot of time trying to stop it either."
Hutchinson was referring to Senate Joint Resolution 8 by Sen. Missy Irvin, R-Mountain View. In addition to Irvin, the measure is co-sponsored by 14 senators. The Senate has 35 members.
Five senators on the eight-member Senate State Agencies and Governmental Affairs Committee, which recommends proposed amendments to the Senate, are either sponsors or co-sponsors of the measure.
In the 100-member House, the proposal has 53 co-sponsors, including 13 members of the 20-member House State Agencies and Governmental Affairs Committee, which recommends amendments to the House.
Irvin's proposal comes on the heels of unsuccessful efforts to persuade the Legislature in 2013 and 2015 to refer similar proposals to voters. Over several years, the state Supreme Court ruled that parts of tort-law changes enacted by the Legislature in 2003 were unconstitutional, including a $1 million limit on punitive-damages awards.
"I think it is really restoring what their intentions as a General Assembly were back in 2003 and working towards that," Irvin said. "The legislative branch is the people's branch.
"I think it is about economic development for our state and [to] make sure that we are on a competitive playing field with all those other states, and what we need to do in order to attract more jobs to the state," she said.
Among other things, the proposed amendment would make the state Supreme Court's rules of pleading, practice and procedure for all courts "subject to approval by the General Assembly."
Under Amendment 28 of the state constitution, the Supreme Court "shall make rules regulating the practice of law and the professional conduct of attorneys at law."
Under Irvin's proposal, the Legislature, with a three-fifths vote in each chamber, would be able to approve, change or repeal a rule of pleading, practice or procedure now decided by the Supreme Court. And the Legislature would be able to adopt on its own initiative court rules.
Hutchinson said, "I really don't like the idea of the Legislature writing the rules of evidence and rules of civil procedure.
"I'm a lawyer, and I wouldn't trust myself to do that, much less a bunch of other legislators who have no experience with the legal system whatsoever. I think the rules will be written by lobbyists or corporate attorneys working on the behalf of some interest who has a pending case before the court. That's my biggest concern with it. I think the caps are too small as well," he said in an interview Friday.
Irvin calls such criticism "completely unfair."
"We are the legislative branch of government. This is what we do and, quite frankly, it is insulting," said Irvin, who is marketing director for her husband's medical practice. "It is really insulting because we are a citizen Legislature. I have been criticized for not being an attorney.
"It is insulting to me to say you have to be an attorney to be able to write good laws. We are a citizen Legislature, and we worked with attorneys and did our due diligence on this," Irvin said in an interview Wednesday.
There are 16 states that provide for the Legislature to approve rules and/or adopt rules of their state supreme courts, she said.
"The federal government also allows for this, so this is not a new concept, and again, the decision to write the constitutional amendment referendum was based on much research," Irvin said.
"Without this authority, the Legislature runs the risk of passing laws it believes are substantive only for the court to strike them down because they say it is a procedure, and there is no reason obviously to run that risk," she said.
Hutchinson's and Irvin's differing views foretell a rigorous legislative and public debate.
The proposal would limit contingency fees for attorneys in civil lawsuits to one-third of the net amount of recovery obtained through a settlement, arbitration or judgment.
Also under the amendment:
• The Legislature would establish penalties for contingency fees that exceed the cap and define the term "net amount of the recovery." The House and Senate, by two-thirds vote, would be able to change the maximum percentage for contingency fees.
• Punitive damages for each claimant would be limited to $250,000 or three times the amount of compensatory damages awarded. The Legislature could, by a two-thirds vote, increase the limits.
• Noneconomic damages -- in cases where money can't repair the losses -- would be limited to $250,000 for each claimant and $500,000 for all beneficiaries of a deceased person. The Legislature could increase those limits with a two-thirds vote.
• The House and Senate would pass laws in the 2019 legislative session to establish a procedure for future inflation or deflation adjustments of the punitive and noneconomic damages limits. In 2021, by a two-thirds vote of the House and the Senate, the Legislature could change that procedure.
Other considerations
As for what amendments Gov. Asa Hutchinson favors, Hutchinson's spokesman J.R. Davis said in a text: "Nothing yet. Still looking at options.
"To be clear, he hasn't committed to any of them," Davis wrote. Under the constitution, the governor has no role in placing legislative proposals on the ballot.
The governor is an uncle of Sen. Hutchinson and of Senate Republican leader Jim Hendren of Sulphur Springs, who is a co-sponsor of SJR8.
Sen. Eddie Joe Williams, R-Cabot, said his goal next week is for the Senate State Agencies and Governmental Affairs Committee to wrap up hearings Tuesday or Thursday on the 11 proposed constitutional amendments filed by senators, and then vote on which ones to recommend to the full Senate for consideration.
The Legislature can refer up to three proposals to voters. New joint rules limit the Senate and the House to one each, and require the approval of the opposite chamber to prevail.
The new rules require a two-thirds vote in each chamber to even consider referring a third proposed amendment to voters. A two-thirds vote would be 67 votes in the 100-member House and 24 votes in the 35-member Senate.
After the Senate committee settles on which constitutional amendments to advance, Williams said he, the chamber's Democratic leader Keith Ingram of West Memphis and Republican leader Hendren will determine in what order to present them to the full Senate.
"I anticipate tort reform will be the Senate's resolution that will come out," said Rep. Bob Ballinger, R-Hindsville, who is the House sponsor of SJR8.
In the House, the proposed amendment that's sponsored by the most lawmakers is House Joint Resolution 1016 by Rep. Robin Lundstrum, R-Elm Springs. That measure would mandate that the Legislature pass laws to require absentee voters and voters at the polls to provide valid photo IDs in order to cast ballots.
In addition to Lundstrum, 37 representatives and 12 senators are co-sponsoring that amendment proposal.
Sponsors include 10 members of the 20-member House State Agencies committee and four members of the eight-member Senate State Agencies committee.
Representatives have proposed 20 constitutional amendments.
Ballinger said he wants the House State Agencies and Governmental Affairs Committee's Subcommittee on Constitutional Amendments to start reviewing the 20 proposed amendments Wednesday and decide on four to recommend to the full committee. The week after that, he would like the full committee to decide which one to recommend to the House.
"I think voter ID has a pretty good shot," he said.
"There are some people who have some concern with using voter ID" as the House's amendment because they feel like Rep. Mark Lowery's voter identification legislation is sufficient, said Ballinger. Lowery, a Republican from Maumelle, has a bill on voter ID, House Bill 1047, that is now in the Senate.
Lundstrum said she has "no idea" what the chances are that her legislation will be chosen to refer to voters.
She called her proposal "a companion bill" to Lowery's and said Lowery is a co-sponsor on her proposal.
Asked about Lundstrum's proposal's chances in the Senate, Williams said, "Historically, the Senate makes every effort to support the House amendment, and the House makes every effort to support the Senate amendment."
As for the third amendment to refer to voters, Williams said it's the House's turn to propose that amendment.
Ballinger said he would like to raise the bar to 60 percent approval by voters to amend the state constitution to "make it a little harder to do so." Approval now requires a simple majority.
He has proposed HJR1013 to require that challenges regarding the validity of a ballot title or of the signatures on a petition be filed no later than 60 days after petitions are filed.
It also would require that members of the public, who are sponsoring proposed statewide initiated acts or amendments, submit petitions with signatures to the secretary of state at least 180 days before a general election. The current requirement is "not less than four months" as stated in the constitution.
SundayMonday on 02/12/2017