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Monday, May 22, 2017, 2:44 p.m.

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Arkansas Bar Association drafts proposal for '18 ballot

Measure touches courts, torts, vetoes

By John Moritz

This article was published May 16, 2017 at 4:30 a.m.


After failing to persuade lawmakers to abandon a measure vesting more power over the courts to the Legislature, the Arkansas Bar Association is looking to take its case to the state's voters.

The group's leadership last week discussed language with which to write into the state's constitution new rules on disclosing campaign finances, blocking the Legislature from changing tort laws, and making it harder for lawmakers to override a gubernatorial veto.

The hodgepodge of proposals is wrapped up in one proposed constitutional amendment, which a larger meeting of the Bar Association's house of delegates will consider in June.

If they approve the package, the Bar Association can begin petitioning to get it on the ballot in November 2018, Bar Association President Denise Hoggard said Monday.

In the general election next year, voters are already set to decide on a measure to limit damages in civil lawsuits, cap attorneys fees and grant the Legislature the power to write the rules of the Arkansas Supreme Court.

That proposal was placed on the ballot with support from both chambers of the Legislature earlier this year, over the objections of the Bar Association and Supreme Court Chief Justice Dan Kemp.

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Tort-law changes have long been sought by many in Arkansas' business community and the health care industry.

An election pitting the two proposals would stir "one heck of a debate," said Little Rock attorney Scott Trotter, who wrote the measure being considered by the Bar Association.

In a statement, Arkansas State Chamber of Commerce President Randy Zook said he expected the opposition and looked forward to the debate.

"Meaningful tort reform has been denied for far too long," Zook said.

A $1 million cap on punitive damages placed by the Legislature in 2003 was eroded away by the Supreme Court, and since then there have been unsuccessful attempts to change the state constitution to allow such limits.

Last November, a proposal to cap "noneconomic damages" in medical lawsuits was canceled for a vote after the Supreme Court said its backers failed to define critical parts of the law on the ballots.

A consortium of health care groups and nursing home owners raised more than $1 million for the effort, with even more being raised by opponents, chiefly lawyers.

Once in session, legislative Republicans began talks of reviving efforts with their own proposal. The result, Senate Joint Resolution 8, proposes to place similar caps on noneconomic and punitive damages.

Trotter said his proposal "At least in part, it is intended to be an amendment that competes with [SJR8] for voter approval."

The sponsor of the resolution, Sen. Missy Irvin, R-Mountain View, said Monday she was reviewing the competing proposal.

In addition to counteracting the Legislature's amendment, the measure before the Bar Association would scale back other powers of the Legislature and advance campaign finance measures that have been largely ignored by lawmakers.

Under its various provisions, lawmakers would need a two-thirds vote to override a governor's veto -- only a simple majority is currently needed -- and surplus funds would no longer be directed to individual legislators or a group of them to spend.

Lawmakers would also lose their power of review over state agency administrative rules.

It would direct the Arkansas Ethics Commission to write new laws requiring the disclosure of contributors to third-party groups that seek to sway candidate races, except for federal offices.

More than $1 million in so-called "dark money" was spent on a pair of Supreme Court races last year, prompting the Bar Association's house of delegates to call for changes -- though a bill to do so died in House Committee.

Trotter's wording in the proposed amendment gives the Legislature no option except to adopt the Ethics Commission proposal.

Up to three proposed amendments can be referred to the voters by the Legislature each general election. Citizens may place any number of amendments on the ballot through a petitioning process.

If competing amendments each earn an approval from a majority of voters, the proposal with the most votes is adopted.

Trotter said a severability section in his amendment would allow parts of it that do not directly conflict with SJR8 -- such as the campaign finance measures -- to stand, if both pass and the latter gets more votes.

Metro on 05/16/2017

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