As a lawyer told me Thursday, speaking entirely metaphorically, you don't want to leave bullets in your gun if you're in the fight of your life.
I was asking around on a tip that a lawsuit was imminent--as it indeed was--against Issue 1. That's the so-called "tort reform" proposal referred by the Legislature to the ballot this November.
It is the work of nursing homes, physicians, the state Chamber of Commerce and national conservative groups. It would limit contingency fees for plaintiffs' attorneys to a third of net settlements; cap non-economic damages at $500,000 (meaning a life inherently would be worth only that, absent proof of lost earnings); and let the Legislature set the rules for the state court system.
The first two planks--limiting money for lawyers filing suits but not those defending them, and capping plaintiffs' damages--represent a fairly standard fight between individual interest and business interest.
It's that third plank, to let our corruption-laden and lobbyist-beholden state Legislature vote by 60 percent to set the rules of evidence in court for criminal and civil procedure, that represents what may be overreach. Issue 1's advocates and their conservative legislative agents might have gotten too greedy on that one.
Do we really want to turn over court governance to legislators who wouldn't let Moms Demand Action even testify at a committee meeting for school gun safety last week? At least courts could save money on lawyer tables, needing only one.
This indeed is the fight of Arkansas trial lawyers' lives. It's indeed the fight of nursing homes' lives. It's up there pretty high in the lives of the Chamber of Commerce and the medical profession.
And it's up there in the lives of any of us who are at risk of getting harmed to the point of needing to sue for recompense, or who think unemployable children or elderly persons might be worth more than $500,000, depending on the level of harm a jury decided had been inflicted on them.
Letting insurers better manage their outlays for harm to kids and old people ... that might not be a voter priority.
I've been told there could be $20 million spent on this campaign in the fall, more in support of the proposition than against, although lawyer-dominated groups opposed will spend plenty--if they have to do so, as now they kind of hope they won't.
They'll start on their turf, in the courtroom. As the Arkansas State Chamber of Commerce puts it, trial lawyers will do what trial lawyers do, which is sue.
Should the issue get struck from the ballot, the big losers, beyond nursing homes and doctors and corporations and general conservatives, would be local television stations.
The lawsuit got filed late Thursday afternoon in Pulaski Circuit Court in behalf of a stellar plaintiff, former Pulaski Circuit Judge Marion Humphrey. It argued that Issue 1 should be thrown off the ballot because it unlawfully tries to throw together what amounts to four constitutional amendments, none germane to all the others.
The suit cites that Issue 1 presumes to (1) change contract law, meaning contingency fees for lawyers, (2) change damages laws in lawsuits, (3) defy the separation of powers doctrine to let the Legislature essentially take over the rulemaking of courts, and (4) reduce from two-thirds vote to three-fifths votes the legislative threshold required to set certain rules.
Voters are supposed to be given a choice on individual changes to the Constitution, not force-fed four of them in one bite, the suit argues.
In 2014, legislators took an ethics reform amendment and added to it an extension of their own term limits. Voters approved the amendment. Some were surprised to learn afterward what they'd done.
I've been told that the kind of lawsuit filed Thursday against Issue 1 very well might have prevailed to throw the ethics-term limits hybrid off the ballot in '14.
We'll never know. And we can't know how this suit will turn out.
Its chances probably are better in circuit court in Pulaski County than on the inevitable appeal to the Arkansas Supreme Court.
Chief Justice Dan Kemp, having come out against Issue 1, presumably would disqualify himself. Associate Justice Shawn Womack, who made snide tweets about Issue 1 opposition during the Arkansas Bar Association convention, ought to recuse.
Gov. Asa Hutchinson, not yet committed on the issue--right-leaning but a career lawyer--would replace those justices.
What would Associate Justice Courtney Goodson do? Offend the state's business community while standing on the ballot?
Alas, I see a political outcome from a Republican-dominated state Supreme Court as more likely than an objective judicial determination.
Even so, we may as well fight this in court before we commit to fighting it awash in dark money lavished on overly simplistic and ridiculously incendiary television advertising in a weary October.
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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.
Editorial on 07/15/2018