HOT SPRINGS -- Delegates of the Arkansas Bar Association on Friday narrowly failed to back a wide-reaching proposed constitutional amendment that would ban limits being placed on damages awards in lawsuits.
By a margin of just three votes, the House of Delegates fell short of the three-quarters majority of those present needed to back what had been described as a "separation of powers" and "good government" proposal. The proposal was in direct opposition to a proposed constitutional amendment that the Legislature has approved for a statewide vote in 2018.
Approval by the delegates could have set the stage for a ballot fight between two competing amendments: one by legislators to set limits on "non-economic" damages in lawsuits and to grant lawmakers the power to set the rules of the courts; the other to prohibit either change, plus write new campaign finance rules and limit legislative control of the executive branch.
The Legislature's proposal, Senate Joint Resolution 8, was the subject of scrutiny in panel discussions and hallway conversations throughout the three-day Bar Association convention. The delegates met at the end of the convention.
Described as a "tort reform" effort to strengthen the state's business climate by limiting damages in lawsuits, SJR8 is supported by the Arkansas State Chamber of Commerce, which had pushed attorneys to oppose the competing proposal considered Friday.
Opponents of SJR8, including many lawyers and judges, have argued that it would weaken access to courts and the judiciary's power as a co-equal third branch of state government.
Despite their concerns about SJR8, several delegates questioned the wisdom of battling the Legislature with an amendment of their own.
"Is this the type of thing us as lawyers, we want to embroil ourselves in, when the public already has such a low opinion of us?" asked Scott Strauss, a lawyer at the Barber Law Firm in Little Rock.
A motion was made to cast secret ballots due to "pressure" put on some delegates, but the final vote was decided by a head count.
Of the 78 delegates present, 56 were announced to have supported the amendment. It needed 59 votes to pass.
By voting to endorse the measure, the delegates would have committed the Bar Association to backing the measure through the process of having it placed on the November 2018 general election ballot.
One of those voting for the proposal was Tony Hilliard, who was sworn in as the new Bar Association president at lunch Friday.
Hilliard told delegates to vote against the proposal if they were not willing to each bear the responsibility of getting 1,000 signatures. Tens of thousands of voters' signatures would be needed on petitions to get the proposal on the ballot.
It would have to be a volunteer effort, because the Bar Association does not have enough money for professional canvassers, Hilliard said.
The amendment was drafted at the direction of the Bar Association's leadership by attorney Scott Trotter of Little Rock. Trotter, who was not a delegate, was there to watch the debate Friday.
Trotter said afterward that he would talk with Bar Association leadership to discuss options for waging an independent petition drive, without the official support of the association.
Shortly after the vote, Chamber of Commerce President Randy Zook said by telephone that he was pleased with the results, saying the competing amendments would have "confused" voters.
He also said he looked forward to the campaign supporting the Legislature's amendment, SJR8. The Bar Association had planned to oppose SJR8 regardless of the outcome of Friday's vote.
Those who advocated putting the weight of the Bar Association behind the proposal considered Friday said it would be an opportunity not just to oppose SJR8, but to advance policies that lawyers have pushed before.
Chief among those efforts has been the elimination of "dark money," or cash by unreported donors funneled through third parties into political campaigns.
Out-of-state "dark money" ads have been linked to several Supreme Court races in recent years, leading the Bar Association to unsuccessfully propose replacing the election of appellate judges with an appointment process.
"I heard someone say we don't want to make enemies of the Legislature. Too late," said Jesse Gibson, an attorney with his own firm in Little Rock.
"They don't like us," Gibson said of the lawmakers who supported SJR8.
The amendment drafted by Trotter included language to require stricter transparency rules in campaign spending. It also would have ended the Legislature's oversight of state agency rules and raised the threshold for a vote to override a governor's veto from a simple majority to two-thirds of the Legislature.
It also proposed prohibiting lawmakers from using surplus state funds on pet projects.
Because SJR8 was approved by the Legislature -- which can place up to three proposed constitutional amendments on the ballot of each general election -- the proposal does not have to go through a public petitioning process.
Metro on 06/17/2017