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DAN GREENBERG: Healthy limits

Keep checks and balances secure by Dan Greenberg Special to the Democrat-Gazette | September 22, 2017 at 4:30 a.m.

Should Arkansas' judiciary be answerable to no other branch of government? Or should it be part of a robust system of checks and balances? That question is at the heart of the dispute over Senate Joint Resolution 8, a tort-reform measure that voters will decide upon in next year's general election.

Robert Brown, a former justice of our state Supreme Court, recently argued on this very page that SJR8 would imbalance constitutional powers. I respect Robert Brown's service to the people of Arkansas, but I believe his arguments in this newspaper were not well-grounded.

If approved by voters, SJR8 would allow the General Assembly--by a three-fifths vote--to modify the procedural rules of the Supreme Court. Brown argues that this would let the Legislature improperly intrude into judicial territory, because the Legislature's appropriate domain is public policy rather than judicial procedure. But he overlooks the fact that judicial procedures have public policy implications.

For instance, consider a recent Florida decision, State v. Rutherford, which eliminated a legislative provision designed to protect the right of self-defense. The state's legislature had created a special procedure (a pre-trial hearing) that would allow an accused defendant to resolve pending criminal charges before trial--by demonstrating in that pre-trial hearing that self-defense was appropriate. However, the Florida court struck this procedure off the books earlier this year, based on the theory that legislative creation of any judicial procedure is unconstitutional.

It seems indisputable to me that the creation of this procedure by the legislature, and the destruction of it by the court, is at the center of what we call public policy. Courts are supposed to look backward in time and to decide particular cases and controversies, but legislatures are supposed to look forward and to issue general rules that protect us all. That is what public policy is.

In recent years, the Arkansas constitution--like the Florida constitution--has been read to prohibit legislative control over judicial procedure, even when these procedures determine large policy issues. Until 2002, the Arkansas Legislature had the ultimate authority to write such rules, after which the voters approved Amendment 80; our state Supreme Court then almost immediately interpreted Amendment 80 so as to eliminate large portions of the Legislature's policymaking power by (among other things) striking down bipartisan legislative attempts to modernize medical malpractice law through procedural reform.

The court's activism has been detrimental to self-government; for instance, its interpretations have made it impossible for the Legislature to write loser-pays reforms, because establishing loser-pays reforms require changing procedures. Once again, these are questions of public policy.

Brown claims that SJR8 expands Arkansas' legislative powers beyond those in "a vast majority of the states." That claim is overheated. In fact, legislatures in a majority of the 50 states play a significant role in determining judicial procedure. Arkansas' enactment of SJR8 would place Arkansas well within the mainstream of states which assign some judicial rulemaking power to its legislature.

Brown's most groundless argument comes when he discusses the federal Congress' powers to write rules for the federal courts. He says that Congress "does not have the power to adopt superseding rules on its own initiative." This is wrong. History tells us that Congress created new rules for the federal judiciary in its very first session. More recently, Congress (on its own initiative) created new federal court rules for service of process, for medical examinations, and for class-action procedures. It is currently attempting to improve rules about frivolous lawsuits through the Lawsuit Abuse Reduction Act; that act passed the House and is before the Senate.

When it comes to judicial reform, Arkansas legislators should have the same power here as Congress has federally.

Allowing the Legislature to set policy via rulemaking is not, as Brown claims, an infringement upon the checks and balances that exist between the three branches of government. In fact, if the judiciary is allowed to issue rules that control public policy but that are unchallengeable by any other government body, this looks less like checks and balances and more like judicial supremacy.

Our constitutions' theory is that one branch of government must be subject to checks and balances by other branches. This safeguards the rights of the people by limiting government's power generally.

Many other states (and the federal government) recognize that this particular manifestation of checks and balances is good for the legitimacy of the judiciary and good for the general welfare. The passage of SJR8 would return this healthy understanding of limited government to the great state of Arkansas.

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Dan Greenberg is president of the Advance Arkansas Institute, a public policy research organization.

Editorial on 09/22/2017

Print Headline: Healthy limits

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