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Backers, foes debate merits of Arkansas tort ballot proposal

by Michael R. Wickline | July 20, 2018 at 4:30 a.m.

Voter approval of a proposed constitutional amendment that would limit certain damages in civil lawsuits and allow the Legislature to rewrite the state Supreme Court's procedural rules will help recruit more jobs and doctors to Arkansas, the measure's supporters said Thursday before the Political Animals Club.

But opponents disagreed with those assessments and warned of perilous consequences.

The backers and foes of Issue 1 debated for more than an hour before about 150 people attending the Political Animals Club luncheon at Next Level Events in Little Rock's Union Station.

The debate came a week after former Pulaski County Circuit Judge Marion Humphrey filed suit seeking to knock Issue 1 off the Nov. 6 general election ballot. His lawsuit argues that the proposed amendment, referred to voters by the Republican-controlled Legislature, is an illegal amalgamation of changes to the Arkansas Constitution.

The proposed constitutional amendment would limit attorneys' contingency fees; limit non-economic damages to $500,000; cap punitive damages, with certain exceptions, to the greater of either $500,000 or three times the amount of compensatory damages awarded; and allow the Legislature to amend and repeal the state Supreme Court's rules of pleading, practice or procedure with a three-fifths vote.

Carl Vogelpohl, campaign manager for the Arkansans for Jobs and Justice committee that is backing the ballot proposal, said studies have shown that Arkansas can create 23,000 jobs if the overhead created by an out-of-date liability system is removed and save businesses $316 million a year. Afterward, he cited a 2011 study for the U.S. Chamber Institute for Legal Reform.

"Our state, our Legislature and our governor are leading the way on tax reform to make our state more competitive," he said.

Arkansas state officials also have been working on reducing state regulations and improving workforce development, yet "Arkansas is at an economic disadvantage if we continue with our current [civil justice] system," Vogelpohl said.

But consultant Chad Gallagher, representing the Arkansas Trial Lawyers Association that opposes Issue 1, said there has not been a significant difference between "tort states and non-tort states" as far as recruiting doctors to rural towns. Small towns are also losing engineers, architects and attorneys as well as doctors, said Gallagher, founder of Legacy Consulting.

"My concern about Issue 1 is that it was a total overreach by the General Assembly," he said. "It was unnecessary. This version went too far. I believe it's morally wrong."

The proposal might be better called "the price of life amendment" or the "corrupt power expansion amendment," Gallagher said.

"It's not a popular topic to talk about, but the political culture in the General Assembly in our state is a swamp ground. There are some wonderful people there, and they unfortunately have to bear the difficulties of being members in the General Assembly that is making national news for the volume of corruption," he said.

"The corruption, the scandals, the bribes, wire transfers, the secret deals are a swamp," he said, referring to federal prosecutions that have so far netted four former legislators, a longtime lobbyist and a former nonprofit director whose firm once held several contracts with the state.

Gallagher said he applauds legislative leaders who are working to overhaul their system that is badly in need of change.

But "the last thing we need to do is to empower the corrupt influencers of the system by giving the system the power to make all the rules for court procedures Arkansans have to live under, what can be admitted as evidence," he said.

Vogelpohl said he believes in the citizen Legislature.

"Voters are smarter than we give them credit for," and they can talk to their local legislators, who will approve appropriate rules that reflect and represent the wishes of their constituents, he said.

Annabelle Imber Tuck, chairman of the Defending Your Day in Court ballot committee that is opposing Issue 1, said she worries that voter approval in November of another proposed constitutional amendment to limit legislators to serving a maximum of 10 years would leave limited institutional memory among state lawmakers, who would be forced to learn quickly and rely even more on lobbyists with particular agendas.

The secretary of state's office has not yet determined whether the term-limits amendment has qualified for the Nov. 6 general election ballot.

"When you are looking at making sure that the rules do or do not favor one side of the issue over another, it is going to be really hard to keep it that way," said Tuck, a former state Supreme Court justice.

"If lawyers believe there aren't enough lawyers in the Legislature, then lawyers need to run for the Legislature," Vogelpohl said.

Jason B. Hendren, a partner with Wright, Lindsay, Jennings law firm who favors Issue 1, said the Legislature would have to pass legislation if they want to change the state Supreme Court's rules.

"I am very pleased with the governor we have," he said, noting the Republican Gov. Asa Hutchinson would decide whether to sign or veto any such legislation.

Hutchinson has a lot of experience practicing law, Hendren said.

Hutchinson, who is seeking re-election, faces Democratic candidate Jared Henderson of Little Rock and Libertarian candidate Mark West of Batesville in November's general election.

Henderson and West are opposed to Issue 1, while Hutchinson hasn't yet taken a public stand on the proposal.

Metro on 07/20/2018

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