State Sen. Trent Garner's May 28 op-ed in favor of Issue 1 titled "For tort reform" failed to mention that Section 3 of Issue 1 gives the Arkansas Legislature full authority to make all court rules of pleadings and practice and rules of evidence. It is the classic bait-and-switch used a few years ago to promote an "ethics reform" ballot question, which also dramatically extended the legislators' term limits.
Senator Garner was one of the co-sponsors of Issue 1. Yet the senator's reasons for supporting Issue 1 are misleading.
As a lawyer he knows, or should know, that frivolous lawsuits are ultimately dismissed and lawyers can be punished for filing such lawsuits under Rule 11 of the Arkansas Rules for Civil Procedure. Furthermore, the column includes numerous false assumptions, unsubstantiated allegations and baseless conclusions not supported by any facts. It is a mere litany of "soundbite" buzz words. Nowhere is there an attempt to explain what the amendment actually says or will do.
Unfortunately, this kind of misleading information will be repeated ad nauseam from now until Nov. 6.
For example, one rule change suggested by Issue 1 supporters is requiring the losing party to pay the prevailing party's attorney's fees in a lawsuit. Such a rule would effectively close the courthouse doors to our citizens. Even a citizen with a meritorious claim would be afraid to seek judicial relief due to the possibility of losing the case and having to pay the attorney's fees of the other side, which could very well be a large corporation or an insurance company.
Issue 1 no doubt is strongly supported by many Arkansas legislators, not because it is good for Arkansas, but because it gives the Legislature more power, with ultimate authority (through the enactment of court rules of pleadings and practice and rules of evidence) to control how justice is administered in Arkansas courts. The problem, as noted in an opinion by the U.S. Supreme Court, is that politicians are expected to do what their contributors demand of them, while judges are expected to protect the constitutional rights of all persons, without regard to the wishes of campaign contributors. See Williams-Yulee v. Fla. Bar (2015).
We must not turn the scales of justice over to the highest bidder.
Proponents of Issue 1 make unsupported claims about how the fear of legal liability has hurt job growth and access to health care in rural Arkansas. Similarly, Senator Garner goes on to claim that the Arkansas economy is weighed down by the burden of the judicial system. His colleague and co-sponsor of Issue 1, Sen. Jason Rapert, expressed a contrary opinion in an op-ed published in this newspaper on January 15, 2018: "Arkansas has made impressive economic progress in the past seven years. In the first quarter of 2016, Arkansas led the nation in gross domestic product growth at 3.9 percent. Our unemployment rate is 0.5 percent lower than the national average, and confidence in our state as a place to do business continues to grow." Similarly, according to our governor, Arkansas has the lowest unemployment rate in history, and our economy is in great shape.
Issue 1 is being promoted as "tort reform," which fails to inform voters about Issue 1's proposed shift of court rulemaking authority. Likewise, Garner's op-ed fails to mention that, if passed, Issue 1 will change the Arkansas Constitution and shift the Arkansas Supreme Court's rulemaking authority away from the judiciary and give it to the Legislature. This is the same bait-and-switch tactic used a few years ago to promote an "ethics reform" amendment, which obfuscated its impact on term limits.
Issue 1 is a hostile takeover of our courts by the Legislature. It will have drastic consequences on the balance of power between the three co-equal branches of government. Do not be misled. Preserve the separation of powers.
Vote "no" on Issue 1.
Annabelle Imber Tuck is a retired Arkansas Supreme Court justice, and chair of the Defending Your Day in Court Legislative Question Committee.
Editorial on 06/15/2018