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MASTERSON ONLINE: In Supreme limbo

by Mike Masterson | September 15, 2018 at 2:26 a.m.

Issue 1, backed by the special interests most likely to suffer losses from negligence in a courtroom, remains in limbo until our Supreme Court, hopefully, upholds the ruling by Pulaski Circuit Court Judge Mackie M. Pierce, who wisely struck it from the November ballot as unconstitutional.

Many of us recognize this needless threat to the protections of our state Constitution as the price-on-life amendment (I also like “The Insurance Company Protection Act”).

Its provisions would place a one-size-fits-all $500,000 value on the life of everyone, while allowing our squeaky-clean (cough) Legislature to write the rules for the Supreme Court. It also would limit attorneys’ fees in contingency cases.

I certainly don’t want an arbitrary price tag placed on the value of a human life becoming part of our Constitution that today sets no limits. This push amounts to a frontal assault on our Constitution.

Where did this scheme called Issue 1 originate? Did valued readers in the hinterlands seek out their legislators to request legally placing an unrealistic cap on the value of human lives, or seek governmental overreaching to reduce legal accountability from nursing home owners and others?

Judge Pierce said in rightfully striking Issue 1 from the ballot (subject to an ongoing review by the Supreme Court) that placing a cap on non-economic and punitive damages infringes on the rights of the citizens and litigants to be adequately compensated in a courtroom for the damages they suffered.

In referring to this attempted state interference with the right of citizens to be able to hire the attorney of their choosing, the judge said a cap on contingency fees also is clearly an infringement on the rights of Arkansas citizens to freely contract.

I believe Issue 1 could prevent a person from hiring an attorney of their choice in the manner in which they choose pursuant to the Rules of Professional Conduct and all the ethical precepts in force and effect today.

Besides that, Article 5, Section 32 of the Constitution dating to 1874 specifically prohibits placing a limit on damages, explains Fort Smith attorney Joey McCutchen, adding there was good reason for the provision. He said it was established because of corruption by legislators who wanted to cap damages in railroad cases. At the time, the railroads were as powerful as insurance companies are now. They didn’t like Article 5, Section 32 any more than the insurance companies and nursing homes do.

And don’t forget Issue 1 would allow special interests to ramrod legal legal rules of their choosing through the Legislature. The rules could potentially be used to make it difficult, or impossible, to present evidence on behalf of our most vulnerable citizens. Judge Pierce said Issue 1 violated related Article 19, Section 22.

Do we want the Legislature writing rules that refuse to follow those in our original Constitution? Not me. A currently imprisoned former state senator also under investigation for taking an $80,000 payment from nursing home owner David Norsworthy is a lead sponsor of Issue 1. Other legislators were recently convicted of charges stemming from kickbacks involving public funds. I trust such people to be writing legal rules as far as I can chunk a Mack truck. Might this process naturally devolve into setting legal rules for sale? Such rulemaking as allowed under Issue 1 (approved for the ballot by this very Legislature) is like inmates making rules for the prison system.

Article 2, Section 7 also says your right to trial by jury shall remain “inviolate,” meaning free from violation, McCutchen added. I don’t consider it “inviolate” when special interests are able to put a $500,000 price tag on the value of human life. Jurors wouldn’t be informed about the cap, meaning if they awarded more than the $500,000 limit, the judge would have to reduce it.

Then comes Article 2 Section 13, which says justice should be complete and without denial. If a jury awards $10 million for someone who is injured enough to become a quadriplegic and the judge reduces that amount to a mere $500,000, I don’t consider that “complete” justice.

With this hamhanded attempt to encourage a constitutional coup, special interests appear to be so arrogant as to think they don’t have to abide by the Constitution’s inviolate right to trial by jury, or the right to complete justice as set forth in our state Constitution.

McCutchen, one of many staunch opponents of the proposed amendment, also told me: “We’d prefer to beat Issue 1 at the polls and are confident it would be defeated. We certainly are vigorously continuing the fight to beat the proposed amendment until either Judge Pierce’s order is affirmed, or afterward if necessary.”

It’s been interesting to watch the wildly conflicting polling on Issue 1.

A survey of 1,701 likely statewide voters between Sept. 5-7 with an error margin of plus or minus 3.4 percent found opposition to the proposed amendment at a nearly 2-to-1 margin. Using automated and live calling, the poll by Talk Business and Politics/Hendrix College contained samples from four congressional districts, with more than 400 respondents from each district. The final result was 47 percent against Issue 1, 25 percent for, and 28 percent didn’t know. Roby Brock, editor-in-chief of Talk Business and Politics, said he had great confidence in those results due to the scope of the survey and consistency of responses. So do I.

However, Issue 1 supporters said the three separate polls they’ve conducted (without disclosing questions) found support for the amendment between 55 and 57 percent. Oh really? That’s beyond a gaping disparity,I’d say.

Suspended, not former

I mistakenly said the other day that State District 22 Rep. Mickey Gates, Hot Springs, charged with failing to file income tax returns over 14 years, is a former legislator. In fact, he was suspended from leadership positions by the House following his arrest, and faces an opponent in the coming election.

Mike Masterson is a longtime Arkansas journalist. Email him at


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