I doubt many readers realized that when they assumed a bank loan in Arkansas, they also were waiving their constitutionally guaranteed right to a jury trial should legal conflicts arise between them and their lender. Yep, says so right there in the fine print of loan documents.
Ignorance is understandable since lending contracts brim with legalese that by nature, allows a "take it or leave it" proposition in which borrowers needing funds unknowingly surrender their right upfront, never anticipating legal problems down the road.
Kenneth Tilley of Booneville learned the hard way over seven years ago when he entered into a legal dispute over his 2010 loan from Malvern National Bank.
At the resulting 2015 trial, Circuit Judge Homer Wright dismissed the jury because Tilley had signed his loan note without realizing how he'd also surrendered his fundamental right to a jury trial.
He was surprised to realize this waiver occurred not through a choice with his lawyer, but when he'd originally signed. His attorney appealed to the Arkansas Supreme Court, arguing whether it was legally acceptable for a citizen to waive constitutional rights before any conflict between parties was ever anticipated.
On Dec. 7, 2017, the Supreme Court ruled such pre-dispute waivers of rights were unenforceable unless a specific state law allowed it.
The high court determined the right to choose a jury trial is a fundamental and protected by the state's Constitution. They also cited Rule 39 of the Arkansas Rules of Civil Procedure, which says a jury trial cannot be waived before litigation begins. The court then remanded Tilley's case back to the court for a jury trial.
While that might sound like a done deal, it would prove but an early shot in the ongoing battle between Tilley and his lending institution, one that also involves borrowers across the state who find themselves in a similar situation.
Following the Supremes' ruling, the Arkansas Bankers Association headed to the Legislature to find sympathetic ears in former Sen. Jeremy Hutchinson and Rep. Bob Ballinger. They agreed to carry a bill that would satisfy the Supreme Court's ruling requiring a specific law to legalize these pretrial waivers for a jury trial involving banks.
SB5, sponsored by Hutchinson, and Ballinger's version in the House did indeed contain the agreement to waive the respective right to a jury trial and a "retroactivity" clause that killed all pending court cases, including Tilley's, which the Supreme Court had remanded.
The resulting Act 13 (Arkansas Code § 16-30-104) was passed March 15, 2018. During the effort to get this law pushed through during a special session (of all places), Ballinger along with Reps. Jeremy Gillam and Doug House used their political chops and pleadings to persuade fellow members to vote for the law. Reps. Kim Hendren and others argued against it.
Then came Aug. 8, 2018. Tilley was again before Judge Wright where, thanks to the new law, his right to a jury trial was again denied.
Not easily discouraged, Tilley and his current attorney, Joshua Allen, today are back before the Supreme Court awaiting a fresh decision.
Yet another front opened in this fight during last month when state Sen. Gary Stubblefield filed SB558 in an effort to repeal Act 13 of 2018 and restore our constitutional right to trial by jury. That also would have restored Tilley's remanded trial in line with the Supreme Court's 2017 decision.
However, that effort fell one vote short of exiting the Senate Judiciary Committee last week. Another attempt at a repeal is expected before the end of this session.
Tilley told me Act 13 goes against the Arkansas Constitution, Rule 39 of the Arkansas Rules of Civil Procedure, and the Arkansas Supreme Court decision that upheld them both. "It allows banks the ability to force Arkansas citizens to waive their right to trial by jury in order to receive a loan and opens the door for other entities to have their own jury-waiver bills passed. The potential end result is that constitutional rights to trial by jury could be lost for all Arkansans, regardless of the situation and/or damage caused by others."
Attorney Joey McCutchen of Fort Smith testified at that committee hearing on behalf of our constitutional rights. "A consumer should not be unknowingly and unwillingly forced to give up the right to trial by jury simply because they are dealing with a powerful bank or any other special interest group," he said. "SB558 simply restores the right to trial by jury which was taken away in March 2018. The Arkansas Constitution guarantees the right to trial by jury shall remain inviolate and should be protected like the Second Amendment and other constitutional amendments."
I hope you'll contact your legislators to let them know your feelings about repealing Act 13. Isn't it exciting to watch elected public servants playing their inside-baseball games down in Little Rock? I'm reassured by watching so much honor and integrity at work supposedly for the greater good.
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Mike Masterson is a longtime Arkansas journalist. Email him at mmasterson@arkansasonline.com.
Editorial on 04/02/2019