Magazine October 2018

Issue 1 Dismantles Separation of Powers and Checks and Balances



Annabelle Tuck – Retired Supreme Court Justice

Issue 1 is not the so-called “tort reform” it is advertised to be. It does much more. Under Issue 1, the legislature would take control of procedural rules in all types of court cases: civil, criminal, probate, domestic relations and appellate. These are the rules by which the state courts conduct their day-to-day work. Examples of procedural rules include how a case is brought to court, how discovery is conducted by the parties and what evidence can be presented at trial. The judiciary, not the legislature, should make the rules that govern how cases are resolved in the judicial system.

Business relies upon the rule of law. Court-made rules do not change unless they go through a careful deliberative process to produce rules that promote the fair and impartial resolution of cases. Under the current system, there is stability and predictability in the way the courts operate. Every litigant, including businesses, benefits from due process.

The court rules currently result from the following deliberative process: (1) After careful study, a nonpartisan committee recommends rules to the Arkansas Supreme Court. The committee includes judges, lawyers with expertise from numerous types of legal practices and law professors who have devoted years of study to the law. (2) The recommendations are published in order for the public to submit comments. Then, (3) the Arkansas Supreme Court considers the public comments before ruling on whether to adopt the proposed rules. It is a public and transparent process. Court rules are designed so that no particular party in a lawsuit can achieve a particular result. In other words, the rules do not favor one side over the other.

RELATED: Talkin’ Tort Reform

The legislative takeover of the courts’ rule-making authority would result in rules that are made by the legislature. Legislators represent the interests of their particular constituents. By definition, legislators work to enact laws for the benefit of their constituents, especially campaign contributors. In contrast, judges don’t represent constituents and are expected to protect the constitutional rights of all persons. Each judge has a sworn duty to apply rules that ensure the fair and impartial resolution of a case in which all persons are entitled to due process. Court rules must not be made to favor any particular person or organization. In other words, the judicial branch of government needs to be as free from politics as possible.

Issue 1 is not about “doctors and jobs” for Arkansas. The promotion of Issue 1 using this contrived message ignores the fact that (a) Arkansas has the lowest unemployment rate in its history; (b) Arkansas’ economy is booming; and (c) more Americans are choosing to make Arkansas their home. A recent survey by the U.S. Chamber of Commerce ranks Arkansas above Texas in terms of how fair and reasonable our state’s courts are perceived by business. And, Texas has had capped damages in medical malpractice cases for more than 10 years.

Regarding the delivery of medical services in Arkansas, it was our state’s expansion of Medicaid that kept our rural hospitals from closing their doors. Whereas, without the adoption of Medicaid expansion in the surrounding states of Texas, Oklahoma, Missouri, Tennessee and Mississippi (where damages are capped), many rural hospitals in those states had to close. Moreover, the decrease in the number of people living in rural areas, as well as limited access to a broad range of arts and entertainment, makes it difficult for rural hospitals to recruit doctors and their families. To say that Issue 1 will make a difference in the delivery of medical services in Arkansas is nothing short of a sham – how to make health care affordable and accessible is a complex national issue involving insurance coverage and numerous other factors that cannot be solved by one state’s attempt at “tort reform.”

Issue 1 also is not needed to prevent frivolous lawsuits. There already is a procedural rule for dismissal of frivolous lawsuits, and the courts do dismiss frivolous lawsuits. However, Issue 1 supporters propose changing the rules so that the losing party must pay the other party’s legal expenses. The risk created by such a rule change would discourage people from pursuing lawsuits that have merit. The proposed rule change is specifically designed to close the courthouse doors to our citizens who need an impartial forum where they can present their claims for relief.

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Why is so much money behind the promotion of Issue 1? It is all about money and not about Arkansans. Certain special interest groups want to put a financial limit on their exposure to meritorious claims for personal injury and property damage. Plus, the legislature’s takeover of court rule-making authority would insure the adoption of court rules favoring wealthy and powerful special interests. Issue 1 would effectively dismantle the separation of powers and checks and balances that keep each branch of government from assuming absolute power.

The only way for Arkansas to maintain the time-honored framework of separation of powers and checks and balances in the Arkansas Constitution is to vote No on Issue 1.

The Defending Your Day in Court Legislative Question Committee is not involved in a recent lawsuit in which a trial court ruled that, because the four parts of Issue 1 are not “reasonably germane to each other,” the Secretary of State shall “refrain from counting, canvassing, or certifying any votes for or against Issue No. 1.”

The proponents of Issue 1 who lost have appealed the trial court’s ruling, so the final decision on this issue rests with the Arkansas Supreme Court. That decision may not be handed down until just before the election on Nov. 6, 2018.

So, until then, the Defending Your Day in Court LQC will continue its campaign to educate Arkansans about the importance of voting against a legislative takeover of the judicial branch of government.

RELATED: Arkansas 2018 Ballot Measures

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