House advances tort reform amendment, must again face Senate vote

A proposed constitutional amendment that would limit jury awards and attorneys’ fees passed the Arkansas House of Representatives on Monday (Feb. 27), and if approved in the Senate will head to voters in the 2018 general election.

Senate Joint Resolution 8 by Sen. Missy Irvin, R-Mountain View, passed 66-30 with one member voting present.

The measure would limit punitive damages to the greater of $500,000 or three times the compensatory judgment, noneconomic damages to $500,000, and attorneys’ contingency fees to one-third the judgment. It also gives the Legislature increased oversight over the Arkansas Supreme Court’s procedural rules.

Because it was amended by the House, it now returns to the Senate, which must concur in an amendment. From there, it would be referred to the voters in the November 2018 election. It does not require the governor’s signature.

Rep. Bob Ballinger, R-Hindsville, a cosponsor in the House and an attorney, presented the bill, saying it would enable the Legislature to assert its role as the policymaking branch of government rather than the courts.

“In this case what we are doing is reinforcing the constitutional separation of powers. That’s what we’re doing,” he said.

Rep. Charlie Collins, R-Fayetteville, said the Legislature must create a better legal climate for businesses to operate. He said numerous past efforts to enact tort reform have failed to change that climate, including a 2003 law largely ruled unconstitutional by court decisions as well as various efforts that never made their way into the law.

“The bottom line is, certain groups and individuals benefit mightily from the current system,” he said.

Rep. Dan Douglas, R-Bentonville, said the state’s legal climate hurts its effort to recruit employers, while Rep. Mary Bentley, R-Perryville, said the climate adds to the cost of health care.

Opponents, however, argued that the resolution would lessen the ability of juries to make decisions and would reduce poor people’s access to justice. Rep. Clarke Tucker, D-Little Rock, said attorneys already have financial incentives not to file frivolous lawsuits because of the high cost of litigation and because those types of cases often pay smaller verdicts. One attorney told him he had spent $400,000 out of pocket to take a case. Tucker, an attorney, asked how legislators would react if the courts tried to set rules for their branch – indeed, how House members would feel if senators set rules for them. He said the bill is an attack on the checks and balances system.

“We have the youngest culture, right, but we have the oldest government in the world when you think about world history, and the reason is because our founders got it right,” he said.

Rep. Jimmy Gazaway, R-Paragould, also an attorney, said he opposes the resolution because limiting attorneys’ fees violates free market principles, while the limits on judgments are inconsistent with his pro-life beliefs because they place a value on human life.

“Are we truly pro-life, or are we just anti-abortion? Are we truly pro-life, or are we just pro-fetus? Because there’s a difference,” he said.

Rep. Doug House, R-North Little Rock, also is an attorney, likened the caps to “blood money.” He said the jury system “is the best system ever invented by people” and stretches back 800 years in English common law. If the Legislature is going to limit the right to a trial by jury, why not limit other rights, like guns or free speech?

In closing for the bill, Ballinger said the Legislature places limits on juries whenever it passes laws that set parameters – for example, penalties for a crime.

“Love my jury, love my people back home, want them to be empowered, but at the same time we need to be able to set policy here,” he said.

He said businesses are faced with the decision of whether to settle a frivolous lawsuit or risk a huge judgment in court that can put them out of business. He said the resolution would give voters a chance to decide the resolution’s merit.

“The truth is that’s all that it is, is about ending extortion, about creating a balance that we need,” he said. “And, you know, in the end, the ultimate jury is going to be the people. They get to decide.”