Tort reform change reveals split in House, vote set for Monday

A procedural maneuver normally rubber-stamped by the Arkansas House of Representatives turned into a lengthy debate Friday over a proposed tort reform constitutional amendment, with 36 members voting for a change that would have significantly altered it.

The debate centered around the adding of an amendment to Senate Joint Resolution 8 by Sen. Missy Irvin, R-Mountain View. The resolution earlier was passed by the Senate and will go to the voters in November 2018 if the final version passes both chambers.

The original resolution would have capped punitive damages at the greater of $250,000 or three times the compensatory judgment and would have capped noneconomic damages at $250,000. It also would have given the Legislature more authority over Supreme Court rules of pleading, practice and procedure.

The amendments, approved by the House State Agencies and Governmental Affairs Committee Thursday, increased damages to $500,000 and let the Supreme Court set its own rules, with the Legislature able to amend or repeal those rules or adopt their own with a three-fifths vote. Left unchanged was a provision limiting attorneys’ contingency fees to a third of the judgment.

When Rep. Bob Ballinger, R-Hindsville, a House sponsor, asked to add the amendment in the full House – typically a routine maneuver – it set off a debate over the merits of the tort reform resolution.

The change was approved, 63-26. At that point, Rep. Jimmy Gazaway, R-Paragould, offered another amendment that, among other changes, would have allowed the reimbursement of attorneys’ fees and litigation costs when a claim or defense is not grounded in law or fact, would have placed higher limits on punitive and noneconomic recoveries, and would have allowed contingencies fees of a third of the gross amount of the recovery – a higher amount, he said.

The amendment would have significantly altered the original amendment. It had been filed that morning. Still, it generated 36 votes after a lengthy debate, failing 36-48 with 13 representatives not voting and two voting present. Rep. Josh Miller, R-Heber Springs, said the fear of a big verdict makes institutions more careful and responsible. Rep. Andy Mayberry, R-Hensley, said as a pro-life Republican, he supports life at all stages. Rep. Marcus Richmond, R-Harvey, said members should send the best possible proposal to the voters because trial lawyers would spend millions of dollars to defeat it.

On the other hand, Rep. Charlie Collins, R-Fayetteville, called it “the slickest move I’ve ever seen, and I’ve been down here for a while.” He added that the Legislature had been trying for years to enact tort reform. Rep. John Payton, R-Wilburn, called it a “hostile amendment” that would set a bad precedent for the future operation of the House. Rep. Andy Davis, R-Little Rock, said members do not file amendments shortly before a meeting of the full House and then expect a vote.

Afterward, Speaker of the House Jeremy Gillam, R-Judsonia, told reporters he expects the full House to consider the entire resolution Monday (Feb. 27).

Regarding the day’s proceedings, he said, “Typically, it’s common courtesy. We allow a member to amend their own bill. It’s very rare that you have that much debate not allowing a member to amend their own bill, and I think there’s a lot of people that kind of took that opportunity to try to debate the actual bill itself, which was not what we were doing today.”

Asked about his views of the tort reform amendment, Gillam said, “I’m much more comfortable with the amendment that was added on there today. It addressed some of the questions that I had. Don’t know quite where I’m at on the vote for next week, but I’m going to be talking to some folks over the weekend and visiting with more of my constituents back home on the matter.”

The Legislature is allowed to refer three amendments to the voters, but rules changes at the beginning of the session would allow the House and the Senate to each propose one amendment, with a third amendment possible if both houses agree to consider it with a two-thirds vote. The amendment then could be presented to the voters with a majority vote by both houses. The governor does not sign the resolution.

Gillam said the membership of neither chamber originally believed they would automatically vote for the proposal of the other chamber. He said the Senate has “been very prone” to amend House bills, and House members did not believe the proposed constitutional amendments should be treated differently.

A proposed amendment by Gillam includes a number of provisions changing the process for amending the Constitution, and making it harder to do so. It has some support among legislators and could become the third proposed amendment.

“I think it’s got a distinct possibility based on some of the conversations that we’ve had,” he said.