Issue 1: A solution looking for a problem

Issue 1 is a wolf cloaked in sheep’s clothing. Arkansas voters will vote in November to decide whether to change the Arkansas Constitution with this proposed amendment.

The amendment is backed by special interests who will have the support of millions of dollars in out-of-state “dark money.” They will flood our televisions, our phones, and the internet with a poll-tested message that the proposed amendment will be beneficial for jobs and for doctors to practice medicine.

The promotion of Issue 1 using such a 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 caps on damages in medical malpractice cases for over 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 the lack of urban amenities, 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 here in Arkansas is to ignore the elephant in the room – how to make health care affordable and accessible is a complex national issue that will not be solved by one state’s “tort reform” Band Aid.

As to Issue 1’s purported “tort reform” proposal, the cap of $500,000 on non-economic damages places a one size-fits-all value on human life. This amendment says some lives are more valuable than others. Those without wages – such as stay-at-home parents, retirees, nursing home residents, children, college students, and the disabled – are worth less. Furthermore, Issue 1 sets a one size-fits-all cap without regard to circumstances. For example, a young woman in Wisconsin lost her arms and legs due to medical malpractice, but the cap on non-economic damages in Wisconsin limited her recovery to $750,000 for a life time of pain and suffering.

Issue 1 is not just a “tort reform” proposal. The “Jobs and Doctors” media campaign message cloaks a takeover of the separate and equal judicial branch of government by the Legislature. It permits the Legislature to set the procedural rules for courts, such as the rules which govern how a case is brought to court, what evidence can be presented, and how pretrial discovery is conducted.

Court rules are currently made through a careful and deliberative process:
(1) 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 for comment from the public. Then,

(3) the Supreme Court considers the public comments before ruling on whether to adopt the proposed rules. It is a process that has done an effective job of protecting the benchmark constitutional principle that no person will be deprived of life, liberty, or property without due process of law.

In contrast, Issue 1 shifts court rule-making authority to the Legislature. By a three-fifths vote, the Legislature could substitute its rules for court rules already in place. The Legislature makes its own procedural rules when it goes about its business of passing laws and exercising its “purse strings” authority to fund the government. Under Issue 1 it can make its own rules as well as rules for the courts. The rule-making will not be by a nonpartisan committee with legal expertise. The rule-making will not be published for public comment. The rule-making by the Legislature will be subject to the influence of lobbyists, campaign contributors, and other special interests. Those interests will seek to tilt the scales of justice in their favor and thereby destroy the fair and impartial administration of justice in Arkansas courts.

As compared to the legislative and executive branches of government, the judicial branch does not determine who has access to relief based on lobbying or campaign contributions. In fact, if a person or company makes large contributions to a judge’s campaign, the judge must recuse and not preside over any case involving the contributor.

Issue 1 addresses meritorious claims, not frivolous lawsuits, which under Arkansas Civil Procedure Rule 11 are already subject to dismissal, the award of attorney’s fees, and the assessment of a fine. Based upon my experience as a trial judge and Supreme Court Justice, Arkansas juries are conservative when it comes to awarding damages. And, Arkansas judges already have the authority to reduce unconscionable punitive damage awards.

In short, Issue 1 is a solution looking for a problem. Vote No on Issue 1.
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Editor’s note: Annabelle Imber Tuck is a retired justice of the Arkansas Supreme Court. The opinions expressed are those of the author.