If you can't trust the American Legislative Exchange Council, who can you trust, particularly when the subject is what's good for business?
ALEC is the Koch- and big business-funded lobby that cranks out cookie cutter state legislation to advance the interests of big business. It functions as an ideological bureau of legislative research for Arkansas Republican lawmakers.
ALEC produces rankings of the states on economic performance and outlook.
Here's the latest report on Arkansas. We're fair-to-middling. Ranked at 22 on performance, an improvement from 25 a year ago. The Republican majority legislature didn't do all it could do, unfortunately, to prepare Arkanas for the future. After having a top quartile ranking (11 to 13) in economic outlook for the last five years under Democratic control, Arkansas plummeted to 24 this year based on 15 variables. Drawbacks include too many public employees and too big a sales tax burden by ALEC's standards, not to mention an income tax system that lacks progressivity and has too high a top marginal rate (the chart doesn't reflect a small coming cut in the top rate.)
Texas is No. 1 in performance and No. 12 in outlook.
So what's the point? Check out one of the key variables in the comparisons — State Liability System Survey. This is "tort litigation treatment, judicial impartiality, etc." If you follow this issue, you know that Texas is viewed as a wasteland for trial lawyers. Republicans have taken over the bench there and the legislature has done all it can to make it hard to sue corporations for damages in Texas. To hear the Arkansas State Chamber of Commerce tell it, runaway judges and juries in Arkansas are a threat to economic survival. Thus it may try to amend the Constitution to be more like Texas and also to campaign to stock the appellate bench in Arkansas with business-friendlier judges.
So how do Arkansas and Texas compare on this vital tort ranking? It's a dead heat. Both states score 35 with ALEC.
As good (or bad) as Texas? What's not to like? Who needs an amendment?
The Arkansas Court of Appeals today affirmed a circuit court ruling upholding a zoning variance given for The Fold, a new restaurant at 3501 Old Cantrell Road, just a few yards from Loca Luna.
Loca Luna and the Abernathy-Wilkes LLC contested the plan that let the restaurant meet the required 22 parking spaces for the site with 12 slots on the property and 10 others on nearby property. The circuit court ruling that was affirmed said there was a hardship unique to the property — it's a small lot that once housed a service station — and the variance was in keeping with the spirit of the ordinance.
The restaurant opened while the appeal was pending. Drake Mann, attorney for Loca Luna, said he had raised a question with the city, however, about whether the restaurant was actually providing only 10, rather than 12, slots on the site because of a change in building plans.
Cathi Compton has just begun a Facebook page for her race for the seat being vacated by the retiring Judge Collins Kilgore. She's been a member of the attorney general's staff and made a race for circuit judge in 2008.
Yesterday, Little Rock lawyer Mike Reif announced for the seat.
Compton's release follows:
There'll be lots more of these, but this one came in first and it's for a local judgeship:
Mike Reif said he's running for 13th division circuit court, a seat from which Judge Collins Kilgore is expected to retire. Reif has practiced 29 years with the Little Rock firm of Dover, Dixon, Horne.
The State Judicial Discipline and Disability Commission today announced disciplinary actions against two judges for unethical behavior.
* CIRCUIT JUDGE GERALD KENT CROW of Berryville was reprimanded and censured. In a drug and a DWI case the judge mounted his own investigation of some facts of the cases, though neither the state nor defense had requested it. He also was found to have retaliated against Public Defender Beau Allen, attorney in one of the cases, for filing a complaint against the judge with the Judicial Commission.
The censure, a more serious punishment, was for the retaliation against Allen.The commission's order said Crow got consideration for admitting to ethical missteps. He was directed to review his docket for possible conflicts with others, refrain from issuing orders in which his employees or families are parties, not have ex parte communications, not step outside the ordinany judicial role and "endeavor to cooperate with other prosecuting attorneys and defense attorneys to the extent that you can, while maintaining decorum and dignity in your courtroom." He also was instructed to refrain from threatening lawyers with turning them into the Committee on Professional Conduct.
* DISTRICT JUDGE ROBERT BATTON of Jacksonville was reprimanded for a heated exchange with a frequent court defendant who became obstreperous. Batton accused the defendant, who is black, of being a racist toward white people. When the man left Batton's courtroom, the judge remarked: "There goes another angry black man." Batton said he knew the statements weren't right or proper but he expressed a "desire to vindicate to those in the court that he is not prejudiced against blacks." He was reprimanded as an appropriate sanction because of his "willingness to accept that your actions were in violation of the code and your commitment to be more aware of the issues listed above in the future....."
I wonder: Could Hutchinson take referral work from Texarkana plaintiffs' lawyer John Goodson during a suspension? I don't mean to count as legal work being Goodson's highly valuable advocate for a tort reform proposal that sabotaged the Arkansas State Chamber of Commerce's march to a tough tort reform proposal.
On the subject of lawyer dues: Reader Radical Centrist noted on the open line last night that former President Bill Clinton also turned up on the list of Arkansas lawyers suspended March 8 for non-payment of bar dues. The Arkansas Supreme Court record doesn't indicate if he's cleared up the matter and I've sent a query about it. It's not very important. He hasn't been practicing law, being busy with a few other things. He served a five-year suspension that ended in 2006 over testimony he gave in the Whitewater investigations when he became eligible for reinstatement.
UPDATE: Dues are payable between Jan. 1 and March 1 each year. Each attorney gets a letter in December as a reminder. If they are not paid, a computer program automatically suspends a license. Judges in the state got the list yesterday of those suspended, which explains the news coming out yesterday. There were about 700 on the list. Renewal requires only payment of dues and a late fee. A spokesman in the Supreme Court clerk's office said Sen. Hutchinson paid his fee this morning and the website will be updated this evening to show he's in good standing. The annual dues are $200 and the late fee is $100.
As for Bill Clinton: He never applied for reinstatement of his law license after his five-year suspension and hasn't paid dues since 2000. But his name automatically turns up on the list each year regardless. The list of 700 typically includes the names of many lawyers no longer practicing or dead.
A lawyer who practices after a suspension takes effect is practicing without a license. That can potentially have consequences for a client. For example, an attorney might file a pleading in a criminal or civil case that could be held invalid because it wasn't filed by a licensed lawyer. A refiling could come after a statute of limitation had tolled.
Attorney General Dustin McDaniel has announced that Arkansas will get $5.1 million, including federal matching funds, for its Medicaid program as part of the $500 million settlement of a lawsuit against Ranbaxy, a drug manufacturer in India that provided subpar generic drugs. From 2003 to 2010, the company supplied 26 generic medications that didn't meet U.S. standards for purity, strength or quality, McDaniel said.
David Stewart, retired director of the state Judicial Discipline and Disability Commission and a former municipal judge in Little Rock, has been appointed by Gov. Mike Beebe to serve as Washington County District Court judge in Fayetteville until a successor can be elected to replace the late Rudy Moore Jr., who died last month. He'll serve through 2014.
District Judge Ralph Ohm of Hot Springs asked a Judicial Ethics Advisory opinion about whether the court could co-operate with a TV production company in producing a program, "profit based and perhaps syndicated," that would expand on a seven-minute trailer already produced. The judge and court personnel expected to payment from the show, they said. The trailer included excerpts from court sessions, interviews with district judges and court personnel and titles such as "America's Busiest District Court" and "Located in America's Most Dangerous City."
Writing for the committee, law professor Howard Brill went through the history of conflicts between judicial integrity and commercial TV productions and applicable rules on use of TV cameras in courtrooms (limited). Conclusion:
Although we are aware of the principle of open courts as well as the public awareness and understanding of the judicial system, we believe that our involvement with this project would cross a line. The proposal raises significant risks of impairing the prestige and dignity of the court, connects the court to an on-going commercial enterprise for entertainment, and raises the appearance of impropriety. ... This opinion discusses possible solutions and remedies. But in principle we conclude that participation with the television program proposal as set forth will be inconsisten with the administration of justice in the Arkansas courts and with the principles of the Code of Judicial Conduct.
Problems cited included use of public facilities, titles that "may not be well received by the Hot Springs community"; informed consent by all who might be photographed and the question of compensation. On the last, the opinion said that while court personnel would not be paid, a broader issue remains about a rule prohibiting using "the prestige of judicial office to advance the personal or economi interests of the judge or others, or allow others to do so." Taping of TV proceedings would appear to violate this rule.
In other opinions released today, the committee said:
* RELATIONSHIPS: Circuit Judge Bynum Gibson of Monticello didn't automatically have to disqualify in a case in which a cousin was an attorney. Cousins are not included in the relationships for which automatic disqualification is required.
* NEWSPAPER COVERAGE: The committee said a Sebastian County drug court could co-operate, in delineated ways, with a newspaper reporting project on the experience of prescription drug abusers sentenced to the court.
When Jackson was convicted of capital murder, the law required a mandatory life sentence without parole. Since then, the Supreme Court has held that to be cruel and unusual punishment in the case of juveniles. The court said the mandatory sentence prohibited a judge or jury from assessing whether the harshest sentence "proportionally punishes a juvenile offender" and prevents the sentencer from taking into account age and factors relevant to age.
In Jackson's case, the court said, his age could have been a factor in assessing the risk of being an accomplice to someone who had a weapon in a robbery and his family background could also have been considered.
The Supreme Court rejected the state's argument that Jackson could still be sentenced to life. It didn't overturn the mandatory sentencing for all convicted of capital murder, but did strike down portions of the law as it pertains to juveniles and said they may be sentenced for capital murder only as provided for Class Y felonies, which carry a minimum penalty of 10 years in prison and a maximum of 40. Correction: Or also life, I'm now informed, an option left open at sentencing, but only after hearing mitigating circumstances related to age.
The Arkansas court ordered a hearing for Jackson in Mississippi County, where the crime occurred, at which Jackson can present evidence about his age and the nature of his crime. Jackson's case was one of those that led to the U.S. Supreme Court ruling. Also Thursday, the court, citing the Jackson case, sent another person sentenced to life without parole in Pulaski County as a juvenile, Lemuel Whiteside, back for a new sentencing hearing. He was 17 and an accomplice in a 2009 robbery slaying.
Arkansas has 57 people serving life without parole sentences for crimes committed as juveniles. Other states have faced the same dilemma. In Iowa, the governor commuted all those affected to 60-year terms. Gov. Mike Beebe had said earlier he'd leave the resentencing decisions to prosecutors.
Talk Business reports that retired Arkansas Supreme Court Justice Robert Brown is taking an "of counsel" role with the powerful Friday Law Firm.
“It is a great opportunity for me to be Of Counsel with this quality law firm,” Justice Brown said. “It is a perfect way for me to work at my own pace and share my experience with the firm, its associates, and its interns. I look forward to the transition. Any appeal that was before the Supreme Court while I was a justice will be off limits for me in my new role at the firm, and I will not be involved” he added.
Among others, the Friday Firm was at the forefront of the fight this session to amend the Constitution to reverse Supreme Court decisions that set back business lobby laws intend to make damage lawsuits harder to win. That tort reform amendment effort failed in the face of opposition from both plaintiffs' lawyers and the Arkansas Bar Association.
Our webcast day ends with Arkansas Republican legislative leaders — and I do mean leaders — holding a late afternoon public session to bring around votes for their "private option" version of implementing Obamacare Medicaid expansion in Arkansas. The Democratic Party is lobbying for it. I'm for it. Kochheads aren't for it and assorted teabaggers remain to be convinced. The first big House vote is tomorrow, on enabling legislation, but it will be an important marker on the road to 75 votes for the appropriation.
* STORMY WEATHER: Multiple funnel cloud sightings, wind damage and unsettled conditions have everyone on edge, but government forges on. Damage reported in rural Van Buren County, where the picture above was reportedly taken. Fox 16 says eight homes and a church were damaged and a tractor-trailer overturned in Old Botkinburg, about a mile north of Clinton. Fox 16 also says four people were taken to a hospital.
* UPDATE: TORT DEFORM DEFEATED IN COMMITTEE: A 5:30 p.m. committee meeting has been scheduled TODAY to consider SJR 5, the business lobby's idea of "tort reform." It would strip power from the Supreme Court on rulemaking in damage suits and otherwise erect new barriers against damage lawsuits by injured people. With short notice on the meeting and a big statewide storm brewing, opposition isn't likely to be mustered as it was for a hearing last Friday. Coincidentally.
UPDATE: An interim report indicates an 11th-hour amendment to make the chamber's amendment even more punitive on people seeking damages.
UPDATE II: Rep. Duncan Baird, Twittering from the committee meeting, reports that SJR 5, the business lobby's measure to make it harder to sue for damages, was defeated in committee on a roll call vote of Senate commitee members. Sen. Jeremy Hutchinson, who has introduced a competing, less punitive measure on behalf of the trial lawyers, earned his pay for his early move to line up support, including Republicans, for his compromise measure. A big shoutout to John Goodson, the Texarkana trial lawyer who sends business Hutchinson's way and is a driving force in the Arkansas Trial Lawyers Association, foes of the chamber initiative. Hat tip to Sen. David Johnson, a Little Rock lawyer, who got out of a sick bed to lead questioning of the proposal. The Senate committee has a 5-3 Republican split, generally favorable to chamber of commerce initiatives. But two of the 5, Gary Stubblefield and Jimmy Hickey of Texarkana, had been sponsors of Hutchinson's alternative amendment, which gives back many of trial lawyers' court-won gains in damage litigation as an alternate to the more punishing proposal from the chamber. Even more important, Republican Sen. Bryan King voted against the chamber proposal. Democrats Robert Thompson and Bobby Pierce were also sponsors of the Hutchinson alternative and members of the committee. King was pivotal, because I'm told Stubblefield and Hickey backed the chamber's measure. That left four, one short.
* OIL SPILL: CONFLICTED COPPERS: ICYMI: An item posted earlier today to correct a piece of information related to the oil spill at Mayflower from the Exxon Mobil pipeline has been updated. It notes that Game and Fish Commission wildlife officers are joining Mayflower police and Faulkner County deputies as well-paid private security for Exxon Mobil. Does doing Exxon's bidding — on public access, for example — serve the public interest of their full-time employers? And is there a direct conflict of interest for Game and Fish employees, given that the agency's Lake Conway is in direct peril from the spill? CORRECTION: Conway officers are not working privately, as I wrote originally. Mayor Tab Townsell cited city policy, which, in fact, is sound for others. "Conway policy has for a few years required companies to pay the city for our officers working their events. The officer is strictly and always paid by the city and retains a clear public chain of command."
* OIL SPILL: MCDANIEL WANTS $4 MILLION FROM EXXON: Attorney General Dustin McDaniel met with reporters at 5:15 p.m. to share information from 12,000 pages worth of documents received from Exxon Mobil in his investigation of the pipeline rupture and oil spill. For one thing, he's learned the rupture in the pipe was 22 feet long, about two inches wide, says an early report from KTHV. McDaniel is asking Exxon for $4 million for a fund to cover the cost of the state's investigation into the spill and aftermath. He's retained a law firm and former FEMA director James Lee Witt's consulting firm to assist. Here's a copy of McDaniel's prepared remarks.
* ABORTION I: OPPOSITION TO PLANNED PARENTHOOD PUNISHMENT: Public Policy Polling has released results of a poll that indicates a majority of Arkansans oppose state Senate-passed legislation to strip funding from agencies that provide abortion referrals, particularly when they learn the legislation affects sex education funding. Here are the question by question results. They show Planned Parenthood is viewed more favorably than unfavorably and that a plurality opposed the bill, with the number increasing to a solid majority when further details are provided. I have asked, but don't yet know, who commissioned the poll.
* ABORTION II: LIVING IN INFAMY: Speaking of that Planned Parenthood bill, lots of national attention being given to Senate approval of the bill aimed at stripping Planned Parenthood of funding, with immediate consequences for sex educations targeting disease prevention. This article in Salon notes that the legislation, which pends in the House, has broad consequences.
The Senate measure also prohibits any organization that holds contracts with abortion providers or referrers, including, as Laura Basset at the Huffington Post notes, power companies, water companies, health insurers and medical suppliers, from receiving any state money.
* ABORTION III: ROBOCALLS, WOMEN FIGHT BACK: Calls are going around Arkansas today about Sen. Jason Rapert's war on women, the effort to limit abortion rights and also cripple Planned Parenthood through loss of public support for sex education program. That's interesting in its own right. More interesting is that the calls also inform those who listen that former U.S. Rep. Mike Ross voted to defund Planned Parenthood when he was in Congress. The calls don't identify the source. But ... Ross is expected to announce as a nominally Democratic candidate for governor next week. Bill Halter has already announced as a Democratic candidate.
Constitutional amendments will be discussed by the legislature's state agencies committees today and competing proposals for changes to law governing damage lawsuits ("tort reform") are at the top of the agenda.
* ETHICS: A constitutional amendment that combines ethics reform (ban on lobbyist gifts, two-year cooling off period for becoming a lobbyist, ban on corporate contributions) with measures that would allow increased pay for legislators and an extension of term limits to 16 years of service, was recommended by the committee for a popular vote.
* TORTS: I'm told no Senate amendment proposals were heard today, so no decision yet on which, if either proposal, on tort reform will make the ballot.
Awaiting word on what other two amendments will be favored.
From earlier today:
The Arkansas Trial Lawyers Association has thrown support of plaintiffs' lawyers behind an amendment with new restrictions on damage lawsuits to stave off a far more restrictive proposal in SJR 5 by the Arkansas State Chamber of Commerce and allied business interests.
Today, Matthew Hass, the executive director of the Trial Lawyers group, sent a letter to lawmakers that noted a powerful Arkansas corporate citizen, Riceland Foods OPPOSED a cap on punitive damages, part of the "reform" measures favored by many businesses. Riceland won a huge damage award against Bayer Cropscience in a class action suit over genetically engineered rice. The rice tainted Arkansas crops and made it impossible to sell in foreign markets. Wrote Hass:
Some proponents of SJR 5 cite this case as being bad for Arkansans businesses, yet it was Arkansas businesses and farmers who triumphed over a foreign company. How is protecting Arkansas businesses over German ones bad for business?
Full letter on the jump.
A heavy agenda is under consideration at the Capitol on other fronts. And tomorrow. Among the developments:
* GROCERY TAX CUT: A proposal to take the remaining tiny sales tax off groceries, if revenues can support it, came out of House committee today.
* RAW MILK: The bill to allow farm sales of unpasteurized milk (cheese makers everywhere cheer) also cleared a House committee.
* DREAMS DASHED: Odds look long for Sen. Joyce Elliott's bill to allow children of undocumented immigrants to have in-state tution at Arkansas colleges along with other Arkansas high school graduates. Immigrant animosity is simply too great among Arkansas Republicans.
* PUNISHING PLANNED PARENTHOOD: David Goins of Fox 16 reports on Twitter that the Senate fell one vote short of passing the bill to deny state funding to Planned Parenthood for HIV and sexual transmitted disease education. It got the minimum 18 votes, but one vote was missing when the ballot sounded. It can be reconsidered.
I'm just hearing now about Sen. Jonathan Dismang's SB 1162, already zipped through the Senate, which would do far more damage to the interests of old people in nursing homes than a change in Medicaid reimbursement rates. It would effectively prohibit wrongful death lawsuits against nursing homes.
As described by a representative of the Arkanasas Trial Lawyers Association:
This bill is a nice little triple threat. It starts off by eliminating all wrongful death claims from medical malpractice cases in Arkansas. So if someone dies from neglect in a hospital or because of improper treatment, the family won’t be able to bring a wrongful death claim. Then it follows that up by turning all nursing home negligence cases into medical malpractice cases. So now, if a nursing home fails to give someone’s grandmother water and they die because of dehydration, it’s now a medical malpractice case instead of ordinary neglect and you won’t be able to file a wrongful death claim. Presto, change-o.
To top it all off, it guts Arkansas’ Residents Rights Act, which was created to ensure that our loved ones are given their basic rights and dignities. It was originally passed in order to provide for the enforcement of basic standards for the health, care, and treatment of those in long-term care facilities. This bill strips the civil enforcement of these provisions rendering it useless in ensuring accountability.
I'm awaiting Dismang's explanation for why this is a good thing. It was up for an amendment in Senate committee this morning.
UPDATE: Dismang said it was not his intent to end wrongful death claims and the bill would be amended if it does so in current form.
UPDATE II: A further note from Sen. Dismang:
Should have amendment on wrongful death soon. Will strike all of section 2.
UPDATE III: Dismang has endeavored to further explain what this bill is really about, but hasn't yet done a very good job of it. It's pretty clear it's the work of the nursing home industry. Trial lawyers think it's likely to die in the House Judiciary Committee.
Funny. I wrote yesterday about a sharp analysis of the legal impact of the Arkansas State Chamber of Commerce's proposed constitutional amendment on "tort reform," which would strip the Arkansas Supreme Court of rule-making authority in damage lawsuits.
Now the Department of Finance and Administration has revised its analysis of the legal impact, included as part of a fiscal review of the measure. Toned down considerably.
Legal analysis yesterday on SJR 5 by Sen. Eddie Joe Williams:
The proposal would alter the balance of power between the branches of government. The Separation of Powers doctrine not only separates the departments of government, but also cordons off the powers of one from the other. Under the classic division of the powers, the legislature makes the laws and appropriates state revenues, the executive administers the laws and expends the appropriations, and the judiciary interprets the laws. See Chaffin v. Arkansas Game & Fish Comm'n, 296 Ark. 431, 757 S.W.2d 950 (1988) ("The Arkansas Constitution contains explicit separation of powers provisions which declare that one branch cannot exercise any power belonging to another branch.”) This promotes a series of constitutional checks and balances between the branches of government. See, e.g., Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987).
By restraining the Court from controlling its own practices, procedures, and evidence, the independence of the judiciary is threatened. By allowing the General Assembly the power to restrict the facts, the ways facts are brought forth, and the standards by which a jury may evaluate facts, the protections embodied in the Seventh Amendment are endangered.
Latest legal analysis today on SJR 5:
The authority for the Supreme Court to prescribe the rules of pleading, practice and procedure for all courts was enacted by Amendment 80 to the Arkansas Constitution, which was adopted at the November 2000 general election and became effective on July 1, 2001.
Prior to the adoption of Amendment 80, as evidenced in case law, there was not absolute certainty regarding the authority to prescribe rules of pleading, practice and procedure. See Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984) (Sections 1 and 4 of Article 7 of the Arkansas Constitution “do not expressly or by implication confer on this Court exclusive authority to set rules of court procedure.”). See, e.g., Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986) (Arkansas’ Constitution of 1874 confers general superintending control over inferior courts on the Supreme Court; In 1971 the Arkansas legislature authorized the Supreme Court to prescribe rules of pleading, practice, and procedure in criminal proceedings, and in civil proceedings in 1973; Supreme Court adopts the
Uniform Rules of Evidence in this case).
Both analyses remain correct. But emphasis is everything. The chamber of commerce naturally prefers an analysis that says their little ol' amendment merely returns the law to where it stood not too long ago (as well as making a few other little ol' changes that'll make it hard as the dickens for injured workers and anybody else injured by corporate Arkansas to be made whole in state courts.)
A guy told me yesterday that Sen. Jeremy Hutchinson's work to build a coalition behind a competing tort reform measure may produce a standoff in which this legislature puts forward NO ballot proposal to change tort law. Hutchinson's proposal would offer some significant givebacks to the defense bar, though not nearly as many as the business lobby wants. He is carrying water for plaintiffs' lawyers, a rare worthy cause for him.
UPDATE: However, a Senate committee advanced the chamber's proposal to tilt the playing field in damage suits in industry's favor.
Leylow--You obviously missed the part where it says "While ultrasounds administered prior to 20 weeks…
>Doc you think that Kermit Gosnell is not relevant to this discussion…
Your diatribe above is pure bull. Just because you believe that the system…
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