Law: Arkansas Blog, Arkansas Times

Loca Luna loses court challenge of parking plan for The Fold

Max Brantley — Wed, 22 May 2013 14:22:00 -0500

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.

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Cathi Compton also in circuit judge race

Max Brantley — Tue, 21 May 2013 10:00:00 -0500

We're one day into the official campaign period for judicial offices (the election is May 20, 2014) and we already have a race for circuit judge of the 13th division, covering Pulaski and Perry counties.

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.

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Judicial races begin

Max Brantley — Mon, 20 May 2013 14:18:29 -0500

Judicial candidates may not formally begin campaigns until one year before an election. That's today for 2014 judicial elections, held the same day as party primaries with runoffs, if necessary, in November.

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.

NEWS RELEASE

Pulaski County attorney Mike Reif announced Monday his candidacy for the Pulaski and Perry County
CircuitCourt, 13th Division to fill the vacancy created by the upcoming retirement of Judge Collins
Kilgore. The cases assigned to this division are civil, domestic and probate law, and Reif’s law practice
focuses on those areas as well as conducting mediations. Reif, a certified mediator, has practiced 29
years with the Little Rock law firm Dover, Dixon, Horne, PLLC.

“I’m running because I see children of all ages being torn apart emotionally by bitter divorce battles.
I’ve seen cases where parents fighting over custody don’t take the time to stop and look at the long term
damage they’re causing,” Reif says.

“I believe children shouldn’t be the parent’s battleground. Accountability is the cornerstone of our
justice system, and judges must take the extra step to protect our children,” he said.
Reif has already served asspecial judge for this and other circuit courts. “I listen to people, and what I
am hearing is they want a justice system that holds fighting parents accountable,” he says.

“I also don’t believe in wasting time or money with drawn-out lawsuits where it sure seems that only the
lawyers win,” Reif added.

Reif lives in Little Rock with Ellen, his wife of 24 years and their three children. The nonpartisan
judicial election will take place on May 20, 2014.

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Two judges disciplined for courtroom behavior

Max Brantley — Fri, 17 May 2013 15:13:00 -0500

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....."

The particulars can all be found here.

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UPDATE: Sen. Jeremy Hutchinson, Bill Clinton on lawyer suspension list

Max Brantley — Fri, 17 May 2013 07:24:00 -0500

On March 8, the Supreme Court suspended the license of state Sen. Jeremy Hutchinson for nonpayment of dues. I've sent him a note asking whether he's cleared the matter up. Hutchinson has been practicing law periodically, including for clients he subsequently helped, coincidentally, with legislation. Not that advocating a former client's interest in the Senate is practicing law (though some might find it unseemly). Hutchinson, with a rambunctious former girlfriend who improperly received some of his campaign cash and a losing legal battle over debts owed a campaign consultant, has had a series of personal problems. More fodder for Rep. Ann Clemmer, who has said she'll run against Hutchinson for Senate next year.

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.

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State gets $5.1 million for Medicaid in settlement over adulterated drugs

Max Brantley — Tue, 14 May 2013 13:41:00 -0500

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.

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David Stewart to fill Fayetteville judge seat

Max Brantley — Thu, 09 May 2013 12:12:32 -0500

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.

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Judicial ethics committee discourages TV show based on Hot Springs court

Max Brantley — Thu, 02 May 2013 15:39:46 -0500

Given the ethical controversy that came with former Judge Mary Ann Gunn's use of her drug court as a springboard to commercial television, you'd think a judge wouldn't even ask.

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.

Here's the full opinion. It might be good if similar attention could be given to Ohm's use of the court for directing defendants to religious programs. (Also here.)

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.

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Supreme Court orders new sentencing for juvenile sentenced to life without parole

Max Brantley — Thu, 25 Apr 2013 12:44:49 -0500

The Arkansas Supreme Court today did as a U.S. Supreme Court ruling required and ordered a new sentencing hearing in Mississippi County for Kuntrell Jackson, sentenced to life in prison without parole when he was 14 as an accomplice to a cousin who killed a store attendant.

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.

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Former Justice Bob Brown to associate with Friday firm

Max Brantley — Mon, 22 Apr 2013 11:19:00 -0500

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.

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UPDATES ALL OVER: Stormy Obamacare Eve; tort reform defeated

Max Brantley — Wed, 10 Apr 2013 17:41:58 -0500

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.

Otherwise:

* 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.

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Legislature today: The final push on tort reform proposals

Max Brantley — Fri, 05 Apr 2013 14:25:43 -0500

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.

UPDATE:

* 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.

Dear Senator,

I know you’ve probably heard your fill of tort reform over the past few weeks, but I respectfully ask that you consider one more piece of information before making any final decisions.

The attached document is an Amicus Brief. These are written by parties who have something to say about a case being heard. In this instance, Riceland Foods, the world’s largest rice miller and one of Arkansas’ largest employers, wrote a brief on behalf of Arkansas farmers suing Bayer Cropsciences, a German corporation. The farmers were suing Bayer for tainting Arkansas’ rice crop with genetically modified rice that caused foreign markets to shut out Arkansas rice which devastated the industry.

In the brief, Riceland explains why it believes caps on damages are harmful because it allows wrongdoers to minimize the impact of their transgressions. The brief is lengthy and I know your time is precious, so I have pulled a few of Riceland’s quotes from the brief, and I ask that you bear this case in mind. 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?

Again, I respectfully ask that you consider these arguments before making your final decision.

Quotes from Riceland Brief:

“Riceland shares Appellees’ interest in having this Court affirm the decision of the Circuit Court of Lonoke County finding the statutory cap on punitive damages unconstitutional. In the past year, three separate Arkansas state court juries have found that Bayer’s LLRICE contamination crippled the agricultural industry in this State and justified significant awards of punitive damages…” Page 10

“…enforcing the statutory cap on punitives in this case would allow Bayer to pay a mere $1 million fine. For a multi-billion-dollar foreign conglomerate such as Bayer, a minuscule fine utterly fails to punish and deter the type of conduct that devastated this State’s rice industry.” Page 10

“… history teaches that the right to jury trial is most commonly threatened precisely where its preservation was deemed most essential — where jury outcomes are different from those preferred by those with political influence.” Page 12

“Indeed, the power to award punitive damages has always belonged to juries, and served as the populace’s most basic protection against those able and willing to violate others’ rights for their own gain. … the tort reform agenda — from which Arkansas’s statutory punitive damages cap emerged — was designed to strip juries of this traditional power.” Page 13

Respectfully,
Matthew J. Hass

Matthew J. Hass
Executive Director

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UPDATE: Bill would end nursing home wrongful death lawsuits

Max Brantley — Wed, 27 Mar 2013 10:28:00 -0500

The new Republican legislative majority is settling so many scores and catering to so many base interests that it's truly impossible to keep up with them all.

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.

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Hmmmm. Tone change on analysis of tort reform

Max Brantley — Tue, 26 Mar 2013 09:00:00 -0500

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.

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Supreme Court overturns Arkansas class action ruling

Max Brantley — Tue, 19 Mar 2013 10:01:00 -0500

The United States Supreme Court ruled today on the side of business interests in a controversial case over handling of class action lawsuits arising in Miller County, Arkansas. Here's the decision. In short, the decision makes it easier for defendants to move class action cases from state to federal court.

The suggestion has been that "home cooking" in state courts has worked to the benefit of plaintiffs' lawyers in class action cases, particularly in shielding some of the particulars about fees paid lawyers in the cases. They've made vast sums over the years. Until this ruling, a stipulation by a plaintiffs' lawyer that cumulative damages being sought were less than $5 million was enough to defeat a transfer of a case from state to federal court.

The Supreme Court ruling was unanimous. It said the stipulation wasn't enough and that a federal court could compute potential damages on its own and determine if they met the $5 million threshold that allowed removal of a case to federal court.

The case drew attention for a variety of reasons in Arkansas, including the role played by John Goodson, a successfulTexarkana trial lawyer. He's married to Arkansas Supreme Court Justice Courtney Goodson, who attended Supreme Court arguments in the case.

Here's a typical background article on the Standard Fire case, one of several that referred to the judicial "hell hole" in Arkansas.

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Fayetteville loses another tax increment district challenge

Max Brantley — Thu, 21 Feb 2013 10:37:55 -0600

The Arkansas Supreme Court today upheld a lower court ruling that said the city of Fayetteville could not take part of a Fayetteville School District property tax increase for high school construction and use it in an existing tax increment finance district.

There's a lot of history here. The Supreme Court had protected the 25-mill base school millage from use by tax increment finance districts. The TIF districts were a legislative scheme to capture school millage for improvement projects. In Fayetteville, a downtown development district was created in hopes of diverting millage on property in the district to a parking deck and other projects. But when the court took the Fayetteville base millage off the table for improvement district use, it pretty well killed the effectiveness of TIF districts statewide. Few school district have a signfiicant amount of "free" millage — not committed to bond issues — that the improvement districts could capture.

But when Fayetteville voters approved 2.75 new mills in 2010, the city argued that a portion of the new millage, because it was passed after the earlier court ruling, was excluded from millage held off limits as pledged to bonds. The city also argued that the ballot didn't explicitly pledge the new millage to bonds. The court rejected the arguments. It said surplus revenue produced by new bond mills could be used for other school purposes and did not have to be directed to the existing TIF district.

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Bill filed to raise judicial pay

Max Brantley — Tue, 19 Feb 2013 14:51:11 -0600

The state's judges may get a pay raise after all. An effort to increase judicial pay was included in session-opening legislation, then removed for discussion later.

Today, Sen. Larry Teague introduced an amendment to the general expenses legislation to give the judiciary and prosecuting attorneys a 2 percent pay raise. Effective July 1, pay would increase:

* Chief justice Supreme Court: $156,864 to $160,0001.
* Associate Justices: $145,204 to $148,108
* Chief judge court of appeals: $142,969 to $14,828
* Court of appeals judges: $140,732 to $143,547
* Circuit judges: $136,257 to $138,982
* District Judges: $121,816 to $124,252
* the 25 prosecutors in Division A: $119,552 to $121,943
* the 3 prosecutors in Division B: $100,037 to $102,038

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Justice Goodson's vacation in Italy; Tyson boat ride included

Max Brantley — Thu, 14 Feb 2013 14:39:37 -0600

Arkansas Supreme Court Justice Courtney Hudson Goodson's recent disclosure that she received a gift of a $50,000 trip to Italy last year from Fayetteville lawyer W.H. Taylor continues to stir talk that prompted me to pose a series of questions to various parties.

I asked among others, if Justice Goodson's trip had included use of the yacht of John Tyson, chairman of the board of Tyson Foods and if that relationship would affect the justice's participation in Tyson cases. I asked about the nature of the business relationship between Justice Goodson's husband, John Goodson, the Texarkana trial lawyer (like Tyson a member of the University of Arkansas Board of Trustees) and Taylor. I asked whether the gift perhaps could be construed as payment of a business obligation under the Goodson/Taylor relationship. I asked if Taylor had made a gift tax filing or report on the gift as an offset to the uniform lifetime exclusion for gifts under federal estate tax laws.

Most questions went unanswered, but one statement indicates the Goodson trip to Italy did include use of the Tyson yacht.

From Archie Schaffer III, a Tyson consultant:

First of all, W.H. Taylor represents the Tyson family, not Tyson Foods, Inc. He has not represented the company for a number of years. Second, the Tyson family does own a boat and because of the family’s relationship with Mr. Taylor, as both a long time friend and attorney, they have allowed him to use it on some occasions. We understand his friends, the Goodsons, may have accompanied him on the trip in question.

When I asked Schaffer if this amounted, as it appeared, to a confirmation that the Goodsons had used the Tyson yacht on the Italian gift trip, he referred me to Taylor. I haven't heard back from him. Earlier, he'd responded to several questions, "I don't talk about my personal life."

So far, I haven't gotten a return call from John Goodson.

Stephanie Harris, a spokesman for the Supreme Court, took my questions for Justice Goodson. She replied:

To avoid even an appearance of impropriety, Justice Goodson has been recusing from all Tyson cases.

Justice Goodson's recusals from Tyson case dates back to September 2011, when she issued this brief recusal letter in a Tyson case.

Otherwise, she said, "Justice Goodson will have no further comment."

I'd also asked Harris further questions about a point I raised previously. In December, Justice Goodson was named to succeed Justice Paul Danielson as the court's liasion to the Supreme Court committee that regulates the legal profession, including enforcement of ethics rules. Concurrent with her appointment was the naming of two Fayetteville lawyers to the disciplinary panel, Nicki Cung and Tonya Patrick, who happens to be W. H. Taylor's wife. these are unpaid positions.

Over the years, the justices who serve as liaison to the committee have had some influence over committee appointments. I asked how these latest appointments were made. Stephanie Harris responded:

Recommendations for committee appointments come from a variety of sources, including the justices themselves, committee members, or other attorneys. The recommendations are vetted, which just means they are asked whether they want to serve, then the Court checks to see if there is disciplinary history which may cause concern. Once that is done, the court votes as a body on the appointments.

State ethics laws allow gifts, even large ones, by long-time friends and business associates to public officials. Justice Goodson had previously reported for 2011 a $12,000 gift of a trip to the Caribbean from Taylor. Justice Goodson told the Arkansas Democrat-Gazette when it reported her Italy trip disclosure on the required annual financial interest statement for 2012 that she planned to recuse from all cases involving Taylor. Appearances will remain an issue nonetheless. When Tyson largesse figures into an expensive vacation on a private yacht, you can't help but remember that Tyson influence extends to realms far beyond the chicken business, from the UA Board to the poultry lobby, state chamber of commerce and other areas.

You also might be inclined to wonder why John Goodson, a famously successful lawyer in class action cases, can't pick up the tab for his own vacation.

PS — There's a bit of ironic tension at work in this story. Justice Goodson, then Judge Henry, was elected to the Supreme Court in 2010 with significant business community financial support. They thought they'd elected a friendly jurist. They aren't happy now with some of Goodson's rulings, which they see friendlier to the trial lawyerly types like Goodson and Taylor. Add to it that Hudson divorced shortly after her election and her ex-husband, Mark Henry, was lauded extensively by new Justice Jo Hart when she was sworn in as being instrumental to her victory. Justices Hart and Goodson have wound up on different sides of recent opinions since then, if you're scoring at home.

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1st Amendment prevails on lawyer complaints

Max Brantley — Thu, 24 Jan 2013 09:39:53 -0600

In a brief opinion today, the Arkansas Supreme Court modified the rules governing lawyer conduct to explicitly allow complainants to discuss misconduct complaints they've filed against lawyers.

This is the final — and properly inevitable — conclusion of Mara Leveritt'sprotest of the confidentiality rule when she complained about conduct of Attorney General Dustin McDaniel in the West Memphis Three case. The complaint itself was dismissed, but it gave rise to the question of whether complainants could talk about their actions. Leveritt sued over the confidentiality rule and the Supreme Court Committee on Professional Conduct settled the suit by agreeing to ask the Supreme Court to change the rule, which it has now done.

Confidentiality continues to exist for all others in the investigative process until it reaches the probable cause stage. A similar confidentiality rule remains in place on complaints filed about public officials with the state Ethics Commission. I and others have routinely ignored it, believing it an unconstitutional prohibition. As yet, the commission hasn't asked the legislature to make the law comport with the 1st Amendment (or tried to punish scofflaws). The legislature is too busy worrying about the 2nd to fix this affront to the 1st.

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Conway stands up for people against corporations

Max Brantley — Tue, 22 Jan 2013 20:56:01 -0600

Jennifer Pierce reports that the Conway City Council voted 7-0 tonight in favor of a resolution that says corporations are not people. This is part of a national movement to amend the Constitution if necessary to overturn the Citizens United ruling in favor of corporate personhood.

Conway joins Eureka Springs, Fayetteville, North Little Rock and Pine Bluff in adopting this resolution.

Little Rock?

Little Rock loves corporations, particularly the corporate personage of the Little Rock Regional Chamber of Commerce which gets direct financial subsidies from the city and holds critical power in shaping city decisions that grimy little citizen people can only dream of. Oppose corporate personhood? Not this bunch. Check the campaign contributions of the at-large directors who cast the swing votes on major issues. Corporate Arkansas is their middle name.

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UPDATE: Andi Davis: No longer attorney on Malvern school case

Max Brantley — Mon, 21 Jan 2013 14:22:10 -0600

When the 8th Circuit U.S. Court of Appeals heard arguments last week on the important case over the Arkansas school transfer law, news accounts noted that parents seeking the ability to transfer from Malvern to the whiter Magnet Cove School District were represented primarily by Jess Askew of the Williams and Anderson law firm in Little Rock.

Not present in St. Louis was Andi Davis of Hot Springs, the original attorney in the lawsuit, which led to invalidation of the school transfer statute by federal Judge Robert Dawson on account of the law's prohibition of transfers that have segregative effects. Davis' absence was noted in news accounts because Attorney General Dustin McDaniel, whose office is defending the law, had recently confessed an affair with Davis in 2011. Her presence on the opposite side of the case gave rise to questions, though he's insisted no conflict existed and they never discussed the case.

Where was Davis?

She told me over the weekend she no longer represents the Malvern parents in the case. In an e-mail, she said:

I sat down with Mr. Askew as well as my clients and we decided it would be best that I withdraw and that I not attend any of the oral arguments. It is difficult because I love this case and I have fought for 4 years to get where we are now. But, the case and clients are more important than my desire to be a part of it so I think it's better that the issue not become lost in my drama.

The federal court record of the case does not currently reflect a formal withdrawal motion, however, though her attorney also told me he understood her plans were to withdraw.

She had referred me to her attorney, Jeff Rosenzweig, on another matter, the suspension of her law license Nov. 17 by the Arkansas Supreme Court over continuing legal education requirements, a suspension that was stayed Dec. 3 while she contested the matter. He responded on that:

The CLE people had failed to update her address with the address she had with the Supreme Court. Thus they were sending her warning letters to her ex husband's address. In violation of a court order and of basic courtesy, he did not give the letters to her. She had no idea that she was in CLE trouble until he gave her the suspension letter. She believed she had attended enough CLE and had no reason to think the was any deficiency. Apparently a couple of hours werent recorded. When the CLE people were shown and realized that they had sent the letters to an incorrect address (and an incorrect name by the way—-ANDREA DAVID). they immediately rescinded the suspension. She has rectified the deficiency problem.

Davis' former husband, Fred Day, has been a source of friction before. A series of questions Day's lawyer posed in Garland County Circuit Court in a dispute over child visitation forced the issue of her relationship with McDaniel into the open. This weekend, provocative photos of Davis were distributed through an e-mail account bearing his name.

UPDATE: I've received another e-mail purporting to be from Dr. Day. This one, I'll note, is the same e-mail address given to me for him some weeks ago. He did not respond then to my note. Today, he writes:

These emails are not coming from me I assure you nor am I trying to create anymore drama for myself, the kids or Andi. I'm actually sorry I ever filed what I did. If you can send the pictures that were attached to email I would appreciate it. I want to find out who the conspirator really is and expose them as a fraud.

Fred

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Tort 'reform' — a battle is brewing

Max Brantley — Mon, 21 Jan 2013 11:09:52 -0600

Little mentioned in the first legislative week were opening shots in a battle with HUGE significance to the business community — and for injured people.

The business establishment is aching to invalidate permissive Arkansas Supreme Court rulings on medical damage suits. Arkansas is not a plaintiffs' dream state, but there have been some big verdicts and any damage verdict is generally unacceptable to business

One of the first responses to the coming battle on "tort reform" was a proposed constitutional amendment filed by Sen. Jeremy Hutchinson on medical malpractice. A Republican named Hutchinson filing a "tort reform" amendment? Must be good for the chamber of commerce, right?

Well, not necessarily. Hutchinson is a lawyer and associated with mega-plaintiffs' lawyer John Goodson of Texarkana ( who also happens to be married to a member of the Arkansas Supreme Court, Courtney Goodson).

Hutchinson raced to the bill hopper first with this proposed amendment, joined as sponsor by a gang of other Republicans and, significantly, Democrats of a decidedly different stripe. When sponsors range from Fireball Holland and Jon Woods to David Johnson and Joyce Elliott in the Sente and from Denny Altes to Greg Leding in the House, you have quite a coalition.

The proposal is not a liberal's dream. It allows damages for frivolous claims. It sets standards for expert witnesses. Standards for proof.

But. It is NOT the chamber of commerce/poultry industry/Walton tort reform proposal. That one, being drafted by the Friday Law Firm, is coming from Sen. Eddie Joe Williams and I heard Friday that he was none too happy to be blind-sided by Hutchinson's proposal and its long list of sponsors, including several Republicans.

Williams admits surprise, but said that, while he and Hutchinson had talked about the matter, no sharp words had been exchanged. "I'm a gentleman and I always conduct myself that way," he said.

Williams said he couldn't talk specificially about his proposal until it was perfected. He said it would undoubtedly have some differences from Hutchinson's. And he said, when asked about specific shortcomings in Hutchinson's measure, only that it undoubtedly reflected "whoever Hutchinson was speaking for."

He means, of course, the Arkansas Trial Lawyers Association, which confirms it has indeed been conferring with Hutchinson about tort reform.

Here's what the brewing conflict is all about: With the business establishment unified about tort reform and with a majority Republican legislature, trial lawyers expect something to come from this legislature on tort reform. Hutchinson stepped forward — whether on his own volition or prompted by friends — with a compromise to put tort lawsuit rules in the Constitution and make the best of a bad situation.

The alternative, according to the copy of one proposal that is being circulated, is the chamber/Tyson/Walton proposal, which would take tort rule making out of the hands of the Arkansas Supreme Court, where it now vests constitutionally, and put it in the hands of the legislature.

This would be a lobbyist's full employment measure. Need a favorable specific rule? Pass a law. Facing a vexatious and potentially enormous tort claim — say a giant environmental claim about chemicals in chicken feed reaching food crops through waste used as fertilizer — you could go to the legislature for a rule tailored to making that claim hard to pursue in court.

The trial lawyers have decided they'd be better off with a constitutional solution, even one that goes farther than they were once willing to go on what constitutes an expert witness in a medical malpractice case or on what it takes to raise a frivolous lawsuit claim. Trial lawyers note that the Hutchinson amendment is close to a copy of tort reform legislation passed in Tennessee after Republicans took control, so it's hardly a plaintiff lawyer's text. It's more the stuff of compromise, bipartisan even.

Williams says he's all about compromise, too, and says he hopes the trial lawyers will have a seat at the table on discussion of his measure, which he said should appear within a week or so. But he insists there was no hostility as a result of Hutchinson's proposal. "I was surprised by it, but so be it. We all have the right to file a bill and I respect that."

I haven't heard back from Hutchinson.

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Supreme Court denies rehearing in school funding case

Max Brantley — Thu, 17 Jan 2013 09:18:05 -0600

Unsurprisingly, the Arkansas Supreme Court today denied a rehearing in the split decision, hotly debated, that allows some lucky school districts from the legislature's clear intention to put a 25-mill property tax assessment on all school districts to go toward the state fund for public education support.

The court rarely grants rehearings and, as here, rarely comments on its decision to say, effectively, "We meant what we said the first time."

The three justices — Chief Justice Jim Hannah, Special Justice Bucky Ellis and Justice Cliff Hoofman — would have granted a rehearing. CORRECTION: Only Hannah and Ellis participated in original decision, not Hoofman as I originally wrote. He replaced Justice Robert Brown, who retired. New Justice Jo Hart didn't participate in the rehearing decision. She succeeded Justice Jim Gunter, who was in replaced in the 4-3 vote on the original case by Ellis. That left the original four — Paul Danielson, Courtney Goodson, Donald Corbin, and Karen Baker — still controlling on the rehearing.

The court denied requests for additional briefs, including one from Gov. Mike Beebe, and denied plaintiffs' motion for Ellis and Hoofman to get off the case because they were Beebe appointees. Beebe, who was central to legislative and voter approval of the plan on which the case rested, appointed them to court seats.

The legislature should restore equity to the system of an equal charge to every taxpayer in Arkansas. That could be a difficult propsition. Eureka Springs and Fountain Lake successfully argued that, since a 25-mill charge in their district produces more than the base state per-pupil payment in support of education, they should get to keep the overage. That was not the intention of the original sponsors of the school funding plan, but the plaintiffs in the lawsuit argued that subsequent amendments in the law opened the door to capturing this money in a handful of school districts that qualify.

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Gov. Beebe willing to follow on end of death penalty

Max Brantley — Wed, 16 Jan 2013 12:43:03 -0600

Twitter bursts quote Gov. Mike Beebe at Political Animals Club appearance today:

‏@johnlyon09
Gov. Beebe on death penalty: If the Legislature sent me a bill to repeal it, I would sign it.

I know. I know. As if ...

But .... what if the governor demonstrated a pair and offered such a bill as part of his legislative package? I bet he could find a legislator willing to sponsor it. We once had a governor who didn't just talk, he saved the lives of every man on Death Row. Attention new legislative majority: He was a Republican.

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Leadership change at Judicial Discipline agency

Max Brantley — Wed, 09 Jan 2013 09:51:27 -0600

News release reports that David Stewart retired Dec. 31 as executive director of the Arkansas Judicial Discipline and Disability Commission after five years on the job.

The Commission, whose members include judges, lawyers and citizen members, chose as his successor David Sachar, who's been deputy executive director since 2007. The agency investigates complaints of misconduct against judges.

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