Tort reform amendment includes legislative bid to seize judicial rule-making authority | Arkansas Blog

Thursday, February 2, 2017

Tort reform amendment includes legislative bid to seize judicial rule-making authority

Posted By on Thu, Feb 2, 2017 at 5:02 PM

click to enlarge SEN. MISSY IRVIN: Lead sponsor of SJR 8. - BRIAN CHILSON
  • BRIAN CHILSON
  • SEN. MISSY IRVIN: Lead sponsor of SJR 8.

A measure filed in the Arkansas Senate this afternoon seeks to sharply limit the punitive and non-economic damages that can be awarded to claimants in civil actions. With a long list of sponsors from both chambers, it seems likely to gain traction in the days ahead.

Senate Joint Resolution 8 is a proposed constitutional amendment to institute "tort reform" in Arkansas; Sen. Missy Irvin (R-Mountain View) is the lead sponsor. If approved by the General Assembly, it would appear on the 2018 ballot before voters.

But, in addition to capping damages awarded in civil actions, the measure also give the legislature full power over the rules of pleading, practice, and procedure in the judicial branch, raising questions about separation of powers in state government.

A tort reform measure on the 2016 ballot was backed heavily by nursing homes — who stand to benefit from increased barriers to litigation and especially caps on non-economic damages — and to a lesser extent by physicians. However, it was struck down by the Arkansas Supreme Court shortly before the November election. Since then, it's been expected that Republicans in the legislature would forward an alternative measure to cap damages.

Like the 2016 ballot measure, SJR 8 would cap attorney contingency fees at 1/3 of the net recovery in a civil action and set limits of $250,000 each on punitive damages and non-economic damages. There's an exception for the punitive damage cap if "the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage to the claimant."

(Update, Feb. 6, 2017: A supporter of tort reform wrote over the weekend to point out — fairly — that I failed to mention that the punitive damage cap is actually set at the greater of $250,000 or three times the amount of compensatory damages. That could allow for punitive damage awards that far exceed $250,000, under certain circumstances.)

SJR 8 goes further, however. It allows the General Assembly, by a three-fifths vote of each chamber, to "enact laws approving, amending or repealing a rule of  pleading, practice, or procedure prescribed by the Supreme Court" or to adopt "on its own initiative a rule of pleading, practice, or procedure." If there's a conflict between a rule enacted by the legislature and a rule prescribed by the Supreme Court, the legislature's rule supersedes the court's.

It's hard not to read this as demanding the judicial branch's formal submission to the legislative branch.

Notable: All four Democratic legislators who switched their party affiliation to Republican in recent years — Joe Jett, Jeff Wardlaw, Mike Holcomb and David Hillman — are co-sponsors of this legislation. The only Dems to sign on are Reps. Steve Magie and Deborah Ferguson; Magie is a doctor and Ferguson, a dentist, is married to a physician. Sen. Irvin's husband is also a doctor.

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