by Max Brantley
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.