by Max Brantley
The 2013 legislature talked quite a bit about the courts but, in the end, didn't do much to upset the current order of things.
Proposed constitutional amendments to roll back court-ordered reversal of past efforts to place limits on damage lawsuits foundered over competing proposals. Key in this effort was the idea for the legislature to assert some control over procedural rule-making. The version of "tort reform" favored by major business interests allowed the legislature to enact rules related to procedural and evidentiary matters and, by a 60 percent vote, to override rules already set by the Supreme Court.
Some viewed this as a frontal assault on judicial prerogative. Supporters, naturally, saw it as far more modest.
Just don't say the Arkansas Supreme Court is without political sensitivity. Though on recess, it issued an order today appointing a special task force on practice and procedure in civil cases.
The order says, in short, if y'all are so upset, how come y'all never asked us to take a look?
The extended debate in the recent session of the Arkansas General Assembly over both the substance of court rules and changes to this court’s constitutional power and authority to promulgate those rules, coupled with the debate surrounding recent cases involving issues of damages and liability in civil litigation, has revealed the need for review and/or revision of some sections of the Arkansas Rules of Civil Procedure.
Some four decades ago, this court adopted a structure and process which allows any member of the bench, bar, or general public to suggest changes to, or provide input on, our rules of civil procedure. The court regularly reviews any proposals received. This review is initially commenced by our Committee on Civil Practice, which includes outstanding members of both the plaintiff and defense bar.Cite as 2013 Ark. 303
We note that there have been no recent recommendations submitted to the court or the committee concerning “damages and/or liability in civil litigation.” In light of the failure of those interested in these issues to submit concerns (or recommendations) to the court, and in an effort to insure a thorough examination of the concerns that have raised these debates, we hereby create a Special Task Force on Practice and Procedure in Civil Cases, and appoint the following officers of the court to serve as members of the task force:
The members are a mix of people from different perspectives on the issue, chaired by emeritus UA law professor John Watkins of Fayetteville. They include male, female, black, white, corporate and plaintiffs' lawyers, Democrats and Republicans. (I note that a key player in the push for the chamber's tort reform amendment, Kevin Crass, is on board). And what? No John Goodson or his able assistant, Sen. Jeremy Hutchinson? Well, since Goodson has a spouse on the court that might have been a problem.
Other members: State Rep. Mary Broadaway of Paragould, Brian Brooks of Greenbrier, Paul Byrd of Little Rock, Jim Julian of Little Rock, Sen. David Johnson of Little Rock, Troy Price of Little Rock, Mike Rainwater of Little Rock, and Rep. Matthew Shepherd of El Dorado.
The committee is to report by Dec. 31. The order closes on a hopeful note that the recent legislative session didn't achieve:
The bench and bar in Arkansas have a long and proud history demonstrating a willingness to work together to develop and produce policies and procedures, which ensure all of our citizens a court system that is fair, equitable, and efficient in its treatment of all parties and issues. We are confident that this history can and will be replicated as the Task Force engages in this important work.
I should mention that serious efforts are well underway in the business community to recruit, finance and elect Supreme Court judges who'll not commit violations to the order of things such as past rulings invalidating past legislative efforts to curb damage lawsuits. The court has to be mindful of where that movement, if it reaches runaway force, would leave an independent judiciary in time. See: Texas. It is one reason I'm somewhat pessimistic that reasonable minds can come to a reasonable conclusion. These battles have tended to be winner-take-all.