It's not every day that the richest, most powerful elements of Arkansas society are rebuffed by Arkansas's elected officials, but it happened two weeks ago. Whether those elements will stay rebuffed is another question; they're capable of buffing back.
But even for them, it won't be easy to overcome a unanimously adverse decision of the Arkansas Supreme Court. In matters concerning the Arkansas Constitution, there's no higher authority to appeal to. When Gov. Mike Beebe said after the ruling that the court had failed to take notice of an important constitutional provision, he may have been subtly suggesting — either to the court or to those displeased with the court's ruling — a way in which the matter could be reconsidered. Or he may not. A Beebe spokesman said later that the governor had merely responded to persistent questioning from the media, that he acknowledged in doing so that he had not yet read the court's decision, and that he had not made a final judgment on the decision as a whole. (The last time we checked, he still hadn't.)
The parties dissatisfied with the court's decision include some of the governor's biggest political supporters, incidentally, while the parties delighted with the court's decision include some of the Supreme Court justices' biggest political supporters, the trial lawyers. Like the governor, the justices must stand for election.
The court held that key provisions of the state “tort reform” law (Act 649 of 2003) violated Amendment 80 to the state Constitution. Amendment 80, adopted by voters in 2000, is a major revision of the previous judicial article of the Constitution. Act 649, overwhelmingly approved by the legislature, made it harder for plaintiffs to win large awards in lawsuits. The legislation was backed by corporations and doctors — frequent defendants in such lawsuits — and opposed by trial lawyers and consumer groups. Beebe's present chief of staff, Morrill Harriman, was a leading lobbyist for “tort reform.” Harriman worked for the Poultry Federation at the time. Beebe was attorney general and managed to avoid the “tort reform” fight publicly.
Section 3 of Amendment 80 says “The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts …” The court said that in Act 649, the legislature had attempted to prescribe court rules, thereby violating the constitutional separation of powers. Another major provision of Act 649 sets a cap on punitive damages — $1 million or three times the amount of compensatory damages, whichever amount is greater. This provision has not yet come before the court, but cases challenging the cap are on the way. Given the court decision last week, the cap is unlikely to survive.
So it appears that corporations and physicians will get nothing for their vast expenditures of money and influence in support of Act 649, unless they find a way around the court decision. The court can always reconsider a decision if somebody gives a good reason. Beebe's remark might be a reason. He helped write Amendment 80, and he says it was not intended to give the Supreme court more authority over court proceedings, but rather to limit the court's authority. Specifically, he points to section 9, which says that certain rules promulgated by the Supreme Court can be annulled or amended by a two-thirds vote of the legislature. Act 649 got more than two-thirds.
But, Bruce McMath of Little Rock, one of the winning lawyers in the case before the court, says that Section 9 applies only to rules concerning the structure of the state court system, not to procedural rules. On the surface, his interpretation appears correct.
The proponents of “tort reform” could attempt to override Amendment 80 by putting a new amendment on the ballot and persuading voters of its merit. McMath says that would be “a tough row to hoe.” It would mean re-revision of a judicial article already recently revised, and it would require an expensive advertising campaign. The proponents presumably would try to win public support by casting their proposal in the strongest possible anti-lawyer language, but again they'd run into the Supreme Court, which has final say over the wording of proposed amendments. And the justices are just jumped-up lawyers.
Kenny Hall, a vice president of the Arkansas State Chamber of Commerce and a leading lobbyist for Act 649, says it's “way too early” to say what the response to the court decision will be.
(Even some of the people who agreed with the result reached by the Supreme Court found the court's reasoning unpersuasive. One of these, a prominent lawyer, said it appeared the court had ruled that the legislative branch of government could never touch court procedures. That's probably not what the drafters of Amendment 80 had in mind, nor what voters thought they were approving.) Beebe and Chief Justice Jim Hannah are former law partners, but if they're on opposite sides of “tort reform,” it will not be the first time they've differed. Reliable sources say they had a serious falling-out over the big lawsuit questioning the state public-school system, Beebe agreeing with the court majority that the court still had jurisdiction in the case, Hannah strongly dissenting.) A long-term strategy for the “reformers” would be to put new justices on the court. Supreme Court races in other states have attracted much attention, and money, when big business and trial lawyers have fought over Supreme Court candidates. Only one seat on the Arkansas court will be filled in next year's election, and it's a seat without an incumbent to seek re-election. Judge Courtney Henry of Fayetteville, who was elected to the state Court of Appeals just last year, has said she'll seek to move up to the Supreme Court next year. She won't be the only candidate.