Columns » Ernest Dumas

Real reform



Arkansas voters, once perversely skeptical of complicated ballot issues like constitutional amendments, have become almost comical Pollyannas, ratifying the most shocking laws.

I'm not referring to marijuana legalization. Last year, the presumptively conservative electorate changed the Constitution to allow politicians to raise and donate your taxes, any amount of them, to big corporations or any outfit that claims to be interested in development and jobs. Utter the word "jobs" with any harebrained idea and it will fly, sight unseen. Attaching the word "reform" to any proposition is magical, too.

Two years earlier, voters — unsuspectingly, I figured — scrapped Arkansas's popular term limits on legislators, which was hidden in a mundane-sounding amendment. Lawmakers were amazed but gleeful — and emboldened. If people will approve this stuff, they must have reasoned, let's go for broke.

All this is preface to a coming battle over preserving basic constitutional doctrines. After heavy corporate lobbying, the legislature put a constitutional amendment on the 2018 ballot that would further concentrate power in the legislature at the expense of the executive and judicial branches and weaken one of the Constitution's sacred guarantees, the right of every person to a full remedy when they are wronged. Business has often sought protection from this guarantee and from families who get hurt or killed and want to sue, calling it "tort reform."

Now comes the Arkansas Bar Association with a counter proposal that would restore the constitutional balance of powers, save the jury system and erect barriers to the corruption in the legislative and judicial branches that has surfaced recently — the purchase of judicial seats, judicial bribery and the hidden pork-barrel spending of your taxes by legislators.

But the sweeping bar proposal, written largely by an old ethics reformer from the heyday of Common Cause, has to be approved by two-thirds of the bar's House of Delegates next month or it will be just another citizen initiative without the organization and wherewithal to get on the ballot. The legislature has made it nearly impossible for citizen groups to get amendments or initiated acts on the ballot, leaving citizen lawmaking to corporate interests.

The key to the legislature's amendment is the phrase "tort reform." People mostly don't know what it means but they think it's supposed to keep trial lawyers from making much money representing injured people and their families. The legislature passed a law a dozen years ago to sharply limit what juries could award to people who are injured or killed owing to negligence or fraud. Twice the Arkansas Supreme Court said the Constitution did not permit the legislature to do that. The framers wrote that every person was entitled to a full remedy for injuries or wrongs and he should obtain it "freely and without purchase; completely and without denial; promptly and without delay."

Not so fast, the legislature said. Its amendment sharply limits what a jury can award in punitive damages and for things like pain, suffering and death. The nursing home industry alone has spent fortunes on such proposals, along with bushels of money to judges and judicial candidates to sway them on injury suits. One judge is going to jail after admitting that he slashed a jury's verdict for the family of a dead woman owing to large campaign gifts from the operator of the nursing home where she was abused. The chamber of commerce says companies won't move to Arkansas owing to jury verdicts, although the governor brags he's setting records luring them to Arkansas.

The legislature's amendment also lifts the Supreme Court's power to set the rules for litigation and hands it to — who else? — the legislature. It is like the Supreme Court grabbing the power to write the parliamentary rules by which the legislature operates.

Here is what the countering bar amendment would do: The Supreme Court would continue to fix its own rules of procedure. It would protect the sanctity of the jury system and the right to a certain remedy for wrongs. It would end the scheme where legislators each year divide tens of millions of dollars in taxes among themselves and pass it out to local outfits that can help their re-election, without any audit or accountability. (An investigation of the scheme in a couple of counties is about to send a couple of legislators and their cronies to jail.) It would give the governor a strong veto power over bad legislation — a power given to the president and the governors of nearly all the other states but taken away in 1874 by Arkansas Democrats to restrain reform-minded Republican governors. It would restore final rule-making power in executive agencies to the executive branch, which was wrested away by the legislature. It would require divulging the sources of millions of dollars of "dark money" funneled into campaigns, especially races for the courts, and require the state Ethics Commission to set limits and force disclosure of campaign funding.

The ballot won't mention the word, but that is the literal definition of reform.

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