Columns » Jay Barth

The battle over Issue 1

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The odds are that the most spending in a statewide campaign in Arkansas this year will not be for a constitutional office, but instead in a battle over a proposed state constitutional amendment. Issue 1, the amendment that would impose "tort reform" in the state along with shifting ultimate overview of the rules of court procedure from the state Supreme Court to the General Assembly, will dominate the airwaves in the months ahead. According to filings with the Arkansas Ethics Commission, well north of $1 million has already been invested by at least 10 groups on both sides of an amendment that would overturn a state Supreme Court ruling from 2011 invalidating a legislative effort to impose limits on civil damages and fees and lock such limits into the state Constitution.

At last week's annual Arkansas Bar Association meeting, there was lots of chatter surrounding Issue 1, placed on the ballot by the legislature last year. The biggest news was that Supreme Court Chief Justice Dan Kemp voiced his personal opposition to Issue 1 and encouraged other Arkansas lawyers to spread the word about its potential harms. Those who will determine the fate of Issue 1, however, are not the sitting members of the state Supreme Court who know the intricacies of the amendment and the cases that agitated it into creation. Instead, it will be the voters of the state showing up at the polls in early November with information gleaned only from the hundreds of television, radio and web ads and mailers produced in the lead-up to that election on both sides of the issue.

In a state where the phrase "trial lawyer" is generally an epithet, the arguments in favor of Issue 1 are potent ones. These greedy attorneys are stifling economic growth and health care access in the state through their "frivolous lawsuits" that push opportunity to surrounding "tort reform" states and jack up the prices of medical malpractice insurance. On its face, Issue 1 seems like an easy win for the business community and health care providers in a deeply conservative state.

But, there is a 1-2-3 punch against Issue 1 that provides a pathway to defeat of the amendment and makes this one of the most interesting items on the ballot this year. The first critique of Issue 1 focuses not on tort reform, per se, but instead on the proposal's undermining of the principle of separation of powers by shifting a key judicial responsibility to the legislature. The daily headlines highlighting ethical transgressions by legislative leaders empower this "keep politics out of the justice system" argument. A very different argument centers on the courtroom as the place where the "little guy" still has a chance at a fair fight against economic elites who have done wrong and sees tort reform as an attack on fairness. A final argument, which has brought the Arkansas Family Council into the debate over Issue 1, focuses on the very specific value for a "life" that Issue 1 would write into the state Constitution. The question: Can those arguments reach the right Arkansans to pull it off?

While none would by itself move a majority of voters, there are audiences in the Arkansas electorate for each of these arguments: The lawyer class that came together at the Arkansas Bar Association meeting joins the decidedly less relevant civics-teacher class in being deeply concerned about Issue 1's wholesale attack on separation of power.

Arkansas's populist tradition is ripe for the argument that even those of limited means must have a fair shot in court. The New Yorker's Nicholas Lemann analyzed the trial lawyer's role in the South years ago: "The South does ... still have a deeply ingrained underdog consciousness, and one place where that manifests itself is in the personal-injury courtroom. Throughout much of the South, trial lawyers are, in effect, the left: an influential group that, instead of converting populist sentiment into redistributionist legislation, converts it into big rewards for a small number of people who have stories of having been screwed by powerful, uncaring figures."

Finally, in the state with the fifth-highest rate of evangelical voters, the debate can be framed as a moral one where a pecuniary value is being placed on a life. As the Family Council's Jerry Cox puts it: The amendment is "one more step in devaluing life in a culture where we simply can't afford any more slips down that slope."

None of these arguments alone is enough to defeat tort reform. Together, however, they could beat Issue 1. The question then becomes whether the three different messages can be effectively targeted to the voters with whom they are most likely to resonate. That is the multimillion-dollar question to be answered in November.

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