How Arkansas Can Resist Florida’s Imperial Judiciary

Florida’s “stand your ground” law was recently watered down by a Miami court decision.

Under a “stand your ground” law, someone who uses deadly force for self-defense when retreat is available is immune from criminal prosecution. (To put it another way, if you’re attacked in a state without a “stand your ground” law, you have the duty to retreat if you can do so safely. If you can retreat safely but you use deadly force anyway, you’ve committed a serious crime.)
A few months ago, the Florida legislature passed a law that strengthens the self-defense rights of persons who use a “stand your ground” defense — by changing the court procedure in which a “stand your ground” defense could be presented. In the past, Floridians using a “stand your ground” defense had to prove their innocence. Under the new law, prosecutors — not the accused — had a new, initial burden: they’d have to prove that the defendant’s guilt was  “clear and convincing” before the case would go to trial.

Florida’s Imperial Judiciary
However, a Miami court decision found the new law passed by the Florida legislature to be unconstitutional. Professor Eugene Volokh of the UCLA School of Law (who is, according to one of my coauthors at the Arkansas Project, one of the country’s most brilliant legal minds) recently explained why the Florida court struck this law down.

From The Volokh Conspiracy:

The Miami judge’s decision held that this new clear-and-convincing evidence provision (i.e., item c) was unconstitutional, because of a peculiarity of Florida constitutional law. Article 5, section 2(a) of the Florida Constitution provides that,
The supreme court shall adopt rules for the practice and procedure in all courts …. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.


As the Florida Supreme Court has held, this means that “the power to initiate” any procedural rules “rests in this Court,” and the legislature has only the power to “repeal[]” them by a two-thirds vote; indeed, the court has taken the view that the legislature may not itself enact rules of evidence, though the court often does use its own rulemaking power to implement any legislatively proposed rules.


Things aren’t done this way in the federal system: Congress is quite free to enact procedural rules as well as substantive rules. The same is true, to my knowledge, in most states. But some states, including Florida, take a different view of the separation of powers, and reserve certain kinds of rulemaking solely to their judiciaries.

Essentially, a policy decision by the Florida legislature — one designed to protect the self-defense rights of citizens in “stand your ground” cases — was overturned because the Florida court interpreted it as a procedural rule, and only the Supreme Court of Florida can make procedural rules in this area.

The Arkansas Connection
Arkansans will vote on a proposed constitutional amendment commonly known as “tort reform” in November 2018.

One aspect of this amendment is that it would return some degree of the power that the Arkansas legislature once held — the power to write procedural rules — back to the Arkansas legislature. Currently, that power is held solely by the Arkansas Supreme Court.

In fact, Arkansas law is even more unbalanced than Florida law in this respect. The current law in Florida is that a legislative supermajority can write procedural rules, which is a kind of balance of power between the legislature and the courts. No matter how big a supermajority the Arkansas legislature can produce, our Supreme Court has decided that it has sole authority over procedural rules.

The Supreme Court’s decisions in this area are largely based on Amendment 80 of our state Constitution.

Amendment 80 was passed by the voters in 2000; it states that the Supreme Court “shall prescribe the rules of pleading, practice and procedure for all courts.”
Before Amendment 80’s passage, the legislature held primary rulemaking power for the courts; in practice, however, the legislature delegated away a significant portion of that power.

Next year, Arkansas voters will have the opportunity to block what happened in Florida, and what has happened many times in Arkansas — namely, the overstepping of judicial boundaries by judges who want to make policy. If voters pass the tort reform amendment, they’ll be able to shift some policymaking power back to the state legislature. Over the last decade, the state Supreme Court has repeatedly struck down legal reforms that had been passed by the legislature — because our courts have adopted an expansive view of what a procedural rule is.

Some opponents of tort reform have suggested that the proposed amendment will remove the constitutional separation of powers between the legislative and judicial branches of government. They are wrong. The tort reform amendment will normalize the relationship between these two branches; it places them back into their historical relationship — back to the system that was in place in Arkansas as recently as 2000, and back to the relatively balanced system that many states and the federal government have today.

(Notably, the tort reform amendment would only allow the Arkansas legislature to make procedural rules if a supermajority voted to do so. Another way to think of this is that Arkansas’s system is even more unbalanced than Florida’s — and that the passage of the tort reform amendment would bring Arkansas into the realm of moderate, rather than extreme, judicial control over policy.)
The Florida legislature overwhelmingly passed “stand your ground” legislation a few months ago. Now it’s gone — because the courts have overstepped their boundaries in Florida. Next year, the proposed tort reform amendment will give Arkansans the opportunity to avoid repeat episodes of judicial imperialism in the Natural State.

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12 thoughts on “How Arkansas Can Resist Florida’s Imperial Judiciary

  • July 13, 2017 at 9:22 am
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    Why would we trade an “imperial judiciary” for an “imperial legislature”?
    If the “reform” proposal you are pushing was truly about reform, wouldn’t it be pushing more power back to the voters? Instead, it strips ever more power from the citizens.
    The author knows this amendment is far more than a policy fight between the legislature and judiciary. Rather it strips freedom and power and Constitutional rights from the voters of Arkansas and shifts them to the legislature in a way that this site would object to if it involved any other Constitutional right.
    And it’s clear who benefits from this shift if one follows the money, though this site is oddly only willing to talk about the money behind one side of the issue.
    If The Arkansas Project held the mission and ideals it purports then rejecting SJR8 would be the clear choice.

    Reply
    • July 16, 2017 at 11:28 am
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      Your comments don’t make much sense.
      1. If you read the state Constitution, you’ll see that it draws a distinction between the “legislative” power and the “judicial power”. Speaking broadly, I understand the legislative power as the power to issue general rules, and I understand the judicial power to decide concrete cases. So it doesn’t make a lot of sense to talk about an “imperial legislature.” When we restore policy power to the legislature, that isn’t boundary-crossing; that properly restores legislative power to the legislature.
      2. Your accusations about SJR 8 are so gaseous as to be silly. SJR 8 doesn’t strip “freedom and power and Constitutional rights” from anyone. You regularly make these kinds of accusations; you never back them up with anything resembling facts or arguments. You might actually name the constitutional right SJR 8 endangers next time. (Hint: there isn’t one.)
      3. We think people have a right to the separation of powers; as described above, SJR 8 restores this. This is a separation of powers issue — an issue of distributing powers among government bodies. Because the legislature is a more democratically accountable branch, SJR 8 also arguably gives more power to the voters.
      Try making an argument next time, rather than just relying on empty rhetoric.

      Reply
      • July 19, 2017 at 7:04 pm
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        I wonder if you’ve read SJR8 Dan. I’m not sure how you argue with a straight face that it doesn’t take Constitutional rights away from individuals. It absolutely does, allowing the legislature to substitute its judgment for that of a jury without having heard the evidence. Yet you claim that having the legislature make the call is more power to the voter/juror? I understand you’ve got some donors to satisfy but not at the expense of your credibility.
        The right to a jury trial enshrined in both the Declaration of Independence and our Constitution by the way.
        Not to mention the obvious interference in private contracts on behalf of only one side to a lawsuit.
        You can wax poetic about separation of powers all you want, and the idea that he legislature should be making court rules is about as silly as the idea that the court should be making legislative procedural rules. And I dare say you wouldn’t advocate that. Still, if this were just a separation of powers argument you might have some argument. But as we both know, SJR8 goes much further. So let’s be honest about that shall we?
        Here’s the best part about SJR8 though. It’s a big government solution in search of a problem. There’s no evidence arkansas juries are giving unwarranted awards, that arkansas lawsuits are out of control, or most importantly, that any of the SJR8 rewards promised will come true. In fact all evidence points the other way. But you don’t want to talk about that. Even though the information about the lawsuits is available to you for free.
        Why is that? Why not talk evidence rather than just bash lawyers? Because you know the evidence, which I’ve linked many times, kills your position. Which is already antithetical to what you stand for in so many other ways. Namely limited government and maximum individual freedom.
        But for all this site’s bashing of “greedy trial lawyers”, it seems there’s some bills to pay here as well.

        Reply
        • July 21, 2017 at 1:02 pm
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          Matt, I think your response is fairly self-discrediting. Obviously, everyone has a right to a jury trial. But nobody seriously believes that placing limits on certain kinds of damages infringes on that right. (And of course we both know that SJR 8 has nothing to do with a legislature substituting its judgment for the jury’s.) Half the states have limits on jury damages, Matt: do you think that, in practice, nobody gets a fair jury trial in half the country? Do you think that remittitur infringes on the right to a jury trial? If your answer to either question is ‘yes,’ I don’t really know how to respond, except to say that such a perspective is pretty removed from reality.
          Your attack on SJR 8 seems to come from the perspective that legislatures and judges should have to follow the law, but that juries should not. I am not sure that the English language really allows me to convey what a mistaken sentiment that is.

          Reply
  • August 4, 2017 at 1:31 am
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    “But nobody seriously believes that placing limits on certain kinds of damages infringes on that right.”
    Actually, quite a few people believe that, your rhetoric notwithstanding.
    “And of course we both know that SJR 8 has nothing to do with a legislature substituting its judgment for the jury’s.”
    I’m not sure how one suspends all logic to reach that conclusion. If the jury, after hearing the evidence, renders a verdict and it is in excess of the cap the legislature instituted without hearing the evidence, then yes the legislature will be substituting its judgment for the jury’s. Now, you may find that government making decisions without the facts is better than citizens making decisions with them to be a noble end. It seems odd given your organization’s stated goals and principles, but to each his own.
    “Half the states have limits on jury damages,”
    Half the states do not have anywhere near the removal of jury rights that this legislation attempts, much less the interference with private contracts.
    “do you think that, in practice, nobody gets a fair jury trial in half the country?”
    I never said that. They get a fair trial. The jury renders a fair verdict. What the injured party doesn’t get is the benefit of the jury’s decision. And of course, remember this restriction only applies to those a jury has determined have been injured due to the negligence of another. Defendants still get the FULL benefit of a verdict in their favor. And it doesn’t apply to other types of lawsuits, like frivolous business litigation. Those parties can get the full measure of damages, and can contract with their counsel as they see fit.
    “Do you think that remittitur infringes on the right to a jury trial?”
    I am not a fan of remittitur, as it is subject to abuse, as the Martha Bull trial indicates.
    “’ I don’t really know how to respond, except to say that such a perspective is pretty removed from reality. Your attack on SJR 8 seems to come from the perspective that legislatures and judges should have to follow the law, but that juries should not. I am not sure that the English language really allows me to convey what a mistaken sentiment that is.”
    I find your version of “reality” to require a willful suspension of common sense, but we can disagree without being disagreeable, can’t we? I’m not sure about that “legislature and judges” language and where you’re going there. I’ve certainly not argued that position. Nor is SJR8 narrowly tailored to only address a situation where juries aren’t following the law. I’m not sure why you avoid speaking of the full breadth of it, only picking certain parts to discuss, and sometimes applying situations (class actions) that aren’t impacted at all by it. Seems disingenuous, to be charitable.

    Reply
    • August 8, 2017 at 10:58 pm
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      Matt, the fact that you have had to resort to hyperbole underscores the weakness of your position; there is no “removal of jury rights” in SJR 8. (And I think the value of the “FULL” benefit that you are referring to above is exactly zero.) Despite your post, half the states regulate jury verdicts and half the states regulate attorneys’ fees. You are wrong to say that the restriction only applies to cases involving negligence; what it applies to is every single case involving non-economic damages. And the fact that you suggest that there is something wrong with remittitur — which is a common-sense remedy that is available in every jurisdiction in the US — suggests that your position is, again, not exactly tethered to legal reality.

      Reply
  • August 9, 2017 at 4:55 pm
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    “There is no “removal of jury rights” in SJR 8.”
    So SJR8 does not authorize the legislature to set the amount of a verdict in a personal injury case, which has been in the purview of the jury? Perhaps you’re reading a different SJR8?
    “Despite your post, half the states regulate jury verdicts and half the states regulate attorneys’ fees.”
    That tells us exactly nothing. Since you don’t tell us the type of cases, or the type of regulation. It’s vague enough to be perfect for lobbyist speak.
    “You are wrong to say that the restriction only applies to cases involving negligence; what it applies to is every single case involving non-economic damages.”
    Do tell – what other cases would those be?
    “And the fact that you suggest that there is something wrong with remittitur — which is a common-sense remedy that is available in every jurisdiction in the US — suggests that your position is, again, not exactly tethered to legal reality.”
    Ah, the inevitable personal attack. However, I think Judge Maggio and his cohorts in the Bull case illustrate the dangers of remittitur. But you may not be able to mention that on this site.

    Reply
    • August 20, 2017 at 10:22 am
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      1. Your position, as far as I can tell, is that any change in the law that moves us away from a jury’s absolute power to do whatever it feels like is a “removal of jury rights.” I would say your position is not just incorrect, but un-American. It is completely separate from legal and historical reality. That is why I say that there is no “removal of jury rights” under SJR 8.
      2. I am sorry you feel that the statement that “half the states regulate jury verdicts and half the states regulate attorneys’ fees” tells us “exactly nothing.” If you don’t feel that our responses give us the information you need, you’re welcome to try another blog!
      3. You really don’t believe that there is a (large!) set of cases which do not involve negligence but do involve non-economic damages?
      4. It is hard to take anyone seriously who argues that the misuse of remittitur in one case suggests that it should be eliminated. It’s like saying “I don’t think we should allow people to buy and sell screwdrivers, because they can be used to gouge someone’s eye out.” Obviously, a screwdriver is like remittitur in that they are both tools that can be misused. It certainly is not a personal attack when I identify crazily illogical views for what they are, and if you believe that there is something wrong with remittitur (or screwdrivers) as such, I think it is obvious that this is a crazily illogical view. With respect to remittitur, yours is a view that is (again) completely separate from legal and historical reality.

      Reply
  • August 30, 2017 at 10:49 am
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    1. A simple question – who sets damages in a civil jury trial now? Does SJR8 add any parties to that equation? The answer clearly is yes. If you desire to pretend otherwise, that’s fine, really.
    2. I do try other blogs. But yours plays a role in Arkansas politics, and I agree with much of your free market leanings. I hope may of your ideas get purchase with the Arkansas legislature. If you’d prefer an echo chamber, though, just say so. I’ll be glad to oblige – you have my email after all and you’ve called me in the past so you have my number. Always glad to converse. That said, your statement did tell us nothing with regard to the merits or drawbacks of the legislation you’re pushing.
    3. You answered a question with a question. A trick that’s a little beneath you. Please share those cases you reference which will be affected by SJR8.
    4. I didn’t say it should be eliminated – where did you see that? Please quote me honestly. I find it ironic that you’re condemning illogical views but defending SJR8. The whole premise of that statute is illogical. Even if one can somehow find it logical, the EVIDENCE shows the claims of its proponents regarding more business, more doctors, etc. simply false. Likewise with the EVIDENCE of some awful legal climate existing in Arkansas such that the rights of our citizens must be transferred to the legislature.
    You’ve gone heavy on the insults, and light on the facts. I think that speaks volumes.

    Reply
    • August 31, 2017 at 11:44 am
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      1. No, you’re just wrong. Laws and regulations that constrain procedures do not add or create additional parties. The answer to your question is, clearly, no. (Basically, you are confusing a legal fact with your own metaphorical assertion.) But if you want to pretend otherwise, that’s fine, really.
      2. Again, the reason I suggested that you try other blogs was because when I brought up facts that demonstrated that your assertions about various legal codes were just wrong, you responded “That tells us exactly nothing.” I am sorry that you believe that the facts here tell you exactly nothing. There is not much more to say except that you seem intent on ignoring the extent to which other states regulate attorney fees, and that you seem intent on ignoring the extent to which other states regulate non-economic damage awards. You make up things when you argue that Arkansas is considering measures that are not widely accepted in about half the other states, but I am not obliged to take such behavior seriously. You don’t like facts which demonstrate that your accusations are groundless; I can live with that, but you have about convinced me that it is a waste of time to bring up facts to counteract your groundless assertions.
      3. Any first-year law student knows that non-economic damages can come about as a result of injuries which are not caused by negligent acts, but instead by reckless acts or intentional acts. It is difficult for me to imagine that you are not aware of this fact.
      4. I appreciate that you do not want to explain your view about whether remittitur is a legitimate practice. You have now dodged this question at least three times. Of course that is because if you take a position on that question, it undercuts your entire argument.
      Finally, I appreciate that when I make arguments that demonstrate that your positions on questions of legal policy are groundless or unreasonable, you regard it as a personal attack. You spend an incredible amount of time mischaracterizing what I say on this blog, and then you attack your own mischaracterization and pretend you represent me accurately. Other people are willing to characterize what I say accurately, and I hope that’s a practice you’ll adopt in the future.

      Reply
  • September 21, 2017 at 12:23 am
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    1. Dan, I’m sorry, but you’re just lying on this one. I don’t know why, either. SJR8 give the legislature the power to decide the maximum damages. A power they do not currently have, for the obvious reason that they don’t know the facts of the case. Why are you willfully ignoring this fact?
    2. Telling me other states regulate things doesn’t tell me those things are wise. Much of the developed world has universal healthcare, so would you argue it’s therefore a good idea for the United States? What’s more, the evidence from those other states is that your “reform” in other states has little to no effect on physician supply, cost of healthcare, etc.
    3. Why so disingenuous? The vast majority of cases that are affected by SJR8 involve simple negligence. You know this. Most car wrecks, med mal, etc. isn’t reckless or even more rarely intentional, it’s simple negligence.
    4. Remittitur is legal and legitimate. Because I don’t care for it, due to the potential abuse which the tort reform advocates and Judge Maggio illustrate, doesn’t mean it’s not a legitimate power of the trial court. Which, to distinguish it from the legislature, has heard the actual facts of the case. Doubling down on a bad idea doesn’t make it a good one.
    As to the rest of your post, I find your personal attacks to be silly and indicative of the weakness of your argument. I sympathize with you though, as I don’t believe in your limited government heart that you believe in this legislation. But I realize that think tanking ain’t free.

    Reply
    • September 23, 2017 at 3:04 pm
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      1. I know this will be hard for you to believe, but the fact that I disagree with you is not actually evidence that I’m lying. You’re making the ridiculous argument that when a legislature regulates something, it therefore becomes a party in the matter. That’s absurd as a matter of law. The legislature is not generally a party in civil or criminal matters, even though it routinely regulates both.
      2. Thank you for making the point that things aren’t wise just because they are established in other states. This constitutes a changing of the subject. Since your newest point is of course not in dispute, I will take it as a concession, and that you admit that it’s completely and utterly absurd to pretend that SJR 8 has anything to do with the “removal of jury rights,” which was your original point that we had been discussing. Juries do not have rights; they have limited powers, not unlike the rest of the government.
      3. There is nothing remotely disingenuous about noting that you simply got it wrong when you described the scope of SJR 8’s damage restrictions. They restrict non-economic damages, not negligence damages.
      4. Thank you for finally conceding that remittitur is legal and legitimate. The existence of remittitur demonstrates that juries, like everyone else in our system, must obey — and may legitimately be constrained by — the law.
      Finally, I do not take seriously your accusations about “personal attacks.” Personal attacks should be avoided, but there is nothing wrong with pointing out errors of fact or errors of logic. With respect to the latter, I think it should be obvious to anyone who reads our exchange that you have provided an array of easy targets.

      Reply

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