Earlier today, the Senate’s State Agencies and Governmental Affairs Committee heard arguments for and against SJR8, a proposed constitutional amendment that would bring Arkansas’s civil justice laws more in line with the rest of the country.
SJR 8 is a tort reform proposal that contains limits on contingency fees, punitive damages, and non-economic damages.
Although this proposal is supported by private businesses, hospitals, and limited government groups like Americans For Prosperity, a number of attorneys were present to speak against the measure.
Arkansas Supreme Court Chief Justice Dan Kemp began his testimony before the committee by saying a section of the proposal would “destroy the delicate balance which our state Constitution has provided for with the separation of powers in our state government.”
However, when questioned by State Sen. Eddie Joe Williams, Kemp admitted that this proposal, “in theory,” merely asks for the state legislature to have similar rulemaking authority over its court system that Congress has over federal courts.
Denise Hoggard, president of the Arkansas Bar Association (ABA), also spent much of her testimony on the same topic — namely, the alleged apocalypse that tort reform would wreak on the separation of powers in Arkansas.
Hoggard said of the proposal:
It takes rulemaking authority from the courts and replaces rulemaking authority with the Legislature. The magnitude of changing the powers of the Arkansas Supreme Court disturbs the balance of powers and merits our opposition. It is interesting here today that [Chief] Justice Kemp has noted that it destroys the balance of power.
Williams asked Hoggard if her claim meant Arkansas had actually been living under a state government with a “destroyed” balance of power for its first 170 years of existence –especially because it was 2001 when the Supreme Court first received exclusive rulemaking authority over the state court system.
Williams: A lot of that power that we’re talking about resided in the Legislature [before 2001]. How did we survive all those years if what we’re doing is taking it back this shared responsibility to 2000 before Amendment 80 was passed? How did we destroy that, if we survived a 100 something years with basically the same language.
Hoggard: I don’t believe that was the case prior to 2000 in a straightforward proposition.
Williams: Historically, prior to Amendment 80, that explicitly says [the Supreme Court shall set] all the pleadings, practices and procedures for all courts. There’s no question we’ve taken from the legislative body to the judicial body.
Amendment 80 became law in 2000 and states the Supreme Court “shall prescribe the rules of pleading, practice and procedure for all courts.” It is an uncontroversial historical fact that, prior to Amendment 80, the legislature held primary rulemaking power for the courts, although in practice the Legislature delegated away a significant portion of that power — and it’s more than a little remarkable that the head of the state bar association decided to testify on constitutional matters while appearing largely unaware of this.
I can understand Kemp’s and Hoggard’s opposition to this measure. Hoggard represents an industry group that doesn’t want caps placed on the massive fees many of her members make from the status quo. Kemp represents the Supreme Court, which also likes the status quo of being the sole judge of rulemaking over the state court system.
What is more troubling is the tendency of civil justice reform opponents to make hyperbolic claims about this proposal — which, in reality, enhances the system of separation of powers under the state’s Constitution. If the legislature writes the rules and the courts decide the cases, that fulfils the requirements of separation of powers far better than the system of judicial supremacy that some of the state’s top lawyers seem to be arguing for.