LawTort Reform

Rutledge Rejects Ballot Title For Liberal Alternative To Tort Reform

The ballot title for a left-leaning proposal — designed to compete with a tort reform measure sent to the ballot by the legislature — was rejected by Attorney General Leslie Rutledge on Friday.

The proposal would:

  • bar the legislature from setting non-economic damages caps and attorney contingency fees;
  • require a two-thirds majority of the legislature, instead of a simple majority, to override a Governor’s veto; and
  • require a person or entity that attempts to influence a vote or election to register with the state.

The ballot title was submitted by Scott Trotter, a Little Rock attorney. The title was: “An Amendment Preserving the Right of Juries to Set Damages, Requiring Disclosures in Elections, Addressing Separate Powers of the Three Branches of Government, and Imposing Limits on the Legislature.”
Rutledge said the ballot title was “misleading” and potentially “partisan.” For example, Rutledge pointed out that “preserving the right of juries to set damages” implies that juries in Arkansas currently have the exclusive right to set damages. Arkansas judges can reduce damages granted by juries.

Nationally, a majority of states have laws that put limits on the amount of damages juries can award.

Rutledge also said the section of the ballot title outlining new “disclosure” requirements on private individuals and organizations engaging in political activity was “misleading.” Arkansas law already requires disclosure of candidate contributions and expenditures. The ballot title may lead voters to mistakenly think there currently are no Arkansas laws requiring disclosures in elections, according to Rutledge.

Rutledge didn’t comment in her letter on the efficacy of the proposal’s goals. However, it seems to me that this proposal would do nothing to increase transparency in government (which is, of course, a noble goal) but it might threaten the privacy of people who get involved in politics.

Rutledge said in her letter rejecting the title:

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on review of any revisions of your proposal.

You can read her full letter here.

Trotter is allowed to change the language Rutledge objects to and re-submit the title for approval. Rutledge’s approval is necessary before signatures could start being collected to get the proposal on the ballot in 2018.

Trotter didn’t return a call for comment.

If he had, here are some questions we might have asked him — questions that should be considered by anyone who might support this newest proposal:
Can you explain what the “rights” of juries are? We customarily speak of government bodies having powers, not rights.

Do you think that the exercise of judicial reduction of damage awards (remittitur) infringes on people’s rights to a fair trial?
Do you think that legislative ceilings on damage awards infringe on people’s rights to a fair trial?
The majority of states have limits on damage awards. By your logic, should we infer that it is impossible to get a fair trial in the majority of states?
Suppose the Democrat-Gazette publishes an editorial just before the election. I am sure that you are aware that many editorials appear designed to influence votes. Can you explain the effect of the disclosure rules you are proposing on the Democrat-Gazette? How would that work?
If there’s a media exception, how do we determine what falls into the exception? Were the Federalist Papers media? The Advance Arkansas Institute publishes a lot of editorials on its blog. Does that make us media?
Here is a question about the part of the amendment that affects contingency fees. I assume you agree with the Rule of Professional Conduct that lawyers should not charge unreasonable contingency fees. Do you think that the legislature should be allowed to make policy in this area? Is this a policy question?

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2 thoughts on “Rutledge Rejects Ballot Title For Liberal Alternative To Tort Reform

  • Matt Bishop

    Since when is preserving the right of people to freely contract a “liberal” thing? Or preserving the rights of individuals over that of the legislature?
    “Conservative” and “liberal” seem to now just be a lobbying term unmoored from any principles.
    The majority of states have some limits on damage awards. That a majority does something makes it neither right nor advisable. I’m sure Mr. Taylor would agree that if a majority of states rejected concealed carry permits he would not think that makes it a particular wise policy simply because the majority did it. And the majority of states do not have caps the breadth of which Arkansas “conservatives” opposed to individual freedom are proposing.
    I realize that “conservatives” today have only a couple of Constitutional rights they think should be expansively interpreted but they undermine their position on those by picking and choosing, as this site does.

    • Because SJR 8 does not affect “the right of the people to freely contract” or “the rights of the individuals over the legislature” in any significant way, I think most people will – correctly – understand your comment above as empty rhetoric. We have written about regulation of contingency fees in our recent post “Do Lawyers Ever Rip Off Their Clients? Don’t Ask Paul Harrell.” In a nutshell, I think (and most people think) that eliminating agent-principal conflicts strengthens the right of the people to freely contract.


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