The House today endorsed SJR 8, the proposed constitutional amendment to limit awards and attorney fees in damage lawsuits and also to give the legislature control of Supreme Court rule-making.
The vote was 66-30, with one present.
The amendment, now approved by both House and Senate but with a House amendment, must now go back to the Senate. If approved there (which seems likely since it’s the originating chamber), it will go to voters in November 2018. To overcome resistance in the House, sponsors of the amendment — big business, nursing homes and business lobbying groups — the cap on damages for pain and suffering and punitive damages was moved up to $500,000 from $250,000, still a pittance for damage to a child or elderly person who cannot prove damages due to lost wages. The cap of attorney fees at a third of the net award also will discourage lawsuits.
Sponsors pitch the amendment as good for business. Opponents say there’s no proof of that in other states but there are indications that people have been discouraged from getting compensation for damage and that it could have contributed to a worsening of care in nursing homes in Texas.
Rep. Bob Ballinger, a sponsor of the amendment, contended that some objections to the proposal could be met when the legislature meets in 2019 to adopt legislation necessary to put the amendment into practice.
Some legislators tried to frame the issue as the people’s decision, which, as a technical matter it will be. But often constiturional amendment votes are made on imperfect understandings of the impact. Some who believe this amendment merely puts greedy lawyers in their place will someday wake up to the reality that it’s deny many injured people an opportunity to seek justice from a jury, as the constitutions of the state and U.S. guarantee.
Even some Republicans objected to a cap on fees as contrary to conservative thinking, particularly a cap on fees tied to a net, not gross award. Ballinger dodged the question, saying the legislature could fine-tune this.
Will this discourage legislating from the bench, Rep. Stephens Meeks asked? Ballinger said the current court was “pretty solid” and he expected little of that from them. He said he favored the court’s ability to regulate rules of practice and procedure, but he said the change was necessary to prevent court control of policy.
Rep. Kim Hendren opposed the measure. He said it went farther than a 2003 effort and he said Ballinger seemed to be saying “let’s pass this and then see what’s in it.” he said the ballot title was long and complicated and he made reference to the amendment that said the legislature was “establishing” term limits, when it actually extended them. He said, “It’s time we started leveling with the people of Arkansas.”
Rep. Clarke Tucker explained that those who believe Congress has a role in federal court rule making have some misunderstandings. He also said it was wrong to categorize the state court as having struck down procedural rule changes when they were protecting constitutional rights. He said the House would react strongly if the executive or court or Senate tried to set its rules. The change would be the end of checks and balances, he said. He asked what the legislation is trying to achieve. Business climate seems to be the answer. Tucker said he represents businesses in most of his work and bills by the hour, not by contingency fees. But he said the proposal would restrict juries, abridging a constitutional right and putting a dollar-value on life in the process. He said he’s never heard of a case in 11 years that allowed damages for loss of earnings for a minor. And he said the measure does little to discourage frivolous lawsuits, generally those with low damage claims, but it will discourage meritorious cases. The higher the value of the case, the higher the risk and cost for a lawyer. “We are talking an access to justice issue here,” he said.
Rep. Jimmy Gazaway, another opponent, said the debate boiled down to principles versus the power of groups outside the chamber. If free market principles and conservatism are true principles, limiting attorney fees violates those principles, he said. And he said many have campaigned on pro-life principles. “This amendment brings that to a head. Are we truly pro-life? Or are we just anti-abortion. Are we really pro-life? Are we just pro-fetus? Because there’s a difference.” He said you can argue it any way you want, but “it puts a limit of $500,000 on a human life, period.” The amendment is saying a nursing home can abuse someone until they die and the maximum recovery would be $500,000. “Is that pro-life?”
Gazaway also answered those arguing for a better business climate. To improve that, he said, the state needs to improve education, to improve tax policy and to produce a better work force.
“Who are we here to protect? Are we here to protect the most vulnerable members of society. … Or are we here to protect profits, the wealthy, the powerful, the insurance companies, the nursing homes, the wealthy corporations. That’s really the choice.”
Rep. Dan Douglas insisted that the state’s low rating by industry groups on tort lawsuits harmed business recruitment.
Rep. Andy Mayberry repeated the argument about putting a maximum amount on the value of a life. Society could be best judged on how it treats the weak and vulnerable, he said.
Rep. Mary Bentley said she opposed the bill. She said the cap was high. She said people who work in nursing homes love the patients. She said she was offended by comments made about nursing homes, many of which are doing “a phenomenal” job. It shouldn’t be a “lottery,” when someone is hurt in a nursing home. She claimed liability insurance rates are higher in Arkansas than other states.
Said Rep. Doug House: “The purpose of this amendment is to deny people access to the courts.” He said the jury system is the best system invented to determine value of life and damages. He agreed there are some good nursing homes. “We’ve got some really bad ones, too.” He said a jury is not going to find a good nursing home negligent. “I’d much rather trust my business to 12 people who know me from church.” He quoted founding fathers’ praise for the jury system.
Ballinger objected to arguments against the resolution. He said it wasn’t to bar access to courts, but to “end extortion.”