The executive committee of the Arkansas Bar Association released today a potential ballot answer to the amendment referred by the legislature to cap damages in malpractice, nursing home abuse and other damage cases.

The amendment goes much farther afield, with a range of ethics and government proposals aimed at broadening its constituency, perhaps even dividing some of the business forces likely to back the damage lawsuit limits amendment.


The proposal, which will go to the Association House of Delegates for a vote June 16, not only would override the legislature’s effort to limit lawsuit damages. It also would require financial disclosure of sources of dark money in judicial and other state political races and increase the governor’s power in significant ways.

Bar Asociation President Denise Hoggard said the proposal, drafted on a volunteer basis by Scott Trotter, a Little Rock lawyer long active in ethics legislation, was unanimously endorsed by the executive committee. It will require a two-thirds vote by the House of Delegates for Association endorsement.


Hoggard’ has an idea that the Bar Association’s 5,600 members and others could provide volunteer muscle to gain the 85,000 signatures needed by the first week of July 2018 to put the measure on the November 2018 ballot. The Bar Association is, after all, a nonprofit without a war chest, such as private businesses can command. A volunteer petition drive also would avoid the added complications, such as background checks, that the 2017 legislature enacted for paid petition drives. For now – until there’s a formal House of Delegates decision — this is just speculation.

The key elements:


* DARK MONEY: The amendment would require the state Ethics Commission to develop rules that would require the disclosure of money spent to influence political races by independent committees, including contributors. Sources of independent spending aren’t now disclosed. The amendment also would attempt to impose contribution limits on independent expenditures equivalent to those in regular political races in the case of judicial races. The thinking is that the Citizens United ruling won’t allow caps on independent expenditures in most political races, but other case law indicates it might be possible to set limits in judicial races in the name of public confidence in the judiciary.

* PORK BARRELING: One provision would prohibit local and special legislation in which appropriations are controlled by individual legislators. This is written to prohibit not only local bills, as the Constitution already provides, but to also prohibit the current procedure by which legislators have laundered the money through other state agencies, such as Economic Development Districts. This is the procedure in which some legislators have been accused of taking kickbacks from money they directed to local uses. The money is called the General Improvement Fund and has survived despite one successful lawsuit.

* VETO OVERRIDES: The amendment would require a two-thirds legislative vote, rather than a simple majority.

* JUDICIAL AUTHORITY: One provision would preserve Arkansas Supreme Court authority over rules of law practice. The proposed legislative amendment to limit lawsuit damages also includes a provision to transfer much of this control to the legislature.


* DAMAGE LAWSUITS: The judicial provision also would countermand the legislative attempt to limit attorney contingency fees in damage lawsuits and also retain the current constitutional right of juries to set damages, without limits. The amendment sent to voters by the legislature caps punitive damages at $500,000 (or three times compensatory damages) and caps “non-economic damages” at $500,000. In other words, the death of a child or elderly person with no earning potential could bring no greater damages than $500,000, no matter how great the pain or suffering. The nursing home lobby and the chamber of commerce were prime movers on this amendment. It includes the erosion of court rule-making power because the court in the past has found legislative efforts to restrict damages ran afoul of rule-making power in the Constitution.

* BALANCE OF POWER: This provision would take back from the legislature the 2016 power voters gave it for control over administrative regulations.

You can find a full copy of the proposed amendment here.

Said Hoggard:

Our statewide Bar Association was established in 1898 and has a rich tradition of serving the profession, the judiciary, the state, and the fair administration of justice exercising its efforts in the public’s interest. The ingenious founding fathers for our nation divided power three ways to ensure that ultimate power resided in three words – “We the People.” The proposed amendment is directed towards restoring or protecting the balance of power in Arkansas between the three branches of government. It is also directed to promoting that the people of the state retain ultimate authority.

Historically, the Association has worked in partnership with the Arkansas Judicial Council on issues which face the judicial system. We have reviewed this proposed amendment with the Judicial Council President Judge David Guthrie. As always, it is the intention of the Association to harness the legal skills of Arkansas attorneys for the benefit of our state.

Trotter tells me in response to one question that he believes limits on multiple topics in proposed constitutional amendments apply only to amendments referred by the legislature, not those popularly proposed.

If both the legislative and initiated amendments are approved? The one with the most votes would prevail, but only as to measures in conflict. Other parts of this amendment, should some fall to the legislative amendment, would not be affected.

Trotter said the working ballot title of less than 700 words is still subject to change, but is well within limits of previous ballot measures. He says he’s followed legislative and other guides in developing the amendment in hopes of passing muster with the attorney general’s office, which is the first hurdle for ballot measures (and notably resistant under Leslie Rutledge.)

A fortune will be spent by nursing home and major businesses to pass the proposed cap on lawsuit damages. Lawyers will take a beating in their advertising and the measure will be described as a job creator. While plaintiffs’ lawyers will have plenty to say about the risks injured people suffer in the face of that amendment’s adoption, the broader Bar Association amendment gives more subjects to work with, particularly against the influence of big money in politics. However, the Association has previously taken a stand on several of the individual portions of this combination measure.

Gov. Asa Hutchinson’s reaction will be interesting, both as a lawyer and as a chief executive who holds decidedly weak power against the Arkansas legislature.