Courtney Goodson won her race to stay on the state Supreme Court last week with something to spare, in spite of the unprecedented sludge of dark-money ads that tried to persuade people that she was an execrable wench who was capable of almost anything.
So, we are supposed to be relieved that the great threat to judicial independence represented by the dark-money campaigns against court candidates the past six years is past. Justice Goodson’s surprisingly easy victory over David Sterling must prove that voters are finally on to the plot to politicize the courts so they will favor corporations, and people aren’t going to stand for it.
Oh, if that were only true. The more likely truth is that the dark-money groups — the Judicial Crisis Network and the Republication State Leadership Committee in Washington, D.C. — overplayed their hands by the million-dollar attacks on a woman who simply looked too sweet to be such a witch. The year 2018 was not the year for that kind of thing. Goodson was smart, too. She fought back with two silly lawsuits that tried to stop the media and the shadow groups from airing the ads. Neither suit had even a remote chance of success in overriding the First Amendment, but they brought attention to the unfairness of the attacks.
It might help if people understood the basis of the sham commercials, which were based loosely on facts about Goodson’s romance with a trial lawyer and the gifts lavished upon her about the time, in 2011, that she was being elected to the Supreme Court. I’m here to help do that.
The Goodson-Sterling battle and the advertising barrage were related to efforts by corporations and, loosely, the Republican Party to enact “tort reform” — curtailing people’s rights to collect damages for harm done to them by commercial interests through negligence, fraud or deception. The legislature and Gov. Mike Huckabee in 2003 enacted a sweeping law curtailing people’s right to damages, right after the governor and the legislature had levied a heavy daily bed tax on private-paying nursing home patients so the state could use the money to get a 3-for-1 match of federal Medicaid dollars for nursing homes. State payments to nursing homes immediately doubled and tripled, an incredible bonanza for nursing home owners, like the owner of the biggest chain of homes, Michael Morton.
Goodson (then Courtney Henry), a Republican when she ran for the nonpartisan Supreme Court in 2010, was backed by the party, the Arkansas State Chamber of Commerce and the industry group supporting tort reform. But one of her first opinions after arriving at the court was to strike down a section of the 2003 tort law that curtailed punitive damages.
The law was a clear violation of not one but two sections of the state Constitution, and no judge dedicated to the rule of law could have held any other way.
Goodson simply wrote the court’s official opinion, a task that fell to her by the court’s rotation in the assignment of cases. But the phalanx of industry supporters of tort reform vowed eternal hostility because they thought she had betrayed them. When she ran for chief justice in 2016, the shadowy Judicial Crisis Network beat her with attack ads and stepped up the attacks this year when she was up for re-election.
The case was Bayer Cropscience LP v. Schafer and it wasn’t directly about nursing homes. A bunch of rice farmers sued a German multinational corporation because, thanks to the company, the farmers’ rice was contaminated by genetically altered strains that had not been approved for human consumption, and the farmers’ rice was shut out of markets all over the world. A Lonoke jury unanimously awarded them $5.9 million in direct damages and another $42 million in punitive damages. Huckabee’s 2003 law had limited punitive damages to $1 million, but the Lonoke judge said that provision was unconstitutional. Goodson and her colleagues unanimously agreed.
There was really no question. The Constitution says flatly that the legislature can’t enact a law limiting the amount people can receive for injuries to person or property. Moreover, the state’s old 1874 charter literally roars about the right of everyone to be compensated for harm to person or property:
“Every person is entitled to a certain remedy in the laws for all remedies or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay … .”
Soon after Goodson’s tort opinion, a family in Faulkner County sued one of Michael Morton’s nursing homes for failing to provide doctor-ordered hospital care for their mother, who died in excruciating pain, and the jury awarded them $5.2 million. The Republican judge, Mike Maggio, set aside $4.2 million of the judgment against Morton (his insurance covered the $1 million) and then went to prison last year for taking a bribe arranged by a state Republican official to do it.
Asa Hutchinson, running for governor in 2014 with a big Republican majority in the legislature, vowed to pass a constitutional amendment to give the legislature the power to curtail sizable monetary judgments against businesses, hospitals and doctors. The legislature last year put the amendment on the 2018 ballot but loaded it up with so much extraneous stuff favorable to defendants that the Supreme Court last month struck it from the ballot for violating a clear constitutional mandate against logrolling. The only justice who voted to keep the tort amendment on the ballot was the court’s avowed Republican, Shawn Womack, a former senator who sponsored the defunct 2003 tort law.
Goodson still has her job, but another chapter begins next month, when the Republican-dominated legislature reassembles with a reinvigorated governor.