No one could have been surprised when the Walton heir who chairs Governor Hutchinson’s task force to map Arkansas’s recovery from the coronavirus pandemic said the state’s priority should be new laws to protect business owners from lawsuits by people who are hurt by a business’ practices during the current and future pandemics.
The legislature, he said, needs to enact protections for business at a special session very soon or at the regular session in January. Such legislation is commonly called “tort reform,” although you might not consider it reform to help companies avoid compensating people who are harmed by fraud, deception or negligence. Hutchinson, like all Republicans nowadays, is a big advocate of tort reform.
Gov. Mike Huckabee and the legislature enacted “tort reform” in 2003, but the law was largely deflated by successive decisions of the Arkansas Supreme Court in 2007, 2009 and 2011 because the act’s various business protections limited the amount of damages to an injured person in violation of the Constitution and also ran afoul of the sternest provision in the Arkansas Constitution’s bill of rights: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character …” It continues: “he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay …”
Luckily for the champions of tort reform, the state Supreme Court has undergone big personnel changes since the last of those decisions, and the court let it be known in recent months that it would be open for business again on matters of commercial interest like tort reform. From now on, the court implied, it is going to follow the playbook of the Federalist Society, the right-wing legal fraternity that is now the clearinghouse for appointments to the federal judiciary when Republicans control the White House and the Senate. Come January, only two of the nine Arkansas justices who rendered one or all three tort decisions a decade ago will still be around.
In a little noticed decision in April, the court, by a vote of 6-1, embraced the Federalist Society’s war on the “Administrative State,” which is the term affixed to the government’s efforts for the past century to protect consumers, workers and the general public from commercial abuses in the workplace, marketplace or the environment. The Trump administration has been rolling back those protections for three years, but once someone else is in the White House they will be restored. So it is the courts’ function, in the Federalist Society’s view, to restore and preserve industry’s right to put the spoils of the market above the health and wellbeing of individuals.
Do I attach too much meaning to the case of Mary Myers v. Yamato Kogyo Co. Ltd.? The 6-to-1 decision, handed down April 9, attracted no attention in the popular press. The majority opinion, written by Federalist Society protégé Shawn Womack, the former Republican leader of the state Senate, was passing strange.
The Supreme Court upheld both the state Workers Compensation Commission and the Arkansas Court of Appeals, which had barred a widow — whose husband, a worker at a steel mill at Newport who was killed when the cable on an 8-ton ladle broke and dumped molten steel on him — from suing the mill’s big corporate owners for damages. The mass even melted the man’s wedding ring.
The commission and a majority of the Court of Appeals had said the state workers compensation law gave the big corporate shareholders who owned the steel mill immunity from tort claims. Womack’s majority opinion, which agreed with the commission and the Court of Appeals, said the lack of a comma near the end of a sentence in the workers comp statute made the big corporate shareholders immune to damage claims from the widow and children. The pittance from workers compensation was all she was entitled to, whatever the Constitution might say about obtaining justice “freely, and without purchase; completely, and without denial; promptly and without delay.”
Given their recent composition, there ought to be no surprise at the widow’s loss at either the commission, the Court of Appeals or the state Supreme Court. Only one judge on the Court of Appeals and one on the Supreme Court — retiring Justice Josephine Hart — dissented strongly.
What was startling about the Supremes’ decision was that, after agreeing entirely with the Court of Appeals on the substance — the comma interpretation — the Supreme Court formally vacated the lower court’s opinion and announced that the court would never again give any deference to the Workers Compensation Commission or any other state agency that is charged with interpreting the statutes. The rule at the state Supreme Court and the U.S. Supreme Court has long been that they will defer to the administrative agency that carries out a law unless the agency’s interpretation of the law is manifestly, obviously wrong. The U.S. Supreme Court came close to ending deference two years ago but, to the dismay of the Federalist Society, Chief Justice John Roberts failed to go along with the other four Republican judges and scrap the deference doctrine.
What Justice Womack and those who agreed with him on the court said was that a missing or misplaced comma in the sentence — a dispute among linguists for centuries — meant that the corporate owners of the steel mill who had profited from the man’s toil were not morally or legally obliged to compensate the poor man or the family he succored for the owners’ negligence and that if the Court of Appeals had taken the moral side of the comma dispute, then the Supreme Court would have overruled the court. But since it did not take that side, the superior court was going to overrule it anyway so as to let government agencies know that any future straying in that direction would not be countenanced. Would you call that an activist court?
Now, every order of an Arkansas regulatory agency will be subject to reversal by the Supreme Court if a majority of the court thinks it has a better idea about what the law intends than the agency that exists to carry out the law. That goes, for example, for the Public Service Commission, the state Plant Board and the Pollution Control and Ecology Commission, all of which have of late issued controversial orders affecting major industries. If the power companies and the electric cooperatives are as unhappy as they say they are with the PSC’s order last week on net metering for people who install solar-power facilities, all they have to do is appeal. Justice Womack indicates that they may find a friendly ear.
The Supreme Court’s order in Mary Myers’ case makes no mention of tort reform, but when the majority went far out of the way to end statutory deference to agencies, it was trying to say something. I think it was an invitation to the legislature to try again on tort reform. That is Shawn Womack’s peculiar history. As a state senator in 2003, he was one of the sponsors of the act making it harder for individuals to collect damages from businesses for negligence, fraud or deception. Womack left the legislature for a trial judgeship, where he was serving when the Supreme Court rendered its three decisions declaring parts of his tort act unconstitutional.
Womack ran for a seat on the Supreme Court in 2016 and won. Republican lawmakers, by then a heavy majority in both houses, drafted another tort-reform law but this time framed it as a constitutional amendment for the 2018 ballot, altering that stern admonition in the bill of rights to protect every person’s right to justice. Womack, by then a justice, crossed the street to the legislature and lobbied for the amendment’s passage. He told lawmakers that the Supreme Court was no longer the court that had struck down the 2003 tort law.
When that proposal’s legitimacy as a ballot measure was challenged at the Supreme Court the next fall, Womack did not recuse, as every ethical guide suggests that he should have. The Supreme Court voted 6-1 to strike the proposal from the ballot. Womack wrote a stinging dissent. Justice Hart, the dissenter in Mary Myers’ case, wrote the majority opinion on the tort amendment in 2018.
Is Womack right that the court has pivoted 180 degrees on the constitutionality of sharply shrinking people’s right to compensation for “all injuries or wrongs”? Hart did not address the ruling on ending deference to administrative agencies in her dissent to Womack’s opinion in April. She faces mandatory retirement in January; her replacement will be the wife of the state Republican chairman, a tort-reform advocate. Justice Karen Baker, who participated in the 2009 and 2011 tort decisions, merely concurred with the decision to uphold the workers compensation and Court of Appeals rulings without explaining why she was concurring, which suggests that while she went along with the result, she disagreed with the reasons cited in Womack’s opinion.
But it is clearly a far different court than it was for the previous four decades. Two years ago, it entered the swamp of sovereign immunity. While the fathers of the Arkansas Constitution placed the right of everyone to get justice for all wrongs and injuries at the front of the document, they later included sovereign immunity — the ancient idea that the king (the government) can do no wrong. So people couldn’t sue the government in a state court for any wrongs a government agency does them. Arkansas is one of three states with such ironclad provisions.
So how can the two conflicting provisions of the Constitution be reconciled? The legislature had passed a law years ago waiving sovereign immunity in certain cases. In 2018, in a split decision, the court said no, the legislature could not waive the ban on suing the state. The ban on such suits was ironclad, the majority said. The decision sent shockwaves and confusion through the judicial system, and it has divided the justices in case after case. The court altered sovereign immunity recently by saying, OK, you can sue the state to stop it from doing illegal things, but you can’t sue the state for damages it did to you.
But the drift of the court, as Shawn Womack suggests, is clear, and it does not favor the individual, whether he is a nursing-home patient or an injured son of toil boiled alive at his station by a careless industry.