Arkansas Bar Association Legislation Committee Opposes Senate Joint Resolution 8

By Ms. Denise Hoggard posted 02-14-2017 03:05 PM


As I reflected upon the swearing in of Chief Justice John Dan Kemp, and Justice Shawn Womack in January this year, I wrote that “[o]ur democratic system depends upon all three branches functioning within the proper spheres and subject to the checks and balances put into place by our founding fathers. The legislative branch makes the law, the executive branch enforces the law, and the judiciary applies the law by following the rule of law. . . .[T]he rule of law requires that everyone must be governed by the same laws which are applied fairly, consistently, and equally to all regardless of race, gender or wealth.”  A fair and impartial judiciary is a hallmark of our democracy and a fundamental core value.

The Arkansas Bar Association is purposed to “advance the administration of justice according to law, to aid the courts in carrying on the administration of justice, . . . to improve the judicial and legal process, and the science of jurisprudence, and to advance law and order. . . .”  Since 1898, the Association has placed an importance on protecting the impartiality and integrity of our courts. This has been the Association’s constant mission, and a fundamental principle our membership has stood behind.  When fundamental principles of justice are jeopardized, we are united under our mission.

The Association’s Legislation Committee voted to oppose Senate Joint Resolution 8, “A Constitutional Amendment Limiting Contingency Fees and Awards of Punitive Damage; and Changing the Powers of the General Assembly and the Supreme Court Regarding Rules of Pleading, Practice, and Procedure” which, at time of submission of this article, was pending before the Arkansas Senate for consideration as one of the General Assembly’s three constitutional amendments to be referred to the public.

The Legislation Committee opposed SJR8 in part because it takes rule-making authority from the courts and places ultimate authority with the Legislature. The magnitude of changing the powers of the Arkansas Supreme Court disturbs the balance of power and merits opposition.    

The Association was at the forefront of the passage of Amendment 80 in 2000, which conferred superintending control of all courts of the state to the Arkansas Supreme Court, and made clear the Court has authority over rules of pleading, practice, and procedure. If SJR8 is referred by the Legislature and adopted by the public, it will leave the Arkansas Supreme Court with responsibility for controlling our courts, but not the authority to make rules necessary to meet that responsibility. Courtroom proceedings are best left to the province of the court, as free from political pressure as humanly possible. The public has already voted in the passage of Amendment 80 to vest the Court with this responsibility and authority.  

Leaving the judicial branch in control of the rules of the courts also provides Arkansans with stability and predictability which business and the public need in making decisions on how to govern their conduct.  

In the fall of 2016, the Association opposed a previously-initiated proposed constitutional amendment that put caps on damages and attorney fees in medical injury cases. The Arkansas Bar Association petitioned the Court that the initiated act be removed from the November 2016 general election ballot. The petition was granted by the Arkansas Supreme Court. SJR8 puts even more restrictions on recovery and extends the limitations to all cases. It contains language stating that it preserves the right to a jury trial, another fundamental right guaranteed to Arkansans in our constitution. Despite that language, the effect will be to remove a lot of real decision-making from the jury. It pre-sets an arbitrary value for human suffering and life. Jurors in Arkansas generally use common sense and try to do the right thing. While we may not always agree with jurors, juries in Arkansas can be trusted.  

SJR8 will also result in the courtroom door being closed to many Arkansans. The American Bar Association studied the effect of caps for attorney fees and damages. It found that attorney fee and damage award caps were not about making sure there were just results, but was about tilting the playing field. One in four Arkansans live at or below 125% of the federal poverty level. Even those who live above that level in Arkansas would be unable to pay for legal services on an hourly rate basis. SJR8 does not affect those people in Arkansas who can afford to pay for legal services on an hourly basis. But it affects those who cannot. Justice for all necessarily means we must provide a system that is open to poor, working poor, and the middle class in our state.

Since its inception in 1898, the Arkansas Bar Association has served as a trusted source for serving and protecting the public’s interest. It also serves as the voice of lawyers in the state. The Association is made up of lawyers statewide who represent individuals, companies, municipalities, and regulatory entities both on the plaintiff and the defense side of litigation.  Its membership includes judges, educators, in-house counsel, elected officials, executives, solo practitioners and law firm members. The Arkansas Bar Association is working to carefully guard the rule of law, the fair and impartial administration of justice, and the rights of Arkansans to have meaningful access and participation in our courts.