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How does tort reform affect the balance of powers and the separation of powers?

Updated: Apr 13

The American system is based on the idea that no one part of government exercises absolute power; instead, different parts of the government are balanced against one another. Under Article 4 of the Arkansas Constitution, power is divided among the legislative branch, the executive branch, and the judicial branch. Speaking generally, the legislative branch is supposed to create general policies, while the judicial branch is supposed to decide particular, concrete cases.

This neat division of authority between the legislative branch and the judicial branch sometimes breaks down when we look at the rules of the legal process. Even though the rules of the legal process are unquestionably meant to apply generally (just like any other set of laws or regulations), some courts have attempted to put those rules under the sole control of the judicial branch. This is most defensible when the rules in question have to do with the internal business of the courts; it is least defensible when the rules in question affect the substantive rights of the people.

Consider, for instance, the recent Florida court decision in which a “stand your ground” law was struck down. In that case, the legislature had passed a law guaranteeing a special pre-trial hearing for anyone who used a “stand your ground” defense. The court decided that the legislature wasn’t allowed to write that law, because it created a new procedure – and, under the Florida Constitution, the legislature wasn’t allowed to create that new procedure. In other words, the court decided that that creating procedure was solely the court’s job. Note that this kind of decision has a troubling result: namely, certain kinds of policy questions are off-limits to the state legislature. As ever, the question of “who gets to be in control?” is an important one. In Florida, a supermajority of the state legislature can change procedural rules – but in Arkansas, the system is more tilted towards the courts; the legislature can’t change the procedural rules at all.

For most of Arkansas’s history, the state legislature has had the authority to enact statutes that affect court procedural issues. Although the state Supreme Court has often insisted that it always had inherent judicial authority to set its own rules, this has been tightly limited. Generally, if there was a legislative statute that conflicted with a court-made rule, the statute controlled if “the statutory rule is based upon a fixed public policy which has been legislatively or constitutionally adopted and has as its basis something other than court administration.” See, e.g., Citizens for a Safer Carroll County v. Epley, 338 Ark. 61 (1999); Curtis v. State, 301 Ark. 208 (1990).

For much of Arkansas’s history, the rules of civil procedure were contained entirely in statute. This changed in 1973, when the legislature delegated authority to the Supreme Court, transferring to it the authority to “prescribe, from time to time, rules of pleading, practice, and procedure” in civil cases. A.C.A. 16-11-302 (now repealed). The Supreme Court appointed a committee to prepare rules of civil procedure in 1974, and it adopted those rules in 1978. In its order adopting the new rules of civil procedure, the Supreme Court referred not only to the authorizing statute, but also to its own inherent constitutional regulatory authority – language that suggests some tension between the legislature and the courts over the issue of who possessed regulatory power. The Court subsequently restarted this committee in 1982, so that it could recommend needed modifications to the rules of civil procedure; it still meets regularly. However, the Court did not limit itself to following committee recommendations; rather, it also exercised rulemaking power on its own initiative. This was the status quo until 2001, when Amendment 80 went into effect.

Of course, public officials have been known to adopt aggressive interpretations of their own power.

Discussion of tort reform in Arkansas often revolves around Amendment 80, which famously granted the state Supreme Court the power to prescribe “the rules of pleading, practice, and procedure for all courts,” so long as the exercise of that power does not trespass on substantive rights or the right of trial by jury. The state Supreme Court, after the passage of Amendment 80 in 2000, has continued to adopt an aggressive interpretation of its own powers. In 2007, the state Supreme Court struck down the legislature’s medical malpractice reforms as unconstitutional, because it found that the procedure that the legislature had enacted was disallowed. In 2009, the state Supreme Court struck down a procedure that the legislature had proposed to determine fault for parties who were not represented in court; in 2012, the Court struck down new rules for the admission of evidence in medical malpractice cases, because – once again – this was a power that the Court said the legislature should not exercise. All of these issues can reasonably be understood as issues of public policy; where we have courts determining issues of public policy, we have a collapse of the separation of powers. Those who feel that there is room for improvement in our justice system should note that the Court’s interpretation of Amendment 80 makes it difficult or impossible for the legislature to pass legal reforms (such as, for instance, loser-pays reforms) that would reduce the costs or increase the efficiencies of the legal process.

The bottom line is that SJR 8, which allows a supermajority of the legislature to write a procedural rule, is an attempt to restore Arkansas’s constitutional balance. The current system allows courts to write procedural rules that affect people’s lives and control public policy without any balance or input from the legislature. Some people argue that SJR 8 threatens the separation of powers because it allows the legislature to pass procedural rules; this is not a serious argument, because even under Amendment 80, the legislature has had the power to change some sectors of procedural rules — for instance, geographical and subject matter jurisdiction. (See Section 9 of Amendment 80.) I think that the history above demonstrates that SJR 8 would, if anything, restore the proper balance of powers and preserve the separation of constitutional powers.

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