The Bait and Switch of Issue 1 (Suzanne G. Clark Commentary)

by Suzanne G. Clark  on Monday, Jun. 11, 2018 12:00 am   3 min read

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This November, voters will decide to pass or reject Issue 1, an amendment to the Arkansas Constitution. Issue 1 contains three separate provisions, but the first two get the most attention. They are: 1) a cap on attorneys’ contingency fees and 2) a cap on noneconomic damage awards.

With regard to these two provisions, there will be substantial funds spent to demonize lawyers and lawsuits in the effort to sway voters to vote in favor of the amendment. When the Arkansas Bar Association decided to oppose Issue 1, that decision was not based on either of these two provisions.

The power, and danger, of Issue 1 is in the third provision — the one that is not exciting cocktail conversation. The third provision of Issue 1 shifts the courts’ rule-making authority from the Arkansas Supreme Court to the Arkansas General Assembly. It is a power grab by the Legislature, seeking to further dilute the authority of the judiciary. The separation of the branches of government that we all studied in grade school, middle school and high school is foundational and critical to our democratic society. The judicial branch, charged with defending the Constitution and upholding the rule of law, should not be subservient to the Legislature.

A discussion of court rule-making, civics and separation of powers can induce yawns. I expect there are a few now! But hang in there, because we need voters to understand why they should vote no on Issue 1.

There is no pithy sound bite that can explain how destructive the Legislature’s power grab is to the rule of law and fairness in the judicial system. Shifting court rule-making from the deliberative process that currently exists to one that may be modified every legislative session based on the whim of special interests may have disastrous results for our system of justice.

Currently, the Arkansas Supreme Court has exclusive authority to promulgate rules of pleading, practice and procedure. These court rules are the result of exhaustive discussion and review.

I have had the privilege to serve on the Arkansas Supreme Court Committee on Civil Practice for the last four years. The Civil Practice Committee is made up of judges, lawyers, court clerks and law professors. As a group, we spend hours discussing the impact of a rule change, studying how changes may have been applied in other jurisdictions, and arguing about how changes in wording may be interpreted and applied. This committee is an integral part in the rule-making process, but it is only a part of the process. The committee itself has no authority.

When rules drafted or modified by the committee are submitted to the Supreme Court, the court performs a review, and if the rules are approved, they are then published for public comment. Only after sufficient time for review of all suggestions and concerns, and perhaps further modification and additional review, will the court formally adopt a rule after months, or even years, of review and deliberation.

Placing the rule-making authority in the hands of the Legislature introduces politics into the court system in the worst way. You can be certain that lobbyists and special interests will be applying pressure to modify court rules regarding how and when cases may be brought to court, how evidence may or may not be offered, when or if certain matters may be appealed, and when and how a judge makes his or her rulings.

Can you imagine the negative effect on access to justice if the American rule, where each party generally pays its own attorneys’ fees, were changed to a “loser pays” format that exists in other parts of the world? The Arkansas Bar Association stands in opposition to this transfer of judicial authority to the Legislature.

In 2014, voters passed Issue 3, a constitutional amendment characterized as ethics reform. After its passage, there were outcries because many voters were not aware that Issue 3 also expanded term limits and legislative pay. This November, don’t fall for the bait. The switch in Issue 1, the provision the proponents do not want you to pay attention to, concentrates substantially more power in the hands of the General Assembly and diminishes the judiciary’s ability to protect your day in court.

Suzanne G. Clark, an attorney with the Clark Law Firm PLLC in Fayetteville, will be sworn in as president of the Arkansas Bar Association on June 15. Email her at



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