More movement on stripping Arkansas Supreme Court’s rulemaking authority; confusing nonbinding resolution passes, constitutional amendment still possible

Ongoing efforts to strip the Arkansas Supreme Court of its rulemaking authority are continuing with yet another variation.

As I noted previously the impetus behind the efforts appears to be anger over state supreme court decisions finding that tort reform laws unconstitutionally abridge the supreme court’s power to “prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.”

On April 2, the Senate adopted SR 30, a nonbinding resolution urging the Supreme Court adopt by court rule the tort reforms outlined in SJR 2.

What makes the matter confusing is precisely what version of SJR 2 the resolution references (there were four when the resolution was adopted). Moreover, 2 days after SR 30 was adopted by the full Senate, the author amended SJR 2 to simply strip the Supreme Court of rulemaking authority on mental anguish, pain and suffering, and similar claims and cap punitive damages as 5 times compensatory damages.

SJR 5 appears to be the main vehicle for the changes. The constitutional amendment is now in its fifth iteration. The latest, put forth via sponsor amendment last week:

  • Provides the legislature, by 3/5ths vote, may set awards of noneconomic damages
  • Provides punitive damages are equal to 5 times compensatory damages OR whatever level is set by a 2/3rds vote of the legislature
  • Provides the legislature is to “prescribe the rules of pleading, practice and procedure for all courts” but “shall delegate nonexclusive authority to the Supreme Court”
  • Provides that the Supreme Court has “no authority to prescribe rules of pleading, practice, and procedure and rules of evidence for courts” except that which is expressly delegated by the legislature
  • Provides that any attempt by the legislature to override a rule in place as of January 1, 2015 requires a 3/5ths vote