A debate on Issue 1 drew fireworks between state Representative and attorney Bob Ballinger and former Supreme Court Justice Paul Danielson at the political animals club on Friday. The debate drew a packed crowd at Mermaids in Fayetteville. Before the meeting took place dozens of “Against Issue One” people held signs opposing the issue. The group included people across the political spectrum including liberals and conservatives.
Issue 1 is a legislatively referred constitutional amendment that would place caps on non-economic damages awarded in lawsuits. The amendment would also allow the legislature, rather than the judicial branch, to write the rules of procedure and evidence for the courts. Caps on contingency fee agreements between attorneys and their clients would also be implemented in the proposal. Each debater got 10 minutes to present their arguments to the club followed by questions from the audience.
Bob Ballinger – For Issue One
Ballinger argued that people should vote for Issue 1 because it creates a balance between the legislature and the courts by moving “policy making” back to the legislative branch. He argued the legislative branch is the proper branch for debate on the rules of procedure and evidence.
Ballinger claimed that Issue 1 does not set a cap on damages, but merely just a floor that the legislature can adjust. He stated he did not want the legislature to drastically change the substantive rules of procedure or evidence if given that power under Issue 1.
Ballinger cited a statistic that Arkansas is dead last in access to emergency care and that passing Issue One was a start to addressing that. Ballinger feels confident Issue 1 will pass and asked for the bar’s help with enabling legislation to preserve the judicial system and a right to a jury trial.
Former Justice Paul Danielson – Against Issue One
Danielson argued that if the legislature wanted to address access to emergency healthcare they should address health insurance issues rather than what they are pushing in Issue 1. He claimed he thought many people, like doctors, did not choose to live and work in rural areas of the state because of a lack of strong educational choices.
He said Issue 1 was dangerous and that he is helping to sound the alarm on this “bait and switch” proposal. Using the bait and switch analogy he compared Issue 1 of 2018 to Issue 3 of 2014. Issue 3 was marketed as “ethics reform” but resulted in longer term limits for legislators created a commission that granted them sizable pay increases.
Danielson told audience members that Issue 1 would take power away from the people and juries and give it to the legislature in Little Rock. He said the legislature trying to write the rules of evidence and procedure would be bad.
After presenting their arguments Rep. Ballinger and former Justice Danielson took questions from the audience. The first audience member asked for any facts that would show how passing Issue one would improve anyone’s life in Arkansas. Ballinger responded that in Texas when they passed a different version of issue one, it brought more healthcare providers to 40-50 counties that did not have them before. Ballinger stated that Arkansas is dead last in emergency healthcare and that we have to do something. Danielson countered that Issue 1 was not about healthcare or frivolous lawsuits, but instead about money, power, and greed for the legislature and big hospitals and corporations.
A question from one audience member questioned why ballot titles were so confusing. Danielson stated it was because they combined separate, unrelated issues in a single proposal. Ballinger disagreed and claimed it had to be so long to survive any legal challenges.
One question was about the prevalence of frivolous lawsuits in Arkansas. Ballinger stated he thought there were too many frivolous lawsuits and was defending against one now. Justice Danielson said Issue 1 was like trying to use a shotgun to kill a mouse. He claimed there was no serious problem with frivolous lawsuits in Arkansas and that insurance companies love Issue 1.
The final question of the meeting came from Joey McCutchen, a trial attorney and government transparency advocate from Fort Smith. He asked why the legislature did not include any provisions in Issue 1 that addressed frivolous lawsuits if they thought it was such a problem. Ballinger responded that he thought they did because Issue 1 allows them to debate the issue more broadly in the legislature.
In what was the most intense part of the debate Ballinger ended by attacking the audience on their treatment of legislators. He stated he was disappointed on how people kept beating up on legislators and that they were servants. He then claimed that no one currently in the legislature was personally benefitting from being in Little Rock. This was met with groans, laughs, and boos from the audience. Ballinger then shouted back that they were working hard for them. The exchange was caught on video below.
About Issue One
Groups on the left and right are joining forces to oppose Issue 1. Conservative groups like the Family Council Action Committee and Conduit for Action oppose the measure as does Arkansas Right to Life director Rose Mimms. More left-leaning groups like the Arkansas Bar Association and the Trial Lawyers Association are also opposing the measure as well.
Groups supporting the measure include the Arkansas State Chamber of Commerce, Walmart, hospitals, nursing homes, and the trucking industry.
Issue 1 was passed by the general assembly as Senate Joint Resolution 8 in the 2017 Arkansas legislative session. Issue 1 will appear on the general election ballot this fall for all Arkansans to vote on.