State Agencies & Govt'l Affairs- House

Against this bill please sign up and so that we can call you and recognize you with that said representative Cavenaugh. The do you understand how the committee well we're working you just heard me and I said what I will be doing enough for them but we're just gonna be strict strictly list and do you have anybody here we do speak for this bill no okay chair within you're recognized to present the bill. Thank you Mr chairman committee this constitutional amendment is probably one of the smaller ones that you're going to see and it is simply that is going to allow the Senate and the house of representatives to call themselves into special session it sets the guidelines on how we would do that is to be done through a joint proclamation so it has to be issued by the Speaker of the house of the president of the Senate. And then it goes the ending gives us details and if you look on. Hey age To wind twenty seven it'll tell how we make the determination that we can call ourselves in the session it says joint rules established under subdivision this may include or not limited to but the rules are actually set during a regular session and it gives some of the things that we could actually ask the B. do it's not going to limit anything that we can hear we can hear any subject that we need to hear so it would not limit that it's also going to say that this section cannot exceed fifteen days and the rules are going to be set and can be amended by each general session as time goes on this does not affect the governor's ability to call us in the special session what I'm attempting to do with this constitutional amendment is to get as a balance back that that governor can still call us but us as a back body can call ourselves and also to hear whatever we might need to hear. And that's really simply what the amendment does not take any questions okay thank you representative Cavenaugh I I and I have a question you you said the in your statement there and I just wanted for clarification when you're talking about that we could basically call ourselves back into session it is the way you said it was that the Speaker of the house could do that or the Senate so are you saying they wouldn't take both of you send a bill just one of them could or you think that's what you meant but that's what you say and I just wanna make sure everybody understands it has to be a joint proclamation between the Senate and the house and the Speaker would call the house in this President Pro team would call the Senate but it has to be a joint proclamation of this probably what you me it but it didn't come across that way that is I just wanna make sure that we had clarification only for anybody that was called one without the other I got you thank you very much. Any questions from committee members representative Payton you're recognized for a question. Thank you Mr so. In the absence of. Participation by the Speaker or the the president pro tem of the Senate it couldn't happen is that correct right of them and they would be the one I'd have to call the joint proclamation okay thank you thank you Mr. You any further questions from committee members. Saying the. Representative back you're recognized. Thank you Mr. The chairman of the soul the. They call in a general Senate by a vote of two thirds of its members. Bills in this state so. They would just call us in for the for vote of. There were our rule that would not I'm sorry that I said that is a that's or is this okay yeah yeah I'm good with it okay. Okay she further questions from committee members and no one is signed up to speak. For against the bill representative Cavenaugh before you leave into the table was there anything else you would like to say I would just like to say with this amendment I'm just trying to get a more balanced approach between the executive branch and the legislative branch not trying to take anything away from the executive branch but I'm looking to give us some equal powers so that we can be on the same playing field and that one as a body when we need to be hearing certain issues we can go ahead and get ourselves called and we can hear those issues and not just have to wait on the governor to Coliseum. Okay and the representative Cavenaugh thank you and you do understand that the committee is not doing enough for them both were displaced in the day and then at the end after we've heard all the constitutional amendment then that's when this committee was sent out and will kind of work it out from there but we do appreciate you appear before the committee and thank you for your Presentation of your bill thank you Mr chairman okay thank you. And I'm looking to the next one well what you're telling them that my gender so here also of the name with the joint resolution one thousand six so no need me going back to the Committee is operating you understand it now so you're recognized to the. President HJR one thousand six MPGe Cavenaugh thank you Mr chairman committee this one's not so simple this one actually sets the procedures for a recall procedure both for the legislative branch the executive branch and the judiciary branch so it sets the guidelines to where the citizens could ask for a recall and on page two it actually list all of the elected officials that could be called into this recall it even tells us on page two what a recall is. page two also goes in and tells us what The qualified electors of each state would be how many it would take for us to have a petition signatures together which is going to be twenty five percent of the people that voted in the last election for governor if it's a statewide election the recall it would be for the state wide if it's only about on a district would be those that voted in that district the recall it goes again on page three and one nine and it goes through the process how we're actually do their petition how you have to notify the person that would be the subject of the recall it talks about how the secretary of state would no and how long you've got to actually collect those signatures it goes through the process for the Secretary of State. To actually the state how many. That you have enough signatures that are not correct it gives a time frame on all that process it goes in and tells on the if there is not sufficient how may day secretary state has to respond to those how many days you've got to correct it it gives a sample ballot sample petition so you know what to look at and it goes than that does it for the state wide and also on the districtwide If the person is recalled the governor it gives also the time frame in there on how long the governor has to set a record set a special section to vote on the recall special election once that Alexion is done it also talks about what happens if the person is elected is actually we called on the election it tells you what will be the process that will happen and it actually just says that if the office is vacant and it will be filled by the manner that we already have prescribed in the law or not create any new processes and that and then if they are not recalled they just continue to serve their term it will only allow for one attempted to recall per term of the person that this term it talks about the recall expense in the recall expense will be paid for in the way of the election expense will be paid as they always are to any election it talks about the ballot question what will be considered it gives us all those information talks about the effective date and then of course what the ballot name will be and that's a quick synopsis of. Of what the amendment would. Can I take any questions. Okay committee members representative Cavenaugh is made or presentation is ready for questions direct representative to Richmond you're recognized for a question. Thank you Mr representative Cavenaugh what why did you Sir decide on twenty five percent as the standard percentage for initiating recall when we looked around it states that actually did have it they were as low as ten percent as high as thirty percent and twenty five percent single reasonable amount not an amount that was going to be too great to hear it but not so much that they be doing a recall every other year. Okay thank you thank you Mr. Okay thank you representative Jane you're recognized for a question. With. Great minds think alike. Okay representative paid you're recognized for a question thank you Mr it's a simple little question so the people who signed the petition have to live within the district it's being recalled about the father of the petition. The filing of the petition my understanding is could live anywhere there but this signatures would have to be gathered from within that district or if it's a statewide be statewide. To further follow up. Sure you can so I talked about you a little about this a little bit before the meeting but The procedures for fill an empty seat in some cases would mean that the governor appoints. Somebody to fill the seat. So theoretically. The father of the petition could be the one that would fill the empty seats if it was successful. The filing of the petition could be but it would take still to twenty five percent a signature gatherers yes okay thank you thank you Mr. Okay thank you. Saying no further questions a lot of representative Gonzalez recognized for a question thing to share which one of these two members as most important to you. Caller cells in the session thank you. You have or three. No you want me that more three months after the loan that's good enough we we appreciate your interest of saying no further questions from committee members and No one signed up to speak for against this constitutional amendment so a representative Cavenaugh before you leave the in the table is there anything else you would like to say the committee now the reason that I brought the recall Amendment through is I've actually had several of my constituents ask why we don't have a recall process and state of Arkansas and that's what initiated this amendment. Can I thank you for listening okay thank you representative Cavenaugh we appreciate you appear before the committee. Next item on the agenda committee members is one of our own committee member representative Dotson with HJR one thousand and representative Dudgeon. Does he have any one to speak for the bill with you today. Not on this one Mr okay okay I will you're recognized to present to the committee HJR one thousand nine. Thank you Mr chairman was committee H. R. one thousand nine just want to submit for your consideration if this is one of the three that this committee decides to to send out of here it'll be available to you this is a a fairly simple one that in large part I've I filed multiple times throughout the the last several years and several sessions this one has a little bit of an exception to what I filed in the past because it changes the the name of the highway commission to the transportation commission to more accurately aligned with the current state government after transformation it also changes the Director of highways to the secretary of transportation As it's referred to under the constitution the meat of the the the constitutional amendment though the resolution is on page two. Toward the top of the page and basically what it does is it vests within the state The New state transportation commission all powers and duties as may be prescribed by law so in essence it turns the highway commission into Whatever at a state agency in effect to whatever we decide by law the powers and duties that they would have to carry out so. In a nutshell that's. That is the amendment and. Happy to try to answer any questions. Okay any questions from from committee members. Saying none and I guess I have one hello sorry sorry representative to pay nineteen C. you're recognized well I didn't want you very early okay So does it have any effect on. The funding or the money or you know me there are dedicated taxes no this is not addressing and I mean. Would would any of that be changeable by. Low because of this well the way in which the duties of the hot the the transportation commission as well as the secretary of transportation would have to carry out those expenditures would be under whatever direction legislature gives them the law so the the powers that are vested with them the duties that that that we prescribe the a law would be what they would have to carry out. Follow the dedicated revenue streams it would automatically give us a chance. No we we could redirect those if they were dedicated say the half cent sales tax that was recently passed that would still constitutionally continuously forever until changed by another constitutional amendment which is not addressed in this one Would go directly to the highway department because thank you. Thank you representative paid into for in the additional further questions from the committee members. Saying none of. Actually members of the highway department here but you're not signed up to speak against or for the bill is that correct miss making sure okay. Say no further questions no one else signed up to speak for against the bill representative Dotson You're recognized to make any comments to the committee should concerning this amendment I've I think I've said it all. Okay thank you for your time we appreciate it while you're at the end of the table. we have a share or one zero one five benefit you dodging hold up for just a moment before you start your presentation with that bill more as the staff fear if they would I think there's a handout from that's been given us for the committee members of. In regards to this. Constitutional amendment I'll give them time handed out. Deduction you're recognized present your. Amendment constitutional thank you thank you Mr chair members committee the letter that you just received hi I had not seen before. Got to read sametime you did so I guess we have some opposition to this amendment I don't know if anybody else is here to speak well I think I think the purpose of the letter representative or does she just for the record is is that instead of a they had the opportunity to come in need to speak against the bill or about to the and they'll so they chose and that which I think you see is appropriate for the committee to be able to review that so it be the same beverages hearing opposition to it at the end of the table someone speak against it so what that tell the chair viewed that so that's why the handover street begins so are you ready to move forward with your presentation I have a. Justin Allen with me to speak and help answer any questions but I'll go through the amendment quickly and give you some of the the reasons for it so H. A. R. first of all H. R. ten fifteen what it would do Basically it would give the under the constitution currently the Supreme Court has the authority to adopt rules of pleading practice procedure and evidence and that would not change under this amendment they would still have the ability to adopt those things however at this at all put a check and balance within that process in which the legislature could have say in what those are rules of pleading practice procedure and evidence are and with a three fifths vote of both chambers override whatever those happen to be so those that check and balance would align Arkansas constitution the the separation shall of powers between the legislative branch and the judicial branch more closely in line with what R. U. S. constitution currently has and what other approximately sixteen other states that have some role in changing or adopting court court rules in evidence in so the reason for this is as I've said to balance have a check and balance on the the between the legislative branch in addition judicial branch the legislative branch being the policy making branch of government the judicial branch. Is not the proper policy making branch of government and when they delve into our arena currently under Arkansas constitution the only check the legislative branch has on the judicial branch is impeachment. This would allow for the legislative branch to have a a say in how those things are done that are regarding policy and would not allow the court to to take things and call it policy or call it. Rules of pleading practice and procedure that we haven't been to such and so an example of this. In recent memory I think most of you Senator around the table with couple of exceptions were here in twenty fifteen when representive Petty ran the Courthouse dog come for dog for children victims to to be able to have a dog sitting in the courthouse at their feet when they're testifying to help help children be able to respond and answer questions under testimony have that comfort dog in the court room legislative branch I mean I think the house passed that ninety two to zero the the Senate thirty three I think votes for it overwhelming support in the legislative branch that was policy for the state of Arkansas until single judge overruled the entire legislative branch the entire will of the people of the State of Arkansas with regards to that policy in deems that law a. Court rule and said we didn't have the authority to pass that policy. Instructor down as unconstitutional. Currently we have no recourse in that regard to say that that law is constitutional is duly passed by supermajorities legislature and To reign in an out of control decision like that and so that's what this this constitutional amendment is designed to address and I think. When meeting and. Okay we're open for any questions you might have regarding that okay at Mister Allen P. would procedures to the table just Mr Dennis up there by yourself for the committee for the record yes Mister chairman name is Justin Allen attorney here in Little Rock and I'm here today on behalf of several interests include state chamber of commerce Arkansas trucking association poultry federation the Arkansas medical society the Arkansas hospital association it in from my I'll be real brief but we just want to follow in a few things from from the representatives presentation I believe everyone in here except to a representative Johnson representative Hawks we're here in twenty seventeen when this body referred out senate joint resolution eight which became issue one in met its fate at the hands of the court and not at the hands of the voters this was a part of that measure so for those of you that we're here in twenty seventeen you you've heard and considered and voted one way or the other at least on this is being a part and of course we know because of the court's ruling in twenty eighteen that the General Assembly has to be mindful of how it sends out referrals under the constitution and that's why you have this what is effectively a single subject here in this referral and at some point you'll hear referral filed by representative Johnson that was also part of S. J. R. eight issue one so you're probably most of you at least generally familiar with this concept and the concept representative Dotson has explained is it would allow the General Assembly to have some role making some role in the rulemaking authority this is not novel there other states to do it now there are a lot of different ways they go about it but there are many other states where the legislature has some real authority over the rules of pleading practice and procedure and that is also the process by which federal court works Congress has ultimate authority over the rules of pleading practice and procedure in the federal court system they don't exercise that often but they do and there is an example from nineteen seventy five where Congress blocked the entire judicial rulemaking especially as it related to evidence it says here con Congress enacted new federal rules of evidence legislatively so that happened in nineteen seventy five because Congress did not like the rules of evidence that the Supreme Court had put forth so that has worked pretty well I haven't heard a whole lot of objections about it that there might be something you're probably you may hear some here in a little bit but this is not novel. The other thing you may here is that this needs to be left to the to the attorneys to the judges to the professionals and what I would say to you is all the the ladies and gentleman have to do is look at the Arkansas code right now and see the thousands and thousands of pages that you and your predecessors of adopted on extremely important substantive issues from what's a crime to what's the punishment for it for what kind of taxes we pay for how businesses are structured and how businesses regulated so I think it's fair to say that you ladies and gentleman all are in a position as a hundred and thirty five and the process that this would go through to consider these things and then the last thing I will say related to that and also related to the letter that you have received from Mr **** in the family council if this measure becomes part of the constitution you are future general assemblies will decide invoked on what is implemented by way of rules of pleading practice and procedure and evidence and it will require a three fifths vote more than a simple majority and I think once again we can trust our hundred and thirty five members of the General Assembly to make reasonable decisions as to what is good policies relates to putting forth civil actions or or tort claims thank you Mr. Okay committee heard Mr Allen speak for the bill. And we have any questions representative Miller you're recognized for a question. Thank you Mr chair of represent Dotson and and Mr I'll care which one of the answers this obviously this is a tort reform amendment Help me get past my concern. Of seeing. The way the votes are bought down here. I think everybody will agree to that. Votes are bought down here in this body. And when it certain industry. Wishes to express their will through this body. We've got a proven track record they're able to do that. Is this bill not going to. Allow that to happen is this bill not allow legislative body come back set caps so it all kind of rules for the court system that's part one of my questions thank you. Thank representive so. A couple things one. The United States constitution under article three section two point two of the the US constitution. Says that it I mean this is the way the federal judiciary our founding fathers set up the federal judiciary in article three of the US constitution it says in all other cases and I'm I'm gonna quoted here. In all other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law in fact. With such exceptions and under such regulations as the Congress shall make so. I guess to the the heart of your question I mean it it just with regards to that we've all raised their hands for an oath to uphold the constitution of the United States. And then also the constitution the state of Arkansas we're discussing the constitution the State of Arkansas that we this is the process by which we already swear to uphold the US constitution and that's been on operation for. Two hundred and. I'm not gonna get the right you're right you're somebody over two hundred years so So there's that. Will this stop corruption. I'm afraid will know the answer to that corruption is is going to continue no matter what. This spreads it out though to where three fifths majority of both chambers you know how much challenge it is to debate the bill. To get it through both bodies of the legislature and have a governor sign it for it to become law and binding on the three million people in the state of Arkansas is much higher bar of accountability then a single judge or even. All the way up to seven Supreme Court justices four of which get to make the determination for the entire citizens of the State of Arkansas so I think to answer your question is no with this this is not going to stop corruption corruption is always going to be here But I can't say that that. It's going to stop it the current process that we have right now doesn't stop corruption either. I have a follow up please. Yes thank recognized. And and I appreciate. Of. But jim you know like it up I appreciate the constitutional lesson there but again we're not we're not dealing with that just like you said the the. Founding fathers set this up for the federal government. They didn't for the states of we're in a. We're dealing with our state constitution and what concerns me is I see this as a a much easier path. To set caps to put value on life and a whole host of other things and my question in this is. How would. I know how you would like it hello I would like it but I mean how would we like it if the court system comes over here and says we're going to tell you all what bills you can't run you can't run and make rules for you all. They do that today. Mr chairman of if I might one one point of clarification representative is this measure if adopted would not authorize the General Assembly to adopt caps it's a separate part of the constitution in the courts make clear that's a nother resolution has been filed that just speaks to damage cap of forty so just wanted to be clear this will only speak to rules of pleading practice and procedure would not allow you all the authority to set caps and and I think representative Dotson said It well enough and that's why we're here the court strikes down the laws that shall pass frequently and sometimes we agree and sometimes we disagree but it happens a lot and it's just part of the reason why we're here because the two thousand and three ACT that was passed by the General Assembly back then was systematically struck down by the court for the series of rulings. Okay thank you and if I may Mister chair This is also the way I did talk about the U. S. constitution quite a bit but the original Arkansas constitution prior to Amendment eighty which changed some of this We we had that authority previously to a large extent. M. eighty change that and as far as I know there wasn't any issues or problems leading up to that in the state of Arkansas where. The legislature went crazy Making onerous rules and. For the most part I think the courts pretty much made their own rules prior to Amendment eighty coming in and it just further. It further solidified so. Okay thank you representative Dotson. A separate day appreciate you being there speaking for the bill but we've also got people signed up to speak against the bill what on just manta representative but not and say you're recognized for a question thank you for this cover jury instructions by telling the the informing the jury about notification and things like that. As drafted no I don't believe it would that would be treated separately okay thank you thank you Mr okay the plan no further questions thank you Mr Mr alum. At this time uh speaking against the bill is Joshua Silverstein. The ships that are you in Rome yes review just have stayed there were mistrials entity into the table. And the. Just pull the mug down and turn it own it to make sure it's resolved thank serve you would just invite yourself to the committee and I know you're speaking against the bill. My name is Josh Silverstein and I'm a law professor I work and teach here in Little Rock but I'm speaking solely on my own individual behalf I'm not speaking on behalf of the university in any way shape or form. And as you noted I am speaking against HJR ten fifteen. That has already been noted H. the R. ten fifteen is a resurrection of some pieces a piece of issue one two sessions ago that proposed tort reform. As Jerry **** and I explained in our op ed in the dumb because that tort deform unfortunately is a better word and H. J. R. ten fifteen resurrects the worst part of the old issue one transferred control of record procedure to the legislature from the courts. Ten fifteen would allow state led to the state legislature under the influence of special interests of others have already noted to effectively close the courthouse doors to Mostar Kansans in a whole host of contacts not in my view this resolution would undermine both our system of justice and do severe damage to the separation of powers in our state. For example in two thousand and three the nursing home industry lobbied lawmakers in the state for special privileges in court by giving some of their staff immunity from suit that passed we can expect a massive increase in that type of lobbying leading to such rules rules if H. the R. fifteen is adopted. I don't think our Kansans want this type of change we amended the constitution is represented Dotson noted twenty years ago to adopt Amendment eighty to depoliticize the court system to make it so that the courts who are focused on the rule of law and on equal justice under law put them in control and they are much more difficult to influence when it comes rule by rule in state legislatures are the Courts recall we will branch of government and they should have control over their internal procedure was mentioned earlier the courts to strike down things that you do they strike down laws that violate the constitution but what they don't do is interfere with the internal procedures of the legislature courts have consistently not done that in this state and at the federal level and so this would lead the legislature to interfere with internal court procedures in ways the courts do not do with the legislature. Now there was a very broad coalition against issue one two years ago I'm a liberal law professor Jerry **** and I don't agree about much he's a strong social conservative I've tremendous respect for but we disagree on most issues we were very much in agreement on how bad all of the pieces issued one work including the piece that is like HDR ten fifteen. This coalition spread the entire political spectrum. Now. I think the only people who really support this the only people who are really in favor of this are some of the people who Mr Allen is represented. Subsections of industry who do not want to pay when they commit wrongdoing that is the fundamental motivation underlying tort reform industries but do not want to be fully responsible for the harms that they cost and they want to make it easier to pass rules that will limit their obligation to pay for harms that they cause and they believe it will be easier to do that with this legislative body that will with the courts that's why they're here they think will get their own actions they support this they believe you will be easier to influence than the court stock that's why they're supporting this so. I think that there are other things This lead this body would be better focused on rather than various provisions that would try to strip rights away. Senator Clark for example is proposed as J. R. three that would eliminate sovereign immunity and relabel people to sue the state when they have been injured by the state which they currently cannot do they are forced to go to the claims commission which does not provide the type of relief the courts to sell. Those are my primary substantive comments I just want to respond to a few of the points that have been made so far. There are multiple checks McCourt's already first judges are elected in this state while I'm not a big fan of that it's a fact and judge judges change and so if judges do things that the people of Arkansas I don't like people of Arkansas consult those judges out as has happened in some recent elections secondly. You can amend the constitution specifically not to take away the powers of the court's writ large and give the legislature final authority on pleading and practice to override specific decisions the court has made that you might not like. The analogy to the federal system I think does not work the federal court system and the federal constitution operates in many different ways from the way state constitutions to there are all sorts of incredibly powerful protections in article three The provide independence for our courts this would be a constitutional amendment note that it was mentioned that Buckley sixteen states give the legislature some role in the procedure process that means thirty four don't that means the majority of states don't I'm originally from Illinois and Illinois the Illinois Supreme Court has final rule making authority the legislature can propose changes and they do all the time in the courts let most of them stand. Courts have the final say and since that changes made in Illinois the courts that the justice system there is work much more effectively Didot here there's a reason Amendment eighty was passed twenty years ago was because the people of this state wanted to depoliticize the court system this would reverse that. I think the question is not whether this proposal will reduce or increase corruption I think it will but the more important issue is which system's going to work better. If history is any guide a system in which the legislature has control over court procedure is going to result in considerably more corruption than we see under the current system and so I strongly urge you to reject HDR ten fifteen what we'll say unlike the other proposal about about changing our dot but I'm only here to talk about HDR ten fifteen and so I don't know we disagree with the representative Dotson I love his other proposal because I think I got as a run away agency but I'm happy to answer any questions or return to my seat if there are not okay give a presentation by Mr Silverstein. Thirty presentation questions by committee members a representative. Gonzales you're recognized. They Mr do you think the all politics were taken out of of the court system and twenty years ago when that passed definitely not it is impossible to completely take politics out of the court system the question is which system minimizes politics in the court system. One reason I oppose judicial elections considerable empirical evidence the judges are less likely to be influenced in the rulings by popular pressure without elections. But even without elections they're still weapon instead politics interferes with the court system we can never get rid of it entirely the issue was always what's the lesser evil and I think Amendment eighty the current system is the lesser evil when it comes to practice and procedure I think appointing judges is the lesser of one it comes to elections but I realize that reasonable minds could differ on that latter point and I think most Arkansans preferred judicial elections recognized for part of the thing Mr also heard you say that you mentioned that they were that the judicial branch was a co equal branch and then you at one point you said an independent branch so which which one do you think they are at this point are they coequal or or independent with this rule making authority right now and I used both of those words intentionally because we have long believed since long before the founding that there should be three branches of government each operating within their sphere they're all coequal but part of that part of what enables the judiciary to act as coequal is that they are independent that they have control over their own rules of procedure and operations and that they can function in such a way to enforce the constitution and promote equal justice under law and so I think they're both under our current system not perfectly but both and I think this proposal would damage that. Other questions from committee members. Say nine to ship thank you for your Testimony if they can. Thank you for your time of also signed up to speak against the bill is Mister Paul keep all you still in the room Mister Keith. If you would just have so you dirty at the end of the table and talking about called and pulled up close to you that identify yourself to the committee may I remove my mask yes you can yes you. Thank you Mr chairman thank you vice chair Gonzalez and members of the committee thank you very much for taking a few minutes to listen to us this afternoon my name is Paul Keith I am the president of the Arkansas Bar Association we have about five thousand members and. They're from all over the state of Arkansas there are some from the largest law firms in the state and there a lot of solo practitioners we have lawyers in our Bar Association that sue people we have lawyers and our Bar Association that defend the people. Most of them are like me there county seat lawyers and small towns. And many of them represent public entities and I share that with you so you will understand that I come to you with a broad perspective on the subject the house joint resolution ten fifteen and I thank you for your time. As it's been stated H. J. R. ten fifteen would vest essentially best final rule making authority in for the courts in the General Assembly we believe that the rules of creation of the rules of pleading practice and procedure should remain with the Supreme Court or currently rest under Amendment eighty. The current procedure for adopting rules and modifying court rules takes full advantage of the accumulated expertise of the lawyers and the judges that operate under those rules every day. They understand and appreciate from personal experience just how all of the rules work together. Because when you is just one rule you may affect another rule that you not intending to affect. These lawyers and judges that. Better on the committees for the Supreme Court that help to promulgate changes to the rules and consider changes to the rules. Our trained and the origin of these rules and that's important because you have to have some some historical background. And because they represent the three legs of the of the judicial school I'd say the Justice to the judges the plaintiffs and the defendants the rules are very unlikely to be skewed in favor of one side or another and you know that's really all we're after with court rules were after rules where everybody gets a fair shake and where everyone can be equal in the eyes of the law. bar association has a legislation committee and we look at every bill that comes through this General Assembly last count I think we looked at about twelve hundred and thirty. The sheer volume that you deal with as legislate tors simply precludes the depth of study that is currently being done by the rules committees of the Arkansas Supreme Court. One proposal for example will take months to study they'll be months of public comment before the Supreme Court leaving consider making a change to the rules also the brevity of this bodies said sessions who meet every other year you made for less than three months maybe a little longer precludes the kind of study and the kind of in depth public comment that is necessary for our rules of practice and procedure to meet their intended purpose. It's simply impossible to do that here in the I'll have about three or four minutes here with you and I appreciate that time but you don't have all afternoon for me to talk about one part of one rule. And there's another caution to consider. As it's been mentioned for over two hundred and thirty years would benefit in this country from a doctor in call separation of powers is created by men like. Ben Franklin John Adams James Madison you know it had been perfect I'll be the first to admit that but I believe we would all agree that it beats anything else we've seen likewise Arkansas has conducted its affairs. As a state all the way back to eighteen thirty six under the doctrine of separation of powers again it has not been perfect but it's been the best we could do we believe that H. J. R. ten fifteen will be a step backwards. It's a the it's a departure from the separation of powers doctrine it will quite simply make one branch of government subservient to the other. This is hallowed ground. We ask that you tread lightly and not advance H. a R. ten fifteen thank you Mr chairman of a place to take any questions that the committee may have thank you miss Katie for your. Presentation your testimony and if we have any questions from committee members. Same number thank you for your time thank you very much appreciated very much. Also signed up committee members speak against the bill is Mr Brian broke Mr Brookshire. You would just have stated in the table and make sure the Max on pulled up close to unit in a page of the committee my name's Brian Brooks on the lawyer from Greenbrier I have some experience with rules writing in rule making and I'm on the committee that the Supreme Court has for drafting rules of civil procedure and rules of civil practice I do not speak for that body but I do have some experience in that area and I would just like to make a few comments much of the ground that I wanted to cover is already been covered by the gentleman and I won't I won't cover plowed ground I promise you that I will say this representative Dotson that story is appalling to me that a judge did that. I don't think that's a rule of pleading practice and procedure I disagree with you that there's no no remedy without amending the constitution there is a remedy there's an appeal that judge and have the decision overturned that decision sounds wrong to me. In any citizen has that ability when the judge does something with a substantive law that they disagree with that citizen can appeal to a higher court eventually this this this body has the ability to re write the legislation and to try again to address to to measure since the judge found problematic I don't think that would be necessary in that particular case I just sounds like you got it wrong judges do get it wrong I make my living appealing judges and they still get along with me for one reason or another. Of I work for judge at one point and he too was talking to another judge in asking how many times you've been overturned in the District Court banishing the said once by your brother in my judge I was working for judge Richard Arnold's turn to end civil judge I was on the District Court bench eighteen months and I was reverse nine times what's wrong with you. To address a couple of substantive things if I may um this is not what the federal government does this is not the federal system. When you look at the entire federal system not just a slice of it what you find is that in under the federal system. The United States Supreme Court has the ability to promulgate rules of pleading practice procedure and evidence. It works to accomplish that through a body called the judicial conference which is the policy making body of the federal judiciary that body in turn has a standing committee on on practice and procedure. Underneath that committee is a series of advisory committees in each specialty area. That. Have public hearings take comments study the rules. Study your affect on cases study their affect on people day in and day out and make recommendations for rule changes that then start working its way back up the system to the standing committee and then to the judicial conference and then eventually to the Supreme Court and then here's where Congress comes in Congress gets to the bucket rules changes from the United States Supreme Court and says yes or no and that's it. That's not what this amendment does respectfully this amendment gives this body and override of Supreme Court rule in the ability to to make rules and of practice and procedure and evidence of its own it's a completely different animal. I think that if you're going to look at the federal system you can't look at justice a piece of the slice of bread you have to look at the entire thing. Which this this amendment I think respectfully does not do so for going to before going to. To look at the federal system let's look at the entire thing not just this piece of it then the last thing I want to say is. In the intent section one of this amendment it says the amendment is necessary to ensure that sufficient checks and balances exist between the powers of the legislative and judicial branches by allowing legislative input on the rules of pleading practice procedure and evidence for all courts allowing legislative input. You don't have to cut change the constitution to have legislative input you have it already you have it every time you pass a rule substantive law that comes it comes to brings with it the ability to enact a procedure to put it into place. We see that with respect to for example Mister Allen my friend over here mention the ACT six forty nine two thousand three the the guts of Act six forty nine were was the abrogation of joint several liability that had to be put into play into practice rules had to be enacted to make it work those rules now exist in rules nine H. forty ninety fifty two of the Arkansas rules of civil procedure this body directed that but that's not the only way this body has the ability to influence or have legislative input on the rules of pleading practice and procedure. It has it just by simply making a comment to the civil practice committee members of the legislature have done that in the past and it is resulted in rule changes we don't have a thing called under published court opinions that even sounds bad that a court can do something that's published doesn't have precedential value we don't have that anymore because a member of the Legislature role to civil practice committee and said we ought to change that rule or not having published opinions anymore and the rules changed because of it. So those are I think are my comments to to add on to what my friends here have said that We don't have to upset the entire apple cart to have to have legislative input on rules of pleading practice and procedure it would be just as a problematic to me if the Supreme Court were to to enact a rule that said how this body. Shepherd the bill through its halls you can't do that. What to rules of pleading practice and procedure do is say dates set the ground rules for how it is a substantive law that you have passed works its way through the court system to make sure every citizen's rights of indicated it's working it's not broken and I'm I would ask that you vote no on this resolution. Thank you Mr broke for appreciate the Testimony and Committee members we have any questions for Mister Brooks. The spokesman none thank you again for your time we appreciate you being here thank you. Representative Dotson. No one else signed up to speak for against the bill so representative Dotson you're recognized if the. If you have anything you like say in closing thank you Mr chair members committee we we've heard quite a bit back and forth here so I don't want to belabor any points but a couple things I wrote down as I was listening to the the the folks speak against it is talking about how our judicial system is a co equal branch of government and I think that's pretty well accepted. That's independent. The question becomes if its independent where's the system of checks and balances. And that's really the the heart of this proposal here is to re insert a system of checks and balances between the two branches of government when it comes to. A independent branch. Saying that something we pass. Is now all of a sudden by its definition deemed a rule and striking it down as unconstitutional. It wasn't unconstitutional or not a rule prior to us passing it. The rule changed by the decision of one individual or maybe a small group of individuals on an appeal. So I don't think it's a desire of any of us to take away the rule making authority from the Supreme Court we really don't want to get into the minutia of going back and forth over all the different things that was laid out here it's really on those rare occasions when you know there may be an over reach in a particular area that we need to weigh in that this constitutional amendment would be in place for and so with that I appreciate your consideration and look forward any further questions you guys might have is is these amendments work through the process thank you Mr. Thank you representative Dotson and that Thanks in no one else signed up to speak we appreciated and Committee members just a reminder that Wednesday afternoon upon adjournment we will once again here's some Constitutional amendments but also we're going to have time will make sense and regular bills with that but just watched it gender and and Blake said we. From the bone germinal Wednesday remember we are not meeting Wednesday morning so just a reminder that I know we've had a schedule change but I wanna make