Tort reform: An issue in the 2010 elections?

With last week's ruling by the Arkansas Supreme Court in Johnson v. Rockwell, which guts a couple of portions of the 2003 Civil Justice Reform Act, both sides of the tort reform debate are quietly discussing options. The court ruled that (1) the phantom defendant provision and (2) the billed v. paid provision of the act are unconstitutional. I've heard from both sides of the trial bar in the last week, and both are considering ways to approach this ruling. However, the court was pretty clear in its opinion, written by Associate Justice Paul Danielson:

(1) Rules regarding pleading, practice, and procedure are solely the responsibility of the Arkansas Supreme Court. See Ark. Const. amend. 80, §3.

(2) After reviewing § 16-55-202, it is clear to this court that the legislature has, without regard to this court’s “rules of pleading, practice and procedure,” established its own procedure by which the fault of a nonparty shall be litigated.

(3) The plain language of the statute even instructs that “a pleading” be filed to meet the notice requirement. See Ark. Code Ann. § 16-55-202(b)(2). This is in direct conflict with our Ark. R. Civ. P. 7 which specifically sets forth the pleadings and instructs that “[n]o other pleadings shall be allowed.”

(4) Accordingly, we hold that Ark. Code Ann. § 16-55-202 violates separation of powers under Article 4, §2, as well as Amendment 80, § 3 of the Arkansas Constitution.

Some involved in the process of drafting Amendment 80 state that the groups argued about a lot of things, but the potential of the Rule making authority of the court was never discussed. Whether a ballot initiative is kicked off or whether the legislature debates further changes to the 2003 act in future sessions to try and find a way around this ruling is to be determined, but this is sure to be asked of candidates in the upcoming election cycle.