Immunity ruling shines spotlight on Arkansas Claims Commission

Sen. Bart Hester, R-Cave Springs
Sen. Bart Hester, R-Cave Springs

Responding to a decision by Arkansas' top judges this week to reassert the state's immunity from lawsuits, some lawmakers already reviewing monetary claims against the state questioned the wisdom of beefing up their own authority.

The state Claims Commission is the "proper avenue" to seek a remedy from state government or its various agencies, Supreme Court Chief Justice Dan Kemp wrote in a majority opinion handed down Thursday.

While the high court's 5-2 decision was a return to nearly 60 years of precedent regarding sovereign immunity language in the Arkansas Constitution, it immediately sparked concerns among some lawyers. They asserted that the Claims Commission -- an administrative body whose awards may be reviewed by lawmakers -- is more subject to political persuasions than the courts.

"The Claims Commission is highly political. They are appointed by politicians that have an agenda," said Chris Burks, an attorney for a public bookstore manager whose suit seeking overtime wages was dismissed by the Supreme Court's ruling.

[DOCUMENT: Read the majority opinion]

Established in 1955, the Claims Commission primarily handles personal-injury, property-damage, refund and contract claims against the state. With a staff of five (excluding the five commissioners), its officers handle hundreds of claims a year. Commissioners are not full time and are appointed by the governor.

Circuit and district courts, meanwhile, saw at least 67 lawsuits filed against the state or its subdivisions in 2017, according to a preliminary review by the Administrative Office of the Courts. (The office noted its review of cases may have been limited by the keywords it searched for in the database.)

Any awards over $15,000 granted by the Claims Commission are automatically reviewed by a panel of lawmakers on the Claims Review Committee. Additionally, either side of a claims dispute may appeal to the legislative committee for further review.

The Claims Commission meets monthly and follows the Supreme Court's rules of evidence and procedure, except when they are contradicted by the commission's own rules.

The legislative committee for review, however, meets only a few times a year and operates outside Arkansas court rules. The committee reviews each claim and determines whether the claim shall be approved, reversed, amended, remanded for further review, or remanded for a hearing, according to the committee's website.

Before awards over $15,000 are paid out, they must be included in appropriation bills and passed by the General Assembly.

Two of the 16 members of the committee -- Sens. Will Bond, D-Little Rock, and Jeremy Hutchinson, R-Little Rock -- are active attorneys, according to the state Bar Association.

In a series of phone interviews with eight committee members Friday, a majority said they had some concerns that their hearings are not held to the same standards of a courtroom.

"It's a very different process," Bond said. "They're trying to do the right thing, but that's the thing with the justice system, there's rules, evidence and precedent."

Not all the committee's members said they shared those concerns.

"It's just regular people making regular decisions," said Sen. Bart Hester, R-Cave Springs, adding that the number of non-attorneys on the committee broadened their perspective.

"It's like a jury," he said.

All but one of the members who spoke to the Arkansas Democrat-Gazette said they were familiar with people lobbying to influence the committee's rulings. Still, none admitted to having their own decisions swayed.

In a court of law, attorneys and their clients are barred from having private talks with the judge or jurors. No such rule exists for the Legislature.

"I've been called by families that are coming, I've been called by the attorney, I've been called by the attorneys for the state," Hutchinson said. "It's certainly an issue."

Hutchinson's cousin, Sen. Jim Hendren, R-Sulphur Springs, said he was made aware of the out-of-meeting contacts when he was appointed to the committee last year, though he said he's yet to sit through a meeting. (The cousins are nephews of Gov. Asa Hutchinson.)

"I know [lobbying] exists just from conversations with other lawmakers," Hendren said.

Robert Coon, a lobbyist with the Impact Management Group, said he's represented a number of clients with claims against the state. He said the process is not dissimilar from advocating for a bill in session. Often lawmakers will have questions that require time to answer, he said.

"You want to educate members the best way you can, some of that's one on one, some of that's before the committee," Coon said.

Sen. Hutchinson said he's raised concerns before about the quality and fairness of the claims review process. In 2015, he successfully sponsored a law requiring the commission to publish specific findings of fact and legal conclusions when issuing its decisions.

"I don't think it's the preferred way to bring cases against the state," Sen. Hutchinson said. "I hope [the Supreme Court's ruling is] impetus to improve the claims process."

Bond, the other attorney on the committee, said lawmakers should start looking at legislation -- or consider putting a constitutional amendment before voters -- to ease the impact of the Supreme Court's decision. He said he disagreed with the court's decision.

Another solution, suggested by Sen. Hutchinson, would replace the review panel of lawmakers with one or more independent hearing officers whose decisions would require a two-thirds majority of the Legislature to overturn.

Others on the committee said that lawmakers' dual role in reviewing claims against state agencies, and approving those same agencies' budgets, made them wise arbitrators.

"You always want to be sympathetic to the ones that have been harmed, and want to give them money," said Rep. John Payton, R-Wilburn. "But if you award them [taxpayers'] money, the guilty party goes unpunished."

As for the workload of the commission and the review committee, several lawmakers said the Supreme Court's decision was likely to send more cases their way, though they said they were unsure how many.

The director of the commission, Kathryn Irby, said in an email Friday that her office "continually" reviews its staffing and funding needs to see if changes are necessary. A spokesman for Gov. Hutchinson said he was not aware of any "substantive conversations" about altering the commission's staff or budget in the wake of the Supreme Court's ruling.

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Sen Will Bond, D-District 32

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Jeremy Hutchinson, R-Little Rock

A Section on 01/20/2018

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