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What Do Rice, Dark Money, and the Race for Chief Justice of the Arkansas Supreme Court Have in Common?

Now that early voting has started for primaries and "non-partisan" judicial races, the mud slinging is getting thrown into another gear. If you are a follower of this blog, you have seen post in the past referring to the influence of money in judicial, supposedly "non-partisan" elections.

Unfortunately, the trend of judicial elections is taking an anti-citizen turn ... again. In 2014, Circuit Judge Robin Wynne defeated attorney Tim Cullen with help of a "dark money" group based out of Washington, D.C. "Dark money" refers to an organization who is not required to disclose the identity of its donors. The Law Enforcement Alliance of America spent hundreds of thousands of dollars in tv air time in the Wynne-Cullen race. The LEAA ad misrepresented a position taken by Cullen in an appeal brief, which can be seen here. The LEAA accused Cullen of arguing child pornography was a victimless crime. Cullen actually argued the sentence for the perpetrator should fit within the federal guidelines. The president of the National Association of Criminal Defense Lawyers had this to say about the LEAA ad:

The idea of attacking someone simply for fulfilling the mandate of the United States Constitution to provide every accused person with a defense attorney is inconsistent with the nation’s fundamental values. The founders of this nation recognized that no person should ever stand alone when the government seeks to condemn, imprison, or kill a person. To suggest that one’s qualifications for the bench are diminished for having lived up to the ideal of the right to counsel is an ill-conceived line of attack.

Wynne won the election by getting 52% of the vote.

On March 1, 2016, Arkansas voters will decide between Associate Justice Courtney Goodson and Circuit Judge Dan Kemp for who will become the next Chief Justice of the Arkansas Supreme Court. Goodson's platform includes her experience as an Associate Justice on the Supreme Court, as well as her experience while serving as an appellate judge on the Arkansas Court of Appeals. Kemp's platform includes his faith, integrity, and following the constitution.

Earlier this year, a dark money group called the Judicial Crises Network ran the following tv ad against Goodson:

I recently saw this website come across my facebook page, and I soon realized what the JCN is all about. At the bottom of the page, there is a footnote to the following quote:  "on the Supreme Court Goodson consistently sides with the Trial Lawyers, issuing legal opinions that make them millions more in their lawsuits." The "opinion" (singular) refers to the opinion Goodson wrote in Bayer CropScience LP v. Schafer, 2011 Ark. 518.

For those unfamiliar with the facts of the case, Bayer Cropscience produced genetically modified strains of long grain rice in the '90s. The Food and Drug Administration never approved the use of these strains. No foreign governments authorized the commercial use of these strains for human consumption. In 2006, these strains of rice were found to exist in the United States' long grain rice supply. Prior to that time, 52% of the long grain rice grown in the country was exported to other countries. Arkansas is the leading producer of long grain rice in the United States.

The United States Department of Agriculture quickly granted approval of one of the strains of rice. However, they banned the use of another strain for the 2007-2008 crop year, and implemented efforts to eradicate the contaminated rice. The world-wide reaction was much more guarded due to foreign governments' resistance to genetically modified food sources. Several countries required certification or testing that the rice was not contaminated before being allowed within its borders. These countries included Mexico, Canada, Iraq, Korea, Taiwan, Saudi Arabia, Cuba, and Japan. The Philippines and Russia banned the import of American rice. The European Union (consisting of 27 countries and 1/6 of the American rice export market) imposed stringent testing requirements at every port of entry. American rice exports decreased by 622,972 metric tons between 2005 and 2008.

This financially ruined several rice farmers and small businesses across Arkansas. So they joined together and filed a lawsuit in Lonoke County. The rice farmers and small business owners alleged Bayer knew the majority of American rice was exported; Bayer knew other countries did not import genetically modified rice; and Bayer knew any contamination of the United States rice supply with genetically modified rice would depress the export market and negatively affect the price of American long-grain rice. The rice farmers and small business owners claimed Bayer was negligent for allowing the genetically modified strains of rice into the nation's rice supply. They alleged Bayer was not careful enough during the strains' testing to prevent contamination of genetically modified seed with conventional seed. The rice farmers and small business owners claimed Bayer's negligence caused economic harm by driving down the market price for American long grain rice. They also claimed punitive damages to punish and deter future similar conduct by Bayer since Bayer knew or should have known that its conduct would probably result in damages to the rice farmers and small business owners; and because Bayer continued to pursue their negligent conduct with a reckless disregard of the consequences.

During the course of the case, the rice farmers and small business owners asked the circuit judge to declare unconstitutional a cap on punitive damages because it violated the Article 5, section 32 of the Arkansas Constitution, which states as follows:

The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.

The circuit judge agreed and found the punitive damages cap unconstitutional. The jury returned a verdict for compensatory damages in the amount of $5.975 million dollars collectively for the rice farmers and small business owners. The jury also returned a punitive damages verdict in the amount of $21 million dollars.

Bayer appealed to the Arkansas Supreme Court, and said the circuit judge made a mistake by holding the punitive damages cap unconstitutional. Goodson, relying on a case from 1998, 1954, and a case from 1950, found the legislature "may limit tort liability only where there is an employment relationship between the parties." Because the punitive damages cap limited the amount of recovery outside of an employment relationship in violation of Article 5, Section 32 of the Arkansas Constitution, Goodson held the punitive damages cap enacted by the Arkansas legislature was unconstitutional. 


Goodson followed and enforced the law. In doing so, she ensured hard-working Arkansas citizens were not financially ruined by the actions of a multi-national conglomerate corporation.

Goodson also maintained the integrity of the civil justice system in this state. Every Arkansan has a constitutional right to a jury trial. That means the people in our communities get to decide our disputes. This is the definition of local control, and what separates our system of government from other countries. Goodson's ruling sends a message to legislators that the Arkansas Constitution does not tolerate government overreach into the decision making of Arkansas citizens who serve on juries.

Instead of correcting the JCN's misrepresentations, Kemp embraced the message of the JCN in a February 10, 2016 campaign email. After a JCN mailer criticized Goodson for being part of a holding striking down a Voter I.D. law, Kemp said he didn't "believe there is any place in our judiciary for this type of politics."

Regardless for whom you vote, do your research and ask questions of the candidates. If you see an ad sponsored by an organization, ask questions about the organization. Misleading advertisements have no place in judicial or any other type of election.