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Nursing Homes and the Arkansas Constitution

Posted on Wednesday, March 19, 2014    

The U.S Constitution and the Arkansas Constitution must be honored, valued and defended at all times. The State and U.S. Constitutions are not for sale. As the statue in front of the National Archives, which is the home of the U.S. Constitution and the Bill of Rights, states: “Eternal Vigilance is the price of liberty.” If we are not going to abide by the terms of our Constitutions, then anarchy may result, just like in the Ukraine, where one section of the country is trying to become a part of another country.

The Arkansas Constitution of 1874 was a product of the political culture of the time. A wave of state constitutional conventions preceding that of Arkansas adopted provisions making it more difficult for legislators to serve special interests. The Arkansas Constitutional Convention convened in July 1874,and used the Pennsylvania Constitution as model for limiting the power of both the legislature and the railroads in Arkansas. One commentator notes, “In short, distrust of government was the theme.”

For many years,our rights as guaranteed in the first ten Amendments of the U.S. Constitution, the Bill of Rights and 29 categories of rights guaranteed by Article 2 of the Arkansas Constitution have been under constant attack. The Bill of Rights to the U.S Constitution was ratified in 1791. Article 2 of the Arkansas Constitution was adopted in 1874 and ratified by the overwhelming vote of the people that same year. Article 2, Section 7states, in part, “The right of trial by jury shall remain inviolate…” Article 2, Section 13 states, in part, that “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; completely, and without denial…” TheArkansas Constitution also contains language, verbatim to that of Pennsylvania, in Article 5, Section 32, providing that “no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property.”

In the 2013 Legislative Session in Arkansas, the General Assembly of Arkansas attempted a power grab in SB 5 trying to give the Arkansas Legislature Rule Making Authority over our Courts – a clear violation of the Separation of Powers Doctrine in our Constitution. Equally disturbing,the Legislature,in concert withNursing Homes, Hospitals Big Business, and Big Insurance attempted to persuade the people that the Constitutionally guaranteed rights that had been around for 140 years stating that “no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons and property” weren’t in the best interest of Arkansas citizens. This provision protected not only victims of negligence by Big Corporations, but also victims who have their property taken or damaged by government and others.

The obvious intent of SB 5 was to give politicians the ability to set government-mandated limits on individual rights in the form of caps on damages. The effect of the bill would have been to take power and control away from local citizens called jurors and allow those politicians to mandate limits when one of our loved one is killed or injured or our property is injured, damaged or taken away from us by eminent domain or other government force taking.

The obvious elephant in the room is why any politician would propose for us to give up our fundamental right to be fully and justly compensated when we or a loved one is killed or injured or when our property is taken, misappropriated or damaged. As our Arkansas Founding Fathers knew, just like Patrick Henry, George Mason and Thomas Jefferson before them, political institutions were invariably infected and controlled by corporate corruption and self-interest. Simply put, profits over people. Follow the money.

SB 5, also known as Arkansas’ version of violating our 7th Amendment Right to Trial by Jury or tort reform, failed in the 2013 legislative session.

Now, as Paul Harvey used to say, the rest of the story. In 2013, a Faulkner County jury awarded the estate of Martha Bull a $5.2 million award after a trial. Mike Morton,who owns Greenbrier Nursing and Rehabilitation Center, appealed the amount. Faulkner County Circuit Judge Mike Maggio called a hearing for July 8 to discuss the award. Two days later Maggio entered a ruling which resulted in a monumental lowering of the jury verdict to $1 million.

Owner Morton donated $3,000 each to seven different Political Action Committees on the same day as the hearing. Equally offensive is the fact the Nursing home owner Morton is using taxpayer Medicare and Medicaid dollars to lobby our government to take away our rights. When Circuit Judge Maggio announced to run for appellate judge last year, 5 of the 7 PAC’s donated nearly $13,000 to his campaign. Maggio dropped his run for appellate judge recently after he admitted posting inappropriate and derogatory remarks about gays and women.

Nursing homes and other special interests have always given massive amounts to other judicial candidates and politicians. When I was at the Capitol fighting for our fundamental rights in the 2013 legislative session, several politicians stated that they were, in effect, beholden to nursing homes because of the generous contributions nursing homes had made to them.

Nursing home owners are asking politicians and judges for special treatment at times when there are severe deficiencies in quality of care for our elderly. For example, Arkansas ranked 39th in a state by state survey and received a ‘D’ grade for low marks in several key areas. Arkansas scored below average in 3 critical areas: registered nurse hours, facilities with above average nurse staffing and percentage of facilities with deficiencies. A link to the report card on this subject is available here.

Arkansas media coverage of our failing grade is available here while national medical coverage is available here.

Do we really want to take away the rights of elderly citizens when they are already receiving below average care? Nursing home populations are expected to increase 40% in the coming decade. The need for accountability and increased safety measures is growing exponentially.

This type of activity is a threat to the very foundation that our democracy rests upon. If we are willing to give away our constitutional rights, then maybe we should look at life in the Ukraine—which is where we will be if we give away the rights that have guaranteed our freedom.