OPEN FORUM Don’t Mess With the Texas Bill of Rights BY JAMES HARRINGTON The voters of Texas should defeat Proposition 12 on the September 13th ballot. Proposition 12 is nothing but a naked attempt by the state’s monied interests to repeal part of our Texas Bill of Rights. It would abolish a critical constitutional right that protects citizens against the Legislature putting limits on their right to a jury trial. The proposed amendment, which the business and medical lobbies succeeded in putting on the ballot, would annul much of the Open Courts protection in Article 13 of our 127-year-old Bill of Rights charter. It would give the Legislature unfettered power to limit, and even abolish, non-economic damages in common lawsuits. Purportedly, this effort to repeal part of the Bill of Rights is done in the name of abusive medical malpractice suits, and to allow the Legislature to impose a cap on non-economic damages at $250,000 But the proposed constitutional amendment actually goes further: It nullifies the Bill of Rights protection that guarantees juries the right to set damages in every common law case, not just medical malpractice.That means the Legislature could remove non-economic damages in civil rights cases, strip away such damages in wrongful death cases, negate those damages where law enforcement officers abuse their power or act with callous disregard toward citizens, and deny non-economic damages in invasion of privacy cases \(such as wrongfully disclosing private medical touches every facet ofTexans’ lives, with respect to their property rights, contracts, real estate, and so on. The reason our forebears ratified the Open Courts proviso in the Bill of Rights was to keep the jury process protected and inviolateand to deny the Legislature the ability to change jury trials at its whim, and even caprice. Now the Legislature wants the voters to give it the power to limit jury trials.The voters should reject this grab for power. Moreover, despite all the hand wringing and fancy commercials, there is not much empirical proof to show there is any medical malpractice crisis at all, let alone any need to mess with the Bill of The reason our forebears rati fied the Open Courts proviso in the Bill of Rights was to keep the jury process protect ed and inviolateand to deny the Legislature the ability to change jury trials at whim, and even caprice. Rights. Even if there were malpractice abuses, arbitrarily cutting off liability at $250,000 is an irrational way of handling the problem. There are many, much more equitable plans that could avoid the few very high jury awards that do occur, without a flat cap on every one’s misfortune. Certainly, the pain, suffering, humiliation, loss of consortium or companionship or the physical impairment for a victim of a negligent collarbone repair is less serious than that experienced by a victim of a doctor who takes out a healthy kidney instead of its diseased counterpartas recently happened in Texasor a victim of a doctor who negligently performs a double mastectomy, as also recently occurred. But under the medical industry’s scheme all malpractice victims are treated the same, regardless of the harm inflicted upon them. The constitutional amendment, if passed, would be the first time in Texas history that our Bill of Rights has suffered such a setback. Throughout our history the Open Courts provision has protected us from the Legislature’s attempt to take away the power of the jury, the most democratic institution in our democracy. Having failed in all their earlier attempts to do an end run around Open Courts protection, the powers-that-be now want to trick us into wiping out altogether the historical section of the rights charter, by crying wolf about medical malpractice and hoping we don’t read the fine print. We Texans should prevent this attempt by big money to water down our Bill of Rights and reject Proposition 12 on September 13. James Harrington is Director of the Texas Civil Rights Project, adjunct professor at the University of Texas School of Law, and author of The Texas Bill of Rights: A Commentary and Litigation Manual. 8/29103 THE TEXAS OBSERVER 13
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