Attorney David Couch Wields Initiatives To Change the Law


Attorney David Couch Wields Initiatives To Change the Law
The bumper stickers on David Couch’s file cabinets provide hints as to his political leanings. (Karen E. Segrave)

If you don’t like what Little Rock lawyer David Couch does — suing nursing homes over patient care, wielding the initiated act as a way to liberalize Arkansas law — blame Jesus.

“I grew up in the Holden Avenue Church of Christ in Newport, Arkansas,” Couch said. “Jesus loves all the children, red and yellow, black and white. That’s it. That’s my politics.”

That conservative religious upbringing has expressed itself in decidedly non-conservative ways. Since 2012, his politics have led Couch to work to tighten ethics and campaign financing law in the state, legalize medical marijuana, raise the state’s minimum wage, open all of Arkansas to alcohol sales and enact laws prohibiting discrimination against people based on their sexual orientation or gender identity (see timeline below).

“Sure, I’m liberal,” Couch said in a recent interview at his office in the Prospect Building. “There’s nothing wrong with liberal. I’m for the underdog.”

And he has faith in Arkansans’ sense of fairness. “I have cases in every county and all this initiative work. I get so mad when they say we’re a red state or a blue state. We’re the most populist state,” he said.

That faith underlies Couch’s use of the initiative to persuade voters to change law. “The initiative is pure democracy,” he said.

Marsha Scott, a veteran of the Clinton White House, is a political and organizational consultant and senior adviser to Todd Shields, dean of the Fulbright College at the University of Arkansas. She came to know of Couch during the 2012 campaign to raise the state’s severance tax on natural gas, Scott working for opponents of the increase and Couch working to raise it.

Signature-gathering for the tax initially was sloppy, but the effort improved when Couch came aboard. “He had thrown down the rules,” Scott said. “He was telling them how they had to do it. I heard there was a lot of grumbling because he was very strict.”

She later told Couch she wanted to work with him, because “you’re really good and this state could use a better way of running these initiatives.” Scott since then has worked “on the sidelines” with Couch on his most recent medical marijuana and ethics initiatives.

Signature gathering is Couch’s area of expertise, Scott said, and he’s assembled a good team over the years.

This kind of initiative work is “the last place that citizens can go without hiring lobbyists to really have an impact on the government,” Scott said. “And because it’s so effective —when people are given information, most people want to be involved in the process — the Legislature is having to tighten the rules more and more because they’re very afraid of that process, I believe.”

The work of drafting proposals and taking them to voters is complex. “It requires extreme oversight, very careful analysis,” Scott said. “There are any number of ways that people can, quite accidentally, make mistakes.”

In addition, “there’s a history of a lot of fraud in this area, as you well know.”

But “David is a stickler for the law, she said. “Whatever one might say about David Couch, he is a defender of the law. He believes in it. He never hides behind it. But he thinks it’s a tool for good.”

Conservative/Liberal

Couch, graduating from the Bowen School of Law in 1985, started his legal career at the old House Holmes & Jewell law firm in Little Rock. A son of a banker, Couch described himself as “fiscally conservative, socially liberal,” and at the House firm — whose name evolved as it did — he did self-insured defense and nursing home defense work, representing Beverly Enterprises for a few years.

Couch, coming to the realization that he didn’t enjoy that kind of law, eventually began to do plaintiff’s work, representing friends of members of the firm who had died in accidents.

“All of a sudden in this old firm, they could see, ‘Well, you’ve got somebody over here who likes to do plaintiff’s work. Instead of passing this out to somebody else, why don’t we keep this in-house?’ so I became like a little black sheep over in the corner, which I loved.”

Plaintiff’s work “fit my personality,” Couch said.

Then in 2001 came the Mena case.

Lawyer Phil Dixon, Couch’s mentor at the-now Dover & Dixon firm, and partner Darren O’Quinn were set to defend a nursing home in the Polk County town in a lawsuit over a patient’s death. But Dixon had a conflict, Couch said, and O’Quinn asked him to try the case with him.

The jury returned a $78.4 million verdict against the nursing home, the largest in Arkansas history at the time. The state Supreme Court later reduced the award to $26 million, but it still was an eye-popping amount.

The case helped spark so-called tort reform in Arkansas, the Civil Justice Reform Act of 2003. The act limited punitive damages to $1 million, but in 2011, the state Supreme Court ruled that cap unconstitutional.

Couch and O’Quinn left to form their own firm, Couch O’Quinn PLLC, and began pursuing abuse and neglect cases against nursing homes rather than defending them. Couch and O’Quinn split up in 2003 or ‘04, Couch said, and he’s now his own boss in a solo practice. “I get nauseous if I have to put a tie on,” he said.

Through the years, however, Couch has earned enough money to allow him to pursue his initiative work on his own dime.

“He’s a multilevel chess player,” Scott said of Couch, who’s created an unusual niche for himself in the state.

“David is, to his core, a small-town Arkansas guy,” Scott said, “a good old boy in the best sense of the word.”

But ultimately, “David just doesn’t give a shit” what people think of him, she said. “David is always focused on doing what he believes is right.”


Taking the Initiative: A Timeline

Little Rock lawyer David Couch has achieved the most public attention in the last few years through his initiative campaigns: efforts to use direct democracy — citizens voting on policy proposals — to change the law.

There are two kinds of initiatives: an act and an amendment to the Arkansas Constitution. A voter-approved initiated act creates a statute that can be altered or repealed by the Arkansas Legislature by a two-thirds vote. An initiated amendment to the state Constitution can be changed only by another vote unless the amendment specifies otherwise.

Among those initiatives:

2012

Ethics.
Couch is treasurer of the Better Ethics Now Committee, a bipartisan group led by Brent Bumpers, Jim Keet and Baker Kurrus. That committee works with a group called Regnat Populus 2012 ("The People Rule," the Arkansas motto) to put an ethics amendment, the Campaign Finance & Lobbying Act of 2012, on the November 2012 general election ballot.

The proposed act would prohibit all donations from corporations and unions to state candidates, prohibit legislators from accepting any gifts from lobbyists and increase the waiting time for legislators to become lobbyists to two years after leaving office, up from one year.

The initiative fails to get the required number of signatures of registered Arkansas voters to be placed on the ballot.

  Severance tax.
Couch works with Sheffield Nelson, the former natural gas company executive and Republican gubernatorial nominee, on an initiated act to increase the state's severance tax on natural gas to raise money for roads. The Committee for a Fair Severance Tax hires a Little Rock woman to lead the signature-gathering effort, but many signatures are invalid, and the initiative fails to make the ballot.
  Medical marijuana.
The group Arkansans for Compassionate Care, represented by Couch, gathers enough signatures to place on the ballot an initiative to legalize the medical use of marijuana in the state. He calls it "a state-rights issue. The states have the right to define what's legal and illegal under their own laws." The Arkansas Medical Marijuana Act fails but wins 49 percent of the vote, and supporters vow to try again.

2013-14

Ethics.
Regnat Populus, now co-chaired by Couch, and the Better Ethics Committee work to get an ethics measure on the ballot, and in January 2013, then-state Attorney General Dustin McDaniel certifies the proposed measure. But Couch tells the Arkansas Democrat-Gazette that he hopes the Legislature enacts ethics legislation in its upcoming session.

State Rep. Warwick Sabin, D-Little Rock, introduces the measures in the Legislature. The proposals languish until, according to Couch, Republicans suggest adding measures to attract GOP support: lengthening term limits and setting up a salary commission to consider state officials' pay.

In April 2013, the Legislature approves House Joint Resolution 1009 as a constitutional amendment to be referred to voters in 2014. On Nov. 4, 2014, Arkansas voters approve Amendment 94.

  Medical marijuana.
Arkansans for Responsible Medicine, co-chaired by Couch, again takes up an initiated act to legalize marijuana for medical use, but Couch pulls it in 2014, saying that "the people who want to fund it would rather fund it for 2016 because it is a presidential election year and turnout will be higher."
  Minimum wage.
The group Give Arkansas a Raise Now, chaired by Steve Copley of North Little Rock, proposes an act to raise the minimum wage in Arkansas from $6.25 an hour to $8.50 an hour over two years. Among the group's members is Couch. The proposal makes the 2014 ballot, despite a court challenge from Jackson Thomas Stephens Jr. of Little Rock, son of Jack Stephens Sr., founder of Stephens Inc. It wins overwhelming support from voters.
  Alcohol sales.
Couch, leading the committee Let Arkansas Decide, proposes an amendment to the state Constitution to authorize the manufacture, sale and transportation of alcoholic beverages in all 75 counties in Arkansas, in effect making the entire state "wet." This effort draws powerful opposition from the group Citizens for Local Rights, funded by a trade association for liquor retailers and businesses that sell alcohol. Amendment foes sue to keep the proposal off the ballot, and the wet and dry forces file dueling ethics complaints. The state Supreme Court rules to keep the amendment on the Nov. 4 ballot, but voters reject it.

2015

Anti-bias laws.
Couch organizes Arkansans for Local Rights, a campaign to repeal Act 137, the state's effort to prevent cities from enacting anti-discrimination ordinances. The group seeks a voter referendum but abandons the effort after a legal opinion by Little Rock City Attorney Tom Carpenter holds that Act 137 doesn't actually prohibit local anti-bias ordinances seeking to protect lesbian, gay, bisexual and transgender people. Couch goes on to help Eureka Springs and Fayetteville enact ordinances prohibiting bias against people based on their sexual orientation or gender identity.
  Alcohol sales.
Couch again heads an effort on behalf of the Arkansas Alcoholic Beverage Amendment allowing alcohol sales in all Arkansas counties, seeking to have it placed on the ballot in 2016. He also works on a proposal that would allow dry cities or counties to call an election on the sale and consumption of alcohol in restaurants, hotels, microbreweries and festivals. But he abandons both efforts to focus on medical marijuana.
  Ethics.
Couch, representing the Better Ethics Now committee, seeks to get an amendment on the ballot that would strengthen Amendment 94, but Arkansas Attorney General Leslie Rutledge rejects the proposal, and the state Supreme Court rejects Couch's effort to force her to approve the ballot title.
  Medical marijuana.
He works on another proposal legalizing marijuana use for medical reasons. The Arkansas Medical Marijuana Amendment of 2016 would require medical marijuana to be given out by dispensaries overseen by the state Alcoholic Beverage Control Division and makes no provision for personal cultivation of marijuana. Rutledge approves the ballot title and name. It requires 84,859 valid signatures to make the November ballot.