Briefs have been filed this week in the lawsuit seeking to have Issue One, the limit on lawsuits and legislative usurpation of judicial power, removed from the ballot.

Retired Judge Marion Humphrey is the plaintiff in a lawsuit arguing that the proposal amounts to logrolling — putting four separate proposals in a single amendment contrary to the state Constitutional mandate for single-issue proposals.

A brief filed for a committee headed by Randy Zook, head of the Arkansas State Chamber of Commerce, and an advocate for the amendment, whch is aimed at protecting corporate interests from lawsuits over negligence and other damages, said:

The question for the Court is whether Issue No. 1 violates the separate-vote requirements of Art. 19, Sec. 22 of the Arkansas Constitution, which governs legislatively-referred amendments to the Constitution. The Arkansas Supreme Court has held that the test for determining whether a proposed amendment satisfies the separate-vote requirement is not whether the proposed amendment has several different sections but instead whether its sections are reasonably germane to a common theme and to each other. Issue No. 1’s four sections are reasonably germane to the general theme of judicial power and to each other through the interplay between substance and procedure. In other words, Issue No. 1’s provisions governing attorney contingency fees, damages awards, and court procedure all involve areas currently falling under the substantive or procedural purview of the judiciary, and Issue No. 1 reallocates that authority. Issue No. 1 thus easily meets the test for assessing a proposed amendment under Art. 19, Sec. 22, and the Court should deny plaintiff’s claims for relief and dismiss this action with prejudice. 

The amendment caps non-economic damages — say in a nursing home or medical malpractice case — at $500,000 and also lowers the limit on punitive damages; and caps attorney fees at 33.3 percent of the net recovery. It also in a couple of ways makes court rule-making a legislative prerogative, rather than that of the Arkansas Supreme Court.

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Humphrey’s attorneys argued in his brief that the constitutional standard must be strictly applied. They wrote:

In order to prevent “logrolling” the Court must look at the purpose and effect of the amendment and if the amendment is infirm, it should be void. Logrolling occurs when two or more propositions essentially dissimilar in subject matter are submitted to the
electorate in one amendment so that the voter may only cast one vote on the measure as whole. As a result, voters are forced to vote for provisions they might not favor in order to secure passage of the provisions that are favored. Their only choice is “yes” or “no”. 

He also argues that the sweeping takeover of court authority is inherently unconstitutional, in violation of separation of powers. He says, too, that voters aren’t told about the impact of this proposal on other sections of the Constitution.

To the argument that the amendment is generally just about courts, they cite the intervenor’s own arguments: about addressing “predatory” contingency fees, improving the climate for recruitment of doctors and other issues.

What is clear is that the Intervenor is trying to sell its constitutional amendment to the voters by using every political statement that they can; while at the same time arguing to this Court that Issue No. 1 is about judicial power.

The brief concludes:

No matter how Defendant and Intervenor try to spin the language of Issue No. 1, it is unconstitutional and void. It is an attempt to undo the very fabric of the government of the State of Arkansas and an attempt by the General Assembly to take power from the
judiciary. This high-jacking of the constitution is done under the attempted guise (at least to this court) of “judicial power” or the “courts and judiciary.” To the Arkansas people, the Intervenor attempts to hide this high-jacking behind the veil of “tort reform,” “economic good,” “better for doctors,” or whatever political buzzwords they think will work. The public deserves to be told honestly what Issue No. 1 does and what is does not do. In addition, the public deserves to be able to vote on amendments separately and amendments that are germane to each other and to the real purpose. Issue No. 1 does none of this and should be stricken. The people of Arkansas deserve better. 

The secretary of state also argues for keeping the measure on the ballot, saying the court has always given great leeway to the legislature on ballot issues and past precedent supports the validity of this issue.

Oral arguments are set before the Arkansas Supreme Court  Circuit Judge Mackie Pierce on Aug. 30. He earlier denied a preliminary injunction in the case, anticipating an appeal to the Supreme Court on the basic arguments once he’s decided them.

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