Circuit Judge Mackie Pierce today agreed that Issue One, the proposed limit on lawsuits and legislative takeover of court-rulemaking, unconstitutionally rolled up multiple issues in one proposal and should be removed from the ballot.

The decision came in a lawsuit brought by retired Judge Marion Humphrey and a committee backed by the Arkansas State Chamber of Commerce and major health interests intevenued to keep it on the ballot;


Today’s decision will be appealed to the Arkansas Supreme Court.

Pierce began by quoting the Arkansas Constitution:


Proposed constitutional amendments “shall be so submitted as to enable the electors to vote on each amendment separately.”

This amendment caps non-economic damages in lawsuits at $500,000 and also caps punitive damages; limits attorney fees to a third of judgments and in a couple of ways effectively transfers court-rule-making authority from the Arkansas Supreme Court to the legislature. It gives the legislature rule-making review and also reduces the legislative vote requirement to amend or annul court rules. Past legislative efforts to make corporate-friendly changes to court rules have been struck down by the court as unconstitutional.

Pierce said amendments may have multiple parts so long as they are “reasonably germane.” He adopted the plaintiffs’ view that these four provisions are not. The state said it was enough to be generally about courts.


Wrote Pierce:

what is the general subject of lssue No. 1? ls it the taking, or reallocation of power from the judiciary and vesting it in the Legislature? Is it the courts and the judiciary? ls it about the right of citizens to freely contract? ls it about the right of citizens to be adequately compensated for damages suffered? ls it about limiting recovery? ls it about limiting the practice of law by attorneys? ls it about compensatory damages? ls it about punitive damages? The general subject is unclear to this court.

It is the duty and responsibility of the Arkansas General Assembly, acting as a body of a constitutional convention, to draft a propose  constitutional amendment which, if it has multiple parts or sections, are reasonably germane to each other and to the general subject of the amendment. tf the general subject of the amendment is unclear to the court tasked with this responsibility to determine the legitimacy of the adoption process, and subject to disagreement among the litigants; how can anyone say lssue No. 1 meets the rule in Forrester, id.?

The cap on lawyer contingency fees is clearly an infringement of the right to freely enter contracts, Pierce wrote.  He also said:

A cap on non-economic and punitive damages infringes on the rights of the citizens and litigants to be adequately compensated for the full amount of damages suffered by them in a court of law. 

The amendment is also clearly about a “taking” of judicial power, he wrote, though defendants use “reallocation” as a euphemism.

Had the legislature not included the rule change vote, he said he might have been able to find the amendment contained germane parts.


However, lssue No. 1 contains Section 4. Plaintiff, Defendant and lntervenor gloss over Section 4 as being part and parcel of Section 3. lt is not! Section 4 reduces the legislative threshold vote requirement from two-thireds to three-fifths of both houses. This is a legislative rule change. lt is an internal, legislative modification, not a court, judiciary or judicia! power modification or reallocation of power. The courts nor the judiciary (to use the terms separately as have the Defendant and lntervenor, but is one and the same to this court) have never had the judicial power to modify the voting threshold required in any legislative process or procedure. Section 4 of SJR 8, or lssue No. L, is an impermissible, unrelated addition to lssue No. 1. lt is in violation Art. 19, Sec. 22 of the Arkansas Constitution. Section 4 is not “reasonably germane” to the other three sections of lssue No. 1 nor is it reasonably germane to the general subject of the amendment

Pierce rejected all the defense arguments, including one of sovereign immunity (that the state may not be sued). He ordered Secretary of State Mark Martin not to count, canvass or certify the vote on the amendment.

Chief Justice Dan Kemp has spoken against the provision on rule-making authority. Justice Shawn Womack was an advocate in the legislature for tort reform of this sort and a long-time friend of the State Chamber of Commerce.

Interested parties are prepared to spend millions on the election. Hospitals, nursing homes and major corporations want to limit lawsuits and be able to call on the legislature when court decisions offend them. Plaintiffs’ lawyers have led the opposition, along with civil libertarians and some conservative religious groups who see a devaluing of human life in the cap on damages.

Here’s today’s decision.

Those hoping to beat Issue One cheered the decision but said they’d continue working to beat the issue at the ballot box. Corporate money will continue to flow to TV advertising (dishonestly depicted as a jobs amendment) while pursuing the appeal.

Opponents are distributing how the amendment would change court rule-making versus federal and existing state procedure.