Tort petitions' reviewer flags legal concerns

High court’s special master says canvasser checks amiss

A retired judge asked by the state's highest court to review signatures collected in favor of a proposed constitutional amendment said Wednesday that the Supreme Court can consider several outcomes, including striking all of the petition's signatures.

If approved by voters during the Nov. 8 general election, Issue 4 would amend the Arkansas Constitution to allow a cap for noneconomic damages caused by pain and suffering in medical lawsuits. It would also limit the fees attorneys receive if they win such cases to a third of total damages.

In a report delivered to the state Supreme Court, special master J.W. Looney said the violation of one canvassing statute at question could disqualify all of the 131,687 signatures gathered from Arkansans in support of Issue 4.

Other errors left to interpretation by the court's seven justices could eliminate enough signatures to disqualify the measure for the Nov. 8 general election, the report found.

The Supreme Court will consider Looney's report and subsequent briefs by both parties due in October before making a decision. Arkansas ballots are in the process of being printed with Issue 4 included, but the court can order that the votes not be counted.

Health Care Access for Arkansans -- a ballot committee backing the proposal and supported by doctors, pharmacists and long-term care facilities -- spent more than $800,000 this summer on a private Colorado firm that hired canvassers across the state to gather signatures required to place the amendment on the Arkansas ballot.

Even after striking many of the petition pages containing about 38,000 signatures for errors, Secretary of State Mark Martin's office in August announced the proposal had exceeded by more that 8,000 signatures the 84,859 needed to qualify for the ballot.

But opponents of the measure who dug through thousands of petition pages said they turned up numerous errors that should disqualify an additional 35,000 signatures, as well as the petitions as a whole.

The Committee to Protect AR Families, an opposing ballot committee formed by patients' advocate Martha Deaver, filed the lawsuit with the Supreme Court seeking to have the petitions ruled deficient. Deaver's group has received most of its financial support from trial lawyers.

The two errors that should disqualify all the signatures, according to the lawsuit, were that the Health Care Access ballot committee never provided evidence to Martin's office that all of the paid canvassers passed background checks and had been provided with copies of a handbook explaining the rules of petitioning.

In a hearing before Looney last week, two officials with the ballot committee, Chase Dugger and Daniel Greenberg, testified that the Colorado canvassing firm they hired, 3.0 LLC, was supposed to have the criminal background checks completed by the Arkansas State Police.

Greenberg said he personally reviewed "10 to 100" background checks, and that he in turn gave verbal assurance to Martin's office that the background checks were being completed.

In his report, Looney concluded that the lack of a written certification that background checks were being done violated Arkansas Code Annotated 7-9-601. Looney left it up to the Supreme Court to determine if the error invalidated all of the signatures.

Looney also concluded that the secretary of state's office mistakenly disqualified some signatures that should have been allowed, and allowed others that should have been disqualified. The sum of the errors should result in 1,166 signatures being removed, according to his findings.

Additionally, the justices can remove about 10,000 signatures, Looney said, if they determine that background checks paid for by several third parties violated state law. It is unclear how those background checks wound up in the hands of the Colorado firm, Looney said. If invalidated, the loss of those signatures would bring the petition's total below the minimum required number.

"We worked carefully to honor the Secretary of State's process," Dugger said in a statement Wednesday. "We are confident that the Supreme Court will respect the will of the people and keep Issue 4 on the ballot this November."

In her own statement, Deaver said Looney's report supported her committee's conclusion that the supporters of the petition did not follow canvassing rules.

"The Special Master's report calls out the Sponsor's blatant disregard for the law when trying to amend our state's constitution," the statement read.

Similar lawsuits challenging the petition process also have been filed against an initiated act to legalize medical marijuana and an amendment to authorize up to three casinos in the state. Each of those cases has had a special master appointed to review the signatures and report findings to the Supreme Court.

The special master appointed to review petitions in a challenge to the Arkansas Medical Cannabis Act released his report Tuesday, determining that the petition had enough valid signatures. The special master appointed to review the casino amendment has not released his report.

Neither of the ballot committees backing the casino amendment and the marijuana act used the Colorado firm contracted by Health Care Access for Arkansans.

The lawsuit filed by Deaver and the Committee to Protect AR Families is also one of several suits filed recently to challenge the ballot wording of other proposals. Looney's report did not address that challenge.

Metro on 09/29/2016

Upcoming Events