A Pulaski County circuit judge said Thursday that he will likely decide next week whether to issue a preliminary injunction against placing Issue 1 -- a proposed constitutional amendment on lawsuit damages and attorneys' fees -- on the Nov. 6 general election ballot.
The proposed amendment would establish caps on attorneys' fees and noneconomic and punitive damages, while also giving the Legislature the ultimate rule-making authority over the courts. The proposal was approved during last year's regular legislative session, during which supporters pitched it as "tort reform."
Opponents of the issue, namely attorneys, have argued that the changes would erode the power of the judiciary as a separate branch of state government.
A former Pulaski County circuit judge, Marion Humphrey, filed the suit earlier this month, alleging that Issue 1 was an unconstitutional bundle of separate changes being put before voters.
Circuit Judge Mackie Pierce agreed with attorneys from both sides of the lawsuit over Issue 1 that the case is likely to be heard by the Arkansas Supreme Court before the election. For now, however, attorneys challenging the validity of the measure are seeking a preliminary injunction to stop Secretary of State Mark Martin's office from certifying it for the ballot.
During a hearing Thursday, Pierce called Issue 1 a "sea change" but pressed Humphrey's attorneys to explain why voters shouldn't be allowed to make such a decision for themselves.
Jeff Priebe, one of Humphrey's attorneys, said if the Legislature wanted to put the policies included in Issue 1 up for a public vote, voters should get to decide each provision separately.
In addition to limiting attorneys' fees and some lawsuit damages, and allowing the Legislature to approve court rules, Issue 1 would lower the threshold for the General Assembly to change those rules from a two-thirds vote to a three-fifths vote.
"The four sections have no legal common chord or singular purpose, subject or goal," the lawsuit states.
"There's nothing in Issue 1 that sets forward its plain meaning, goal or purpose," Priebe said.
Priebe noted that the Legislature is allowed, during each regular session, to refer up to three constitutional amendments for voters to consider in the next general election. In addition to Issue 1, the 91st General Assembly referred an amendment on voter identification, now known as Issue 2.
Attorneys for Martin, the defendant in the suit, argued that the issue was constitutional and that Humphrey had no standing to file suit because of the state's sovereign immunity, as stated in the state constitution.
Earlier in the week, Pierce had allowed Randy Zook, executive director of the Arkansas State Chamber of Commerce, to intervene in the suit on behalf of Martin. Zook intervened as a representative of Arkansans for Jobs and Justice, a committee backing Issue 1.
The chamber is a member of Arkansans for Jobs and Justice, which is raising money in support of Issue 1. Several other ballot committees, including one aligned with the state Bar Association, are lined up against the measure.
Even if Pierce declines to issue a preliminary injunction, the attorneys for Humphrey have requested other forms of relief that could be granted after further hearings. On Thursday, Pierce asked the attorneys to provide more information about the election timeline, and when certain decisions regarding the ballot have to be finalized by the secretary of state's office. He expected to issue an initial order Tuesday.
No matter what decision Pierce reaches, he said he was "100 percent" sure the case would eventually reach the Arkansas Supreme Court.
Metro on 07/27/2018