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story.lead_photo.caption At left, a screenshot of the Arkansas Supreme Court's opinion blocking votes from being counted on Issue 1. At right, a file photo of the court.

For the second time in as many election cycles, the Arkansas Supreme Court has blocked efforts to let voters cap lawsuit damages and attorneys' fees, ruling Thursday that Issue 1 on the Nov. 6 ballot falls short of constitutional muster.

The 6-1 ruling by the high court affirmed an earlier ruling by a Pulaski County circuit court judge, who had enjoined the state from counting or certifying any votes for the proposed constitutional amendment.

The majority of the high court held that the various parts of Issue 1 -- which combined caps on attorneys' fees and lawsuit damages with a broad revision of the courts' rule-making authority -- essentially had little to do with one another, and were unconstitutionally rolled into one amendment.

Because early voting begins Monday, most ballots have already been printed and include the issue, a spokesman for the secretary of state's office said. However, votes cast for it won't be counted because of Thursday's ruling.

In 2016, the high court took similar action against a proposed "tort reform" amendment to cap fees and damages in medical malpractice suits, ruling that the wording of the measure was confusing to voters. That measure was placed on the ballot by petition.

Issue 1 was proposed by the state Legislature in 2017. Lawmakers who voted for it expressed "shock" and disappointment Thursday.

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Arkansas Supreme Court opinion on Issue 1

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David Couch, one of the attorneys who challenged Issue 1 in the case before the Supreme Court, said the ruling sent a message to the Legislature, hospitals and business groups that have sought to limit their exposure to costly lawsuits.

"If they want to just pick on lawyers and lawyers' fees, I don't know if they'll have the appetite," Couch said.

But Carl Vogelpohl, the director of an Arkansas State Chamber of Commerce-backed effort for Issue 1, said proponents of tort reform will continue to pursue the issue.

"Arkansas is still a state that is surrounded by tort reform states that put us at a disadvantage" economically, Vogelpohl said.

FOUR SECTIONS

Writing for the majority, Justice Josephine "Jo" Hart referred to four different "sections" of the proposed amendment, which she said failed to adhere to a "general subject."

The first section, under Hart's analysis, set a strict cap on attorneys' fees at one-third of total damages. The second section proposed a $500,000 minimum cap on "non-economic" damages and the greater of $500,000 or three times the compensatory award for punitive damages. Both caps could be adjusted by a two-thirds vote of the Legislature.

Hart noted that the amendment included a third section that gave the Legislature the authority to amend or repeal court rules by a three-fifths vote, and a fourth section making various changes to Amendment 80 of the constitution.

"Section 1 limits the rights of private parties to contract for legal services," Hart wrote. "Sections 3 and 4 broaden and diversify the legislature's ability to exert influence over judicial rule-making authority. Section 1 does not operate to support, develop, clarify, or otherwise aid the function of sections 3 or 4 in any meaningful way, nor do sections 3 or 4 offer any such benefit to section 1."

Article 19, Section 22, of the Arkansas Constitution allows the Legislature to submit up to three proposed constitutional amendments to the voters during each election cycle, and the section requires that voters decide on each amendment separately.

The text of Issue 1, Hart wrote, "institutes at least seven individual numerated changes or additions to the constitution."

Joining Hart in the majority were Justices Karen Baker, Courtney Goodson and Robin Wynne. Special Justice Stephen Tabor, filling in for recused Chief Justice Dan Kemp, also joined the majority.

Justice Rhonda Wood wrote in a concurring opinion that she agreed with the outcome, but she used a separate analysis in which she noted that Issue 1 proposed changes to various different sections of the Arkansas Constitution.

The sole dissenter, Justice Shawn Womack, said the majority had overstepped its bounds by blocking Issue 1 from a public vote.

"If the impact of Issue No. 1 on the courts and on civil litigation would be too expansive, our constitution leaves that decision to the voters of Arkansas to make at the ballot box, not to a majority of this court of seven," Womack wrote.

CAMPAIGN ADS

The campaign for Issue 1 had been the most expensive in Arkansas this year, with millions of dollars raised by business and legal groups on competing sides by the time Thursday's ruling came down. In September alone, issue-oriented campaigns reported spending more than $1.6 million on TV and radio ads.

The most immediate result of the ruling was for campaigns to try to recoup some spending on ad buys and reimburse donors.

"It remains to be seen how much money we will get back," said Vogelpohl. He represented the committee Arkansans for Jobs and Justice that fought for Issue 1.

Arkansas Trial Lawyers Association President Jesse Gibson, who volunteered with the anti-Issue 1 committee Protect AR Families, said the process of sorting through the group's remaining funds would involve "a lot of drudgery and paperwork," but he believes the court made the correct ruling.

However, he said, a vote on Issue 1 might have sent a clear message to legislators if it had failed.

"We had a strong coalition of conservatives and progressives," Gibson said. "From a political viewpoint I wish we had gone to the ballot."

The measure split traditionally conservative bases. While pro-business groups -- including the chamber, health care groups and the trucking association -- led the effort to support the issue, the faith-based Family Council worked against the measure.

OFFICIAL REACTION

The court's decision elicited harsh reactions from lawmakers who had drafted the resolution that became Issue 1. Republican majorities in the Legislature adopted the resolution in 2017.

On Twitter, state Sen. Trent Garner, R-El Dorado, warned, "there will be consequences, starting with [the court's] budget next week." Lawmakers are in budget hearings this month, getting ready for next year's regular legislative session.

One of the sponsors of the amendment, state Rep. Bob Ballinger, R-Hindsville, predicted that the court's decision will set off a "constitutional crisis," as the amendments enacted by voters in years past face renewed scrutiny for combining multiple elements.

Republican Gov. Asa Hutchinson, who had not taken a public stance on Issue 1, said Thursday that he was surprised by the ruling, though he did not anticipate it would be the end of the policy question over tort reform.

"I would actually expect there to be a debate on that and a consideration on another amendment to be referred to people on the tort reform," Hutchinson said. "As I said, I don't think the battle is over."

In her concurring opinion, Hart seemed to anticipate that viewpoint, writing, "I am cognizant that many other legislatively initiated acts that would have failed this test in the past are now part of the constitution."

But, she added, "They simply were not timely challenged."

Robert Steinbuch, a law professor at the University of Arkansas at Little Rock's William H. Bowen School of Law, also dismissed Ballinger's threat of a crisis, calling it a "political talking point."

"Those [amendments] have been done," Steinbuch said. "Those challenges have passed, there's no challenges that can be brought."

The court has ruled that three other Nov. 6 measures pertaining to casinos, voter identification and the minimum wage may remain on the ballot. A decision is still pending from the court regarding Issue 3, which proposed tougher term limits for legislators.

Photo by Democrat-Gazette file photo
Carl Vogelpohl, the director of an Arkansas State Chamber of Commerce-backed effort for Issue 1, is shown in this file photo.
Photo by Special to the Arkansas Democrat-Gazette
Justice Josephine “Jo” Hart

A Section on 10/19/2018

Print Headline: Arkansas Supreme Court yanks Issue 1, calls it overly broad

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Archived Comments

  • RBear
    October 19, 2018 at 6:09 a.m.

    The ruling on Issue 1 was an accurate and fair ruling. Lawmakers mashed up so many things and were prepared to impose overreach of their body on the courts. There's a reason we have separation of powers and apparently some of the ultra right lawmakers can't seem to understand that. My favorite is the gun nut in El Dorado, Trent Garner. His statement on Twitter shows just how UNHINGED (hope you're reading this, Garner) he can be on issues.
    ...
    In case you missed it in the article, here's how he plans to retaliate. "On Twitter, state Sen. Trent Garner, R-El Dorado, warned, 'there will be consequences, starting with [the court's] budget next week.'" Really? This is how our democracy works, Garner? If Garner even CONSIDERS using the budget as a weapon, I hope someone takes him to court over it. Moreover, he really needs to be kicked out of the legislature for ethics violations if he does take that action. He wouldn't be the first right wing Republican to create an ethics issue.

  • WGT
    October 19, 2018 at 6:46 a.m.

    Good for Judge Hart. She gets it.
    .
    As for Mr. Garner, what a childish, knee jerk, reaction. Right wing greed . Conservative legislators. This is an example of hypocrisy. These republicans want smaller, less intrusive government regulations, and then, attempt use of MORE government to “achieve” their intended goal.

  • RBBrittain
    October 19, 2018 at 7:40 a.m.

    Bob Ballinger's "constitutional crisis" is pure hogwash. Not only did Justice Hart's opinion make it clear that post-election "logrolling" challenges will not be tolerated, but the prior case she relied on (2011's Forrester v. Martin) has been criticized in a law review article as TOO SOFT on "logrolling"; Justice Wood mentioned one of those criticisms in her concurring opinion. The line in legal terms is pretty clear: Amendment 89, the 2010 proposal mixing usury and government bonding provisions that was upheld in Forrester v. Martin, is about as far as the legislature can go. (Arguably the only reason Amendment 89 was OK was the old floating interest rate caps on usury and government bonds, both written for the high-interest early 1980's, killed most non-bank lending during the Great Recession when the Fed slashed its interest rates used by those caps to near zero.)

  • JMort69
    October 19, 2018 at 8:05 a.m.

    Looks like ole Bobby Boy Ballinger is getting booed and laughed off this stage, just like he did in NW AR recently. But, he's going down swinging for his big money, nursing home lobby backers. Ballinger and now convicted felon, Jake Files, helped craft this overthrow of our constitution, and a full 1/3rd of the current legislators went along. So, we can deduce from this that at least a full 1/3rd of the current legislators are in the back pockets of lobbyists, and probably more. As for the Chamber of Thieves, they have proven in this election that there is nothing they will not do to suppress the voice of the people. I know that part of this ruling was in the interest of self-preservation for the justices. But, they also protected we the people and our constitution. We all need to remember all of these paid for patsies in our legislature in a few weeks at the polls and VOTE THEM OUT, VOTE THEM OUT!!

  • hah406
    October 19, 2018 at 8:26 a.m.

    I think it is time to open an investigation into Garner. Given that he is in the legislature, we wouldn't have to look far to find enough evidence to send him to prison. Threatening retaliation against the court for a ruling that he doesn't like is about as undemocratic as it gets.
    ...
    The fact is that this combined many issues because the legislature if full of incompetent folks like Garner and Ballinger. If you want people to vote on this, put them out there as separate amendments. I for one would never vote to give control of judicial rule making to a bunch of corrupt legislators. It is called separation of power, and the leg in Arkansas is constantly grabbing for more.

  • Skeptic1
    October 19, 2018 at 8:53 a.m.

    Oh BS, the reason Issue 1 has been stricken by these justices is the part of Issue 1 they fail to mention - the overseeing of the Judiciary by the legislature, and THAT is what these judges care about not the plight of tort victims. The legislature needs to step in because the Judiciary has woefully failed to police itself and to act on legitimate citizen and attorney complaints against judges that are not only incompetent but tyrannical.

  • JMort69
    October 19, 2018 at 9:12 a.m.

    So, Skeptic wants our crooked legislature to tell you when, for how much and who you can sue. Yeah, really good idea. This is not some national, partisan issue. This is about Arkansas. And, here in Arkansas, the only constitutional crisis we are facing is the numerous convicted, implicated, confessed and charged crooks in our legislature. Save the political philosophies about judges lawmaking from the bench. It is not applicable to this issue, in this state, at this time. Right now, in Arkansas, we need to clean house and make sure that the crooks in our legislature are replaced. Then you might have the leisure to discuss your hackneyed, national, partisan political philosophies.

  • drs01
    October 19, 2018 at 9:30 a.m.

    When contacted about this issue 1 I gave the committee one word: KISS
    They failed to do so, and got what they deserved.
    On Issue 4, why do we want to write into our state constitution an amendment to give just 4 corporations the exclusive right to become multimillionaires? Think abut that one as you cuss and discuss Issue One here.

  • Skeptic1
    October 19, 2018 at 9:42 a.m.

    JMort69...you clearly do not understand the issue. We have "elected" judges all over this state that are literally terrorizing people that appear before them, rule for their local attorneys regardless of the evidence, and abuse the oaths they take. The Judiciary receives hundreds of complaints a year from private citizens and attorneys that simply go in the trash can as to remove a bad judge means overturning an election and going against one of their own. If the judiciary will not police itself the legislature has no choice. You mention separation of powers, who do you think oversees the Us Supreme Court?

  • JMort69
    October 19, 2018 at 9:57 a.m.

    Oh, I believe I get it. Crooks in our legislature tried to take over the rule making of our courts on behalf of the nursing home and medical lobbies. It's really not that complicated. It's just that Skeptic wants to make it about some national, partisan, political philosophy. Sorry, deflect, deflect, deflect won't work. Maybe those, like Skeptic, who simply do not have the capacity to see anything without looking through their tiny, political prism, don't understand what happened, but most of us do. The crooks lost, we won, simple.

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