Arkansas judge disqualifies Issue 1 from ballot

A Pulaski County circuit judge on Thursday ordered that no votes be counted for or against Issue 1 in November, in effect disqualifying the proposed constitutional amendment that would limit lawsuit damages and has pitted health care and business interests against many attorneys in the state.

The ruling by Circuit Judge Mackie Pierce, however, is a prelude to a looming legal fight at the Arkansas Supreme Court. Secretary of State Mark Martin's office stated its intention to appeal shortly after the decision was handed down.

Pierce wrote in his ruling that he failed to find the various provisions in Issue 1 -- including limitations on attorneys' fees and certain types of lawsuit damages, as well as a reworking of the judiciary's rule-making process -- "reasonably germane" to one another, a violation of the Arkansas Constitution.

Issue 1 was approved by the Arkansas Legislature in the 2017 regular legislative session as one of two proposed constitutional amendments to refer to voters in the Nov. 6 general election. The other proposal is on voter ID.

Opponents of the so-called tort reform measure had derisively dubbed its sweeping changes as "logrolling," while supporters said everything in the proposed amendment was a matter of "judicial power." Pierce said he found no such theme.

"The general subject [of the amendment] is unclear to the court," Pierce wrote.

Pierce also found fault within several of the provisions taken by themselves. He wrote that setting a cap on attorneys' fees was an "infringement on the rights of citizens of this state to freely contract." He also wrote that setting a limit on noneconomic and punitive damages would prevent litigants from being "adequately compensated for the full amount of damages suffered."

David Couch, the attorney who had brought suit seeking to have Issue 1 disqualified, offered immediate praise for the ruling and said lawmakers had erred in 2017 when they voted to place the measure on the ballot as a single amendment.

"If they want to do all the things they are trying to do in Issue 1, they've got to do it one at a time," Couch said.

Lawmakers who crafted the proposed amendment did so with the expectation that a legal challenge would be filed against it, said state Rep. Bob Ballinger, R-Hindsville, one of the measure's original sponsors. He said the Arkansas Supreme Court necessitated such changes by undoing several past attempts by the Legislature to enact tort reform.

"We changed the sections that were necessary," Ballinger said.

Speaking about the decision to appeal in an email, Martin's spokesman, Chris Powell, said: "the Legislative body (that recommended the measure to the ballot) would certainly expect us to appeal and we will."

Pierce ordered that the secretary of state "refrain from counting, canvassing or certifying" votes on Issue 1.

The November ballots, however, have been certified and are being prepared by the counties, Powell said, making it unlikely that the question will be removed from the printed ballots.

In anticipation of a fight before the Arkansas Supreme Court lasting until close to the election, groups campaigning on both sides of Issue 1 said they are still prepared to spend the large amounts of money stockpiled for the fall campaign. According to the most recent financial reports, committees on both sides of the ballot question had together raised nearly $3 million.

Earlier this week, TV ads opposing Issue 1 began running in central Arkansas. Meanwhile, a spokesman for an Arkansas State Chamber of Commerce-aligned committee said thousands of yard signs urging people to vote "yes" were ready to be set up.

"We're going to keep doing what we're doing until the Supreme Court makes a decision one way or another," said Jesse Gibson, the president of the Arkansas Trial Lawyers Association.

In addition to the Arkansas Bar Association and other legal groups, Issue 1 is opposed by patients-rights advocates and the Family Council, a conservative group with networks throughout the religious community. Family Council officials say the amendment puts a dollar figure on human lives.

Supporting the measure -- which passed with mostly Republican support in the Legislature -- are hospital and medical associations, as well as businesses such as the insurance and trucking industries.

During the Bar Association's annual summer gathering in June, Supreme Court Chief Justice Dan Kemp announced his opposition to Issue 1, though he said would offer no hints to how he would rule on the matter if it reached his court.

Carl Vogelpohl, a spokesman with Arkansans for Jobs and Justice, the pro-Issue 1 ballot committee, said it was unclear whether Kemp or any other justice would be asked to recuse from the case.

In a twist, Kemp may be expected to recuse for other affiliations. The Jobs and Justice committee and its president, Chamber of Commerce CEO Randy Zook, are being represented as intervenors in the suit by Little Rock firm Wright Lindsey Jennings, a firm that employs Kemp's daughter.

Kemp has typically recused from past cases involving the firm.

In a text Thursday, Kemp said he would address whether or not to recuse "at the appropriate time."

Other ballot measures include Issue 2, on voter ID; Issue 3, an initiated constitutional amendment setting term limits for lawmakers; Issue 4, an initiated constitutional amendment that would allow four casinos across the state; and Issue 5, an initiated act that would gradually increase the state's minimum wage from the current $8.50 an hour to $11. Issues 3 and 5 are being challenged in the Supreme Court.

A Section on 09/07/2018