Wednesday, September 28, 2016

Special master finds flaws in signatures on nursing home amendment, potentially enough to be fatal

Posted By on Wed, Sep 28, 2016 at 11:42 AM

Retired Judge Jake Looney, appointed by the Arkansas Supreme Court to review evidence in a challenge of a constitutional amendment pushed by the nursing home lobby to limit their exposure to lawsuits, has issued findings of facts on the sufficiency of petition signatures.

He provides a basis, depending on future legal interpretations by the Arkansas Supreme Court, that could disqualify the proposal from ballot consideration.

The big flaw was the failure of the paid canvassing firm to certify to the secretary of state that all paid canvassers had undergone criminal background checks, as required by a relatively new state law. If the Supreme Court ultimately decides this failure mandated that signatures not be counted, all would be disqualified. Looney said other discrepancies with that law could disqualify almost 12,000 more signatures — collecting signatures before canvassers names were submitted to the secretary of state (almost 2,000) and using third-party criminal background checks (more than 10,000) rather than State Police.

Looney did find that 668 signatures that had been disallowed should have been counted.

The amendment, to cap non-economic damages in nursing home and other health care lawsuits to as little as $250,000, needed 84,859 signatures of registered voters to qualify.  The secretary of state validated 93,102.

Parties in the case will file legal briefs on the questions by mid-October and the Supreme Court will make the final decision. To date, money from nursing homes has driven the signature gathering for the amendment. A committee formed by the Arkansas Bar Association brought a two-pronged challenge to the amendment. It challenged both the ballot title as being misleading and the signatures. A separate lawsuit has also challenged the ballot title. Looney reviewed only the signature argument.

In Looney's finding of facts pertaining to the new paid canvasser law, he found that lists of names had been given to the secretary of state as required, but they were not accompanied by statements about such things as certification of a criminal background check He could find no supporting records on background checks that were done — from either the committee sponsoring the amendment or the for-profit company hired to canvass  — for 10,764 signatures.

The key conclusion:

The failure of the Sponsor to certify to Respondent Secretary that criminal background checks had been completed on each paid canvasser as required by A.C.A. $7-9-601(bX3) could be a material defect and disallow the counting of all signatures under A.C.A. $7-9-601(bX5) which is a "do not count" instruction
If the Supreme Court agrees this was a material defect and disallows all signatures, the campaign is over. But even if that argument is rejected, 12,500 signatures were placed in doubt by Looney for other reasons, including being gathered too soon or by canvassers that did not demonstrate a State Police background check. Those alone also could bring the certified number below the requirement.

I'm seeking comments from the litigants.

UPDATE: Chase Dugger,a  consultant for the group backing the amendment, issued this statement:

We worked carefully to honor the Secretary of State’s process. The Secretary of State found that we had complied with the process and certified more than 93,000 signatures. We are confident that the Supreme Court will respect the will of the people and keep Issue 4 on the ballot this November. Reforms like Issue 4 have been put in place in half the states across the nation and have led to greater access to doctors and better care. Arkansas doesn’t need to be left behind.
 
The Committee to Protect Arkansas Families cheered the findings:

The Special Master, the Honorable Judge J. W. Looney, submitted his report to the state’s highest court. The corporate nursing home owners and their lobbyist made choices, including the choice not to follow the laws of Arkansas: they failed to file the appropriate paperwork, failed to conduct criminal background checks and failed to certify the paid canvassers, which is required by law.

Statement from Committee to Protect AR Families Director Martha Deaver:

The corporate nursing home owners will stop at nothing in their quest for higher profits, including blatantly violating the law to try and pass a constitutional amendment to protect themselves. The Special Master’s report calls out the Sponsor’s blatant disregard for the law when trying to amend our state’s constitution. I want to thank the Supreme Court of Arkansas and Judge Looney for allowing us the forum to exercise our constitutional rights as Arkansans.

Judge Looney found that these failures could invalidate most signatures, and he found additional violations of the law that could disqualify more than 11,000 signatures. The Sponsor of this amendment made a choice to not follow Arkansas law and the Master’s report indicates that the Sponsor’s own actions result in the amendment’s failure.




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