Thursday, October 13, 2016

Arkansas Supreme Court kills amendments on new casinos, tort reform and approves medical marijuana amendment

Posted By on Thu, Oct 13, 2016 at 9:34 AM

click to enlarge SURVIVOR: The medical marijuana amendment withstood a legal challenge.
  • SURVIVOR: The medical marijuana amendment withstood a legal challenge.
The Arkansas Supreme Court today issued a batch of rulings in challenges to proposed ballot initiatives on casino gambling, tort reform and medical marijuana.

The Court has ruled ineligible for voter consideration the measures to 1) legalize three casinos in Arkansas and 2) severely limit damages in lawsuits against nursing homes and other health care providers. It turned down a petition to block a constitutional amendment to legalize medical marijuana use.

* CASINOS: The Court said the amendment failed because the ballot title didn't adequately inform voters that the amendment allowed sports bookmaking, in conflict with federal law.

Here's the opinion written by Justice Karen Baker.  Chief Justice Howard Brill wrote a separate concurrence. Special Justice Warren Dupwe, replacing Courtney Goodson, voted with the majority. Justice Rhonda Wood dissented.

A comment from Robert Coon, spokesman for the campaign:

Our campaign is disappointed in the court’s decision today. Most importantly, it’s a shame that the voters of Arkansas, including the more than 100,000 that signed our petitions are being denied opportunity to vote on an amendment that would create thousands of jobs and more than $120 million in new tax revenue for the state and local communities.”
A prepared statement from the committee that opposed the amendment:

“We are very pleased that the Arkansas Supreme Court has rejected this amendment based on the flawed way that it was written,” said Chuck Lange - Chairman of Protect Arkansas Values - Stop Casinos Now - “It was clear from the beginning that these two characters from Missouri teamed up with the Cherokee Indian Tribe from Oklahoma to rig the Arkansas Constitution for their own personal benefit. They wrote into the amendment the specific names of their companies in a brazen attempt to monopolize gaming expansion in Arkansas. And, they attempted to deceive Arkansas voters into believing that sports betting would be legal in Arkansas and that caused this amendment to be rejected by the court.”

“We would like to thank all the elected officials and business leaders who spoke out against this outrageous amendment. From Governor Hutchinson, Lt. Governor Griffin, 87 legislators, former Governor Beebe, the Arkansas Chamber of Commerce, the Arkansas Hospitality Association and a number of other leaders for their courage in speaking out against this assault on our Constitution,” said Lange. “These leaders throughout Arkansas saw this for what it was: an attack on our Constitution for personal gain by complete strangers who don’t even live in Arkansas.”

“The Arkansas Supreme Court, defending the integrity of our Constitution, rejected this amendment after the proponents of the amendment spent millions attempting to exploit the our Constitution. We hope that this sends a signal to others who would attempt to write special rights for themselves into the Arkansas Constitution,” said Lange. “Arkansas is not for sale!”

* TORT REFORM: The court said the ballot title left critical elements, such as "non-economic damages," undefined. The court ruled against allowing ballots to be counted on this issue in two separate challenges, one by a Bar Association committee and one by advocates for nursing home patients.

click to enlarge JUSTICE WOOD: Sympathy for the nursing homes.
  • JUSTICE WOOD: Sympathy for the nursing homes.
This is Justice Paul Danielson's opinion on the petition brought by the Bar Association committee. Chief Justice Howard Brill and Justice Rhonda Wood wrote separate concurring opinions. Wood, who's been asked to step off an unrelated class action nursing home case because of the heavy financial support she received from nursing homes, concurred with the majority on its finding of a defect in one of 10 points raised in the ballot challenge. She said the court should have issued findings on all 10 points raised, even though that would have been advisory in nature, something that court typically doesn't do. Wood demonstrated sympathy for nursing home sponsors of the amendment:

We presumably do not want to "hide the ball" from ballot-title sponsors. These sponsors are entitled to know each of the defects their ballot title contains so, in the future, they can submit a ballot title that complies with the law
NOTED: The motion for Wood's recusal in a nursing home case concerning a property owned by her chief benefactor, Michael Morton, has been pending for a month without response. Very curious. Does it signal internal divisions? Others on the court have received nursing home money (except Chief Justice Brill), but the huge infusion of money to Wood is unique and the case is specifically about a Morton property. Also, her campaign money came in checks written before they legally could be given to a candidate and were reported on a campaign finance report signed by Wood. She's said the checks, which had dates changed, didn't arrive until the legal day.

Here's Justice Jo Hart's opinion
 in response to the petition from the advocacy group for nursing home patients. Chief Justice Howard Brill and Justice Rhonda Wood again wrote separate concurrences, both repeating what they'd said in concurrences to the Danielson opinion.

Martha Deaver, Director of the Committee to Protect AR Families, said:

We are grateful that the Supreme Court of Arkansas upheld fairness and integrity in the ballot process. The Committee to Protect AR Families was formed to fight the injustice of Issue 4. The group pushing for Issue 4, Health Care Access for Arkansans, attempted an unprecedented deception campaign against Arkansas voters. They violated the laws concerning the petition process to mislead voters about the intention and effects of Issue 4. If passed, this amendment would have stripped Arkansans of their 7th Amendment right to a trial by jury. It would have created a one-size-fits-all style of justice in order to prevent corporate nursing homes from being held accountable when they abuse and neglect nursing home residents. The Committee to Protect AR Families will remain vigilant for any future attempts by corporate nursing homes to usurp Arkansans’ rights and be prepared to protect Arkansas families.

Our fight was one of life and death, and today, we won a battle for our frail and vulnerable Arkansas citizens who were unable to fight for themselves. 

* MEDICAL MARIJUANA: A number of challenges were raised, including the possibility that employers might not be able to "discriminate" against employees who used medical marijuana. The court upheld the ballot title. The court said: "We conclude that while inside the voting booth, the voters will be able to reach an intelligent and informed decision for or against The Arkansas Medical Marijuana Amendment of 2016."

Here's the opinion, written by Justice Courtney Goodson. It was unanimous.

Still pending is a review of a challenge to the sufficiency of signatures for an initiated act to legalize medical marijuana. Final briefs on that issue were completed today. A special master appointed by the Supreme Court has found signatures sufficient, but the final decision is up to the Supreme Court. If the master is upheld, there will be both an initiated act and amendment on medical marijuana and opinions vary on which would prevail.

All the parties may request rehearings.

The 2017 legislative session should resume the battle over tort reform — or efforts to limit damages in lawsuits. The fight has always somewhat fractured the corporate community. Nursing homes want limits on damages, period. The broader business community is happy to see damage limits, but it also wants to open the door to legislative takeover of court rules, currently prohibited by Constitution, so that it can respond to unexpected court defeats by preventing future ones through legislative means.

It will be interesting to see the money spent to date. The anti-nursing-home amendment group has just gone on the air, though the proponents had held back. But the casino amendment has seen $2 million spent already — primarily by the Cherokee Nation in support of new casinos (one of which they hoped to operate in Washington County) and in opposition by the state's two existing casinos, at Oaklawn and Southland parks.

David Couch, spokesman for the medical marijuana amendment, which envisions for-profit dispensaries, says his side is filming TV commercials this week.

The decisions today leave voters, in addition to medical marijuana, with three legislature-sponsored amendments: longer terms for sheriffs and other countywide officials; an end to power passing to a lieutenant governor when the governor is out of state, and a corporate welfare amendment to allow tax money to be given to private corporations and corporate lobbyists.

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