Lawsuit challenges Issue One on torts, court rules as constitutional overreach | Arkansas Blog

Thursday, July 12, 2018

Lawsuit challenges Issue One on torts, court rules as constitutional overreach

Posted By on Thu, Jul 12, 2018 at 3:58 PM

PLAINTIFF IN CHALLENGE: Marion Humphrey
  • PLAINTIFF IN CHALLENGE: Marion Humphrey
A lawsuit was filed today in Circuit Court saying Issue One, proposed by the legislature, should be removed from the ballot because it unconstitutionally proposes four separate constitutional amendments to voters in one ballot measure and fundamentally rewrites the balance of power in the Arkansas Constitution without informing voters of the fact.

Issue One, place on the ballot by the legislature, would 1) set a $500,000 cap on non-economic damages in tort cases such as medical malpractice and nursing home negligence; 2) limit attorney fees to a third of net recovery in tort cases; 3) allow the legislature to enact court rules, a reduction of power given in the Constitution's judicial amendment, and 4) lower the vote necessary for the legislature to change a court rule from a two-thirds to a 60 percent vote.

Retired Circuit Judge Marion Humphrey of Little Rock is the plaintiff in the case. His attorneys are Jeff Priebe, David Couch and David Williams. The case was assigned to Division 12, Circuit Judge Alice Gray. UPDATE: Gray has recused from the case because Couch once represented her. Judge Mackie Pierce now has the assignment.

Secretary of State Mark Martin, who oversees elections, is the defendant. The suit seeks no damages, only an order that the proposed constitutional amendment not be certified for the ballot and votes not be counted.

Said Humphrey in a prepared statement:

Issue 1 is a power grab fueled by the corruption we have seen in our legislature,” said Judge Humphrey. “If Issue 1 passes, our state’s judiciary will simply become another agency controlled by lobbyists and special interests whose recent acts have proven to be ethically and morally bankrupt.”

The lawsuit presents some problems for the Arkansas Supreme Court, which must ultimately decide the case. Chief Justice Dan Kemp in a recent speech urged lawyers to oppose Issue One because of the rule-changing authority. Justice Shawn Womack insists he has no personal opinion on the issue, but was a sponsor as a senator of legislative tort reform measures similar to those in the amendment. He could hardly be viewed as impartial. Should either of these justices recuse, Gov. Asa Hutchinson would name replacements.  He's on record repeatedly over the years in support of tort reform measures.

The suit notes that the legislature has also proposed an amendment to require presentation of identification to vote. With the four separate "disparate" measures in the single Issue One, the legislature has effectively exceeded the constitutional limit of three legislatively-referred amendments in a single election. It's unconstitutional "logrolling," the suit says.

Even if the legislature can combine multiple proposals, the suit says, they must be germane to each other according to long-standing court precedent.

The lawsuit argues that Issue One essentially rewrites the Constitution and is deficient on other grounds:

Without informing Arkansas Voters of the effect, Issue No. 1 would not only make the Arkansas Judicial Branch into a subordinate state agency, it would also, for example:

a. Violate Article 4, section 1 of the Arkansas Constitution by taking power away from the Judiciary and giving it to the Arkansas legislature;

b. Violate Article 4, section 21 of the Arkansas Constitution by allowing the Arkansas legislature to exercise the power of the Arkansas Judiciary;

c. Violate Amendment 80 of the Arkansas Constitution regarding power of the Judicial branch; and

d. Violate Article 2, Section 7 of the Arkansas Constitutional by taking away the right to have damages determined by a jury of Arkansans.

The Arkansas Legislature cannot hide this attempt to re-write the Arkansas Constitution behind the veil of Issue No. 1.

As stated by the Arkansas Supreme Court, Our constitution divides our state government into three branches and states that no branch “shall exercise any power belonging to either of the others.” Ark. Const. art. 4, § 2. This is foundational to our government.

See Arkansas Department of Finance and Administration v. Naturalis Health, LLC, 2018 Ark. 224 (2018).

Issue No. 1 would tear away this foundation and would do so without informing the electorate of its consequences.

Here's the full complaint.

Hard to argue with on the practical effects he outlines. But .....

The Supreme Court has often given the legislature more leeway in proposing constitutional amendments than it has given to popularly proposed constitutional amendments.

Millions have already been contributed by the power business lobby, led by chambers of commerce, nursing homes and medical interests, to get Issue One on the ballot and approved by voters. Opponents, particularly trial lawyers, have raised significant sums to fight the amendment. It would be foolish to think those political considerations won't have some influence on the legal decision-making.

Commented Humphrey:

“This ballot measure severely limits the ability of ordinary citizens to exercise their constitutional rights to a jury trial or hire an attorney with no limits on the amount of money insurance carriers can spend on their defense lawyers,” said Judge Humphrey. “It corrupts the Arkansas Constitution by logrolling four issues and misrepresenting them as one. Most dangerously, however, it destroys the basic and fundamental separation of powers, the bedrock on which our great nation was founded.”

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