Arkansas Supreme Court says tort reform amendment ballot title insufficient, votes to not be counted

The Arkansas Supreme Court on Thursday (Oct. 13) pulled a tort reform measure from the November ballot.

Issue 4 is a proposed constitutional amendment directing the Legislature to set caps of at least $250,000 on non-economic damages in medical lawsuits and limiting attorney contingency fees to one-third of jury awards after expenses.

Arkansans on behalf of Fairness for Arkansas, a creation of the Arkansas Bar Association, filed a lawsuit saying the ballot title is misleading.

Associate Justice Paul Danielson agreed with Arkansans on behalf of Fairness for Arkansas, writing that technical terms related to damages is not something the ballot title sufficiently defines for voters.

“The term ‘non-economic damages’ is a ‘technical term’ that is not readily understood by voters. Without a definition of this term, the voter would be in the position of guessing as to the effect his or her vote would have unless he or she is an expert in the legal field. In other words, the voter would be unable to reach an intelligent and informed decision for or against the proposal without an understanding of the terms and the consequences of his or her vote,” Danielson wrote.

He said any ballots cast for the amendment should not be counted or certified.

Concurring opinions were written by Chief Justice Howard Brill and Associate Justice Rhonda Wood. Danielson said a petition for rehearing must be filed within five days.

Gov. Asa Hutchinson said Thursday morning he had not read the opinions, but respected the court’s view.

“I haven’t read the decision, but my understanding is that the (Arkansas) Supreme Court has struck down the ballot titles for the casino amendment and the tort reform initiative,” Hutchinson said. “I respect the court’s review of this, and if we’ve learn anything – it is very important that we have a fair ballot title so that the public can honestly evaluate and vote on an initiative, so you just have to accept their opinion.“

Martha Deaver, director of the Committee to Protect AR Families, issued this statement: “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.”

Rachel Davis, a supporter of Issue 4 and executive director of the Arkansas Health Care Association, issued this statement: “This decision is obviously a setback, but it does not stop our efforts for fair tort reform in Arkansas. We need to take the common-sense steps that the majority of other states have already put in place to protect our nursing homes and patients from trial attorneys taking advantage of a limitless lawsuit system.”