Judge strikes Issue 1 from the Arkansas general election ballot, Supreme Court hearing possible

Issue 1, the contentious tort reform constitutional amendment on the November ballot, is off the ballot – for now. Pulaski County Circuit Judge Mackie Pierce ruled Thursday (Sept. 6) said sections of the proposed amendment were not all “reasonably germane” and failed to meet the “single-subject test.”

Issue 1 is one of two measures placed on the ballot by Arkansas legislators. The measure received 21 out of 35 votes in the Senate and 66 of 100 votes in the House. Issue 1 proposes to amend the Constitution as follows:
• Cap contingency fees in civil actions at 33 1/3 of the recovery;
• Cap punitive damages at $500,000 or 3 times the amount of the compensatory damages, whichever is greater;
• Cap non-economic damages at $500,000; and,
• Allow the legislature to adopt rules of pleading, practice and procedure.

Former Pulaski County Circuit Judge Marion Humphrey on July 12 filed a lawsuit seeking to keep the proposed constitutional amendment off the November ballot. In seeking a preliminary injunction to block the ballot item, Humphrey said the proposal resorted to “logrolling” different subjects into one amendment.

“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,” Humphrey said in July. “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.”

Judge Pierce agreed with Humphrey’s assertion.

“The cap on contingency fees is clearly an infringement on the rights of citizens of this state to freely contract,” the judge noted in his ruling. “It prevents a person to hire an attorney of their choice in the manner in which they choose to do so, all pursuant to the Rules of Professional Conduct and all ethical precepts in force and effect today.”

More directly, Judge Pierce said the four sections of the proposal are not sufficiently related.

“Plaintiff has clearly demonstrated Issue No. 1 fails to meet the single-subject test of Forrester, id. Plaintiff has clearly demonstrated the four parts of lssue No. 1 are not reasonably germane to each other nor are those four parts reasonably germane to the subject (whatever that subject may be) of the amendment. lf the subject of the amendment is judicial power, the four parts do not relate to judicial power nor are they reasonably germane to each other. lf the subject of the amendment is the courts and the judiciary, the four parts of the amendment do not relate to the courts and the judiciary nor are they reasonably germane to each other. The Arkansas General Assembly in proposing and passing lssue No. 1 has engaged in impermissible logrolling,” Pierce noted.

Judge Pierce also ordered Arkansas Secretary of State Mark Martin “to refrain from counting, canvassing, or certifying any votes for or against Issue No. 1.”

Jeff Priebe, an attorney for Humphrey with the law firm James, Carter & Priebe, said Pierce’s ruling was thorough.

“I appreciate that his opinion is well thought out and very thorough. We’re still analyzing it, but it appears that he found some clear and convincing evidence that we were correct. We just appreciate the thoroughness of his opinion,” Priebe told Talk Business & Politics.

Carl Vogelpohl, campaign manager for Arkansans for Jobs and Justice, said the group will seek an Arkansas Supreme Court hearing on Judge Pierce’s ruling.

“As previously stated, regardless of how the judge ruled today, this issue is going to ultimately be decided by the Arkansas Supreme Court. Because this case began in the lower court, today’s ruling is simply a step in the process of presenting the case to the Supreme Court. A large majority of the Arkansas General Assembly appropriately referred Issue 1 to the Arkansas voters. I am confident that our Supreme Court will ultimately let the people decide. Our broad-based coalition expects to fight the trial lawyers all the way to November to pass Issue 1 so that Arkansas can better compete to grow jobs and recruit doctors to care for Arkansas families.”