*1 honest, and will intelligible impartial, Ark. 334 of the is- understanding them give a fair Nancy Jean Lee Paula WILSON Here, met his Lange has presented. sues Individually Casey, and on Behalf title of conclude the ballot burden. We Arkansans, Petitioners Fairness is insufficient. It proposed Amendment scope to the voter the convey fails Accord- measure. import MARTIN, Secretary of Mark Honorable point. petition we on ingly, grant State, Capacity, his Official Lange’s grant Because we Respondent remaining not reach the point,
first we do sufficiency challenging points Dugger Stephen Canon, Indi Chase challenge to Lange’s ballot title or vidually and on Behalf Health Care Final- constitutionality of Amendment. Arkansans, Access Intervenors time for issuance ly, shorten No. CV-16-763 days to five and direct mandate rehearing be within five petition for filed Arkansas. Court |10the opinion that this days from date October Opinion Delivered issued. de- granted; Petition motion to dismiss
nied. Dupwe joins Warren E.
Special Justice opinion.
in this
Brill, C.J., concurs.
Wood, J., dissents. J.,
Goodson, participating. BRILL, C.J., concurring.
HOWARD W. concurring general policy
I am for the Martin, forth in Wilson v.
reason set
Ark. 334.
The text as follows: PLLC, Firm, by: Scott C. Law Trotter 3 of 1. Section SECTION Rock, Trotter, petitioners. Little Arkansas Constitution . amended to read as follows: Deputy Counsel and Kelly, AJ *3 § pleading, practice, pro- and 3. Rules of State, Rock, respon- Little for of Secretary cedure. dent. Except provided (A) in The as subsec- Law, Watson, Attorney Brett D. section, (B) the Supreme tion of this Watson; PLLC, Rock Brett D. Kutak by: of prescribe plead- Court shall the rules III, LLP, Askew David L. by: Jess procedure all ing, practice, for and Davis,
Williams, H. Little and Frederick courts; these rules provided shall Rock; Greenberg, for interve- and Daniel abridge, enlarge modify any or substan- nors. right preserve right tive shall and in this jury
trial as declared Constitu- DANIELSON, E. Associate PAUL tion.
Justice (B)(1) practice contracting or for voters of the from alternative, la tingency Fees and from tional “An ages clare the rectors of Fairness State Mark question Jean original Petitioners Amendment the initiative in Medical canvassing amendment Casey committee. general amendment action Martin are residents Nancy State title of Lawsuits” insufficient and Respondent election to asking this with for petition containing the certifying any Petitioners have filed Non-Economic Dam- Limit Lee Wilson should Arkansans, should Arkansas and di- ballot, and popular Secretary be removed court registered or and Pau- constitu- enjoined ballots ballot- to name Con- de- the course person action ed. charging whom the percent (33 1/3%) recovered. ment; regardless of whether excess of by settlement, (a) (c) apply regardless capacity (b) An excessive The above limitation For or for excessive entity seeking damages of the provider is recovery is medical thirty-three above limitation shall also legal representation arbitration, person contingency of the contingency injury against made. hereby prohibit- and age or shall recovery subsection entity one-third or fee is fees mental apply judg- in for an in is (B)(1)(a), refers to net | ¡¡at “recovered” cast for the amendment the November deducting any after sum recovered election. The general or costs disbursements incurred sponsored Intervenors prosecution or connection with settle- Stephen Canon, Dugger acting Chase and ment of claim. Costs medical individually on behalf Health Care and plaintiff care incurred jurisdiction for Arkansans. Access Our attorney’s office-overhead costs pursuant this matter determine charges are not disburse- deductible Arkansas Constitu- purpose. for ments costs 6- tion Rule and Arkansas Court Ia(d) 5(a) (2015). grant en- The terms “action medical We provider,” injury,” certify- “health-care join Respondent .counting or n “medicab injury” are defined in this ing any cast amendment. ballots Provided, except otherwise, Amendment’s addition Article same. provided (b) Section 32 of the state Constitution. in subsection of this sec- tion, (e) prohibition no law shall be limiting enacted of excessive medi- cal-injury attorney amount to be for injuries recovered fees re- described sulting in injuries death to per- subsection does extend to sons or property; workers’ cases. case of death injuries from such (B)(2) Assembly’s power action The General survive, shall prohibit Assembly enact laws that excessive con- prescribe tingency subsidiary whose benefit such fees includes the action power prosecuted. govern (a) shall be to enact which laws present how the total value value (b)(1)(A) The General periodic payments set should be cal- specify enact laws the maximum *4 culated, (b) expec- how or whether life damage dollar amount of non-economic tancy or other relevant factors inju- in awards a civil action for medical respect taken into account with to those ry brought against provid- a health-care calculations, (c) to what extent the use of er. present total value value calculations (b)(1)(B) The maximum dollar amount of periodic payments for such shall be re- damages speci- award non-economic quired determining con- excessive (b)(1)(A) fied under subdivision of this tingency fees, (d) consequences and section shall be at least two hundred penalties attorneys for and who contract fifty ($250,000) per thousand ^dollars charge medical-injury for or excessive provider against health-care whom a contingency fees. judgment rendered, regardless (B)(3) Assembly The General shall have provider whether the health-care is a power enforce, by appropriate legisla- professional health-care or a health-care tion, provisions of this section. business. rule, (B)(4) pleading, practice, A and (b)(2)(A) injury” “Action for medical procedure by law enacted under subdivi- actions, including means all actions for (B)(1), (B)(2), (B)(3) sion of this sec- wrongful death, tort, in based supersede conflicting tion shall rule contract, otherwise, to recover dam- pleading, practice, procedure pre- and ages injury. account medical by scribed Court. (b)(2)(B) provider” “Health-care means SECTION 2. Section 32 of Article professional” either a “health-care or a the Arkansas Constitution is amended to “health-care business.” read as follows: Compensation Workmen’s- (b)(2)(C) Laws— professional” “Health-care Actions for personal injuries. providing means an individual bill- (a) ing (including Assembly General for shall have health-care services physician, registered power prescribing to enact law as certified nurse anesthetist, physician’s assistant, nurse, amount of paid by to be optometrist, chiropractor, physical employers injuries to or for death ther- apist, dentist, podiatrist, pharmacist, employees, and to payment whom said psychologist, veterinarian) power be made. It shall have li- that is means, methods, lawfully provide the and forum censed or otherwise state providing professional adjudicating arising claims under health-care ser- laws, for securing payment said vices. Assembly may, (b)(3)(C)
(b)(2)(D) means business” “Health-care billing section, entity providing further de- an (including hospi- law, long injury” services so health-care fine “medical community home, tal, nursing categories mental the. that definition includes surgical center, ambulatory (b)(2)(E). treat- health listed section birthing center, ment, dis- intellectual majority By of each vote |g(b)(4)(A) center, ability . institutional habilitation house, shall enact the General treat- nonresidential substitution-based imple- Regular laws Session addiction, outpa- opiate center ment (b)(1) menting of this sec- subdivision diagnostic center, recuperation tient tion. facility, hospice, center, rehabilitation enacting (b)(4)(B) the laws as re- After agency) clinic, or home health-care (b)(4)(A) quired by of this subdivision otherwise the state or is licensed Assembly may section, providing services; lawfully required by a law subdivision amend including officer, employ- owner, (b)(1) of this section two-thirds vote ee, agent of busi- such a health-care of each house. acting scope ness the course employment providing imple- (b)(4)(C) of health In no a law event shall (b)(4)(A) menting care services. subdivision *5 any (b)(2)(E) injury’ (b)(4)(B) “Medical means ad of this violate subdivi- section consequence any (b)(1)(B) or set adverse section. verse sion this consequences arising out of or sustained 3. does not SECTION This amendment professional course services in the right by supersede or of trial amend the provid being rendered a health-care jury by the Arkansas Con- as declared patient resident, or to a whether re er stitution. sulting negligence, error, or from omis January of 2018 SECTION performance services; in the of such sion January every years two after with from rendition of services or such Supreme of Arkansas shall Court or in breach of out informed consent adjusts the maximum issue rule which contract; warranty inor or violation damage of non-economic dollar amount diagnose; prema failure from or or deflation awards inflation patient or of ture abandonment multiple of one thousand dollars nearest treatment; failure to course or from adjustment ($1,000). shall The biennial appli properly' equipment maintain or upon Price In- be based the Consumer necessary of such to the rendition ances comparable dex or a index chosen services; arising out or otherwise Court; reasonably possible, in the services. course of such sustained particular Court chooses shall index the Assembly may, (b)(3)(A)The The the same over sole remain .time. purposes.of section, de this further adjust- intent and effect of the biennial professional” law, in so fine "health-care compensate for ment shall be to long that definition includes the cate as of inflation or with rea- effects deflation gories (b)(2)(C). in listed section precision. sonable Assembly may, (b)(3)(B) The General any section, that sec- 5. In the event SECTION this further de- subdivision, paragraph, law, tion, subsection, in so fine “health-care business” sentence, clause, subparagraph, item, long cate- definition includes the phrase (b)(2)(D). gories or word amendment of this listed section adjudged declared be invalid or payments periodic time payments unconstitutional, governs such declaration ad- consequences pen- judication remaining shall not affect the attorneys alties for who contract for or portions amendment, of this charge which medical-injury excessive contin- fees; remain full force effect as if gency providing that the General portion adjudged so declared invalid shall enact a measure which originally or unconstitutional specifies was a maximum dollar amount for part of this amendment. a non-economic damage any award action for medical injury against a 6. This SECTION January 1, provider, health-care but effective on may measure never be smaller than two popular amendment’s name fifty hundred and thousand dollars is as follows: ($250,000); providing that An Limit Con- Assembly may, enactment, after such tingency Fees and Non-Economic Dam- byit amend vote of two-thirds each ages in Medical Lawsuits house, but that no such amendment title is as follows: may reduce the maximum dollar amount An amendment to the Arkansas consti- for a damage non-economic award providing practice tution any action against injury medical contracting for charging excessive provider health-care to less than contingency legal the course of fees fifty two hundred and thousand dollars representation of any person seeking ($250,000); providing that the damages in injury an action for medical adjust figure Court shall for infla- against a provider hereby basis; tion or deflation a biennial prohibited; providing excessive providing that this amendment does not medical-injury contingency is great- fee supersede or amend the to trial *6 thirty-three er than per- and one-third jury. (33 1/3%) recovered; cent of amount the that, providing 20, purposes the April 2016, cal- On Attorney the General culating recovered, 2016-038, the amount fig- Opinion the issued No. certifying the | name, ure that modified, be is the sum popular used net and ballot title fishall deducting any recovered after proposed disburse- of the constitutional amendment. or Thereafter, ments costs in connection incurred Intervenors collected sufficient prosecution with signatures or settlement of the to place proposed the amend- claim; medical-injury providing 25, 2016, that this on the August ment ballot. On limitation apply the recov- Respondent proposed whether certified the amend- settlement, ery arbitration, is placed ment to be on the ballot as Issue judgment; providing that this limitation No. 4 for general the November 8 election. apply regardless age of the original this Petitioners filed action Au- mental capacity plaintiff; provid- 29, gust the 2016. allege Petitioners that the ing (1) that prohibition the of excessive ballot title is fails insufficient because it medical-injury apply fees does not to convey intelligible to scope an idea the cases; workers’ providing amendment, impact of and the (2) Assembly may voters, materially misleading enact is to the legislation (3) prohibi- which enforces this omits material information that is tion, may and that legisla- it also enact understanding essential a fair of the tion that begin analysis determines the relative values our amendment. We with 166 Attorney the certification sufficiency the fact .of regarding law of the
review ^significance it; some to attach howev- titles. of ballot er, not to defer Gen- will |7It regarded has as axio long been give presumptive eral’s it certification voters, majority matic significant rule in effect. Our most Id. against pro to upon vote for called sufficiency of the title determining is measure, their informa posed will derive given that it a liberal construction and from inspection its contents tion about an interpretation it in order that secure the immediately exer title before the ballot reserving people to the right suffrage. Civ cising the Christian adopt, reject, disap- approve, to 241, McCuen, Comm. 318 Ark. ic Action v. purpose It our prove legislation. Id. is (1994). title 605 The ballot 884 S.W.2d to merit or examine relative fault of summary pro of the impartial be an must law; changes,in rather, the proposed amendment, give posed and it voters must merely our function is to review meas- understanding present a fair the issues that, if it to presented ure ensure scope significance of the and the ed vote, people popular for consideration in a changes in the Dan law. Cox words, presented fairly. it is Id. other (2008) iels, Ark. 591 374 question is the members of “[t]he how Daniels, May v. Ark. 194 (citing 359 concerning feel court wisdom (2004)). S.W.3d 771 amendment, this proposed but rather requirements whether for submission title must be free ballot that, have been proposal the voters misleading tendencies May, met.” Ark. omission, at S.W.3d at fallacy, amplification, thwart McCuen, Ferstl v. (quoting 296 Ark. presented. understanding fair of the issue (1988)). 398, 401 Ulti- It material information Id. cannot omit mately, places the Amendment 7 burden give ground serious that would the voters upon party challenging the ballot title required for reflection. Id. that the It is prove misleading that' it is or insuffi- enough convey in complete title be Cox, cient. Ark. S.W.3d telligible scope import idea Thus, it Id. must be law. Petitioners assert honest, impartial intelligible, so that it herq title because it issue insufficient clarity informs the voters with damages.” fails to “non-economic define they can cast their ballots with un fair 2(b)(1)(A) of Section the amendment di *7 derstanding presented. I'd. the issues rects to General enact the laws recognized long impos This court has the specify “that the dollar amount maximum sibility preparing a ballot title that damage awards a non-economic civil Thus, everyone. the Id. ultimate would suit brought against action injury for medical a voter, is the issue whether the while inside 2(b)(1)(B) of provider.” health-care Section booth, voting an intelligent to reach is able states as follows: against and informed decision The maximum dollar amount award proposal ánd conse understands damages specified non-economic under quences of his or on the her vote based (b)(1)(A) of subdivision this section shall Id. title. ballot fifty be at least two thousand hundred per pro- sufficiency ($250,000) dollars issue judgment against title law to vider whom a is ren- ballot is a matter be decided Thus, dered, by regardless we this court. Id. will consider health-
167 enjoin profession- Respondent Secretary is a health-care to care of State provider Mark|inMartin or a health-care counting al business. certifying any ballots' cast amend- ballot title the amendment and the IflBoth at general ment election November of “non-econom provide fail to definition 8,2016. damages.” to Cox point ic Intervenors v.
Daniels, where we
said
“most voters
Having
ballot title
determined
the.
readily understand the term ‘state
could
is insufficient on the issue of the term
”
at
lottery.’
Id.-
288
at 597
S.W.3d
damages,”
ad-
“non-economic
we need not
Comm.,
Christian Civic
(quoting
Action
dress the remainder of
issues
raised
609).
form the as to voter what constitutes increase”);
“tax Christian Civic Action Brill, C.J., Wood, J., concur. Comm., , Ark. 241 BRILL, Justice, W. HOWARD Chief (striking down be measure concurring. misleading ballot cause the title was highly that it definition full of tech used a certainly It is not the task this court using nical in order to terms avoid give'advisory opinions to or to expressly “casino-style gambling”). term tell to I citizens how draft But ballot titles. damages” duty is the to The term “non-economic do believe it the court “technical, readily term” that -not questions presented under- answer us stood voters. a definition of they again. Without likely are arise term, posi- the voter would be in the Legislators propose amendments, citi- guessing tion as to the his or effect her signatures zens seek amend- vote have unless he or she is an would ments, approves words, legal expert in In other field. spirit titles. the voter would be to reach an unable gives power people, which requires for or intelligent and informed decision guidance to give appropriate us those against the proposal without an under- constituencies. *8 of the the standing terms and conse- impression simply To the that Cox, leave quences of his or her vote. See 374 changing ballot to correct or ex- 437, the title Accordingly, 288 591. we S.W.3d Ark. pand on damages” “non-economic pro- that the conclude the ballot title would sufficient to correct the defects is mislead- posed amendment insufficient because it ing. this example, challengers fails to define “non-economic For the the term Therefore, grant petition the con- damages.” presented we amendment serious issues 168 liberally impact |nthat interpreted would be this amendment statutes the
cerning
strictly.
trial;
rather than
jury
to a
have on the
would
likewise,
argued
ques-
challengers
the
the
In
Action
v.
Christian Civic
Committee
ex-
properly
ballot title
tion
McCuen,
granted
petition
this court
a
change
relationship
in the
plains
ballot
remove from the
a
consti-
government
lim-
and the
three branches
regarding
amendment
lotteries.
tutional
making power of this
on the rule
itation
241,
(1994).
318 Ark.
regularly multiple addresses defects when addressing a challenge. pre- ballot-title We Opinion September Delivered: sumably do not want to “hide the ball” Rehearing Denied October sponsors. ballot-title sponsors These are entitled know each of the defects so, future,
their ballot title contains in the
they can submit complies a ballot title that This important
with law. because
Arkansas citizens have a constitutional propose amendments; laws and
indeed, our constitution states that “[t]he
first right reserved people Const, 1;§
initiative.” Ark. art. see also Comm.,
Christian Civic Action
Ark. at
(“Amendment
reservation to people of the initiative
power lies at the heart of our democratic
institutions.”). right by We vindicate this
addressing all the defects ballot title.
Otherwise, a citizen’s could be fashion,
struck in piecemeal down and the
citizen multiple must endure cy- election
cles, defeats, and multiple legal before sub-
mitting his or her people initiative approval. State
Brill, C.J., joins.