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Votes On Tort Reform Will Not Be Counted, Minimum Wage Passes Court Muster

Election vote
Michael Hibblen

Voters will not get to weigh in on a proposed amendment to limit lawsuit damages but will vote on raising the state’s minimum wage after the Arkansas Supreme Court released two decisions Thursday.

The decisions came a week after the court ruled in favor of keeping on the ballot Issue 4, which will allow voters to decide on the fate of casinos in four locations. Still to come is a decision on an amendment that would limit legislative terms.

Regarding Issue 1, the so-called tort reform amendment, the court upheld 6-1 an earlier decision by Pulaski County Circuit Judge Mackie Pierce that disqualified the measure from the ballot. Referred to voters by the Legislature, the proposal would have limited attorneys’ contingency fees to one-third of the net recovery; limited punitive damages to $500,000 or three times the compensatory damages unless harm was caused intentionally; and limited “non-economic damages” to $500,000. It also would have given the Legislature the ability to amend or repeal procedural rules prescribed by the Supreme Court for the Arkansas judiciary.

In a majority opinion written by Justice Jo Hart, the court ruled that the proposal’s various elements were not “reasonably germane” to each other under the Arkansas Constitution. The Constitution allows the Arkansas Legislature to propose up to three constitutional amendments in an election cycle. Hart wrote that there is no “general subject” covering Issue 1’s various provisions, and that the provision regarding attorneys’ fees was not related to those regarding court rules. She wrote that how judgments are divided between attorneys and clients is a private matter not determined by the courts.

“The actual text of SJR 8 itself, even by a generous reading, institutes at least seven individual numerated changes or additions to the constitution that would significantly alter the status quo,” she wrote.

She added, “In short, allowing the General Assembly to submit so many changes to our constitution under the guise of a single amendment, when the alleged links between those proposed changes are so attenuated and tangential (or even non-existent) as they are in this specific case, would render article 19, section 22’s three-amendment limitation ‘superfluous, meaningless, or inoperative.’”

The 6-1 decision was joined by Special Justice Stephen Tabor, who ruled on the case in place of Chief Justice Dan Kemp, who recused. Justice Courtney Goodson, who is running for re-election, voted with the majority in striking the issue from the ballot. Justice Rhonda Wood wrote in a concurring opinion that the various sections were germane, but that together they violated the three-amendment limit given the Legislature.

Justice Shawn Womack wrote in his dissent that the majority held the Legislature to a “much stricter standard” than in two particular past cases he cited. He said the words “reasonably germane” do not appear in the Arkansas Constitution, and that the court was using a standard created by the California Supreme Court.

“In summary,” he wrote, “the majority has used an extraconstitutional, judicially created test, imported from California, to stop the people of Arkansas from exercising their public policy making power to either accept or reject a change proposed by their elected senators and representatives. … If the impact of Issue No. 1 on the courts and on civil litigation would be too expansive, our constitution leaves that decision to the voters of Arkansas to make at the ballot box, not to a majority of this court of seven.”

Arkansas State Chamber of Commerce President and CEO Randy Zook, an appellant-intervenor acting individually and on behalf of the group Arkansans for Jobs and Justice, disagreed with the decision.

“I think the court acted in an arbitrary fashion and denied the people an opportunity to vote on a very important issue that has the potential to make Arkansas more competitive with surrounding states, and I think they made a terrible mistake,” he said.

He said it was too early to say if supporters would return in two years with another proposal, but he said, “We’re not going to give up on efforts to improve the competitive posture of the state, that’s for sure.”

The latest Talk Business & Politics-Hendrix College survey of 1,701 statewide likely voters was conducted on Sept. 5-7, 2018 and has a margin of error of +/- 2.4. It found that voters were leaning against the measure.

Q. The Arkansas General Assembly has referred a constitutional amendment to voters, called Issue 1, that will cap attorney fees, limit damages in personal injury, property damage, or wrongful death lawsuits, and give the legislature the authority to control the rules of court procedure.  If the election were today, would you vote for or against this constitutional amendment?
25% For?47% Against?28% Don’t Know

In the minimum wage case, the Supreme Court ruled 7-0 against the plaintiff, also Zook, who sued individually and on behalf of Arkansans for a Strong Economy. Zook had argued that supporters of Issue 5 had failed to collect enough signatures during the initial collection period. Originally, the sponsors had submitted 68,861 signatures validated by a prima facie (at first sight) review. Of those, 52,214 signatures later were validated. Those were not enough to qualify for the ballot, but they were enough to qualify for a 30-day “cure” period. To qualify for the cure period, sponsors were required to submit 67,887 signatures upon prima facie review, with 50,915 of them determined to be valid.

After the cure period, Secretary of State Mark Martin ruled that the sponsor had collected 85,526 valid signatures, enough to qualify. A minimum of 67,887 signatures were required. The amendment would raise Arkansas’ current $8.50 minimum wage to $9.25 on Jan. 1, 2019, to $10 in 2020, and to $11 in 2021.

The court had appointed former Court of Appeals Judge Sam Bird as special master to hear the petition. On Sept. 24, Bird had ruled that the sponsor had collected enough signatures.

David Couch, Issue 5 sponsor, said he was glad the court decided the case the way it did.

“They basically said that the court really doesn’t have jurisdiction to review the secretary of state’s granting of the cure, so that will help with preventing a lot of these challenges in the future that kind of clog up the court here right before the election,” he said. “The court basically is saying that you look at the end of the process, and if they have the requisite number of valid signatures at the end of the process, then that’s what you really look at.”

Couch said his group, Arkansans for a Fair Wage, would engage in a “robust campaign” until the election Nov. 6. He said the group had started running television ads on Sunday and would expand that effort and purchase digital ads and mail pieces. He said he expected to raise enough to spend $600,000-$700,000 in the coming weeks now that the Supreme Court has made its ruling.

The group had raised $605,300 total, according to its last campaign finance report filed with the Arkansas Ethics Commission Oct. 10, and had spent $548,481.84, for a difference of $56,818.16.

Zook said in an interview that Arkansans for a Strong Economy would consider what it should do “to try to better inform people about the consequences of making Arkansas completely, totally out of step with surrounding states. This is an issue that should be a federal minimum wage, not a patchwork of state by state, even city by city decisions across the country.” He said those most hurt if the minimum wage is increased would be “young people and people with minimum levels of skill.”

He said it’s too early to tell how much more active the campaign against the increase will be now that it’s been approved for the ballot. Arkansans for a Strong Economy had raised $66,700, according to its last campaign finance report, and had $63,100 on hand.

Another group supporting the amendment, Business for a Fair Minimum Wage, announced its support Thursday. Its supporters include the U.S. Women’s Chamber of Commerce.

Capi Peck, owner of Little Rock’s Trio’s Restaurant, was quoted in a press release saying, “I’ve seen firsthand how paying fair wages is good for business. It’s why I support raising Arkansas’ minimum wage. I’m proud of how long many of our employees have been with us – some for more than 20 years – because we pay them fair wages and treat them right. That low turnover is invaluable from a bottom-line and customer service perspective.”

The Talk Business & Politics-Hendrix College survey also found broad support among voters for raising the minimum wage.

Q. A measure may be on the ballot in November to increase the state minimum wage in Arkansas for most workers in the state from $8.50 per hour to $11 per hour over a 3-year period. If the election were today, would you vote for or against this proposal?
60% For?30% Against?10% Don’t Know