NANCY LEE WILSON and PAULA JEAN CASEY, Individually and on Behalf of FAIRNESS FOR ARKANSANS PETITIONERS
HONORABLE MARK MARTIN, SECRETARY OF STATE, In his Official Capacity RESPONDENT CHASE DUGGER and STEPHEN CANON, Individually and on Behalf of HEALTH CARE ACCESS FOR ARKANSANS INTERVENORS
Trotter Law Firm, PLLC, by: Scott C. Trotter, for
Kelly, General Counsel and Deputy Secretary of State, for
D. Watson, Attorney at Law, PLLC, by: Brett D. Watson; Kutak
Rock LLP, by: Jess Askew III, David L. Williams, and
Frederick H. Davis; and Daniel Greenberg, for intervenors.
E. DANIELSON, Associate Justice
Nancy Lee Wilson and Paula Jean Casey are residents and
registered voters of the State of Arkansas and directors of
Fairness for Arkansans, a ballot-question committee.
Petitioners have filed an original action asking this court
to declare the ballot title of a proposed constitutional
amendment with the popular name "An Amendment to Limit
Attorney Contingency Fees and Non-Economic Damages in Medical
Lawsuits" insufficient and that the initiative petition
containing the proposed amendment should be removed from the
general election ballot, or in the alternative, that
Respondent Secretary of State Mark Martin should be enjoined
from canvassing or certifying any ballots cast for the
amendment at the November 8, 2016 general election. The
proposed amendment is sponsored by Intervenors Chase Dugger
and Stephen Canon, acting individually and on behalf of
Health Care Access for Arkansans. Our jurisdiction to
determine this matter is pursuant to Amendment 7 of the
Arkansas Constitution and Arkansas Supreme Court Rule 6-5(a)
(2015). We grant the petition and enjoin Respondent from
counting or certifying any ballots cast for the amendment.
The text of the proposed amendment is as follows:
SECTION 1. Section 3 of Amendment 80 to the Arkansas
Constitution is amended to read as follows:
§ 3. Rules of pleading, practice, and procedure.
(A) The Except as provided in
subsection (B) of this section, the Supreme Court shall
prescribe the rules of pleading, practice, and procedure for
all courts; provided these rules shall not abridge, enlarge
or modify any substantive right and shall preserve the right
of trial by jury as declared in this Constitution.
(B)(1) The practice of contracting for or charging
excessive contingency fees in the course of legal
representation of any person or entity seeking damages in an
action for medical injury against a health-care provider is
(a) An excessive contingency fee is in excess of
thirty-three and one-third percent (33 1/3%) recovered.
(b)The above limitation shall apply regardless of whether
the recovery is by settlement, arbitration, or judgment; the
above limitation shall also apply regardless of the age or
mental capacity of the person or entity for whom the recovery
(c) For purposes of subsection (B)(1)(a),
"recovered" refers to the net sum recovered after
deducting any disbursements or costs incurred in connection
with prosecution or settlement of the claim. Costs of medical
care incurred by the plaintiff and the attorney's
office-overhead costs or charges are not deductible
disbursements or costs for such purpose.
(d) The terms "action for medical injury,
" "health-care provider, " and "medical
injury" are defined in this Amendment's addition to
Article 5, Section 32 of the state Constitution.
(e)The prohibition of excessive medical-injury attorney
fees described in this subsection does not extend to
workers' compensation cases.
(B)(2) The General Assembly's power to enact laws
that prohibit excessive contingency fees includes the
subsidiary power to enact laws which govern (a) how the total
value or present value of a set of periodic payments should
be calculated, (b) how or whether life expectancy or other
relevant factors shall be taken into account with respect to
those calculations, (c) to what extent the use of total value
or present value calculations for such periodic payments
shall be required when determining excessive contingency
fees, and (d) the consequences and penalties for attorneys
who contract for or charge excessive medical-injury
(B)(3) The General Assembly shall have power to enforce,
by appropriate legislation, the provisions of this
(B)(4) A rule of pleading, practice, and procedure
enacted by law under subdivision (B)(1), (B)(2), or (B)(3) of
this section shall supersede a conflicting rule of pleading,
practice, and ...