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Wilson v. Martin

Supreme Court of Arkansas

October 13, 2016

NANCY LEE WILSON and PAULA JEAN CASEY, Individually and on Behalf of FAIRNESS FOR ARKANSANS PETITIONERS
v.
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

         AN ORIGINAL ACTION

          Trotter Law Firm, PLLC, by: Scott C. Trotter, for petitioners.

          AJ Kelly, General Counsel and Deputy Secretary of State, for respondent.

          Brett 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.

          PAUL E. DANIELSON, Associate Justice

         Petitioners 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 hereby prohibited.
(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 is made.
(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 contingency fees.
(B)(3) The General Assembly shall have power to enforce, by appropriate legislation, the provisions of this section.
(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 ...

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