COL. MIKE ROSS, RET.; MARION HUMPHREY; JAMES BROOKS; PATRICK ADAM JEGLEY; MARTHA DEAVER; AND THE COMMITTEE TO PROTECT AR FAMILIES PETITIONERS
MARK MARTIN, ARKANSAS SECRETARY OF STATE RESPONDENTCHASE DUGGER AND DR. STEPHEN CANON, INDIVIDUALLY AND ON BEHALF OF HEALTH CARE ACCESS FOR ARKANSAS INTERVENORS
G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; James,
Carter & Priebe, LLP, by: Jeff Priebe; and Walas Law
Firm, PLLC, by: Breean Walas, for petitioners.
Kelly, Deputy Secretary of State & General Counsel, and
Andrés Rhodes, Associate General Counsel, for
ROCK LLP, by: Jess Askew III, David L. Williams, Frederick H.
Davis, and Dale W. Brown (Fayetteville); and Brett D. Watson,
JOSEPHINE LINKER HART, Associate Justice
a companion case to Wilson v. Martin, 2016 Ark. 334.
Like Wilson, this case concerns the proposed
amendment to the Arkansas Constitution with the popular name:
"An Amendment to Limit Attorney Contingency Fees and
Non-Economic Damages in Medical Lawsuits." Petitioners
Col. Mike Ross, Marion Humphrey, James Brooks, Patrick Adam
Jegley, Martha Deaver, and the Committee to Protect AR
Families filed an original action in this court pursuant to
article 5, section 1 of the Arkansas Constitution, as amended
by amendment 7 to the Arkansas Constitution, for an order to
invalidate a proposed initiated constitutional amendment (the
amendment), either by striking it from the ballot or
enjoining the counting of the votes. The petition asserts
three bases for relief: (I) failure to comply with mandatory
canvasser certification laws; (II) failure to submit the
requisite number of verified signatures; (III) the
amendment's ballot title is insufficient. On September 9,
2016, we granted a motion to bifurcate this case, and
appointed a special master to make findings on counts I and
II. We allowed count III, the sufficiency of the ballot
title, to be submitted directly because sufficiency of the
ballot title is decided by this court as a matter of law.
Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008).
This opinion, as does the Wilson opinion, addresses
the sufficiency of the ballot title (count III).
court has original jurisdiction of this case pursuant to Ark.
Sup. Ct. R. 6-5(a) (2014); see Richardson v. Martin,
2014 Ark. 429, 444 S.W.3d 855 . Rule 6-5(a) provides that
this court has original jurisdiction in "extraordinary
actions required by law, such as suits attacking the validity
of statewide petitions filed under amendment 7 of the
Arkansas Constitution." Richardson,
case before us, the petitioners argue that the
amendment's ballot title is insufficient because (a) it
contains incorrect statements with respect to altering the
jury trial; (b) it contains "partisan coloring"
with respect to attorney fees; (c) it omits mention of
granting the legislature "ability to further define and
expand" the reach of the fee and non-economic damages
limitation; (d) it fails to explain the fundamental shift in
power; (e) it leaves "critical" terms undefined;
(f) it misleads on the reach of the fee limit; and (g)
Section 1 limits damages without so informing voters.
April 6, 2016, the sponsers submitted the amendment, the
ballot title, and the popular name to the attorney general.
Pursuant to her review, the attorney general modified the
popular name to read "An Amendment to Limit Attorney
Contingency Fees and Non-Economic Damages in Medical
Lawsuits." On April 20, 2016, the attorney general
modified the popular name and certified the amendment, the
popular name, and the ballot title. Canvassing commenced.
After the requisite number of signatures were gathered, on
August 25, 2016, respondent Mark Martin, Arkansas Secretary
of State, certified the amendment for the November 8 general
election. On September 1, 2016, the petitioners filed this
original action in this court challenging the secretary of
state's certification. On September 30, 2016, the
intervenors filed a motion to dismiss. They asserted that the
petition should be dismissed for lack of subject-matter
jurisdiction because the petitioners have no right of action
and because no justiciable controversy exists. They also
argue that the petitioners lack standing. The petitioners
moved to strike the motion to dismiss as untimely.
Wilson v. Martin, supra, this court
rejected the petitioners' motion to strike and denied the
intervenors' motion to dismiss in which the intervenors
advanced essentially the same arguments that we have before
us in this case. We likewise deny the petitioners' motion
to strike and the intervenors' motion to dismiss.
turn to the petitioners' argument. We recently summarized
the law regarding ballot titles in Richardson,
The applicable standard for review of ballot-title cases
requires that "[b]allot titles must include an impartial
summary of the proposed amendment that will give voters a
fair understanding of the issues presented and of the scope
and significance of the proposed changes in the law."
Parker v. Priest, 326 Ark. 123, 129, 930 S.W.2d 322,
325 (1996). The ballot title must be (1) intelligible, (2)
honest, and (3) impartial. Ward v. Priest, 350 Ark.
345, 359, 86 S.W.3d 884, 891 (2002). "However, this
court is neither to interpret a proposed amendment nor
discuss its merits or faults." Id. at 359, 86
S.W.3d at 891 (internal citations omitted). The ballot title
is sufficient if it "informs the voters with such
clarity that they can cast their ballot with a fair
understanding of the issue presented." Ferstl v.
McCuen, 296 Ark. 504, 509, 758 S.W.2d 398, 400 (1988)
(internal citations omitted). In addition, when reviewing a
challenge to the ballot title, the court recognizes that
amendment 7 of article 5, § 1 "places the burden
upon the party challenging the ballot title to prove that it
is misleading or insufficient." Cox v. Daniels,
374 Ark. 437, 444, 288 S.W.3d 591, 595(2008) (internal
citations omitted). Finally, we liberally construe amendment
7 in determining the sufficiency of ballot titles. Becker
v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980).
Richardson, 2014 Ark. 429, at 8, 444 S.W.3d at 860.
Wilson, this court found merit in the
petitioners' argument that the ballot title of the
proposed amendment is insufficient because it fails to define
the term "non-economic damages." In accordance with
that finding, we granted the petition to enjoin the secretary
of state from counting or certifying any ballots ...