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Martin v. Humphrey

Supreme Court of Arkansas

October 18, 2018

MARK MARTIN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF ARKANSAS APPELLANT
v.
MARION HUMPHREY, INDIVIDUALLY AND AS A REPRESENTATIVE OF ALL SIMILARLY SITUATED VOTER-CITIZENS OF ARKANSAS APPELLEE RANDY ZOOK, INDIVIDUALLY AND ON BEHALF OF LEGISLATIVE QUESTION COMMITTEE, ARKANSANS FOR JOBS AND JUSTICE APPELLANT-INTERVENOR

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-18-4857] HONORABLE MACKIE M. PIERCE, JUDGE.

          AJ Kelly, Deputy Secretary of State and General Counsel; and Michael Fincher, Associate General Counsel, for appellant.

          Wright Lindsey & Jennings LLP, by: Stephen R. Lancaster and Gary D. Marts, for appellant-intervenor.

          James, Carter & Priebe, LLP, by: Jeff R. Priebe; and The Law Office of David H. Williams, by: David H. Williams, for appellee.

          JOSEPHINE LINKER HART, ASSOCIATE JUSTICE

         Appellant Mark Martin ("Secretary Martin"), in his official capacity as Secretary of State, and appellant-intervenor Randy Zook ("Zook"), individually and on behalf of legislative question committee, Arkansans for Jobs and Justice, appeal the September 6, 2018 order from the Pulaski County Circuit Court. The circuit court's order entered a declaratory judgment finding that Senate Joint Resolution 8, designated as "Issue No. 1" on the ballot for the November 6, 2018 general election, was not referred in accord with article 19, section 22 of the Arkansas Constitution, and issued a writ of mandamus ordering Secretary Martin to refrain from counting, canvassing, or certifying any votes cast for or against. We affirm.

         I. Background

         In 2017, the Arkansas General Assembly passed Senate Joint Resolution 8 ("SJR 8") as a proposed constitutional amendment pursuant to article 19, section 22 of the Arkansas Constitution, for Arkansas voters to vote upon during the November 6, 2018 general election. In accordance with Arkansas Code Annotated § 7-9-110 (Repl. 2018), Secretary Martin designated SJR 8 as "Issue No. 1" for purposes of the November 2018 ballot. SJR 8 mandated that its "Popular Name and Ballot Title" shall be:

(a) When presented on the general election ballot, the popular name for this proposed amendment shall be "An Amendment Concerning Civil Lawsuits and the Powers of the General Assembly and Supreme Court to Adopt Court Rules."
(b) When presented on the general election ballot, the ballot title for this proposed amendment shall be "A proposed amendment to the Arkansas Constitution providing that a contingency fee for an attorney in a civil lawsuit shall not exceed thirty-three and one-third percent (33 1/3 %) of the net recovery; defining "contingency fee" as an attorney's fee that is paid only if the claimant recovers money; providing that the General Assembly may amend the foregoing percentage by a two-thirds (2/3) vote of each house; limiting punitive damages awards for each claimant in lawsuits for personal injury, property damage, or wrongful death to the greater of (i) five hundred thousand dollars ($500, 000), or (ii) three (3) times the amount of compensatory damages awarded; defining "punitive damages" as damages assessed to punish and deter wrongful conduct; providing that the General Assembly may not decrease the foregoing limitations on punitive damages but may increase the limitations by a two-thirds (2/3) vote of each house; providing that the limitations on punitive damages do not apply if the factfinder determines by clear and convincing evidence that the defendant intentionally pursued a course of conduct for the purpose of causing injury or damage to the claimant and that such intentional conduct harmed the claimant; limiting awards of non-economic damages in lawsuits for personal injury, property damage, or wrongful death to (i) five hundred thousand dollars ($500, 000) for each claimant, or (ii) five hundred thousand dollars ($500, 000) for all beneficiaries of an individual deceased person in the aggregate in a lawsuit for wrongful death; defining "non-economic damages" as damages that cannot be measured in money, including pain and suffering, mental and emotional distress, loss of life or companionship, or visible result of injury; providing that the General Assembly may not decrease the foregoing limitations on non-economic damages but may increase the limitations by a two-thirds (2/3) vote of each house; providing that the General Assembly shall adopt a procedure to adjust the dollar limitations on punitive damages and non-economic damages in future years to account for inflation or deflation; providing that the Supreme Court's power to prescribe rules of pleading, practice, and procedure for courts is subject to the provisions of this amendment; providing that the General Assembly, by a three-fifths vote of each house, may amend or repeal a rule prescribed by the Supreme Court and may adopt other rules of pleading, practice, or procedure on its own initiative; providing that rules of pleading, practice, and procedure in effect on January 1, 2019, shall continue in effect until amended, superseded, or repealed under the provisions of this amendment; providing that a rule of pleading, practice, or procedure enacted by the General Assembly shall supersede a conflicting rule of pleading, practice, or procedure prescribed by the Supreme Court; providing that certain other rules promulgated by the Supreme Court may be annulled or amended by a three-fifths (3/5) vote of each house of the General Assembly instead of a two-thirds (2/3) vote as presently stated in the Arkansas Constitution; and providing that this amendment becomes effective on January 1, 2019."

         The actual text of SJR 8 divides Issue No. 1's parts[1] into four separate sections, and we will do the same for purposes of this opinion.

         Section 1 proposes to place a 33 1/3 percent limit on attorney contingency-fee contracts and gives the General Assembly the power to pass additional laws for the implementation of section 1, while also giving the General Assembly the power to pass additional laws to further define and alter the terms of section 1 and the limits on contingency-fee contracts.

         Section 2 proposes to (1) place a $500, 000 limit on a person's ability to recover noneconomic damages; (2) place a limit on punitive damages of the greater of $500, 000 or three times a person's compensatory verdict; and (3) give the General Assembly the power to enact additional laws to implement section 2 and to change the stated limitations to damages awards.

         Section 3 seeks to amend amendment 80 of the Arkansas Constitution to give the General Assembly the power to adopt, amend, and repeal rules of pleading, practice, and procedure for the entire Arkansas Judiciary.

         Section 4 proposes the following changes to amendment 80: (1) amend section 9 of amendment 80 by lowering the vote threshold by which the General Assembly may annul or amend certain rules of the Arkansas Supreme Court related to section 5 of amendment 80 under which the supreme court determines the appellate jurisdiction of the court of appeals; (2) amend section 6(B) of amendment 80 under which the Supreme Court exercises superintending control over the way in which circuit judges may divide the circuit courts into subject-matter divisions; (3) amend section 7(B) of amendment 80 under which the supreme court establishes the jurisdictional amount and the subject matter of civil cases in district court (as well as criminal jurisdiction); (4) amend section 7(D) of amendment 80 under which the supreme court exercises superintending control over the way district judges may divide the district courts into subject-matter divisions; and (5) amend section 8 of amendment 80, under which the Supreme Court exercises superintending control over the way in which referees, masters, and magistrates may be appointed by the circuit and district courts and the duties they can perform.

         On July 12, 2018, appellee Marion Humphrey filed a complaint in the Pulaski County Circuit Court seeking a declaration that Issue No. 1 is unconstitutional, along with a request for either a writ of mandamus or injunctive relief seeking to prevent Secretary Martin from counting, canvassing, or certifying any votes cast for or against Issue No. 1 at the November 6, 2018, general election. On July 25, 2018, appellant-intervenor Zook sought and was given permission to intervene in this matter. The circuit court then set a hearing for August 30, 2018, on Humphrey's claims for a declaratory judgment and a writ of mandamus.

         Before the hearing, all parties briefed the issues. At the hearing, Humphrey argued that Issue No. 1 is unconstitutional because the sections of Issue No. 1 are not germane to each other or germane to a general purpose. Secretary Martin and Zook both argued that the sections are germane to each other and to a single purpose; however, each had different formulations of the "purpose" for Issue No. 1. Secretary Martin asserted that the general purpose of Issue No. 1 is "courts and the judiciary," while Zook maintained that the general purpose of Issue No. 1 is "judicial power." A hearing was held on August 30, 2018, with all parties presenting their arguments to the circuit court. After the hearing, on September 6, 2018, the circuit court issued its findings and its order. The circuit court's order provided as follows:

Issue No. 1, as proposed, clearly violates Art. 19, Sec. 22 of the Arkansas Constitution under any analysis. . . . Plaintiff has clearly demonstrated the four parts of Issue No. 1 are not reasonably germane to each other nor are those four parts reasonably germane to the subject (whatever that subject may be) of the amendment.

         Accordingly, the circuit court granted Humphrey's request for declaratory relief because Issue No. 1 violates article 19, section 22 of the Arkansas Constitution. The circuit court also issued a writ of mandamus ordering Secretary Martin to refrain from counting, canvassing, or certifying any votes cast for or against Issue No. 1. This appeal followed.

         II. Standard of Review

         This court reviews the circuit court's interpretation and construction of constitutional provisions de novo; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Forrester v. Martin, 2011 Ark. 277, 383 S.W.3d 375; State v. Oldner, 361 Ark. 316, 206 S.W.3d 818 (2005). When interpreting the constitution, this court's duty is to read the laws as they are written and interpret them in accordance with established principles of constitutional construction. Oldner, 361 Ark. 316, 206 S.W.3d 818. Thus, when the language of a constitutional provision is plain and unambiguous, it must be given its obvious and common meaning. Id. Neither rules of construction nor rules of interpretation may be used to defeat the clear and certain meaning of a constitutional provision. Id.

         However, unlike legislatively referred constitutional amendments that have been submitted to and adopted by the voters, there is no presumption of constitutionality afforded by this court during its review of pre-election-proposed amendments that have not been voted on and adopted or approved by the public. See Chaney v. Bryant, 259 Ark. 294, 298, 532 S.W.2d 741, 744 (1976) (explaining that it is only "after a proposed constitutional amendment has been ratified ...


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