SOURCE: Times Record –

A notice of appeal was filed Friday with the Arkansas Supreme Court by Arkansans for Jobs and Justice to have Issue 1 votes counted in the November ballot.

Pulaski County Circuit Judge Mackie M. Pierce issued an order Thursday that called Issue 1 “unconstitutional,” arguing it doesn’t meet the single-subject test and it is “unclear” if all parts of the Arkansas Legislature-referred constitutional amendment are reasonably germane to each other.

Pierce uses the opinion drawn out by the state Supreme Court in 2011 with Forrester v. Martin to argue Issue 1 does not meet the single-subject requirement on constitutional amendments. The order directs Arkansas Secretary of State Mark Martin to refrain from counting, canvassing, or certifying any votes for or against Issue 1 in the Nov. 6 general election.

Issue 1, the judge decided, has four sections that deal with both caps on lawsuits and “taking of power from the judiciary” to control the Legislature’s rules.

“What is the general subject of Issue No. 1?” Pierce writes. “Is it the taking, or reallocation of power from the judiciary and vesting it in the Legislature? Is it the courts and the judiciary? Is is about the right of citizens to freely contract? Is it about the right of citizens to be adequately compensated for damages suffered? Is it about limiting recovery? Is it about limited the practice of law by attorneys? Is it about compensatory damages? Is is about punitive damages? The general subject is unclear to this court.”

Pierce is critical of both sides in Marion Murphy v. Mark Martin, Secretary of State, and defendant intervenor Randy Zook president of the Arkansas State Chamber of Commerce, and the Legislature.

“If the General Assembly had proposed SJR 8 containing only Sections 1, 2 and 3, it is conceivable this court might be able to find Issue No. 1 complies with Art. 19, Sect. 22 of the Arkansas Constitution, and the rule of construction found in Forrester, id.” Pierce writes. “However, Issue No. 1 contains Section 4. Plaintiff, Defendant and Intervenor gloss over Section 4 as being part and parcel of Section 3. It is not! Section 4 reduces the legislative threshold vote requirement from ⅔ (66 ⅔ percent) to ⅗ (60 percent) of both houses. This is a legislative rule change. It is an internal legislative modification, not a court, judiciary or judicial power modification or reallocation of power … Section 4 is not ‘reasonably germane’ to the other three sections of Issue No. 1 nor is it reasonably germane to the general subject of the amendment.”

Zook is noted in the order as arguing “no court has ever removed a proposed constitutional amendment from the ballot pre-election.”

Carl Vogelpohl, campaign manager for Arkansans for Jobs and Justice, said he expects the state Supreme Court to issue a ruling on an appeal before the Nov. 6 election. And he hopes Issue 1 will be placed on the ballot and the votes will be counted. The official appeal of Pierce’s ruling is expected to be filed with the state Supeme Court this week, Vogelpohl added.

Polls and ‘special interests’

In three separate polls taken over the past year, Arkansans for Jobs and Justice recently stated they have found about 55 percent of Arkansas voters would approve Issue 1.

“Three large, credible polls conducted over this past year have consistently shown that 55-57 percent of Arkansas voters will vote Yes on Issue 1 when they know that voting Yes on Issue 1 protects victims from lawyers who take more than a third of a victim’s settlement and allows victims and families to receive unlimited damages for lost wages, medical bills and loss of property,” a Sept. 9 news release by Arkansans for Jobs and Justice states.

Vogelpohl was not authorized Monday to release the questions from the Arkansans for Jobs and Justice poll, nor the two Arkansas State Chamber of Commerce polls. Gilmore Strategy Group within the state of Arkansas conducted the three live telephone interviews with 800 likely voters April 10-11, June 23-25 and Aug. 27-30.

In the Arkansans for Jobs and Justice and state chamber polls, 70 percent of those called were on landlines and 30 percent were cellphone. The calls were stratified by county to reflect historic voter trends. The margin of error for this survey is plus-or-minus 3.5 percent.

Chad Gallagher of Protect Arkansas Families, one of several groups opposed to Issue 1, said he hopes the Supreme Court allows the vote to go to the public. Protect Arkansas Families is not involved with the legal challenge to disqualify votes for Issue 1.

“We’re happy for it to go to the ballot in November because we think we will win,” Gallagher said, quoting a recent TB&P-Hendrix Poll that shows only 25 percent of voters are for Issue 1.

The recent TB&P-Hendrix poll also showed 47 percent are already against Issue 1, and 28 percent “don’t know.”

“This is the most overt kowtowing to special interest groups I’ve ever seen,” Gallagher said of Issue 1. “Look at the contributions … It translates to ramrodding through an amendment to the constitution without public input.”

Gallagher said if the Legislature wanted to do something about frivolous lawsuits it could either set up a “loser pays” model, or a pre-qualifying panel to screen lawsuits, or fine lawyers who submit too many unreasonable lawsuits.

“They’re not trying to reform lawsuits, they’re just protecting special interests,” Gallagher said.

While Vogelpohl says wide approval for the ballot measure came last year from the Legislature with a “broad coalition of support” from both Democrats and Republicans, Gallagher says the driving force behind Issue 1 has been the nursing home lobby in Arkansas. Many of the legislators, Gallagher added, have come out on Facebook and told constituents they were not in favor of the ballot measure, but simply wanted the public to vote on it.

“I think it is important to trace that there was no public cry for this but there was a large special interest push for it — especially from nursing homes,” Gallagher said. “We are enjoying the greatest stretch of job growth and recruitment from any governor. All without this tort reform. This version of tort is a fire brigade showing up at a lawn party instead of a house fire.”

Speaking to the Fort Smith Regional Chamber of Commerce last week, Vogelpohl pointed to tort reform in Texas as being a key ingredient to its economic success.

Gallagher cites an AARP study that states nursing home quality of care has gone down “significantly” in Texas since the state’s reforms were approved. Texas is now ranked No. 50 in nursing home care, Gallagher said.

Arkansas for Jobs and Justice states at its website Arkansas ranks 48th in infant deaths, 44th in maternal deaths, 50th in environment for emergency care and Arkansas is surrounded by tort reform states.

Both sides will continue to campaign and argue their side of Issue 1 until the Supreme Court makes its decision on whether or not votes will be counted on Issue 1.