When you vote on November 6, you’ll see five issues on the ballot. One issue vies for term limits, another concerns casinos, another deals with voter identification, and the last one pushes for a gradual raise of the minimum wage. Issue 1, often called “tort reform,” will be on the ballot, but votes for it will not be counted because of a ruling by the Arkansas Supreme Court on October 18. It’s still important to know what this measure would have done because versions of it appear on ballots quite frequently. Issue 1 is hard to summarize. Its popular name on the ballot is “An Amendment Concerning Civil Lawsuits and the Powers of the General Assembly and Supreme Court to Adopt Court Rules.” Here’s what the initiative would have done:
- Contingency fees (fees paid to attorneys if a claimant recovers money in a civil lawsuit) would be capped at one-third of the amount recovered in the lawsuit.
- The amount recovered in a lawsuit would be capped at $500,000 for both punitive damages (damages assessed to punish wrong-doing) and non-economic damages (damages inflicted on the claimant that cannot be measured by a monetary value).
- The requirement of a two-thirds vote would decrease to a three-fifths vote for the state legislature to amend or repeal court rules, allowing the legislature to change the contingency fee limit and to increase the restrictions on punitive damages and non-economic damages but not decrease them.
In short, the initiative would have limited the amount of money one could earn in a civil lawsuit and would have allowed the state legislature to change certain court rules. If one sued a nursing home for malpractice, this amendment would limit how much money could be won.
Issue 1 began as a joint Senate resolution in 2017, sponsored by Senator Missy Irvin (R) and Representative Bob Ballinger (R). The only Democrats to co-sponsor the measure were Representative Steve Magie (D) and Representative Deborah Ferguson (D), both of whom are doctors. The measure was passed by both chambers, finding its way onto the ballot.
This amendment has caused controversy across the state, and the battle over it has taken place in courts and the checkbooks of its supporters and opponents. In January, a total of almost two million dollars had been raised by both groups. That number has more than likely doubled since. Groups in favor of Issue 1 include the Arkansas Medical Society, Pulaski County Medical Society, Arkansas Trucking Association, Arkansas Healthcare Association, Poultry Federation, Arkansas Hospital Association, and the Arkansas Economic Developers and Chamber Executives. The Arkansas Chamber of Commerce and the Lieutenant Governor’s office, who also support the issue, did not immediately respond to our requests for comment.
Proponents of the initiative say it would encourage economic growth and attract medical professionals, pointing to an increase in the number of doctors in Texas following its passage of tort reform. Opponents of the amendment disagree with the premise that Arkansas hospitals are suffering and suggest that they’re doing quite well compared to neighboring states like Texas, where a dozen or more rural hospitals have closed their doors since 2013.
Those who were in favor of blocking the measure included the Arkansas State Bar Association, Arkansas Trial Lawyers Association, Arkansas Family Council Action Committee, Protect Arkansas Families, and the Liberty Defense Network. The Liberty Defense Network says this initiative is “government overreach” and that it is an attempt to limit “the value of human life.” Claire Frueauff, a Hendrix alumna, works as an organizer for the Liberty Defense Network. She says the amendment would “embolden big businesses to make reckless decisions at the expense of workers, [and] it blatantly violates our system of checks and balances and would allow corrupt politicians to rig the rules of the courts to protect themselves and special interests.”
Both those in support and those in opposition have formed large and influential coalitions to sway voters, but those in favor of the initiative were dealt a devasting blow on October 18. The ruling by the Arkansas Supreme Court invalidating Issue 1 comes after an appeal to an earlier decision made by Judge Mackie Pierce on September 6, who ruled that the initiative failed to meet the single-subject requirement. The Supreme Court agreed with this decision, meaning that voters will see Issue 1 on the ballot, but votes will not be counted.