The State Supreme Court’s October Surprise
Recently the state Supreme Court issued a decision: The votes of the people for or against Issue 4 (lawsuit reform) will not be counted this November. The Court decided that the ballot title of Issue 4 didn’t give enough information to voters; according to the Court, one term that Issue 4’s ballot title uses — “non-economic damages” — is impermissible, because that term is not defined and voters would have to guess what it means.
That was enough for the Court to order that votes for Issue 4 can’t be counted. It was a sad day for me, because I believe that lawsuit reform would provide for better-quality health care in Arkansas by capping “non-economic damages” — which would allow our health-care professionals and their insurers to better quantify risk, and therefore keep cost under control, and thus provide for better access to affordable care for the hardworking people of Arkansas. But it was also a sad day for me because the logic of the Supreme Court’s decision is highly troubling.
The Supreme Court wrote: “The term ‘non-economic damages’ is a ‘technical term’ that is not readily understood by voters. Without a definition of this term, the voter would be in the position of guessing as to the effect his or her vote would have unless he or she is an expert in the legal field. In other words, the voter would be unable to reach an intelligent and informed decision for or against the proposal without an understanding of the terms and the consequences of his or her vote [citation omitted]. Accordingly, we conclude that the ballot title of the proposed amendment is insufficient because it fails to define the term ‘non-economic damages.’ ”
But think of the three implications of this line of argument: What this means is that popularly initiated lawsuit reform in Arkansas is just about impossible.
Almost inevitably, in order to carry out legal reforms, you have to change legal procedures — and Amendment 80, as the Supreme Court has understood it, prevents the state Legislature from changing legal procedures. That means that if you want to carry out legal reforms, you have to change the state Constitution.
If you want to change the state Constitution through citizen-initiated amendment, you have to write a ballot title that explains what the amendment does. But make sure not to use any legal vocabulary in that ballot title: if you do that, the Court might strike the amendment down, because the use of a “technical term” in the ballot title can disallow the entire amendment. Consider, for a moment, the difficulty of explaining what a constitutional amendment about legal reforms does — while not using any legal terms.
What this suggests to me is that the state Supreme Court has blocked almost any possibility of legal reform unless that reform is carried out through an amendment referred by the state Legislature to the people. I suspect that more than a few state legislators have come to that same conclusion, and that 2017 will finally be the session that the Legislature produces a constitutional amendment to reform our justice system.
It’s also worth noting that the Court’s prohibition of “technical terms” in ballot titles is more than a little inconstant. According to the Supreme Court, the term “non-economic damages” is not self-explanatory and needs a definition. I don’t believe there has ever been any confusion about what this term means in state or federal law: Non-economic damages are damages which are not measurable economically–which is to say in dollars. (If you are injured by a bad actor and have $600 in doctor’s bills, objectively the bad actor should pay you $600. Those are economic damages. If you are injured by a bad actor and have resulting pain and suffering, how much should the bad actor pay you? Nobody knows; there are no objective measures of pain and suffering that can be precisely measured in dollars; that is why they’re called non-economic damages.)
Notably, the Supreme Court issued a second opinion on the same day it knocked tort reform off the ballot: In its second opinion, it unanimously approved a ballot title for medical marijuana, and in that approved ballot title, marijuana users have to have “certification” of illness to qualify for drug use, they cannot be subject to “discrimination” once they qualify, and they have an “affirmative defense” for medical marijuana use. Curiously, in that nearly simultaneous second opinion, the Court was completely untroubled by the undefined legal terms in the medical marijuana proposal. How many non-lawyers do you know who can define what an “affirmative defense” is?
As an Arkansan, I am embarrassed for our high court for using such baseless logic for one proposal, and then using opposite logic for the very next issue. I think there is a large question as to whether such law jargon will be “readily understood by voters” and whether voters will be able to reach “an intelligent and informed decision” on the measure–but, as far as I can tell, the Court gave the rule of law it supplied great weight when it barred the lawsuit reform measure from the ballot, but very little weight when it waved the medical marijuana measure through. Why, it’s almost as if the real reason that the state Supreme Court struck down lawsuit reform–but permitted the voters to make a decision on medical marijuana–had nothing to do with the reasoning that the Court supplied at all!
I’d also underscore that there’s at least one group of government lawyers who clearly do not think that the term “non-economic damages” is objectionable. The very first time the lawsuit reform amendment writers submitted a proposed amendment to the Attorney General’s office for their approval, the authors proposed the popular name of “The Arkansas Health Care Protection Amendment.” The Attorney General’s staff didn’t like that popular name and rewrote it, explaining that their newly proposed popular name might be better. The Attorney General’s office rewriting of the popular name inserted the two words “non-economic” and “damages” in it. (To state the obvious, the Attorney General’s office never added in, or even suggested the necessity for, a definition of these words.)
To repeat: it was those two words that the Supreme Court found objectionable, even though it was the Attorney General’s office which suggested their placement in the amendment’s popular name. Those who attempted to fix our civil justice system truly found themselves in a “catch 22” situation, and it is one more piece of evidence that the right of the people to amend the Arkansas Constitution — which that document guarantees in writing — is under severe strain and jeopardy from the current dysfunctional process of constitutional amendment review that the state Supreme Court oversees.
Bart Hester represents roughly 90,000 citizens of northwest Arkansas in the state Senate.