41 years of knowledge and courtroom expertise

Issue One

Protect Arkansas Families

Arkansas Supreme Court Blocks Issue 1 - The Road to Success

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For 33 years of my 43 years of practicing law, I’ve watched a very loose coalition of the State Chamber of Commerce, big nursing home owners, and liability insurance carriers pour money and lobbying efforts into protecting their profits. In a state like Arkansas, where 10% of the people have 90% of the money, this group gets away with a lot. 

The most recent evidence of that influence was the Legislature’s ill-fated effort to pass Issue 1. Issue 1 would have eliminated basic, fundamental citizen rights. Issue 1 was a proposed Constitutional Amendment that would have capped the value of human life and ended the separation of powers, among other things. It was long, misleading and unconstitutional. The end result was that it was ruled to be a violation of Article 19, Section 22 of our State Constitution by the Arkansas Supreme Court on October 18, 2018, in a lawsuit that my friend, Jeff Priebe, an expert in election and ballot title law, and I filed.

Jeff and I decided to take on the Chamber, and the nursing homes and the insurance companies because we believed in the fundamental fairness of the law. We also believed in our Supreme Court. The fact that the Supreme Court had issued a ruling that set out the Constitutional requirements for amending our Constitution just 2 years earlier on a similar issue, did not deter the proponents of Issue 1. 

We filed our lawsuit on July 12, 2018, in Pulaski county. We drew by random assignment Circuit Judge Mackie Pierce.  Judge Pierce had been on the bench for years, and before being elected, had been a private practitioner in Jacksonville, Arkansas, handling all kinds of cases. A very solid, good judge.

We had our hearing on July 26, 2018, and Judge Pierce was highly prepared. His questioning showed it.  He issued his ruling on September 6, 2018. It was detailed. It was comprehensive. It reflected the great deal of time and thought he had given to the issues.

The Chamber and the Secretary of State appealed to the Arkansas Supreme Court. We had sued the Secretary of State in his official capacity because his office is the one that certifies election results. We were required to ask for this particular form of relief under the case law.

We moved to expedite the briefing schedule. That was immediately granted as the election on November 6 was around the corner. On appeal, the loser in the court below, which was the “Arkansans for Jobs and Justice” coalition of the big corporations, had the obligation to go first. We respond, and then they have the right to file a final brief.

The Court’s decision came down on October 18, 2018, and it was a near unanimous 6-1, with Justice Shawn Womack, being the lone dissenter.  His dissent was not unexpected as in a former life as a state representative, Womack was in favor of and sponsored legislation similar to Issue 1. He did not recuse as Chief Justice John Dan Kemp had done. Instead, he stayed on the case, even though Justice Womack had criticized retired Supreme Court Justice Annabelle Tuck for her efforts in speaking out 1 to civic groups against Issue, as being too “political.”

Rather than tell you what the Court had to say about Issue 1, I’ll let you read exactly what they said, so you can see for yourself. Here are some excerpts from the decision. The only changes I have made are that I added italics to some parts, for emphasis:

A plain reading of Article 19, Section 22 provides that the General Assembly can only submit up to ‘three’ proposed amendments at a time and that the proposed amendments must be ‘submitted as to enable the electors to vote on each amendment separately.’ . . . We conclude that Issue No. 1 does not comply with Article 19, Section 22 of the Arkansas Constitution. . . . Issue No 1's current formulation is at odds with Article 19, Section 22's plain language . . . this language is a significant limitation that distinguishes the General Assembly’s ability to submit a constitutional amendment from that enjoyed by the public, and it must bear some meaning.”

“The actual text of [Issue No. 1] itself, even by a generous reading, institutes at least seven individual numerated changes or additions to the constitution that would significantly alter the status quo.”

“In short, allowing the General Assembly to submit so many changes to our constitution under the guise of a single amendment, wherein the alleged links between those proposed changes are so attenuated and tangential (or even non-existent) as they are in this specific case, would render article 19, section 22's three-amendment limitation ‘superfluous, meaningless, or inoperative.”

The significance of this decision, other than the obvious, is, as I said, that the Supreme Court had just two years previous issued an opinion and laid out a road map for the General Assembly as to how our Constitution can permissibly be amended in the case of Wilson and Casey v Martin, especially in the concurring opinions of Justice Rhonda Wood and former Justice Howard Brill.  Justice Wood and Justice Brill pointedly stated that such amendments, that affect the right to a jury trial, and that change the separation of powers, as well as the rule-making authority of the Supreme Court; whose titles were misleading, deficient and partisan, would most certainly fail, as they had in the past.

Despite this clear and unequivocal language, the General Assembly proposed Issue 1, which would have made massive changes to our 1874 State Constitution. The chief sponsors of Issue 1, then Representative, now Senator, Bob Ballinger, Senator Trent Garner, and Senator Missy Irvin, complained that Jeff and I were keeping Arkansans from voting on Issue 1. Yet, they ignored the Supreme Court’s warning, and drafted Issue 1 in such a way that it was an easy call to make. The title and the multiple sections of Issue 1 were misleading, deficient and partisan. And, they affected the right to a jury trial, changed the separation of powers, and the rule-making authority of the Court.

In the midst of this legal challenge, several legislators, lobbyists, and executives of a Medicaid health care corporation based in Missouri, which would have benefited financially from the passage of Issue 1, pleaded guilty to criminal charges constituting bribery and fraud.

So, what is the effect of all this?  Has the Legislature learned any lessons? Does it really matter in this day and age of term limits where there is consistent turnover in the Legislature, that there will be members remaining who learned the lesson? Will this mean that Constitution will be observed in future efforts by the Legislature to change it? Or, will the State Chamber of Commerce, the nursing home industry, and the insurance carriers continue to carry on business as usual, and wait for a new crop of Legislators to be elected?

As the saying goes, power corrupts and absolute power corrupts absolutely. The lesson learned is that in a democratic form of government, our vote matters. We have to be forever vigilant as nothing is ever protected unless we protect it ourselves. Stay informed. Go to fact-based, rather than opinion-based sources for information.  Don’t read or listen to sources just to affirm our “feelings” about issues. Read and listen to discussions about “facts,” and do that regularly. Only when we open ourselves up to facts, not self-serving opinions, do we have real power to affect change and to protect our rights and liberties as guaranteed by our Constitution.

Learn more about David H. Williams here.

David Williams