The Journal of the Arkansas Medical Society Issue 6 Volume 115

WHAT HAVE WE DONE FOR YOU LATELY? Issue 1 Lost … for Now DAVID WROTEN EXECUTIVE VICE PRESIDENT B y a 6-1 vote in Martin v. Humphrey, the Arkansas Supreme Court affirmed the circuit court’s decision that Issue No. 1 violated Art. 19, Sec. 22’s separate-vote requirement and its three-amendment per election limitation. The Su- preme Court’s ruling means that while Issue No. 1 will appear on the ballot, the Secretary of State is prohibited from counting the votes. I could spend a couple of pages explaining the Court’s decision but suffice it to say, the Court did not want this amendment considered by the voters of Arkansas. They then sought to find a way to reach that conclusion even if it meant jeopardizing past legislatively referred amendments that are now part of the Arkansas Constitution. The Court’s ruling focused solely on Section 1, which proposed a limit on contingent attorneys’ fee agreements. They decided that this provision was completely unrelated to the other three provisions. Then they held that there was no “general subject” to which all four sections were reasonably germane. The result then would be that Issue 1’s four sections constituted four separate amendments. The legisla- ture is only authorized to submit three amendments. The test they used came from a California case, but that test did not require any sort of interrelation- ship between any of the sections. In effect, the Su- preme Court’s decision changes the rule to require that each section of a proposed amendment “sup- port, develop, clarify, or otherwise aid the function” of the other sections of the proposed amendment. This is contrary to how every other legislatively referred amendment has been judged. It also means that any referred amendment with more than one section is subject to legal challenge. The best way I know to explain this is to simply quote Judge Shawn Womack, the lone justice who supported our position. In his dissent, he argued that “the proposed amendment easily satisfies” the constitutional requirement, “either under a literal reading of the text or under the test set out by the majority.” He stated that “the majority has imposed a much stricter standard in this case than in either Forrester or Brockelhurst [a previous case in which the Supreme Court considered an Art. 19, Sec. 22 argument].” He also pointed out that many existing amendments could not pass the majority’s test, in- cluding Amendment 80, which is the “modern foun- dation of the Arkansas Judiciary” but “never would have survived a challenge in front of this court if we were to use the standard as applied here by the majority.” Justice Womack concluded by stating, “in summary, the majority has used an extraconstitu- tional, judicially created test, imported from Califor- nia, to stop the people of Arkansas from exercising their public policy making power to either accept or reject a change proposed by their elected senators and representatives.” Why did we not see this coming? I’ve been asked that. The simple reason is that it has never happened before. Many other legislatively re- ferred amendments have had multiple sections and have not been thrown off the ballot because of it. It is only necessary that the sections be somewhat related, which the four sections of is- sue 1 certainly are. Amendment 80, mentioned by Justice Womack, is a perfect example. It con- tained multiple parts and made changes to the entire Arkansas judicial system. What this means is that future referred amend- ments will now be subject to legal challenge if they contain more than one moving part. For example, we might be able to file an amendment that only implemented caps on non-economic damages. Now there’s a thought. The AMS would like to extend a debt of grati- tude to the hundreds of physicians who supported this campaign; the county medical societies, the specialty societies; and our professional liability companies – particularly our partner, SVMIC. Your contributions, time and energies are deeply appre- ciated. It is extremely disappointing that Arkansas voters were deprived of the opportunity to vote on this issue. 124 • THE JOURNAL OF THE ARKANSAS MEDICAL SOCIETY David Wroten Executive Vice President Penny Henderson Executive Assistant Journal Advertising Nicole Richards Managing Editor Jeremy Henderson Art Director EDITORIAL BOARD Appathurai Balamurugan, MD, DrPH, MPH Family Medicine/Public Health Tim Paden, MD Family Medicine Sandra Johnson, MD Dermatology Issam Makhoul, MD Oncology Naveen Patil, MD, MHSA, MA, FIDSA Internal Medicine/Infectious Disease Benjamin Tharian, MD, MRCP, FACP, FRACP Gastroenterologist/Hepatologist Robert Zimmerman, MD Urology Tobias Vancil, MD Internal Medicine Darrell Over, MD Family Medicine EDITOR EMERITUS Alfred Kahn Jr., MD (1916-2013) ARKANSAS MEDICAL SOCIETY 2018-2019 OFFICERS Lee Archer, MD, Little Rock President Amy Cahill, MD, Pine Bluff Immediate Past President Dennis Yelvington, MD, Stuttgart President Elect Chad Rodgers, MD, Little Rock Vice President George Conner, MD, Forrest City Secretary Bradley Bibb, MD, Jonesboro Treasurer Eugene Shelby, MD, Hot Springs Speaker of the House of Delegates Jim Ingram, MD, Little Rock Vice Speaker of the House of Delegates Danny Wilkerson, MD, Little Rock Chairman of the Board of Trustees VOLUME 115

The Journal of the Arkansas Medical Society Issue 6 Volume 115 | Page 4