Tuesday, August 30, 2016

EDITORIAL >> Amendment challenged

Initiative elections are hallowed but dangerous exercises in the Arkansas democracy because voters must make monumental decisions inside a voting booth based upon little knowledge and often confusing and purposely cloudy descriptions of a proposed law written by an anonymous sponsor.

An abundance of such proposed laws will confront voters in November, including the so-called “nursing home amendment,” which will appear as Issue No. 4. The Arkansas Supreme Court may strike it from the ballot because the ballot title—a short summary of the proposal that a voter will see on the ballot—is confusing and omits big changes that the proposal would make if it is ratified and becomes a part of the Arkansas Constitution.

A group formed by the Arkansas Bar Association and a couple of citizen plaintiffs filed suit in the Arkansas Supreme Court Monday asking the court to remove Issue 4 from the ballot because a voter could not cast an informed vote based solely upon the ballot’s description. The suit lists seven pages of major changes in the law on collecting damages for harm done to people by nursing homes and other medical providers that are not made clear in the ballot title. The amendment would protect all kinds of medical providers from damage claims, from psychologists and physical therapists to veterinarians, although the ballot title doesn’t say so.

Attorney General Leslie Rutledge, who received $70,000 from nursing home magnate Michael Morton in her 2014 campaign, declared the ballot title last spring to be perfectly fit. She will defend it before the Supreme Court. Morton so far is the largest funder of the campaign to ratify the amendment, which will make it much harder for people to sue nursing homes and other health providers and sharply limit the money they could get if they sued and won. The nursing home industry, and primarily Morton, who owns about 70 homes, is bankrolling the campaign to the tune of about $330,000 so far. Nursing homes have been doing extremely well financially since Gov. Mike Huckabee, a Morton benefactor, passed a special tax for nursing homes in 2001.

Morton will be familiar to many as the financier behind the bribes to Circuit Judge Mike Maggio of Conway, which got the judge removed from the bench and convicted in federal court. Maggio admitted reducing from $5.2 million to $1 million a jury’s judgment against Morton’s nursing homes for abuse and neglect that led to the death of an elderly woman. Former state Republican Chairman Gilbert Baker of Conway arranged a series of checks from Morton to Republican Maggio’s campaign for the Court of Appeals before he slashed the jury’s verdict. Maggio first pleaded guilty to bribery and as the sentencing approached he tried to change his plea.

Someone might argue that Issue No. 4 offers the benefit of removing the incentive to bribe judges in damage suits, because the legislature will limit damages to $250,000, no matter how horrible the abuse or prolonged the suffering.

The campaign for the amendment will be aimed at greedy trial lawyers, who take the cases of poor families whose loved ones suffered abuse in a nursing home or perhaps a hospital. Trial lawyers are not popular. Under the amendment, no one could pay a lawyer more than a third of whatever judgment she or he gets. Lawyers typically take such cases on a contingency basis—they are paid a portion of the judgment only if they win—because a dead person’s family typically cannot pay them.

The Arkansas Constitution since 1874 has said that everyone is entitled to a remedy for any wrong committed against them and it prohibits the legislature from ever putting a limit on the damages that a jury can award someone for harm. But the legislature passed such a “tort reform” law anyway in 2003 and Gov. Huckabee signed it. They expected the Supreme Court to find a way to just overlook the prohibition. It didn’t, in two separate cases, in 2009 and 2011, so Issue No. 4 just removes those protections from the Constitution forever. Although you would not know it from the ballot title, the amendment strips the Supreme Court of most its traditional powers to set the rules and standards for civil damage claims and hands them to the legislature. The sponsor, and perhaps the author, of the amendment is Daniel Greenberg, a Little Rock lawyer and son of Paul Greenberg, a columnist and former editorial chief of the Arkansas Democrat Gazette, which has praised the amendment.

If the Supreme Court allows the amendment to stay on the ballot and the votes to be counted, arm yourself. The full amendment and the ballot title are easily found on the Internet. Find and study them. The amendment is longer than whole articles of the Constitution. You, your family or your neighbors may one day find yourselves on one side or the other of a tort. Don’t rely on the big ads attacking trial lawyers or the ads on the other side either.