‘Tis the season for lawsuits

By Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Every calendar year has four seasons, and so does every campaign year. There’s the filing season, when potential candidates decide to run; the primary season, when the parties choose their nominees; the general election season, which ends in November; and, tucked in its own little spot about now, is a fourth season: the lawsuit season.

Yes, ’tis the season when opponents of various voter-initiated acts and amendments try to remove them from the ballot, or at least keep their votes from being counted, by filing suit in the Arkansas Supreme Court.

This year, four initiatives have qualified for the ballot by gathering enough signatures from registered voters: a constitutional amendment that would legalize marijuana for medical use; an initiated act that would do the same, with some differences; an amendment that would limit attorney fees and jury awards for pain and suffering in medical lawsuits; and an amendment that would authorize casinos in Boone, Washington, and Miller Counties.

All four have drawn legal challenges. Generally speaking, the groups are making the same arguments that are always made about these issues: that the ballot titles are misleading, and that technical violations occurred in the signature collecting process.

These lawsuits are just part of accepted campaign strategy, so both sides know they have to budget for legal fees. The lawsuits almost always happen when issues are this controversial and when someone stands to lose something. For example, the Arkansas Bar Association has filed suit to stop the amendment that would limit attorney fees and jury awards – which, when higher, produce higher fees. The casino amendment faces a lawsuit from a group supported in part by Oaklawn Park and Southland Gaming and Racing, which don’t want the competition.

That last paragraph sounded cynical, didn’t it? Human beings have complicated motivations. For example, the Arkansas Bar Association’s unanimous opposition to the medical lawsuit amendment probably is due partly from a desire to protect an income stream, at least with some members. At the same time, attorneys have a unique appreciation for the importance of why big verdicts sometimes are needed. Moreover, the amendment is being pushed primarily by nursing homes who want to reduce losses from big jury verdicts, some of which might be based on emotion and good lawyering. Can’t blame them for that.

So now the questions go straight to the Arkansas Supreme Court, where the wheels of justice will turn more swiftly than is normal. We’re reaching mid-September. Election Day is Nov. 8. Absentee ballots must be mailed to voters no later than Oct. 14. Early voting begins Oct. 24. That means the Supreme Court must consider arguments and render decisions as soon as possible. Even if it moves quickly, it’s not unusual for the ballot to be littered with proposals that the court has ruled invalid.

At this point, I’m definitely against one of the proposals, leaning against two and wavering on one. Still, my preference is to vote, even if something passes I don’t like.

In a state whose motto is, “The people rule,” it’s probably best if the measures stay on the ballot, if they can. All four were approved – actually, partly rewritten – by the attorney general’s office to comply with state law. All four’s signatures were validated by a small army of full-time and temporary workers with the secretary of state’s office. Should four Supreme Court justices override those efforts?

Also, all four represent the kind of issue for which voters are well-suited to express their will. These aren’t questions of bureaucratic minutiae. They’re big-picture questions about values and about what this state ought to look like. Whether there should be casinos in Arkansas when surrounding states already have them has been debated around many a kitchen table. So has whether marijuana’s clear harm to many means it shouldn’t be available to those it clearly helps. Would limiting a type of jury award help doctors and nursing homes lower costs for all of us, or would they become more negligent? The voters can decide.

If the legal minds on the Supreme Court believe that real problems exist with a ballot title or signature gathering process, then yes, disqualify a proposal. It’s their job to look at the details.

But if it’s in the gray area, let’s hope the Court errs on the side of not disqualifying. In a state whose motto is “The people rule,” the presumption should be to let the people rule.

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