DBTC Law Firm

Marijuana, and Casinos, and Tort Reform! Oh, my!

To add to the drama of this unprecedented election season, a side battle has been raging in Arkansas Courts with respect to three proposed amendments to the Arkansas Constitution. This battle involves attempts, through constitutional amendment, to legalize medical marijuana, legalize additional casinos and gambling, and authorize the Arkansas General Assembly to enact a specific type of medical tort reform that limits certain types of damages and limits attorney contingency fees.

Unlike many states, in Arkansas, our Constitution (Amendment 7) allows for a streamlined method for citizens to amend that Constitution by popular vote. The purpose of this process is to give “power to the people.” Citizens petition their legislators to propose amendments, citizens obtain signatures for the proposed amendments, and the Arkansas Attorney General must approve any ballot names and ballot titles prior to the proposed amendments being put to the vote of the citizenry. However, it is not a free for all. There are some limits on any attempt to amend the Arkansas Constitution by popular vote. Arkansas Chief Justice Howard Brill recently stated that “[t]he spirit of Amendment 7, which gives power to the people, requires [the Arkansas Supreme Court] to give appropriate guidance to those constituencies.” Wilson v. Martin, 2016 Ark. 334 (2016) (concurring opinion).

Which brings us back to the battle of the proposed constitutional amendments. Each proposed amendment – the medical marijuana amendment, the casino/gambling amendment, and the medical tort reform amendment – have fervent advocates as well as stiff opposition. The medical marijuana amendment drew the ire of the state Chamber of Commerce, many businesses, doctors, and even the Governor (former head of the federal Drug Enforcement Administration). Similarly, the proposed medical tort reform amendment has been aggressively challenged by the Arkansas Bar Association, the American Trial Lawyers Association, and various medical malpractice plaintiffs’ attorneys. There was also opposition to the proposed casino amendment, which created some strange bedfellows, uniting religious groups and Arkansas’s existing casinos (Oaklawn Park and Southland Gaming) in opposition to an out-of-state push to allow for expanded gambling in Arkansas.

Due to this active opposition, it was inevitable that challenges to the three proposed amendments would end up before the Arkansas Supreme Court. The cases, which were decided by the Arkansas Supreme Court on October 13, 2016, each challenged the adequacy of the respective “ballot titles.” Under Arkansas law, “[t]he ballot title must be an impartial summary of the proposed amendment, and it must give voters a fair understanding of the issues presented and the scope and significance of the proposed changes in the law.” Cox v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008). It must be complete enough to convey the scope of the amendment and be “free from misleading tendencies that, whether by amplification, omission, or fallacy, thwart a fair understanding of the issue presented.” Id. After reviewing the various ballot titles, the Arkansas Supreme Court ruled the ballot titles for the proposed casino and medical tort reform amendments were insufficient because they failed to provide voters with enough information to understand the proposed amendments and their scope. Lange v. Martin, 2016 Ark. 337 (2016); Wilson v. Martin, 2016 Ark. 334 (2016); Rose v. Martin, 2016 Ark. 339 (2016). The Court came to a different conclusion with respect to the ballot title for the proposed medical marijuana amendment, which it found to be sufficient. It made this decision in spite of the fact that the ballot title fails to specifically inform voters that the amendment prevents doctors, lawyers, and other professionals from being denied a license to practice or from being disciplined for using medical marijuana.

As you head to the polls to cast your votes in this crazy election, you can be assured that at least two of your votes will not count. The Arkansas Secretary of State is prohibited from counting any of the votes related to the proposed casino and medical tort reform amendments, even though they will appear on ballot. On the other hand, your vote either in favor or against medical marijuana will count.

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