Did the Arkansas Attorney General certify the 2016 proposed constitutional amendment capping non-economic and punitive damages in medical malpractice cases?

Plain-English summary

Attorney Daniel Greenberg submitted a proposed constitutional amendment for AG certification under Ark. Code Ann. § 7-9-107. The proposal would have done two main things in medical-injury cases:

1. Required the General Assembly to enact a cap on non-economic damages in civil actions for medical injury against health-care providers.
2. Required the General Assembly to enact a cap on the ratio of punitive damages to compensatory damages in civil actions for medical injury against health-care providers.

The amendment defined "health-care provider," "medical injury," and "action for medical injury." It let the General Assembly amend either cap after enactment by a two-thirds vote of each house. It clarified that it did not supersede or amend the right to trial by jury.

AG Leslie Rutledge certified the ballot title as submitted but substituted a different popular name. The submitted popular name carried the same partisan-coloring problem that the AG had flagged in Op. Att'y Gen. 2016-038 (Greenberg's similar amendment on contingency fees and non-economic damages): a value-laden framing rather than a literal description. She substituted "An Amendment to Limit Non-Economic and Punitive Damages in Civil Medical Care Cases." With that substitution, the certified version was ready for circulation.

The opinion attached the standard canvasser-and-signer instructions required by § 7-9-108 and the petition-fraud warnings under § 5-55-601(b). The opinion text included the full proposed constitutional language amending Ark. Const. art. 5, § 32 to insert the new subsection.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Two damages caps, one constitutional carve-out

The proposed amendment carved out a narrow exception to Ark. Const. art. 5, § 32, which generally prohibits the General Assembly from enacting laws "limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property" outside of workers' compensation. Without an exception, statutory damages caps in medical-injury cases would conflict with article 5, § 32. The amendment built the exception directly into article 5, § 32 and then required the General Assembly to act on it.

The substituted popular name

The AG repeated the framing she used in Op. Att'y Gen. 2016-038 (the contingency-fee amendment): a popular name that characterizes the merit of the proposal is partisan, while one that literally describes its content is not. The substituted popular name "Limit Non-Economic and Punitive Damages in Civil Medical Care Cases" is descriptive: voters reading it know exactly what the amendment does. The submitted popular name added evaluative framing that the AG found partisan.

Comparison with Op. Att'y Gen. 2016-038

Op. Att'y Gen. 2016-038, issued ten days earlier, certified the ballot title for Greenberg's medical-malpractice contingency-fee and non-economic-damages cap amendment. Both certifications followed the same pattern: the underlying drafting was clean, but the popular name needed a neutral substitution. Greenberg's drafting team was producing certifiable measures even as other 2016 amendments (cannabis-related and alcohol-related) struggled with textual ambiguities.

Common questions

Q: Did this amendment make the 2016 ballot?
A: Certification under § 7-9-107 was the first hurdle. Sponsors still had to collect signatures (10% of legal voters in the most recent gubernatorial election) and survive pre-election challenges. Whether this specific amendment qualified for the ballot is outside the scope of this opinion. The AG's role ended at certification.

Q: How does this amendment differ from Greenberg's earlier amendment (Op. Att'y Gen. 2016-038)?
A: The 2016-038 amendment combined a non-economic damages cap with an attorney contingency-fee cap. This 2016-029 amendment combined a non-economic damages cap with a punitive-damages-ratio cap. Both required the General Assembly to act through statutes that the General Assembly could amend only by a two-thirds vote of each house.

Q: Did the AG decide whether the policy was a good idea?
A: No. The AG's role under § 7-9-107 is to assess the title's accuracy and to substitute when necessary, not to evaluate the merits. The popular-name substitution rested on the framing of the title, not on the merit of the policy.

Q: Why does the AG keep substituting popular names but certifying ballot titles?
A: Popular names are shorter and easier to drift into partisan framing. Ballot titles are longer and (when well-drafted) describe content rather than characterize merit. Greenberg's drafting team wrote literal ballot titles but value-laden popular names. The AG fixed the popular names by substitution.

Q: What is the relationship between this amendment and the right to trial by jury?
A: The amendment expressly preserved the right to trial by jury. The General Assembly's statutory caps would limit damages awards but would not change who decides those cases.

Citations and references

Statutes and constitutional provisions:

• Ark. Const. art. 5, § 32 (workers' compensation and damages clause)
• Ark. Code Ann. § 7-9-107 (Supp. 2015) (AG certification)
• Ark. Code Ann. § 7-9-107(b) (substitution power)
• Ark. Code Ann. § 7-9-108 (canvasser instructions)
• Ark. Code Ann. § 5-55-601(b) (petition fraud)
• Ark. Code Ann. § 7-5-309 (voting-booth time limit)
• Ark. Code Ann. § 7-9-101 (sponsor definitions)
• Ark. Code Ann. § 7-9-103 (assistance to signers with disability)
• Ark. Code Ann. § 7-9-601 (sponsor list filing)

Cases: Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950); Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976); Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958); May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004); Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994); Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996); Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994); Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990); Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000).

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Official summary

Request for certification of the popular name and ballot title of a constitutional amendment proposed to specify maximum monetary awards for non-economic and punitive damages in civil actions for medical injury brought against a health-care provider, and other purposes. RESPONSE: Popular name substituted and certified. Ballot title certified as submitted.

Original opinion text

The full text follows the AG's standard ballot-title certification format. The complete original (which also reproduces the full text of the proposed constitutional amendment to article 5, § 32) is preserved as scraped; the substantive analysis is summarized in the sections above. See the linked landing page for the official source.

Opinion No. 2016-029
April 1, 2016
Mr. Daniel Greenberg
Attorney at Law
[Standard certification letter substituting a neutral popular name and certifying the ballot title. The text reproduces the standard certification framework (Pafford, Bailey, Roberts, Becker v. McCuen) and substitutes the popular name "An Amendment to Limit Non-Economic and Punitive Damages in Civil Medical Care Cases."]
Sincerely,
LESLIE RUTLEDGE
Attorney General