Did the Arkansas Attorney General certify the 2016 proposed constitutional amendment limiting medical-malpractice attorney contingency fees and non-economic damages?

Plain-English summary

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

1. Capped attorney contingency fees at one-third of the net recovery. The cap would apply across settlements, arbitration awards, and judgments, and would apply regardless of the plaintiff's age or mental capacity. Workers' compensation cases were excluded.
2. Capped non-economic damages at a level to be set by the General Assembly, but in no event lower than $250,000 per health-care provider. The Supreme Court would adjust the cap every two years for inflation or deflation.
3. Defined "action for medical injury," "health-care provider," "health-care professional," "health-care business," and "medical injury" with detail intended to lock in the scope.

AG Leslie Rutledge certified the ballot title as submitted but substituted a different popular name. The opinion states that the proposed popular name was partisan and certifies: "An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits."

With that substitution, the certified version was ready for circulation under § 7-9-107. The AG attached the standard canvasser-and-signer instructions required by § 7-9-108 and the petition-fraud warnings under § 5-55-601(b).

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

Why this proposal had to be a constitutional amendment

Arkansas's existing constitution put two obstacles in the way of statutory medical-malpractice tort reform:

1. Amendment 80, § 3 gave the Supreme Court (not the legislature) the authority to "prescribe the rules of pleading, practice, and procedure for all courts," subject to a prohibition on abridging substantive rights. Capping attorney fees has been treated in some Arkansas case law as a rule of practice and procedure within the Court's exclusive lane.
2. Article 5, § 32 prohibited 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.

A statutory cap on contingency fees or non-economic damages would likely fail one or both of those obstacles. The proposed amendment addressed them head-on, carving out new authority for the General Assembly in both places, with explicit instruction that the new statutory caps would supersede conflicting Supreme Court rules in their narrow lane.

How the certified popular name and ballot title differed from the submission

The AG stated that the proposed popular name was partisan and substituted a more suitable, complete, and correct popular name. The certified popular name is "An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits."

The ballot title itself, which was substantially longer, walked the voter through the cap, the carve-out for workers' compensation, the floor on the General Assembly's cap ($250,000 per provider), the General Assembly's amendment threshold (two-thirds of each house), and the Supreme Court's biennial inflation adjustment. The AG read this as a fair summary that met the Becker v. Riviere "fair understanding" standard and certified it as written.

What this opinion contrasts with

The AG found the ballot title adequate as proposed and identified the proposed popular name as the defect requiring substitution. She certified the replacement popular name together with the ballot title under § 7-9-107.

Common questions

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

Q: What popular name did the AG certify?
A: "An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits." The opinion says the proposed popular name was partisan and certifies this replacement while certifying the ballot title as submitted.

Q: Did the AG opine on whether the amendment was a good idea? A: No. The AG was explicit: § 7-9-107 does not authorize the AG to evaluate merits. Her review covered title accuracy and the presence of any drafting ambiguities that would block summary.

Q: What was the relationship between this amendment and the Supreme Court's rule-making authority? A: The amendment would amend Amendment 80, § 3 (the source of the Supreme Court's rule-making authority) to insert a new subsection making the new fee-cap, damages-cap, and definitional provisions superior to conflicting Supreme Court rules. In effect, the people would carve a narrow lane out of the Court's general authority where the General Assembly could legislate.

Q: What does a "compelling public interest" or "substantive vs. procedural" analysis have to do with this? A: Under Amendment 80, § 3, the Supreme Court controls "rules of pleading, practice, and procedure" but cannot "abridge, enlarge or modify any substantive right." Whether a contingency-fee cap is substantive or procedural is contested in Arkansas case law. The amendment ducked the question by explicitly making the General Assembly's statutory caps superior in this narrow area, so the Court's substantive-versus-procedural framework would not block the cap.

Citations and references

Statutes and constitutional provisions:

• Ark. Code Ann. § 7-9-107 (Supp. 2015) (AG certification)
• Ark. Code Ann. § 7-9-107(b) (AG substitution power)
• Ark. Code Ann. § 7-9-107(c) (rejection and resubmission)
• 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)
• Ark. Const. Amend. 80, § 3 (Supreme Court rule-making authority)
• Ark. Const. art. 5, § 32 (workers' compensation and injury-damages clause)

Cases:

• Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000)
• Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950)
• Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004)
• Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980)
• Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994)
• Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)
• Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990)
• Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (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 limit attorney contingency fees and non-economic damages in medical lawsuits, and other purposes. RESPONSE: Popular name substituted and certified. Ballot title certified as submitted.

Original opinion text

This certification letter follows the standard AG format, including the full text of the proposed constitutional amendment (six sections amending Amendment 80, § 3 and article 5, § 32, and adding biennial inflation adjustments). The complete original is preserved as scraped; the substantive analysis is summarized in the sections above. See the linked landing page for the official source.

Opinion No. 2016-038
April 20, 2016
Mr. Daniel Greenberg
Attorney at Law
55 Fontenay Circle
Little Rock, AR 72223
Dear Mr. Greenberg:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed initiated measure. At the outset, I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not consider the merits of the measure when making my determination to certify or reject a popular name and ballot title. RESPONSE Applying the above precepts, it is my conclusion that the ballot title is adequate as proposed but that the popular name proposed is partisan and that a more suitable, complete, and correct popular name should be substituted for that proposed. The following is hereby certified in order to ensure that, when construed together, the popular name and ballot title accurately set forth the purpose of the proposed measure: Popular Name An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits Ballot Title An amendment to the Arkansas constitution providing that the practice of contracting for or charging excessive contingency fees in the course of legal representation of any person seeking damages in an action for medical injury against a health-care provider is hereby prohibited; providing that an excessive medical-injury contingency fee is greater than thirty-three and one-third percent (33 1/3%) of the amount recovered; providing that, for the purposes of calculating the amount recovered, the figure that shall be used is the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the medical-injury claim; providing that this limitation shall apply whether the recovery is by settlement, arbitration, or judgment; providing that this limitation shall apply regardless of the age or mental capacity of the plaintiff; providing that the prohibition of excessive medical-injury fees does not apply to workers' compensation cases; providing that the General Assembly may enact legislation which enforces this prohibition, and that it may also enact legislation that determines the relative values of time payments or periodic payments and governs the consequences and penalties for attorneys who contract for or charge excessive medical-injury contingency fees; providing that the General Assembly shall enact a measure which specifies a maximum dollar amount for a non-economic damage award in any action for medical injury against a health-care provider, but that such a measure may never be smaller than two hundred and fifty thousand dollars ($250,000); providing that the General Assembly may, after such enactment, amend it by a vote of two-thirds of each house, but that no such amendment may reduce the maximum dollar amount for a non-economic damage award in any action for medical injury against any health-care provider to less than two hundred and fifty thousand dollars ($250,000); providing that the Supreme Court shall adjust this figure for inflation or deflation on a biennial basis; and providing that this amendment does not supersede or amend the right to trial by jury. Pursuant to Ark. Code Ann. § 7-9-108, instructions to canvassers and signers must precede every petition, informing them of the privileges granted by the Arkansas Constitution and of the associated penalties for violations. Enclosed herewith are instructions that should be incorporated in your petition prior to circulation. Sincerely, LESLIE RUTLEDGE Attorney General