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 submitted popular name was "The Lawsuit Reform Amendment of 2016: An Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical Lawsuits." She concluded the "Lawsuit Reform" framing was partisan in tone, because it characterized the merit of the proposal (suggesting that medical-injury litigation is a problem that needs reforming) rather than describing its content. She substituted: "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 submitted popular name had two parts: "The Lawsuit Reform Amendment of 2016" and a descriptive subtitle. The AG's view was that "Lawsuit Reform" carried partisan coloring (the term implies that lawsuits as a class are problematic), bringing the popular name within Bailey v. McCuen's prohibition on language "tinged with partisan coloring." She kept the descriptive subtitle and dropped the partisan branding.

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

Compare 2016-034 (Cannabis Restoration) and 2016-035 (Lobbyist Gifts), both rejected. In both rejections, the AG identified textual ambiguities (undefined terms, internal inconsistencies, federal-law conflicts asserted as state lawfulness) so serious that no ballot title could fairly summarize the measure. Here the medical-malpractice tort-reform proposal was drafted tightly. The AG found a single defect (the "Lawsuit Reform" framing in the popular name) and used her § 7-9-107(b) substitution power to fix that one defect. The proposal could move forward.

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: Why did the AG keep the "Limit Attorney Contingency Fees" language in the popular name but drop "Lawsuit Reform"?
A: "Limit Attorney Contingency Fees" is a literal description of what the amendment does. The voter can decide whether limiting contingency fees is good or bad. "Lawsuit Reform" is a value-laden framing that characterizes the merit of the proposal. The AG's role under Bailey is to keep characterization out of the popular name; literal description is fine.

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