                                  Cite as 2016 Ark. 340

                SUPREME COURT OF ARKANSAS
                                      No.   CV-16-776

COL. MIKE ROSS, RET.; MARION                    Opinion Delivered:   October 13, 2016
HUMPHREY; JAMES BROOKS;
PATRICK ADAM JEGLEY; MARTHA
DEAVER; AND THE COMMITTEE TO
PROTECT AR FAMILIES                             AN ORIGINAL ACTION
                  PETITIONERS
V.

MARK MARTIN, ARKANSAS
SECRETARY OF STATE                              PETITIONERS’ MOTION TO STRIKE
                 RESPONDENT                     DENIED; INTERVENORS’ MOTION TO
                                                DISMISS DENIED; PETITION GRANTED.
CHASE DUGGER AND DR. STEPHEN
CANON, INDIVIDUALLY AND ON
BEHALF OF HEALTH CARE ACCESS
FOR ARKANSAS
                INTERVENORS




                      JOSEPHINE LINKER HART, Associate Justice

       This is a companion case to Wilson v. Martin, 2016 Ark. 334. Like Wilson, this case

concerns the proposed amendment to the Arkansas Constitution with the popular name: “An

Amendment to Limit Attorney Contingency Fees and Non-Economic Damages in Medical

Lawsuits.” Petitioners Col. Mike Ross, Marion Humphrey, James Brooks, Patrick Adam

Jegley, Martha Deaver, and the Committee to Protect AR Families filed an original action

in this court pursuant to article 5, section 1 of the Arkansas Constitution, as amended by

amendment 7 to the Arkansas Constitution, for an order to invalidate a proposed initiated

constitutional amendment (the amendment), either by striking it from the ballot or enjoining
                                     Cite as 2016 Ark. 340

the counting of the votes. The petition asserts three bases for relief: (I) failure to comply with

mandatory canvasser certification laws; (II) failure to submit the requisite number of verified

signatures; (III) the amendment’s ballot title is insufficient. On September 9, 2016, we

granted a motion to bifurcate this case, and appointed a special master to make findings on

counts I and II. We allowed count III, the sufficiency of the ballot title, to be submitted

directly because sufficiency of the ballot title is decided by this court as a matter of law. Cox

v. Daniels, 374 Ark. 437, 288 S.W.3d 591 (2008). This opinion, as does the Wilson opinion,

addresses the sufficiency of the ballot title (count III).

       This court has original jurisdiction of this case pursuant to Ark. Sup. Ct. R. 6-5(a)

(2014); see Richardson v. Martin, 2014 Ark. 429, 444 S.W.3d 855 . Rule 6–5(a) provides that

this court has original jurisdiction in “extraordinary actions required by law, such as suits

attacking the validity of statewide petitions filed under amendment 7 of the Arkansas

Constitution.” Richardson, supra.

       In the case before us, the petitioners argue that the amendment’s ballot title is

insufficient because (a) it contains incorrect statements with respect to altering the jury trial;

(b) it contains “partisan coloring” with respect to attorney fees; (c) it omits mention of

granting the legislature “ability to further define and expand” the reach of the fee and non-

economic damages limitation; (d) it fails to explain the fundamental shift in power; (e) it leaves

“critical” terms undefined; (f) it misleads on the reach of the fee limit; and (g) Section 1 limits

damages without so informing voters.

       On April 6, 2016, the sponsers submitted the amendment, the ballot title, and the


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popular name to the attorney general. Pursuant to her review, the attorney general modified

the popular name to read “An Amendment to Limit Attorney Contingency Fees and

Non-Economic Damages in Medical Lawsuits.” On April 20, 2016, the attorney general

modified the popular name and certified the amendment, the popular name, and the ballot

title. Canvassing commenced. After the requisite number of signatures were gathered, on

August 25, 2016, respondent Mark Martin, Arkansas Secretary of State, certified the

amendment for the November 8 general election. On September 1, 2016, the petitioners

filed this original action in this court challenging the secretary of state’s certification. On

September 30, 2016, the intervenors filed a motion to dismiss. They asserted that the petition

should be dismissed for lack of subject-matter jurisdiction because the petitioners have no

right of action and because no justiciable controversy exists. They also argue that the

petitioners lack standing. The petitioners moved to strike the motion to dismiss as untimely.

       In Wilson v. Martin, supra, this court rejected the petitioners’ motion to strike and

denied the intervenors’ motion to dismiss in which the intervenors advanced essentially the

same arguments that we have before us in this case. We likewise deny the petitioners’ motion

to strike and the intervenors’ motion to dismiss.

       We now turn to the petitioners’ argument. We recently summarized the law regarding

ballot titles in Richardson, supra.

       The applicable standard for review of ballot-title cases requires that “[b]allot titles must
       include an impartial summary of the proposed amendment that will give voters a fair
       understanding of the issues presented and of the scope and significance of the proposed
       changes in the law.” Parker v. Priest, 326 Ark. 123, 129, 930 S.W.2d 322, 325 (1996).
       The ballot title must be (1) intelligible, (2) honest, and (3) impartial. Ward v. Priest,
       350 Ark. 345, 359, 86 S.W.3d 884, 891 (2002). “However, this court is neither to

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       interpret a proposed amendment nor discuss its merits or faults.” Id. at 359, 86 S.W.3d
       at 891 (internal citations omitted). The ballot title is sufficient if it “informs the voters
       with such clarity that they can cast their ballot with a fair understanding of the issue
       presented.” Ferstl v. McCuen, 296 Ark. 504, 509, 758 S.W.2d 398, 400 (1988)
       (internal citations omitted). In addition, when reviewing a challenge to the ballot title,
       the court recognizes that amendment 7 of article 5, § 1 “places the burden upon the
       party challenging the ballot title to prove that it is misleading or insufficient.” Cox v.
       Daniels, 374 Ark. 437, 444, 288 S.W.3d 591, 595(2008) (internal citations omitted).
       Finally, we liberally construe amendment 7 in determining the sufficiency of ballot
       titles. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980).

Richardson, 2014 Ark. 429, at 8, 444 S.W.3d at 860.

       In Wilson, this court found merit in the petitioners’ argument that the ballot title of the

proposed amendment is insufficient because it fails to define the term “non-economic

damages.” In accordance with that finding, we granted the petition to enjoin the secretary of

state from counting or certifying any ballots cast for the proposed amendment at the general

election on November 8, 2016.

       The argument that we found dispositive in Wilson is essentially the same as petitioners’

argument in the case before us: the ballot title is deficient because it leaves “critical” terms

undefined. Specifically, the petitioners assert that “non-economic damages” is one of those

critical terms. Accordingly, Wilson controls, and we grant the petition to enjoin the secretary

of state from counting or certifying ballots cast for the amendment. We therefore need not

further address the petitioners’ arguments.

       Consistent with our companion case, Wilson, we likewise shorten the time for issuance

of the mandate to five days and direct that any petition for rehearing be filed within five days

from the date that this opinion is issued.

       Motion to strike denied; motion to dismiss denied; petition granted.

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       BRILL, C.J., and WOOD, J., concur.

       HOWARD W. BRILL, Chief Justice, concurring. I am concurring for the general

policy reason set forth in Wilson v. Martin, 2016 Ark. 334.

       RHONDA K. WOOD, Justice, concurring. I am concurring for the same reasons

set out in Wilson v. Martin, 2016 Ark. 334.

      Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; James, Carter & Priebe,
LLP, by: Jeff Priebe; and Walas Law Firm, PLLC, by: Breean Walas, for petitioners.

       AJ Kelly, Deputy Secretary of State & General Counsel, and Andrés Rhodes,
Associate General Counsel, for respondent.

      KUTAK ROCK LLP, by: Jess Askew III, David L. Williams, Frederick H. Davis, and
Dale W. Brown (Fayetteville); and
      Brett D. Watson, for intervenors.




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