The Arkansas Supreme Court dealt the Arkansas State Chamber of Commerce two major defeats today. 1) It upheld a lower court ruling striking Issue One, the lawsuit limit and court takeover amendment, from the ballot. 2) It declined a petition signature challenge against the proposal to raise the minimum wage.

Only Justice Shawn Womack dissented from the majority opinion on Issue One, written by Justice Jo Hart. Circuit Judge Mackie Pierce had ruled earlier that the proposal, referred by the legislature, was unconstitutional “logrolling” in that it included four separate amendments for voters on limits on legal fees and damages in lawsuits and changes in how court rules are made, taking from the Supreme Court to invest more power in the legislature. Chief Justice Dan Kemp had recused. Special Justice Stephen Tabor joined in the majority opinion. Justice Rhonda Wood wrote a separate concurrence in the appeal by Randy Zook, head of the state chamber, for a coalition of corporate interests hoping to enact the amendment.

Hart concluded on the precise ground raised in the challenge filed by retired Circuit Judge Marion Humphrey. He had argued that Article 19, Section 22 of the Constitution limits the number of amendments that may be proposed by the legislature and that the proposals must be “submitted as to enable the electors to vote on each amendment separately.” The opinion rejected Zook’s argument that the four portions of the amendment were germane. She said in part:

Without opining upon the relationship between other sections, it is simply untenable to assert that section 1 is reasonably germane to sections 3 or 4. Section 1 limits the rights of private parties to contract for legal services. Sections 3 and 4 broaden and diversify the legislature’s ability to exert influence over judicial rule-making authority. Section 1 does not operate to support, develop, clarify, or otherwise aid the function of sections 3 or 4 in any meaningful way, nor do sections 3 or 4 offer any such benefit to section 1. The first section of Issue No. 1 is simply not reasonably germane to the other sections.

The opinion concluded:


Humphrey has a right to cast a ballot only on referred constitutional amendments that meet the standards set forth by the Arkansas Constitution. Accordingly, the circuit court did not err when it issued a declaratory judgment after finding that Humphrey had proved that Issue No. 1 is unconstitutional. Furthermore, the circuit court did not abuse its discretion when, in order to enforce its finding, it issued a writ of mandamus prohibiting Secretary Martin from counting, canvassing, or certifying the votes for or against Issue No. 1.

Jeff Priebe, attorney for Humphrey, said:

Today’s decision was a win for the people of Arkansas and a win for our Constitution. Retired Judge Humphrey has been fighting for people’s rights all of his life and we congratulate and applaud him for what he has done for all Arkansans.

Millions have already been spent by groups supporting and opposing this amendment. The effort to strip the Supreme Court of rule-making authority had prompted opposition from many in the organized bar. Religious conservatives also had objected to limits on damage awards, arguing that this diminished the value of human life. Major corporations, nursing homes and medical groups pushed the measure onto the ballot.


Note: Issue One will still appear on the ballot, but its votes won’t be counted.

Justice Rhonda Wood concurred that the amendment ran afoul of constitutional limits on the number of amendments the legislature may submit, but she rejected the majority’s definition of “germaneness.” Womack, who supported so-called tort reform as a Republican senator as sponsor for Chamber of Commerce past proposals, flatly disagreed with the court finding. He said, “…the majority has used an extraconstitutional , judicially created test, imported from California, to stop the people of Arkansas from exercising their public policy making power to either accept or reject a change proposed by their elected senators and representatives.”

Zook also led a group challenging the sufficiency of signatures for the proposal to raise the minimum wage from $8.50 to $11 an hour by 2021. No justice dissented from Justice Karen Baker’s opinion. Justices Rhonda Wood and Shawn Womack joined a separate concurrence.

The challenge had contended insufficient signatures had been submitted to qualify for a 30-day “cure” period to obtain more signatures. Baker wrote:


Here, based on the record and the requirements of article 5, section 1, including the additional language from amendment 93 of 2014, the sponsor-intervenor’s petition, on its face, contained the requisite signatures of a sufficient number and is therefore entitled to the thirty‑day cure period.

The concurrence turned on a difference of opinion on a point of law.

These decisions firm up the ballot with one exception: An appeal still pends of a special master’s finding that there weren’t sufficient valid signatures to qualify a term limits amendment for the ballot. Voting will be held on the minimum wage and a voter ID measure submitted by the legislature. Rehearings of these decisions may be requested by the losers, but they are rarely granted.

Early voting begins Monday.

Arkansans for a Fair Wage cheered the news:

“It’s a great day for Arkansas voters. The Arkansas Supreme Court rightly decided to honor the will of more than 80,000 voters who petitioned to add Issue 5 to the ballot this year. Our proposal to gradually raise the minimum wage $11 an hour by 2021 will benefit 1 in 4 hard- working Arkansans,” said Kristin Foster, Campaign Manager of Arkansans for a Fair Wage. “Gradually raising the wage is overwhelmingly popular across Arkansas. It’s a common-sense solution that will put more money in the hands of hard-working families and small businesses who rely on consumer demand and boost our state’s economy. We are grateful that the Supreme Court has reaffirmed that it should be up to Arkansas voters, not the Chamber of Commerce, to decide on raising the wage in November.”

Backers of Issue One are not happy. The statement from Arkansans for Jobs and Justice:

In other words, if the lobby-controlled legislature can’t call the shots, it’s a sorry state of affairs.