No. CV-16-___ IN THE ARKANSAS SUPREME COURT

COL. MIKE ROSS, RET.; MARION

HUMPHREY; JAMES BROOKS,

ADAM JEGLEY; MARTHA DEAVER;

AND THE COMMITTEE TO

PROTECT AR FAMILIES

PETITIONERS

v.

MARK MARTIN, ARKANSAS

SECRETARY OF STATE

RESPONDENT

ORIGINAL ACTION COMPLAINT

Brian G. Brooks, 94209 Brian G. Brooks, Attorney at Law, PLLC P.O. Box 605 Greenbrier, AR 72058 Telephone: (501) 733-3457 bgbrooks1@me.com

Jeff Priebe, 2001124 James, Carter & Priebe, LLP 500 Broadway, Suite 400 Little Rock, AR 72201 Telephone: (501) 372-1414 jpriebe@jamescarterlaw.com

Breean Walas, 2006077 Walas Law Firm, PLLC P.O. Box 95458 North Little Rock, AR 72190 Telephone: (501) 246-1067 breean@walaslawfirm.com

Attorneys for Petitioners

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IN THE ARKANSAS SUPREME COURT

COL. MIKE ROSS, RET.; MARION

HUMPHREY; JAMES BROOKS,

ADAM JEGLEY; MARTHA DEAVER;

AND THE COMMITTEE TO

PROTECT AR FAMILIES

PETITIONERS

v. Case No. CV-16-___

MARK MARTIN, ARKANSAS

SECRETARY OF STATE

RESPONDENT

ORIGINAL ACTION COMPLAINT

Petitioners, for their Original Action Complaint, pursuant to Article

5, § 1 of the Arkansas Constitution, as amended by Amendment 7 to the

Arkansas Constitution, state and allege as follows:

1. Petitioner Col. Mike Ross, retired, is a resident and registered

voter of the State of Arkansas.

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2. Petitioner Marion Humphrey, a retired circuit judge, is a

resident and registered voter of the State of Arkansas.

3. Petitioner James Brooks is a resident and registered voter of the

State of Arkansas.

4. Petitioner Adam Jegley is a resident and registered voter of the

State of Arkansas and is a member of The Committee to Protect AR

Families.

5. Petitioner Martha Deaver is a resident and registered voter of

the State of Arkansas and is a member of The Committee to Protect AR

Families.

6. Petitioner The Committee to Protect AR Families is a ballot

question committee as defined by Arkansas Code Annotated § 7-9-402(2).

A true and accurate copy of the Statement of Organization for the

Committee to Protect AR Families as filed with the Arkansas Ethics

Commission is attached as Exhibit 1 and incorporated.

7. Respondent Mark Martin is the duly elected, qualified, and

acting Secretary of State of the State of Arkansas.

8. On April 20, 2016, the Attorney General of the State of

Arkansas issued Opinion 2016-038, certifying the popular name and ballot

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title of a proposed initiated constitutional amendment with the popular

name “An Amendment to Limit Attorney Contingency Fees and Non-

Economic Damages in Medical Lawsuits” (hereinafter “the Amendment”).

A true and accurate copy of Opinion 2016-038 is attached as Exhibit 2 and

is incorporated.

9. On or around April 21, 2016, Health Care Access for Arkansans,

a ballot question committee (hereinafter “the Sponsor”), acting by and

through its officers, directors and/or agents, Daniel Greenberg, Chase

Dugger, and/or Dr. Stephen Canon, began collecting signatures in support

of the Amendment.

10. As sponsor of the Amendment, the Sponsor was required to

comply with and adhere to Arkansas statutory law regarding paid

canvassers, submission and certification of paid canvassers, submission of

a petition to the Arkansas Secretary of State, et al. See Save Energy Reap

Taxes v. Shaw, 374 Ark. 428, 288 S.W.3d 601 (2008).

11. The Sponsor continued collecting signatures until July 8, 2016,

when the Sponsor filed its Petition containing signatures with Respondent.

A true and accurate copy of the Receipt for Initiative Petition is attached

hereto as Exhibit 3 and incorporated.

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12. On August 5, 2016, Respondent declared that the Sponsor’s

Petition contained a sufficient number of signatures of registered voters

and certified the Amendment to appear on the General Election ballot. A

true and accurate copy of the Certification is attached as Exhibit 4 and

incorporated.

13. On August 25, 2016, Respondent informed the County Clerks in

Arkansas that the Amendment would appear on the November 2016

general election ballot and would be identified as “Issue No. 4.” See Exhibit

5.

14. This Court has jurisdiction over the parties and original and

exclusive jurisdiction pursuant to Amendment 7 and Amendment 80, §

2(D)(4) to review the sufficiency of the initiative petition containing the

Amendment.

15. This Original Action Complaint is presented in three separate

counts. Count 1 challenges the Sponsor’s failure to follow and comply with

Arkansas law on the certification of paid canvassers and the gathering of

signatures. Count 2 challenges Respondent’s certification that the Sponsor

filed the requisite number of valid signatures in order to place the

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proposed amendment on the November 2016 general election ballot. Count

3 challenges the sufficiency of the ballot title certified by Respondent.

16. As the Petition is deficient for the reasons stated herein, this

Court should enjoin the counting and/or certification of any votes cast for

the Petition and/or Issue No. 4 on the November 2016 general election

ballot.

COUNT I

FAILURE TO COMPLY WITH MANDATORY CANVASSER

CERTIFICATION LAWS

17. The Sponsor chose to employ paid canvassers to collect

signatures.

18. Because it chose to employ paid canvassers, Arkansas Code

Annotated § 7-9-601(b) imposed on the Sponsor the following mandatory

obligations:

(1) To verify that there are no criminal offenses on record, a sponsor shall obtain, at its cost, from the Department of Arkansas State Police, a current state and federal criminal record search on every paid canvasser to be registered with the Secretary of State.

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(2) The criminal record search shall be obtained within thirty (30) days prior to the registration of the paid canvasser.

19. Arkansas Code Annotated § 7-9-601(b)(3) also mandated that

“[u]pon submission of its list of paid canvassers to the Secretary of State,

the sponsor shall certify to the Secretary of State that each paid canvasser

in its employ has passed a criminal background search in accordance with

this section.” (emphasis added)

20. Arkansas Code Annotated § 7-9-601(b)(5) also provides that

“[s]ignatures incorrectly obtained or submitted under this section shall not

be counted by the Secretary of State.” (emphasis added).

21. The communications between the Sponsor and Respondent,

including communications from Daniel Greenberg, Chase Dugger, and/or

Dr. Stephen Canon, show that Sponsor did not provide any certification

that any of its paid canvassers passed a criminal background check during

the time period of April 20, 2016 and July 8, 2016..

22. In addition, upon information and belief, at no time did the

Sponsor nor Daniel Greenberg, Chase Dugger, and/or Dr. Stephen Canon,

obtain at their cost a criminal record search from the Arkansas State Police

of any of its paid canvassers.

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23. The Sponsor failed to comply with the requirements of

Arkansas Code Annotated § 7-9-601(b)(1) or (b)(3); therefore, Arkansas

Code Annotated § 7-9-601(b)(5) requires that none of the signatures

submitted on July 8, 2016, should have been counted and Respondent

should have declared the Petition to be invalid.

24. Pursuant to Arkansas Code Annotated § 7-9-601(b)(5),

Respondent had no authority to accept, count, or certify the signatures

obtained by the Sponsor. Accordingly, Respondent’s certification of the

Amendment should be stricken, the Amendment should not appear on the

general election ballot, and, if the Amendment appears on the ballot, no

votes should be counted for or against the Amendment.

25. These failures also constitute material defects pursuant to

Arkansas Code Annotated § 7-9-126(b)(7) and the Petition, along with the

signatures, should not have been counted pursuant to Arkansas Code

Annotated § 7-9-126(b).

26. A Master should be appointed to hear evidence, make findings

of fact and suggest conclusions of law to the Court with respect to these

allegations.

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FAILURE TO COMPLY WITH MANDATORY FILING

REQUIREMENTS

27. Pursuant to Arkansas Code Annotated § 7-9-111(f), persons

submitting initiative petitions to Respondent’s office are required to

comply with the following:

(1) A person filing initiative or referendum petitions with the Secretary of State shall bundle the petitions by county and shall file an affidavit stating the number of petitions and the total number of signatures being filed.

(2) If signatures were obtained by paid canvassers, the

person filing the petitions under this subsection shall also submit the following:

(A) A statement identifying the paid canvassers by

name; and (B) A statement signed by the sponsor indicating that

the sponsor:

(i) Provided a copy of the most recent edition of the Secretary of State’s initiatives and referenda handbook to each paid canvasser before the paid canvasser solicited signatures; and

(ii) Explained the requirements under Arkansas law for obtaining signatures on an initiative or referendum petition to each paid canvasser before the paid canvasser solicited signatures.

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28. At the time of the July 8, 2016 filing, the Sponsor chose not to

file the affidavit required by Arkansas Code Annotated § 7-9-111(f)(1).

29. At the time of the July 8, 2016, filing, the Sponsor chose not to

file the information mandated by Arkansas Code Annotated § 7-9-111(f)(2).

30. Thus, as the Sponsor failed to comply with the requirements of

Arkansas Code Annotated § 7-9-111(f)(1) and (f)(2), none of the signatures

submitted on July 8, 2016, should have been counted and Respondent

should have declared the Petition to be invalid.

31. Based upon the Sponsor’s choice not to comply with Arkansas

Code Annotated § 7-9-111(f)(1) and (f)(2), Respondent had no authority to

accept, count or certify the signatures obtained by the Sponsor.

Accordingly, Respondent’s certification of the Amendment should be

stricken, the Amendment should not appear on the general election ballot,

and, if the Amendment appears on the ballot, no votes should be counted

for or against the Amendment.

32. These failures also constitute materials defects, pursuant to

Arkansas Code Annotated § 7-9-126(b)(7) and the Petition, along with the

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signatures, should not have been counted pursuant to Arkansas Code

Annotated § 7-9-126(b).

33. A Master should be appointed to hear evidence, make findings

of fact and suggest conclusions of law to the Court with respect to these

allegations.

COUNT II

FAILURE TO SUBMIT THE REQUISITE NUMBER OF VERIFIED

SIGNATURES

34. Pursuant to Article 5, § 1, of the Arkansas Constitution, in order

to have an initiated constitutional amendment appear on a general election

ballot, ten percent of the legal voters casting votes for of the office of

governor in the last general election ballot must sign the petition. For 2016,

that number equals 84,859 signatures of qualified electors.

35. Article 5, § 1, of the Arkansas Constitution also requires that the

petition include signatures from at least fifteen different counties and that

each county total for those fifteen counties equal at least five percent of the

total electors from that county.

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36. The petition along with the requisite signatures must be

submitted to the Arkansas Secretary of State at least four months prior to

the general election. In 2016, the filing deadline was July 8, 2016.

37. Failure to obtain the requisite signatures will result in the

measure not being placed on the ballot or, if placed on the ballot, the votes

for and against not being counted.

38. On July 8, 2016, the last day to file, the Sponsor of the

Amendment filed with the Arkansas Secretary of State a purported 131,687

signatures. See Exhibit 3.

39. After Respondent’s review of the submission, Respondent

initially culled 13,321 signatures on a mere facial review of the submission.

Respondent then refused to certify an additional 25,369 signatures during

the verification process. Respondent, via letter of August 5, 2016, informed

the Sponsor that it had determined that there were only 92,997 valid

signatures. See Exhibit 4. Thus, the Sponsor purportedly met the 10%

constitutional requirement by merely 8,138 signatures.

40. Upon further review of the signatures that were submitted, the

Sponsor’s petition contains signatures that were improperly verified and

counted. Petitioners have reviewed over 11,000 petition signature pages

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and, out of those, over 5,000 pages have apparent defects on their face. See

Exhibit 6 (listing of the petition signature pages that have been flagged).

Of these petition signature pages, over 35,000 signatures are suspect.

41. These petition pages, and the corresponding signatures, include

the following apparent defects:

a. The Sponsor failed to conduct, at its own expense, a

background check through the Arkansas State Police prior to

certain paid canvassers gathering signatures.

b. The Sponsor failed to, prior to certain paid canvassers

collecting signatures, comply with Arkansas Code

Annotated § 7-9-601.

c. The Sponsor submitted signatures collected by paid

canvassers for whom the Sponsor had failed to provide to

the Arkansas Secretary of State required information in

violation of Arkansas Code Annotated § 7-9-126(b)(3(a). See

Exhibits 7 and 8. For example, Exhibits 7 and 8 show that,

the Sponsor allowed paid canvassers to begin collecting

signatures before that individual canvasser’s information

was provided to the Respondent’s office. Thus, all signatures

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collected by such paid canvassers prior to the information

being provided to Respondent were invalid and should not

have been counted.

d. The Sponsor submitted signatures that did not comply with

the applicable law and should not have been counted

pursuant to Arkansas Code Annotated § 7-9-126(c) as the

signatures contained a material defect on their face including

but not limited to:

i. Failing to contain sufficient personal data (see Exhibit

9);

ii. Signatures from different counties on one signature

page. See Exhibit 10.; and

iii. Signatures that were dated by registered voters after

the petition part had been notarized. See Exhibit 11.

42. These signatures, collectively, exceed 8,138 signatures, and it is

clear that that additional defective signatures may be found and identified.

43. As these failures constitute material defects under Arkansas

Code Annotated § 7-9-126(b)(7), the Petition along with the aforementioned

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signatures should not have been counted pursuant to Arkansas Code

Annotated § 7-9-126(b).

44. If the aforementioned signatures would not have been counted

and/or verified, the Sponsor would have failed to meet the requisite 84,859

signatures and Respondent should have rejected the Petition and

signatures.

45. A Master should be appointed to hear evidence, make findings

of fact and suggest conclusions of law to the Court with respect to these

allegations.

COUNT III

THE AMENDMENT’S BALLOT TITLE IS INSUFFICIENT

46. The complete Ballot Title of the Amendment is as follows:

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

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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. 47. The complete text of the Amendment is attached hereto as

Exhibit 2 and incorporated fully herein.

48. While the ballot title provides some limited information to

voters, the ballot title is deficient because it is materially misleading and it

fails to convey an intelligible idea of the scope and impact of the

Amendment.

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49. The Amendment and its Ballot Title are materially misleading

as they incorrectly and improperly state that the Amendment “does not

supersede or amend the right to trial by jury” when it clearly and severely

supersedes and amends a jury’s ability to award appropriate damages. By

its own terms it takes away a person’s constitutional right to have a jury of

local citizens award damages that the jury deems appropriate. The

implication to voters is that the Amendment leaves in place a local jury’s

ability to assess damages irrespective of what limitations are put in place

by the General Assembly when it does just the opposite.

50. In addition, the Popular Name “An Amendment to Limit

Attorney Contingency Fees and Non-Economic Damages in Medical

Lawsuits” is replete with partisan coloring in order to appeal to voters. By

including references to limits to attorney contingency fees, this proposed

Amendment seeks to hide the taking of the constitutional right to a jury

provided by Article 2, section 7 of the Arkansas Constitution and the

Seventh Amendment to the United States Constitution. The Sponsor’s use

of this partisan and colorful wording hides the true intent to this

amendment, which is to limit the amount that may be recovered for

personal injury or death.

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51. The Amendment and its Ballot Title are also materially

misleading and/or fail to convey an intelligible idea of the scope and

impact of the Amendment for the following reasons:

a. The Ballot Title and Amendment fail to explain or define the

phrase “non-economic damages,” which is a critical term in

the Amendment and subject to varying interpretations by

voters who are given no guidance by the Popular Name,

Ballot Title or text of the Amendment. A principal purpose

of the Amendment is to require the General Assembly to

enact a limitation on non-economic damages, Section

1(b)(1)(A) and (B), yet the Amendment fails to define what

non-economic damages are.

b. Failing to explain or define the phrase “disbursements,”

which is another critical term in the Amendment. The text of

the Amendment defines the amount “recovered” for

purposes of calculating whether a contingency fee is

“excessive” by requiring “disbursements” to be deducted

from the “net sum recovered.” Section 2(B)(1)(c). The

critical term “disbursements” is never defined leaving voters

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to guess at its meaning. Notably, the Arkansas Attorney

General refused to certify another initiative in part because it

failed to define the term “disbursement,” which contributed

to the text of the measure being ambiguous. See Ark. Att’y

Gen’l Op. No. 2016-035 at 5, 6 (refusing to certify the popular

name and ballot title for an amendment regulating, among

other things, independent expenditures).

c. The Popular Name, Ballot Title and Amendment fail to

explain that the Amendment takes rule making authority

away from the Arkansas Supreme Court. Section 1 removes

from the Arkansas Supreme Court the exclusive power to

regulate through rules of pleading, practice and procedure

the practice of law in Arkansas in a significant way, namely

to regulate and define what attorney fees are reasonable and

what fees are excessive. Section 1(B)(1) and (2). It also

removes from the Arkansas Supreme Court the exclusive

power to determine the consequences for violating those

regulations. See Section 1(B)(2)(d) and (B)(3). Yet, the

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Popular Name, Ballot Title and Amendment fail to inform

the voters of this critical constitutional change.

d. The Ballot Title and Amendment fail to define the critical

term “health-care services,” a term that the defined critical

terms “health-care professional” and “health-care business”

are dependent on. Section 2(b)(2)(C) and (D). Thus, voters

are left to guess at the meaning of the term and,

consequently, the breadth of the Amendment.

e. The Ballot Title and Amendment purport only to limit

contingency fees on medical negligence cases but do so by

defining any contingency fee to be “excessive” if the fee does

not meet the requirements of the Amendment. By

constitutionally defining what contingency fee is excessive,

the Amendment precludes charging a contingency fee above

that defined in the Amendment in any sort of case. Section

1(B)(1)(a).

f. The Ballot Title and Amendment fail to inform voters that

provisions of the Amendment ostensibly directed to limiting

attorney fees in Section 1(B)(2) are in reality authorizations

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for the General Assembly to limit damages in manners

distinct from the authority elsewhere in the Amendment to

limit non-economic damages;

g. The Popular Name, Ballot Title and Amendment purport to

limit awards only in medical negligence cases, but vest

unfettered discretion to the legislature to define essentially

any action as an action for medical injury. Section

2(b)(3)(A),(B),(C). The Amendment thus allows the General

Assembly to limit fees and damages in virtually any sort of

case involving personal injury.

CONCLUSION

52. Based on the foregoing, the initial petition containing the

proposed Amendment is not entitled to be initiated, should be removed

from the general election ballot, and, if on the ballot, votes should not be

counted for or against the Amendment.

WHEREFORE, Petitioners pray that their Petition be granted in full

and the petition be declared insufficient; that Respondent be ordered to not

include the Amendment on the general election ballot for November 8,

2016, and that, if included on the ballot, that the Respondent be ordered to

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not count, canvass, or certify any ballots cast for the Amendment, and that

the Petitioners be awarded their costs and all other just and proper relief.

Respectfully submitted,

Brian G. Brooks, 94209 Brian G. Brooks, Attorney at Law, PLLC P.O. Box 605 Greenbrier, AR 72058 Telephone: (501) 733-3457 bgbrooks1@me.com Jeff Priebe, 2001124

James, Carter & Priebe, LLP 500 Broadway, Suite 400 Little Rock, AR 72201 Telephone: (501) 372-1414 jpriebe@jamescarterlaw.com

Breean Walas, 2006077 Walas Law Firm, PLLC P.O. Box 95458 North Little Rock, AR 72190 Telephone: (501) 246-1067 breean@walaslawfirm.com

Attorneys for Petitioners

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CERTIFICATE OF COMPLIANCE AND IDENTIFICATION OF PAPER DOCUMENTS

NOT IN PDF FORMAT

Case Name: Col. Mike Ross, Ret., et al, v. Mark Martin, Secretary of State Docket Number: No. CV-16-_____________ Title of Document: Original Action Complaint Certification: I hereby certify that: I have submitted and served on opposing counsel an unredacted and, if required, a redacted PDF document(s) that comply with the Rules of the Supreme Court and Court of Appeals. The PDF document(s) are identical to the corresponding parts of the paper document(s) from which they were created as filed with the court. To the best of my knowledge, information, and belief formed after scanning the PDF documents for viruses with an antivirus program, the PDF documents are free of computer viruses. A copy of this certificate has been submitted with the paper copies filed with the court and has been served on all opposing parties.

Identification of paper documents not in PDF format: NONE The following original paper documents are not in PDF format and are not included in the PDF document(s): NONE (Date)