2013 mostly wet (with a dab of dry) election in the books

The Park Hill neighborhood in North Little Rock voted overwhelmingly to lift a 50-year-old ban on alcohol sales in the neighborhood. It was formerly a small pocket of dry districts in an otherwise wet county. As reported by the Arkansas Democrat-Gazette (warning: pay wall), 607 people voted wet to just 107 people who voted dry. That's 85% to 15%, for a whopping 70% margin.

Most people weren't aware of this, but districts within a wet county can call a special election on several alcohol-related topics. Individual voting districts can vote dry (or back wet, like Park Hill). 

In contrast, countywide wet-or-dry elections must take place on Election Day in November in even-numbered years. However, because the Park Hill election wasn't a countywide issue, it could be placed on the ballot during a special election after a petition drive by sponsors.

In some places, like Clark, Boone, and Madison Counties that recently voted wet, city boards and even quorum courts can call a special "mixed drink" election. The local option laws require this separate election. Voters get to decide whether restaurants can sell mixed drinks and liquor without a private club license during normal operating hours. The legislature considered removing the mixed drink special election in 2011, but it narrowly failed in the State Senate.

Private club licenses are a burden. The mixed drink election law puts businesses in places like Clark County at a disadvantage because the costs are much higher. Two examples: first, the private club license is more expensive. Second, restaurants cannot buy liquor directly from wholesalers. Third, the paperwork requirements are much higher, as private clubs require an Arkansas non-profit corporation in existence for at least a year and a roll of at least 100 members. These regulations scare many folks out of trying to serve liquor.

You may remember that Benton County voted wet in 2012. Their legislators lobbied for and received an exemption from the mixed drink election law. The new law permits counties (and towns within those counties) having more than 100 private clubs as of the November 2012 election to authorize mixed drink sales by ordinance, rather than a special election.

I understand having private club licenses if you want to stay open until 5am or have a bar in a dry county — these matters create added enforcement pressure on the Alcoholic Beverage Control Board and local cops. But simply adding different kinds of drinks to an existing restaurant that doesn't stay open terribly late creates no such burden.

Our private club laws are behind the times. Since getting rid of private clubs in 2009, even Utah (home of the Mormon Church) has more reasonable alcohol laws than we do here in Arkansas. It's time to get rid of the wet/dry two-step.

In the meantime, if you're interested in any type of wet/dry, mixed drink, or other local option election, please give me a call or check out our blog posts on the topic.

Nathan selected to Super Lawyers for 3rd straight year

Nathan was again selected as one of Super Lawyers' Rising Stars for 2013 for the third year running. Super Lawyers is a nationwide "rating service of outstanding lawyers from more than 70 practiceareas who have attained a high-degree of peer recognition andprofessional achievement. The selection process is multi-phased andincludes independent research, peer nominations and peer evaluations.

Super Lawyers magazine features the list and profiles of selectedattorneys and is distributed to attorneys in the state or region and theABA-accredited law school libraries. Super Lawyers is also published asa special section in leading city and regional magazines across thecountry."

Nathan P. Chaney

Fox News on insurance cancellations: blame insurance companies, not Obamacare

A recent opinion piece by a Fox News analyst provides some insight into the cancellation of health insurance policies as the Affordable Care Act (a/k/a Obamacare) goes into effect. He shares our view that pre-ACA, health insurers and their CEOs "made money by finding any excuse, any loophole to deny coverage to the sickest and most vulnerable people in our society." He points out that CEO pay at some of these insurers tops $36 million. We previously reported on how many health insurance company executives make more in a day than most Americans do in a year.

The Fox News analyst blames insurance companies for the cancellations, arguing that the insurers were providing inadequate care. He makes several good analogies about how regulation, including regulation of insurance companies under the ACA, make us all safer: 

You should be blaming your insurance company because they have not been providing you with coverage that meets the minimum basic standards for health care.

Let me put it more bluntly: your insurance companies have been taking advantage of you and the Affordable Care Act puts in place consumer protection and tells them to stop abusing people.

The government did not “force” insurance companies to cancel their own substandard policies.The insurance companies chose to do that rather than do what is right and bring the policies up to code. 

This would be like saying the government “forces” chemical companies to dispose of toxic waste safely rather than dumping it in the river. 

Or the government “forces” people to drive with intact windshields and working brake lights.

How dare they “force” drivers to pay money to get those things fixed if they are broken?

If you are rushed to the hospital in an ambulance, the ACA says your insurance company has to pay for the ambulance ride. 

If your son or daughter has a bout with depression or suffers from panic attacks, the ACA says your insurance company needs to pay for their medicine and treatment from a mental health professional.

People should be angry that their insurance companies were not paying for these humane, common sense benefits all along. 

It baffles me that people are directing their anger at the ACA which rights these terrible wrongs.

I think it's safe to safe that Fox News is generally regarded as a pro-business, anti-regulation news outlet. So when Fox News is accusing an industry of profiteering on the backs of ordinary Americans, you know they're doing something wrong.

Arkansas' non-partisan elections taking partisan, anti-citizen turn

We previously reported on the influence of money in supposedly non-partisan judicial elections here. That post focused on a discovery by investigators that State Farm had lied about the amount of funds it contributed to a judicial election in Illinois. State Farm contributed millions of dollars to a judicial candidate that just so happened to cast the deciding vote overturning a $1 billion verdict against the insurance company for secretly using aftermarket parts to repair vehicles.

Turn now to Arkansas. The Arkansas Chamber of Commerce, an arm of the U.S. Chamber that believes "injured people should have limited ability to sue corporations for damages in the court," is getting involved in two appeals court races in Arkansas. Other partisan money (on both sides, mind you) appears to be pouring in. The retired executive director of the Arkansas Judicial Discipline and Disability Commission explains in detail why this is a bad idea.

We've also got a page that explains why monkeying with the right to a jury trial — guaranteed by the 7th Amendment to the U.S. Constitution and by Article 2, § 7 of the Arkansas Constitution — is a bad idea for citizens.  Our current jury system in Arkansas is about local control. Local citizens serve on juries and make decisions about disputes between, most often, their fellow citizens and huge corporations. In many cases, however, corporations already hold an advantage because current rules permit them to hide their involvement.

The courts are the only place where citizens can stand as equals to major corporations. The legal reform sought by the U.S. and Arkansas Chambers of Commerce would further tip the balance of power by limiting the power of our citizens to access the court system. For this reason, we should be suspect of judicial candidates who take action showing they want money from lobbyists, because it's reasonable to believe they'll return the favor by limiting the right to a jury trial.

Lawsuit filed challenging changes to initiative laws

UPDATE 3/5/14: Judge Mary Spencer McGowan declared these new initiative laws unconstitutional. Read more here.

Several nonprofit groups are challenging a new law designed to make it harder to use the petition process to change state law, reports the Arkansas Times. As someone who's helped several groups through this process, and who's spoken with the attorneys involved in the litigation, I expected as much.

The Arkansas Constitution (at Article 5, Section 1) guarantees citizens the right to propose legislative measures, laws, and amendments to the Constitution by using the initiative process. This right is so important that it is "the first power reserved by the people." Article 5, Section 1 also says, "No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people." Finally, the Arkansas Constitution says "No law shall be passed to prohibit any person or persons from giving or receiving compensation for circulating petitions, nor to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions." This is the supreme law of Arkansas unless the people vote, in a referendum election, to change how initiative petition drives work.

Despite this right being reserved to the people, in 2013 the General Assembly passed Act 1413. This Act modified many of the laws concerning how initiatives work. It places restrictions on who can be a canvasser (a person who circulates a petition for signatures by voters); how canvassers can be compensated; and when canvassers have to register with the State. These restrictions on the rights of Arkansans to hire canvassers to assist with initiative campaigns are in direct contravention to the Arkansas Constitution.

Furthermore, the Act also invalidates all signatures on certain petition parts (individual petition pages, usually with 5-20 signature blanks) in the event any voter erroneously enters any information (such as where the voter has moved, but his or her voter registration still shows the old address). This change in law is contrary to both the Arkansas Constitution and years of court cases decided by the Arkansas Supreme Court.

The problem with all these changes (besides being contrary to the Constitution on their face) is that the new laws criminalize quite a bit of canvassing activity. For instance, a volunteer canvasser commits a Class A misdemeanor if he or she copies address information from a doctor's driver's license to the petition form (because, of course, this doctor has bad handwriting and we want his name and address to be legible!) and then the doctor signs it. A Class A misdemeanor can lead to a 1-year jail sentence and a fine up to $2,500. This is an absurd result that creates a "chilling effect" on the willingness of ordinary citizens to participate in the initiative process — the most important right reserved to the people.

I've helped several counties through the initiative process. In most of these cases, the sponsors of the petition helped update the county voter rolls by assisting voters with providing updated information during the canvassing process to the county clerk. In one instance, a county clerk was unsure of when to count certain votes, and I assisted in getting clarification for her in Attorney General Op. 2010-079. Thus, a side effect of the initiative process was the clarification of existing law.

The initiative process allows the people to speak when legislators won't speak for them. According to the Arkansas Secretary of State, initiated acts have been passed creating standards of conduct for politicians; amending worker's compensation laws; allocating tobacco settlement funds; defining marriage as between a man and a woman; prohibiting adoption by unmarried couples; establishing a scholarship lottery; amending liquor laws; and passing term limits for politicians. Our citizens pass initiated acts across the full political spectrum. This new Act by the General Assembly seeks to consolidate power with politicians by discouraging ordinary citizens from participating in what our Arkansas Constitution says is the very most important right — to change the law ourselves.