Tuesday, September 21, 2004
Copyright © Las Vegas Review-Journal

Question 3 challenged anew

Heller says state high court biased toward lawyers, who oppose measure

James Buford of Nevada Color Litho in North Las Vegas on Monday destroys ballots after a Nevada Supreme Court decision criticizing the language of Question 3. Clark County Voting Registrar Larry Lomax said that printing new ballots will cost $500,000. Photo by Craig L. Moran. Dean Heller says the Nevada Supreme Court is biased in favor of trial lawyers in the matter of Question 3. Photo by Jeff Scheid.

The future of the Keep Our Doctors in Nevada initiative, also known as Question 3, remained uncertain Monday evening as the Nevada Trial Lawyers Association again sued for its removal from the ballot.

The latest lawsuit capped a flurry of legal action that began on Saturday when the Nevada Supreme Court criticized the accuracy of the language in the ballot measure and called upon Secretary of State Dean Heller to rewrite it.

In making their order, justices agreed with a lawsuit filed by the trial lawyers association last week that the explanation did not "adequately, fairly and sufficiently describe the initiative and its ramifications" and should be changed or Question 3 removed from the ballot.

After a weekend of rewriting, Heller lashed out Monday at the high court, accusing it of bias in favor of the trial lawyers.

"I think the court is assisting the trial lawyers," said Heller, who did not include Justice Bill Maupin, who dissented from the majority opinion, in his criticism. "They are openly hostile to the medical community."

In his dissent, Maupin said election laws must be interpreted liberally to effectuate the will of the voters.

"That the editorial explanations and arguments may be misleading does not prevent the citizens of the state from reading the measure itself and obtaining information for and against it," he said.

Doctors strongly support Question 3, contending that if it passes, the cost of malpractice insurance will be lowered and fewer physicians will leave the state. Lawyers argue that passage of the the initiative would keep victims of malpractice from receiving just compensation.

Question 3 would change existing law and limit the amount of noneconomic damages that patients may recover in medical malpractice lawsuits to $350,000, with no exceptions. Current law includes the $350,000 limit but with exceptions for cases of gross negligence and in exceptional circumstances.

In its Saturday ruling, the Supreme Court wrote: "Neither the condensation nor the explanation accurately reflects that, if passed, the initiative would simply remove the two statutory exceptions to the existing $350,000 cap.

"Additionally, the explanation does not mention that third parties, such as Medicaid, private insurance or workers' compensation, would no longer be permitted to recover expenses paid on behalf of a medical malpractice victim if the measure passes," increasing the burden on taxpayers.

Late Monday, the trial lawyers association filed its latest lawsuit with the Supreme Court, demanding that the question be removed from the ballot because revised ballot language also was incorrect.

Bill Bradley, a longtime legislative lobbyist for the trial lawyers association, said Heller's new language would "make a hash out of" what Question 3 really wants to accomplish. The Supreme Court, Bradley said, should hold Heller in contempt of court.

"It is a sad day when a constitutionally elected officer of the state of Nevada criticizes the highest court in the state and accuses it of bias when in fact all the court is doing is enforcing the law," Bradley said.

The high court also blasted Heller for failing to meet an Aug. 1 deadline for approving language for ballot questions.

"Unfortunately, the secretary of state has contributed to the instant emergency," stated Justices Nancy Becker, Mark Gibbons and Mike Douglas. "First the secretary of state had a duty to accurately explain KODIN's (Committee to Keep Our Doctors in Nevada) efforts. He did not do so. Second, he had a duty to prepare his explanation and condensation by Aug. 1, if feasible. KODIN's scheduled appearance on the November 2004 ballot has been public information since June 2003; it was certainly `feasible' for the secretary to complete his explanation by Aug. 1, 2004, the statutory deadline."

In a separate opinion that agreed in part with the majority, Justice Deborah Agosti also blamed Heller, saying he "instigated the delay." But she added she disagreed with the majority that pulling the question from the ballot was an option.

"We should not expect, the parties should not expect and the public should not expect this court to peer over his shoulder and micro-manage his responsibilities," Agosti said. "We must trust him to do his job in a timely manner so the question can be presented to the voters in November."

The secretary of state said his chief deputy, Renee Parker, prepared a new 690-word explanation Sunday and sent it to county clerks and voter registrars around the state. "Now it is all a con explanation," Heller said. "It's too bad. That's what the court wants. Any reasonable person would have said our explanation was fair."

Even though the explanation had been changed, Heller correctly predicted early Monday that the trial lawyers would find something wrong and file a new lawsuit to keep the question off the ballot.

He noted he had asked the trial lawyers over the weekend for help in preparing the explanation, but they declined "because they want the question off the ballot."

"This is not the end of it," he added. "All of this is an attempt by the Supreme Court to go along with what the trial lawyers want."

Heller said he bases his argument that the court is biased in part on a call he received Sunday from Supreme Court staff. He said they were concerned he had rushed to complete a new explanation for Question 3.

"That speaks volumes," he said. "They wrote their decision not expecting us to get it done in 24 hours. They called us to complain because we are getting the question on the ballot."

He added that last week in another conference call with Supreme Court his staff could hear "Kill Question 3" being shouted in the background.

Heller said he did not put the arguments and explanations of the eight ballot questions on his Web site until Sept. 14 because until then, language for some other questions had not been completed.

Because of litigation on other ballot questions, Heller said, he did not know until a week earlier which questions would be on the ballot.

Although Question 3 language had been prepared, he decided to release it publicly at the same time as the others "so one question would not have an advantage over the others." That's because other questions on the ballot affect Question 3. Question 4, backed by the trial lawyers, would nullify Question 3 if it receives voter approval in November and again in 2006.

It calls for a 20 percent cut in insurance rates and for removal of any cap on the amount of damages people may collect in medical malpractice cases.

Monday, Clark County Voting Registrar Larry Lomax said he had finished printing almost all ballots in his county with the old language and that printing ballots with the new language will cost another $500,000. Correct ballots must be sent to Nevadans serving overseas in the military by Thursday.

Lomax will talk with county officials today and decide whether to go forward with a printing that includes the revised ballot language.

Under a new state law, committees of interested people prepared pro and con arguments and the rebuttals for the ballot questions. But Heller was directed by the law to check their arguments for accuracy and prepare the explanation.

The trial lawyers association also charged in its lawsuits that the argument on the ballot for passage of Question 3 was inaccurate, but the Supreme Court majority did not mention those points in its decision.

In a separate opinion that concurred in part with the majority, Justices Bob Rose and Miriam Shearing also said ballot arguments for Question 3 were inaccurate.

"Most of the arguments put forth by the proponents are pure hyperbole," they stated. "Many of the arguments are specious, extravagant and misleading. The secretary of state did not exercise his duty to correct the arguments."

The trial lawyers association had objected to an argument that physicians are continuing to leave Nevada at an alarming rate despite medical malpractice reforms passed by the Legislature. Statistics compiled by the Nevada State Board of Medical Examiners show that Nevada has gained physicians in every year since 1999.

Dr. Michael Colletti, president of the Clark County Medical Society, said the state high court's action proves "there should be an FBI investigation of the Supreme Court."

"We need to see how the contributions they get from trial lawyers affect their work," he said. "It's obvious who they are supporting."

Earlier this year the Progressive Leadership Alliance of Nevada issued a report "The Supreme Jackpot" that discusses how the gaming industry, lawyers and lobbyists gave 70 percent of the campaign contributions received by Supreme Court justices, with 39 percent coming from the lawyers and lobbyists. Eight of the 10 largest contributors had cases before the court, according to the PLAN report.

Among the trial lawyers contributing to justices' campaigns were Kermit Waters, Albert Massi, Edward M. Bernstein and Bradley.

"The people of Nevada will have been done a gross injustice if the trial lawyers succeed in getting Question 3 removed from the ballot," Colletti said. "Thousands of people wanted this on the ballot, and they deserve a chance to vote."

Dr. John Nowins, president of the Clark County OB-GYN Society, said trial lawyers are filing lawsuits at the last minute in an effort "to avoid a pay cut."

"That's what really is ticking them off," he said. "If Question 3 passes, they won't be making as much money."