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Nevada secretary of state reprimanded for ballot-initiative spin.

Although a Nevada med-mal initiative made it onto the November ballot, the Center for Constitutional Litigation (CCL) ensured that it was presented without obvious bias to voters.

Reviewing proposed language describing the initiative, titled "Keep Our Doctors in Nevada" (KODIN), the state supreme court rebuked the Nevada secretary of state, Dean Heller, for putting a biased spin on the measure. After the legislature refused to adopt a wide-ranging series of extreme "reforms" modeled on California's Medical Injury Compensation Reform Act (MICRA), Nevada's doctors, hospitals, and insurers gathered enough signatures to qualify the same reforms as an initiative to be submitted to the voters for approval during the general election.

Nevada law requires the secretary of state, as the state's chief elections official, to condense and explain proposed initiatives fairly and accurately. After Heller published a summary that largely parroted the arguments advanced by KODIN's sponsors, four Nevadans asked CCL if anything could be done to block this distorted and inaccurate description from being put before the voters.

Led by CCL President Robert Peck and Senior Counsel Ned Miltenberg and assisted by leaders of the Nevada Trial Lawyers Association, CCL quickly filed an emergency petition for a writ of mandamus against the secretary in the state supreme court. They argued, among other things, that Heller had misrepresented the scope and ramifications of the doctors' initiative, including its likely costs to taxpayers.

The court directed Heller to answer the CCL petition two days after it was filed and ruled on the merits of the petition two days later. The court found his condensation and explanation of the reforms to be "facially deficient" for

* claiming the initiative would create a cap on noneconomic damages, when it actually would repeal the two exceptions that allow a trial judge to lift the cap if the facts warrant

* failing to advise voters that third-party entities--including Medicaid, private insurance, or workers' comp--would lose their subrogation rights, leading to an increased burden on Medicaid and therefore on taxpayers, which voters have a right to know

* failing to inform voters of the risks of abrogation of joint and several liability for economic damages (Nevada already abrogates joint and several liability for noneconomic damages, which imposes on the injured plaintiff the risk of nonpayment by a defendant who is judgment-proof or does not have adequate insurance).

Although the KODIN initiative remained on the ballot, Heller was compelled to re-explain it.

The November ballot asked Nevadans whether statutes "governing actions for medical or dental malpractice and damage awards [should] be amended to limit attorneys' fees and damages which a plaintiff may recover in an action regarding professional negligence." The measure passed-with 59 percent voting for it and 39 percent against--and will be signed into law. However, Nevada citizens may decide to pursue a constitutional challenge after the initiative takes effect.
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Date:Dec 1, 2004
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