Providing information about four proposed amendments to the Wyoming Constitution, the roster of judges standing for retention and other information for voters.
Amendments require a majority of votes cast in the election.
If you don’t vote on an amendment, it counts against the amendment.
This brochure is prepared by the League of Women Voters as a service to voters. Material does not necessarily reflect opinions of LWV. Learn more about LWV at www.lwv.org. Contact LWV/Wyoming President Debora Bush at 307-754-9627.
The following is the ballot language of Constitutional Amendment A as it will appear on the 2004 General Election ballot:
The adoption of this amendment eliminates a maximum on the amount of revenues rebated from school districts with assessed valuations exceeding statewide averages.
Senate Enrolled Joint Resolution 2, original Senate Joint Resolution 6, 2003 General Session.
Actual wording of the amendment:
Article 15, Section 17. County levy for support and maintenance of public schools.
There shall be levied each year in each county of the state a tax of not to exceed six (6) mills on the dollar of the assessed valuation of the property in each county for the support and maintenance of the public schools. This tax shall be collected by the county treasurer and disbursed among the school districts within the county as the legislature shall provide. The legislature may authorize boards of trustees of school districts to levy a special tax on the property of the district. The legislature may also provide for the distribution among one (1) or more school districts [remove: of not more than three-fourths] of any revenue from the special school district property tax. [remove: in excess of a state average yield, which shall be calculated each year, per average daily membership.]
Background
This amendment addresses unexpected results of an earlier constitutional amendment that was part of school finance reform. School districts with high property tax revenue (usually from mineral production) turn over its “excess” revenue — money that is above what the state computes they need — to help finance education in districts with low property wealth. They are called “recapture” districts, because their revenue is recaptured by the state. The earlier amendment had a provision to let recapture districts keep some of this excess revenue when it got above a certain average amount per pupil. Two school districts in Sublette County surpassed that point two years ago. Campbell County School District 1 will exceed that amount this school year. Those three districts will keep about $23 million this year, above their guaranteed amount set by the state funding formula.
Amendment A would make sure all excess revenue went to the Foundation Account to support schools across the state. It would not necessarily affect distributions to other districts. Funding is determined by a formula based on enrollment and other factors.
Pro
According to the Wyoming Supreme Court, the property wealth of Wyoming belongs to all the children, so property tax revenue must be available to finance schools across the state. The promise that wealthy districts could keep some excess revenue was supposed to ease opposition when the original recapture amendment was passed. No one intended districts to have a windfall above their funding guarantee, and that money should be in the Foundation Account. No one expected the situation that exists in Sublette and Campbell counties — extremely high revenue, relative to student enrollment.
Con
There was no organized opposition when this brochure was composed.
The following is the ballot language of Constitutional Amendment B as it will appear on the 2004 General Election ballot:
The adoption of this provision authorizes the Legislature to enact laws for local governments to use local sources of revenue for economic or industrial development subject to approval of the voters.
(House Enrolled Joint Resolution 1, original House Joint Resolution 3, 2004 Budget Session)
Actual wording of the amendment:
Article 16, Section 13. Industrial and economic development; powers of counties and municipalities.
Notwithstanding any other provision in this constitution, the legislature may authorize counties or incorporated municipalities, to appropriate from local sources of revenue such as funds as may be deemed necessary for an economic or industrial development project or program, public or private, subject to approval by a vote of the majority of the registered voters of the county or municipality voting upon the question. For purposes of this section, “funds from local sources of revenue” means funds raised from general taxes levied by the county or municipality and shall not include any funds received by the county or municipality which are derived from state or federal sources.
Background
This would add a 13th section to Article 16 of the Wyoming Constitution. The Constitution now allows public funding for public economic development. The amendment would allow voters in cities, towns and counties to authorize use of local resources to support private economic or industrial development projects. Supporters sought the amendment because of disagreement in the past over whether some proposed projects were public or private, causing inconsistent economic development efforts in the state.
Pro
The Wyoming Association of Municipalities supports Amendment B as a way for cities and towns to support themselves and for the state to gain from a stronger, diversified economy. This expanded opportunity is expected to result in more investment in economic development projects. Some projects will succeed better than others, but the net impact will be positive for the Wyoming economy. Local voters will be able to support a project — public or private — without constraint by the state. “WAM has full confidence Wyoming voters will make wise choices for investing in the economic future of their communities once Amendment B goes into effect,” WAM Executive Director George Parks said.
Con
Legislators who opposed this amendment said it was unnecessary. Rep. Ann Robinson, D-Casper, listed the following objections.
A "tort" an offense by one person toward another. In the law, it can be the basis of a lawsuit by people who claim they have been wronged and who seek damages — money — as compensation from those responsible. Sometimes lawsuits arise after a medical procedure has a bad outcome. People sue hospitals, doctors, nurses and other health care providers, claiming malpractice caused injury or death.
Some people worry these lawsuits drive up the cost of medical liability insurance, which prompts the providers to raise fees or leave their practice. The current debate about “tort reform” is about changes to medical malpractice lawsuit procedures.
Although most people agree the high medical liability insurance premiums are a problem, they disagree about the cause and the solution. There also is dispute about how dire the health care situation is in Wyoming. Some call it a “crisis,” as doctors quit their practices. Others say as many doctors are moving to the state as are leaving it, although people in remote rural areas may have trouble finding specialists nearby.
Amendment C and Amendment D represent two approaches to limiting the costs of these lawsuits to insurers and the health care industry, in hopes they would slow down the increases in insurance rates.
Article 10, Section 4 of the Wyoming Constitution says, “No law shall be enacted limiting the amount of damages to be recovered for causing the injury or death of any person.” Before any law can restrict medical malpractice lawsuits or damages, the Constitution must be changed. That is why lawmakers put these two medical liability reform amendments before the voters. They passed other laws to address health care availability, which did not require constitutional changes.
The Wyoming Legislature heard testimony about the health care situation and debated several proposals during the 2004 Budget Session. Amendment C was passed. Amendment D failed to get the two-thirds vote required for amendments. Most legislators considered the health care situation serious and urgent, so they called themselves into special session in July 2004 to consider several health care and medical liability reform proposals. Amendment D passed and is now on the ballot.
Behind medical liability reform is the belief that addressing litigation costs help make health care more affordable and more available by lowering the cost of care and preserving high-risk practices. These and other medical liability reform measures have been enacted in other states with the same intention. People debate how effective they’ve been. They do not address other sources of litigation and insurance expenses.
In 2003, legislators created the Wyoming Healthcare Commission to
gather data about and investigate possible solutions. To obtain the
report, go to the website http://www.wyominghealthcarecommission.org/reports.html
and click on White Paper (PDF format, requiring Adobe Acrobat Reader).
The following is the ballot language of Constitutional Amendment A as it will appear on the 2004 General Election ballot:
This amendment would allow the Wyoming Legislature to enact laws requiring alternative dispute resolution or medical panel review before a person files a lawsuit against a health care provider for injury or death.
House Enrolled Joint Resolution 2, original House Joint Resolution 11, 2004 Budget Session
The actual language of the proposed amendment is:
(b) Any section of this constitution to the contrary notwithstanding, for any civil action where a person alleges that a health care provider’s act or omission in the provision of health care resulted in death or injury, the legislature may by general law:
(i) Mandate alternative dispute resolution or review by a medical review panel before the filing of a civil action against the health care provider.
Background
The state had a law establishing a medical review panel like the one allowed by this amendment 15-20 years ago. The Wyoming Supreme Court declared it unconstitutional in 1988 (Hoem v State of Wyoming, 756 P.2d 780), because it imposed an extra requirement on a person who wanted to sue. However, some legislators wanted to set up the medical review panel again, as a way to reduce the time and money spent on cases.
The panel probably would include representatives from the medical and legal fields, as well as a lay person. They would review each medical malpractice lawsuit — the claims made and some of the plaintiff’s evidence — and state whether it thought there was a good basis for the lawsuit. The idea is that cases of clear malpractice probably would be settled quickly, involving payment of money by the insurance company to the plaintiff. In cases without clear merit, plaintiffs might be discouraged from going to court, although they could do so.
Pro
A medical review panel would make sure cases with “merit” (where an
injury has been caused by actual negligence of a doctor or hospital)
can move through the court system. It would identify lawsuits that
lack merit and help avoid a process that can last years, consume huge
amounts of money and take resources away from health care with no
benefit. Similar panels work well in other states. Amendment C would
give the Legislature a way to strengthen our health care system and
hold down increases in healthcare costs.
Con
Big out-of-state insurance companies say medical review panels might lower medical malpractice insurance for our doctors. But how would this panel save insurance companies money when they add another layer of expense and time to the process?
This amendment is unnecessary. Alternative dispute resolution is
available right now in personal injury cases, and the Legislature
already has the ability to require a panel review after a case is
filed.
The following is the ballot language of Constitutional Amendment D as it will appear on the 2004 General Election ballot:
This amendment would allow the Wyoming Legislature to enact laws limiting the amount of damages for non-economic loss that could be awarded for injury or death caused by a health care provider. “Non-economic loss” generally includes, but is not limited to, losses such as pain and suffering, inconvenience, mental anguish, loss of capacity for enjoyment of life, loss of consortium, and other losses the claimant is entitled to recover as damages under general law.
This amendment will not in any way affect the recovery of damages for economic loss under Wyoming law. “Economic loss” generally includes, but is not limited to, monetary losses such as past and future medical expenses, loss of past and future earnings, loss of use of property, costs of repair or replacement, the economic value of domestic services, loss of employment or business opportunities.
This amendment will not in any way affect the recovery of any additional damages known under Wyoming law as exemplary or punitive damages, which are damages allowed by law to punish a defendant and to deter persons from engaging in similar conduct in the future.
House Enrolled Joint Resolution 1, original House Joint Resolution 1003, 2004 Special Session
Actual wording of the amendment:
(b) Any section of this constitution to the contrary notwithstanding, for any civil action where a person alleges that a health care provider’s act or omission in the provision of health care resulted in death or injury, no law shall be enacted limiting the amount of damages to be recovered for economic loss. However, the Legislature may by general law limit the amount to be recovered from a health care provider for damages for non-economic loss resulting from the death or injury.
Background
The idea of “capping” the amount of non-economic damages that can be awarded in a medical malpractice trial is very controversial, concerning benefits and risks.
Many groups have taken positions on the idea of caps, but two have been particularly outspoken. Caps are supported by the medical community, their insurers and employers who provide health insurance benefits. Caps are opposed by trial attorneys, who represent people who sue others. Both sides have a personal and business stake in the outcome.
Legislators were concerned that voters understand clearly what damages could be limited under Amendment D, so they wrote the 183-word ballot language to clarify the three kinds of damages people seek in court: economic, non-economic and punitive.
The amendment would allow the Legislature to set the cap anywhere. Caps enacted in other states typically range from $250,000 to $1 million. The actual cap in Wyoming would be a separate proposal considered later by the Legislature.
The reasoning behind this proposed limit is that insurance rates are based on risk, which can be based on past experience and a prediction of future experiences. Economic damages can be figured according to evidence and formulas. Non-economic damages are less quantifiable and are not so easy to predict in any given case. Juries have great latitude to award whatever amount of money they consider fair compensation for pain and suffering and other non-economic damages. Some people think caps on non-economic damages could reduce exposure to unpredictable trial jury awards, which would better define risk, which would prompt insurance companies to slow the increase in medical liability insurance premiums. Opponents question the connection between risk and insurance rates, and they ask insurers to guarantee rates would drop if caps were put into place. Insurers do not guarantee that. Wyoming’s size and small population make comparisons to other states’ experiences somewhat difficult.
This amendment affects only malpractice lawsuits against health care providers. Malpractice litigation for other professional services would not be affected.
As with the amendment concerning medical review panels, approval by voters gives the Legislature constitutional permission to act. If the Legislature decides to limit non-economic damages, it will determine the cap and can change the amount any time.
Pro
This amendment affects only non-economic damages. Unchanged are guarantees that injured persons receive full payment and compensation for all economic damages (past and future medical bills, lost wages and other monetary loss) and punitive damages that punish defendants for intentional and outrageous acts. It leaves intact a person’s right to a jury trial and the economic damages an injured person suffered or will suffer.
Doctors will still be disciplined when their actions result in injury, and the Wyoming Insurance Commissioner will still have full regulatory authority over medical liability insurance companies and their rates in Wyoming.
Scores of doctors told the Wyoming Healthcare Commission they were retiring, leaving Wyoming or quitting high-risk practice (surgery, obstetrics, emergency room). The main reason was high liability insurance rates. Physicians say they pass rate increases on to patients and practice “defensive” medicine (extra tests and procedures), which raises costs.
Approving Amendment D will support healthy communities, strengthen
our healthcare system and hold down increases in healthcare costs.
Con
Constitutional protections of citizens’ rights to recover non-economic damages in court are very important, and these rights outweigh any benefit that might occur.
Attempts to characterize health care in Wyoming – ability to find and to afford medical services – are controversial, because people disagree about which indicators to look at and what they mean. No one keeps accurate records of licensed doctors who are actually practicing physicians, and comparison of insurance rates from state to state is difficult and complicated.
The American Medical Association has designated Wyoming a medical liability insurance “crisis state,” the only one in the Mountain West, as doctors relocate, retire or restrict services. Meanwhile, Wyoming Trial Lawyers, who represent people who file lawsuits, contend Wyoming suffers from shortages that are typical of rural areas, and doctor numbers are actually growing.
The AMA and Wyoming Medical Society say doctors are sparse in most areas, and the loss of one physician can cripple a rural community. When doctors restrict high risk practice, patients must drive farther for services — for example women in Newcastle, where three family physicians stopped delivering babies.
Here are some indicators reported by the Wyoming Healthcare Commission and the Legislative Service Office (LSO), the professional staff of the Wyoming Legislature. Find complete reports at http://www.wyominghealthcarecommission.org and http://legisweb.state.wy.us/PubResearch/research.04.htm.
• Of all Wyoming residents, 14.1 percent are uninsured. However, 94.7 percent of full-time employees have coverage. Part-time people are not covered through their employers. Young people tend to go without coverage.
• Wyoming competes most directly with surrounding states when recruiting physicians. Higher medical malpractice rates and smaller patient bases limit Wyoming’s ability to attract and retain physicians.
• According to Wyoming Insurance Department records (through December 2002) medical malpractice insurance companies have been paying out more than they charge or collect in premiums in Wyoming. The average cost of settling a claim is about $260,000.
• Research by the federal General Accounting Office concludes that states that have imposed effective caps on non-economic damages experience lower rates of increase in medical malpractice insurance premiums.
• A study by the American Enterprise Institute concludes states with effective tort reforms attract and retain larger numbers of physicians per capita than states without tort reform.
• WHCC surveyed physicians and hospitals last fall. Responses indicated obstetrics, emergency medicine and general surgery malpractice insurance rates, in particular, are becoming economically unviable in large and small communities. Some hospitals subsidize doctors’ premiums to keep these services.
• South Dakota, Nebraska and Idaho had the lowest overall medical malpractice insurance rates in 2003.
• South Dakota has a $500,000 cap on total damages. Nebraska caps total damages to $1.75 million but caps individual provider liability at $200,000 with any additional damages being paid from an excess coverage fund. Idaho has a $250,000 cap on non-economic damages and a $1 million cap on total damages.
• Thirty states have some damage cap. (Wyoming does not.)
• States in the region with mandatory arbitration or pre-trial screening: Nebraska and Idaho require pre-trial arbitration/screening panels. South Dakota has an arbitration panel that determines the existence of liability and allows time for parties to agree on damages. If parties cannot agree, the panel makes a determination. Montana and Nevada have mandatory screening. North Dakota requires good faith effort to resolve claims.
• The insurer covering most Wyoming physicians, The Doctors Company, says Wyoming physicians overall pay more for standard $1 million/$3 million coverage than counterparts in seven surrounding states. Among the 11 practice categories, Wyoming’s rates were highest in all but Emergency Medicine and General Surgery.
• In 2002 Wyoming ranked 49th among the 50 states and District of Columbia in the number of physicians per capita (178 per 100,000 residents). (Mississippi and Idaho rank 50th and 51st.)
• A survey of 23 public hospitals in Wyoming by LSO indicates the
total number of direct care physicians at 18 public hospitals increased
from 557 to 568 between January 2002 and June 2004. (No data from
public clinics, private hospitals.) Eight hospitals said 14 doctors
limited their practices during the period; four hospitals said it was
because of medical malpractice insurance rates. Some hospitals worry
about losing critical access to trauma and surgery and obstetrics and
gynecology. About 15 hospitals pay all or part of the malpractice
insurance for doctors.
Judges in Wyoming are appointed by the governor, from among three names forwarded by the Judicial Nominating Commission. The judges then “stand for retention” on the general election ballot in order to stay on the bench.
Circuit Court judges stand for retention every four years, District Court judges every six years and Supreme Court justices every eight years. None of the five Supreme Court justices is on the ballot this year.
Judges are not allowed to campaign. The Wyoming State Bar asks its members every election year to rate the performance of justices and judges on a range of characteristics. Results can be found in the October issue of the Bar’s publication, Wyoming Lawyer.
Second District Court - Laramie Jeffrey A. Donnell
Sixth District Court - Gillette Dan R. Price III
Seventh District Court - Casper Scott W. Skavdahl
Ninth District Court - Lander Norman E. Young
Circuit Court - Sheridan County J. John Sampson
Circuit Court - Big Horn, Hot Springs County Robert E. Skar
Circuit Court - Campbell County William S. Edwards
Circuit Court - Campbell County Terrill R. Tharp
Circuit Court - Crook County Fred R. Dollison
Circuit Court - Natrona County H. Steven Brown
Circuit Court - Natrona County Michael E. Huber
Circuit Court - Converse County I. Vincent Case Jr.
Circuit Court - Teton County Timothy Day
Circuit Court - Fremont County Robert B. Denhardt
Circuit Court - Sublette County John V. Crow
Composed by Marguerite Herman, LWV-Cheyenne.
Reviewed by Jean Garrison, UW Political Science.