Safe Surgery Arkansas, a Ballot Question Comm. v. Thurston

2019 Ark. 403

• Court: Supreme Court of Arkansas
• Decided: December 17, 2019
• Status: Published

Opinion

Cite as 2019 Ark. 403 Digitally signed by Susan P. Williams SUPREME COURT OF ARKANSAS Reason: I attest to the accuracy No. CV-19-641 and integrity of this document Date: 2021.07.13 13:44:17 -05'00' Opinion Delivered December 17, 2019

SAFE SURGERY ARKANSAS, A BALLOT QUESTION COMMITTEE AN ORIGINAL ACTION PETITION AND SPONSOR, AND LAURIE FOR WRIT OF MANDAMUS BARBER, M.D., INDIVIDUALLY AND ON BEHALF OF SAFE SURGERY ARKANSAS PETITION GRANTED IN PART; PETITIONERS DENIED IN PART.

V.

JOHN THURSTON, IN HIS OFFICIAL CAPACITY AS SUBSTITUTED OPINION. SECRETARY OF STATE RESPONDENT

STATE OF ARKANSAS INTERVENOR

ARKANSANS FOR HEALTHY EYES, A BALLOT QUESTION COMMITTEE; AND VICKI FARMER, INDIVIDUALLY AND ON BEHALF OF ARKANSAS FOR HEALTHY EYES INTERVENORS

JOSEPHINE LINKER HART, Associate Justice

Petitioners Safe Surgery Arkansas and Laurie Barber (SSA) filed in this court a

petition for a writ of mandamus against respondent John Thurston in his official capacity as

Arkansas Secretary of State (Secretary of State). Arkansans for Healthy Eyes and Vicki

Farmer (AHE) intervened. The mandamus petition seeks to compel the Secretary of State

to count signatures SSA obtained in support of a ballot petition for a referendum on Act 579 of 2019. The Secretary of State had refused to count most of the signatures, opining

that they were obtained in violation of Act 376 of 2019. Act 376 added additional

requirements for getting a referendum on the election ballot. SSA seeks to have the

signatures counted pursuant to the pre-Act 376 legal framework, advancing two arguments

in support: (1) Act 376’s emergency clause was defective, meaning the changes contained

in Act 376 did not go into effect until after SSA had already filed its ballot petition, or (2) if

Act 376’s emergency clause was effective, the substance of the act is nonetheless violative of

both the Arkansas and United States Constitutions.

Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2(a)(3).1 Because we agree

with SSA’s argument that Act 376’s emergency clause was defective, we do not reach SSA’s

arguments regarding Act 376’s constitutionality. We grant SSA’s mandamus petition insofar

as it seeks to have its referendum-related filings, including the signature pages, addressed

pursuant to the pre-Act 376 framework.

I. Legal and Factual Background

Article 5, section 1 of the Arkansas Constitution protects the people’s right to petition

for a referendum on any act of the general assembly. To get a referendum on the ballot for

statewide election, the referendum’s sponsor must, among other things, obtain signatures

from at least 6 percent of eligible voters in the state. Ark. Const. art. 5, § 1. After a proposed

referendum is placed on the ballot, if a majority of voters elect in favor of the referendum

at the election, the act in question is repealed. Id.

1 The responding parties filed a motion to dismiss, arguing that this court lacked jurisdiction. We denied the motion.

2 In the 2019 legislative session, the Arkansas General Assembly passed Act 376. Act

376 purported to change the process by which the people of this State may pursue a ballot

initiative or referendum. Relevant here is the manner and order in which a referendum

petition’s sponsor must obtain sworn statements from its paid canvassers. Since before Act

376, paid canvassers have been required to give a written statement to the petition’s sponsor,

swearing they have never been convicted of certain crimes that would disqualify them from

serving as a paid canvasser. See Ark. Code Ann. § 7-9-601(d)(3) (Repl. 2018). Act 376 adds

the requirement that the sponsor must give those statements to the Secretary of State before

the canvasser can begin collecting signatures.2 Normally, a law enacted by the legislature

becomes effective ninety days after the adjournment of the session in which the law is passed,

but Act 376 contained an emergency clause purporting to give it immediate legal effect.

Also in the 2019 legislative session, the Arkansas General Assembly passed Act 579.

Act 579 changed the law to allow optometrists to perform certain surgeries that were

previously reserved for medical doctors.

On June 14, 2019, SSA submitted to the Secretary of State a popular name and ballot

title for a proposed referendum on Act 579 to appear on the November 2020 ballot. On

July 23, 2019, SSA submitted to the Secretary of State a petition “spanning 12,570 parts,

which collectively bore at least 84,114 signatures” in support of a referendum on Act 579

being placed on the November 2020 ballot.

2 See 2019 Ark. Acts 376, § 13 (“Before a signature is solicited by a paid canvasser the sponsor shall: . . . [s]ubmit to the Secretary of State a copy of the signed statement provided by the canvasser [to the sponsor].”).

3 On August 2, 2019, the Secretary of State notified SSA of its refusal to certify a

referendum on Act 579 because the petition only contained “23,953 signatures on its face.”

The basis of this conclusion was that the sworn statements from (at least some) of SSA’s

canvassers had not been filed with the Secretary of State before those canvassers began

collecting signatures in support of the referendum.

On August 13, 2019, SSA filed in this court an original action seeking a writ of

mandamus. SSA seeks to compel the Secretary of State to address the proposed referendum

according to the pre-Act 376 legal framework. In support, it argues: (1) that Act 376’s

emergency clause was defective, and that Act 376 therefore did not become effective until

July 24, 2019—after SSA had already collected the signatures and filed its petition with the

Secretary of State; and (2) even if Act 376’s emergency clause was effective, the substance

of the act is nonetheless violative of both the Arkansas and United States Constitutions. Our

analysis of Act 376’s emergency clause controls the outcome of this matter, and we

accordingly do not reach SSA’s remaining arguments.

II. Emergency Clause

The Arkansas Constitution provides that a law may become effective immediately

only when it contains an emergency clause that states the “fact which constitutes such

emergency.” Ark. Const. art 5, § 1. But not just any alleged “fact” qualifies as an

“emergency” under the Arkansas Constitution; emergency clauses are appropriate only “[i]f

it shall be necessary for the preservation of the public peace, health and safety that a measure

shall become effective without delay[.]” Id. An emergency clause that merely recites an

“administrative truism” or an “academic declaration of a known governmental

4 requirement” does not satisfy the emergency requirement. Burroughs v. Ingram, 319 Ark.

530, 534, 893 S.W.2d 319, 321 (1995) (quoting Cunningham v. Walker, 198 Ark. 926, 932,

132 S.W.2d 24, 26 (1939)). The “test” for determining if a real emergency has been stated

is as follows:

[I]f reasonable people might disagree about whether the enunciated fact states an emergency, the clause will be upheld. However, if reasonable people would not think that the facts stated constitute an emergency, then the legislative body has acted arbitrarily and in violation of Amendment 7, and the courts will set the emergency clause aside.

Burroughs, 319 Ark. at 534 (emphasis added). In this context, we have noted that “the word

‘emergency’ in its most accepted usage means some sudden or unexpected happening that

creates a need for action.” Id. at 535.

As to the emergency clause contained in Act 376, the “facts” offered by the legislature

to satisfy the emergency requirement are as follows:

It is found and determined by the General Assembly, . . . that the provisions of this act should become effective immediately so that its provisions apply to all petitions circulated after the passage of the act to avoid confusion in petition circulation. Therefore, an emergency is declared to exist.

Act 376 of 2019, § 14 (emphasis added).

The stated basis of Act 376’s emergency clause is “to avoid confusion in petition

circulation.” At best, Act 376’s emergency clause simply declares that there is a need for

greater notice of a change in the law. Despite capable efforts by counsel to characterize its

facial language more pressingly, Act 376’s emergency clause does not satisfy article 5, section

1’s requirements; in other words, this is not an “emergency.”

It is important to note that, regardless of when a law is passed, the people are never

more than two years from visiting the ballot box where they will vote on any proposed 5 initiatives or referenda. The prospect of affording those who seek to file a ballot petition

additional notice of new requirements for that petition, especially when the people would

not be voting on any such initiatives or referenda for at least another fifteen months

(assuming that the operative date for Act 376 without an effective emergency clause is July

24, 2019), does not amount to an emergency. By the terms of the responding parties’

arguments, the only “sudden or unexpected happening” that could have created the

requisite “need for action” here would be the passage of Act 376 itself. Burroughs, 319 Ark.

at 535, 893 S.W.2d at 321. Act 376’s emergency clause is not responsive to some real-life

circumstance making immediate legislative enactment “necessary for the preservation of the

public peace, health and safety,” as contemplated by article 5, section 1 of the Arkansas

Constitution.

Without expressing any opinion on the constitutional appropriateness of the rule

changes themselves, we can readily determine that this situation does not amount to an

“emergency,” and that reasonable people could not disagree on this question. Act 376’s

emergency clause is therefore set aside.

III. Writ of Mandamus

Petitioners seek a writ of mandamus, the purpose of which is “to enforce an

established right or to enforce the performance of a duty.” See Brown v. Gibson, 2012 Ark.

285 at 2, 423 S.W.3d 34, 35. The writ is issued when (1) the duty to be compelled is

ministerial and not discretionary; (2) the petitioner has shown a clear and certain right to

the relief sought; and (3) the petitioner lacks any other adequate remedy. See generally Lonoke

6 Cnty. v. City of Lonoke, 2013 Ark. 465, at 2, 430 S.W.3d 669, 670; Parker v. Crow, 2010

Ark. 371, at 5–6, 368 S.W.3d 902, 907.

The Secretary of State’s obligation to count and verify signatures for initiatives and

referenda is a ministerial duty, dictated by the constitution and by statute. As Act 376’s

emergency clause was ineffective, the act’s new requirements were not in effect at the time

SSA filed its proposed referendum and supporting signatures. SSA has therefore shown a

clear and certain right to have its referendum filings addressed under the pre-Act 376

framework. A writ of mandamus directing the Secretary of State to address SSA’s filings

under the pre-Act 376 framework is the only adequate remedy.

Accordingly, we direct the Secretary of State to address SSA’s filings seeking a

referendum on Act 579 pursuant to the pre-Act 376 legal framework for initiatives and

referenda. We need not reach SSA’s arguments regarding Act 376’s constitutionality, and

we decline to do so. We also decline SSA’s request that we address the propriety of the

popular name and ballot title for the proposed referendum on Act 579, as well as its request

that we simply order the Secretary of State to certify the proposed referendum to the

November 2020 ballot. No party to this action has disputed the propriety of the

referendum’s popular name or ballot title, so any opinion from this court on those issues

would be advisory. Furthermore, even under the pre-Act 376 framework for initiatives and

referenda, the supporting signatures still must be reviewed by the Secretary of State before

such issues become ripe for judicial consideration, and that pre-Act 376 review process has

not yet been completed.

Petition granted in part; denied in part.

7 WOOD, J., concurs.

KEMP, C.J., and HUDSON and WOMACK, JJ., dissent.

RHONDA K. WOOD, Justice, concurring. I agree with the majority’s decision

but write separately to further address what I feel is the heart of the court’s decision. Our

constitution places limits on each branch of government. One such constitutional limit is

that the General Assembly may make an act immediately effective only if “necessary for the

preservation of public peace, health and safety.” Ark. Const. art. 5, § 1. For almost a hundred

years, this court has explained that “[i]t is not sufficient, under [article 5, section 1], for the

legislation merely to declare that an emergency exists, but it is necessary to state the fact

which constitutes such emergency.” Jumper v. McCollum, 179 Ark. 837, 839, 18 S.W.2d

359, 360 (1929).

Constitutionally, emergencies must impact the “public peace, health and safety” of

Arkansans. The dissent speculates that the General Assembly believed an emergency existed

because petitions in the upcoming election cycle needed to be governed by a single set of

rules. But Act 376’s emergency clause did not state how or why bureaucratic difficulties and

confusion in the petition-application process would impact the public peace or Arkansas

citizens’ health and safety. The constitution requires this, and we cannot impute facts or

hypothesize scenarios that are absent from the Act’s actual language.

The court’s role is to decide whether the emergency clause as written passes

constitutional muster. Absent the General Assembly providing some facts in the emergency

clause explaining what constituted an emergency to the “preservation of public peace, health

8 and safety,” we did not have facts to provide it deference, and we did not have facts on

which reasonable minds could disagree.

SHAWN A. WOMACK, Justice, dissenting. I disagree with the majority’s

conclusion that Act 376’s emergency clause is defective. A law becomes effective

immediately when it includes an emergency clause that “state[s] the fact which constitutes

such emergency.” Ark. Const. art. 5, § 1. In the emergency clause of Act 376, the General

Assembly stated the act should become effective immediately so that “its provisions apply

to all petitions circulated after the passage of the act to avoid confusion in petition

circulation.” 2019 Ark. Acts 376, § 14. The majority dismisses the emergency clause as

merely providing notice of a change in the law regarding issues people will not vote on for

at least another fifteen months. This misreads the plain language as to the purpose of the

emergency clause and imputes legislative intent that does not exist in the text. The clause is

not merely a notice about things to come in next year’s election; rather, it is a necessary

element of timing to ensure that future petitions are treated equally so that some petitions

are not governed by one set of rules while others in the same election cycle are governed

by a different set of rules and to avoid the public confusion that would derive from such a

scenario. The result of the majority’s opinion today ensures that not only are petitions for

some issues in the same cycle treated differently, but it creates a situation where various

petition documents for the same issue are subject to different legal requirements. For these

reasons, immediate application of Act 376 is necessary “for the preservation of the public

peace” as contemplated by article 5, section 1 of the Arkansas Constitution.

9 Furthermore, this court is to give great deference to legislative determinations of

whether an emergency exists. Gulledge v. Barclay, 350 Ark. 98, 103, 84 S.W.3d 850, 853

(2002). The fact that everyone may not agree that the facts stated by the legislature constitute

an emergency is not the test for determining the validity of an emergency clause; the

question is whether reasonable people might disagree. Mann v. Lowry, 227 Ark. 1132, 303

S.W.2d 889 (1957). If reasonable people do disagree, the emergency clause will be upheld.

Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995). By finding the emergency clause of

Act 376 defective, the majority is, in effect, stating that no reasonable person could believe

the act’s amendment to the initiative and referendum process––an integral part of Arkansans’

democratic participation––constitutes an emergency for which immediate effectiveness is

demanded. Such an assertion by the majority is, in my opinion, disingenuous and born of

hubris. The majority, in this 4–3 decision, is essentially saying that it alone possesses the

capacity of reasonable interpretation—not the 78 duly elected men and women of the

Arkansas House of Representative who voted for the bill, not the 26 duly elected men and

women of the Arkansas Senate who voted for the bill, and not the three dissenting justices

of the Arkansas Supreme Court.

Accordingly, I dissent.

KEMP, C.J., and HUDSON, J., join in this dissent.

Steel, Wright & Gray, PLLC, by: Alex Gray and Nate Steel; Kelly Law Firm, PLC, by:

A.J. Kelly; and Ryan Owsley, for petitioners.

10 Kutak Rock LLP, by: Jess Askew III, Ashley Hudson, Andrew King, and Frederick H.

Davis; and Dale W. Brown, for intervenors Arkansans for Healthy Eyes and Vicki Farmer.

Leslie Rutledge, Att’y Gen., by: William C. Bird III, Senior Ass’t Att’y Gen., for

intervenors.

Gary L. Sullivan and Peyton Murphy, Arkansas Secretary of State’s Office, for

respondent.

Michael A. Stokes, of counsel, American Optometric Association; and Everett Law

Firm, by: John C. Everett, for amicus curiae, American Optometric Association.