Cite as 2015 Ark. 474
SUPREME COURT OF ARKANSAS No. CV-15-988
NATHANIEL SMITH, MD, MPH, Opinion Delivered December 10, 2015 DIRECTOR OF THE ARKANSAS DEPARTMENT OF HEALTH, IN HIS PETITION FOR EMERGENCY STAY OFFICIAL CAPACITY, AND HIS GRANTED IN PART AND DENIED SUCCESSORS IN OFFICE IN PART; MOTION FOR PETITIONER EXPANSION OF PAGE LIMIT GRANTED. V.
MARISA N. PAVAN AND TERRAH D. PAVAN, INDIVIDUALLY AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF T.R.P., A MINOR CHILD; LEIGH D.W. JACOBS AND JANA S. JACOBS, INDIVIDUALLY AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF F.D.J., A MINOR CHILD; AND COURTNEY M. KASSEL AND KELLY L. SCOTT, INDIVIDUALLY AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF A.G.S., A MINOR CHILD RESPONDENTS
PER CURIAM
Nathaniel Smith, M.D., in his official capacity as Director of the Arkansas Department
of Health, has petitioned this court for an emergency stay of an order entered by the Pulaski
County Circuit Court, Sixth Division. Petitioner requests that the order be stayed pending
an appeal to this court. We grant the petition in part and deny the petition in part. Cite as 2015 Ark. 474
Respondents, who are the plaintiffs in the lower-court action, are three female same-
sex married couples and their children. One spouse in each married couple gave birth to a
child. When the Department of Health declined to issue a birth certificate with both spouses
listed as parents, respondents filed suit in circuit court seeking a declaration that petitioner’s
refusal to issue a birth certificate with both spouses listed violated their constitutional rights,
as well as a declaration that certain statutory provisions were unconstitutional. Respondents
also sought to enjoin enforcement of petitioner’s policy against naming both spouses on the
birth certificate under these circumstances and an order requiring petitioner to issue corrected
birth certificates naming both spouses.
Petitioner answered the complaint and filed a motion for summary judgment.
Respondents filed a competing motion for summary judgment. At the conclusion of a
hearing on the motions for summary judgment on November 23, 2015, the circuit court
announced its intention to order the Department of Health to amend the birth certificates of
the child-plaintiffs. No oral ruling was made as to the other claims. Prior to the entry of a
written order, petitioner requested a stay pending appeal. On December 1, 2015, the circuit
court entered both an order and a memorandum opinion. In those documents, the circuit
court ordered petitioner to issue amended birth certificates to respondents, declared portions
of Arkansas Code Annotated section 20-18-401 (Repl. 2014) unconstitutional, and imposed
a specific definition of a phrase used in Arkansas Code Annotated section 20-18-406 (Repl.
2 Cite as 2015 Ark. 474
2014).1 The circuit court also denied petitioner’s motion for a stay. Petitioner has filed a
notice of appeal from the order.
Rule 8 of the Arkansas Rules of Appellate Procedure–Civil grants this court, by
implication, the discretion to stay a lower-court judgment pending appeal. See Smith v.
Denton, 313 Ark. 463, 855 S.W.2d 322 (1993). Our consideration of a request for a stay
includes preservation of the status quo ante, if possible, and the prejudicial effect of the passage
of time necessary to consider the appeal. Id. Also, in deciding whether to grant this petition
for emergency stay, we are guided by four factors: (1) petitioner’s likelihood of success on the
merits; (2) the likelihood of irreparable harm to the petitioner absent a stay; (3) whether the
grant of the stay will substantially injure the other parties interested in the proceeding; and (4)
where the public interest lies. See Hilton v. Braunskill, 481 U.S. 770 (1987).
The named plaintiffs either have already received or will receive the individual relief
they have requested, so a stay would not prejudice them. Also, the issues presented are
complex, with portions of a statute being struck and substantial additions being made to a
1 Specifically, the circuit court struck subsections (e) and (f) of Arkansas Code Annotated section 20-18-401 and required that the phrase “person has been legitimated” as used in Arkansas Code Annotated section 20-18-406 be defined “to include the minor child of any couple—same sex or opposite sex—who married subsequent to the birth of the minor child, and who present proof to the Arkansas Department of Health of the date of birth of the minor child and of the date of their marriage. In the event any biological parent is listed on a birth certificate sought to be amended, a court order shall be required before an amended certificate is issued which removes such person(s) name. In the event one or both of the spouses was married to another individual at any time from the birth of the minor child forward, no amended birth certificate shall be issued absent a court order naming the current spouses as the parents of the minor child.”
3 Cite as 2015 Ark. 474
provision of the Arkansas Code by the circuit court. Substantial confusion could result if the
circuit court’s order were to remain in effect and subsequently be altered by a decision of this
court on appeal. Under these circumstances, the best course of action is to preserve the status
quo ante with regard to the statutory provisions while we consider the circuit court’s ruling.
Petitioner has indicated that he does not wish to challenge the portion of the order
requiring him to provide amended birth certificates to the named plaintiffs. Accordingly, we
deny the petition for emergency stay as to the portions of the order and memorandum
opinion ordering petitioner to provide amended birth certificates to respondents. We grant
the petition for emergency stay as to the remainder of the order and memorandum opinion.
We also grant petitioner’s motion for expansion of page limit.
We note that the circuit court’s order and memorandum opinion contain inappropriate
remarks. We do not address those remarks at this time. Instead, we will address them
following our receipt of the entire record on appeal.
Petition for emergency stay granted in part and denied in part; motion for expansion
of page limit granted.
WOOD, J., concurs in part and dissents in part.
DANIELSON, J., dissents.
RHONDA K. WOOD, JUSTICE, concurring in part and dissenting in part. I
dissent from the majority’s decision to stay the circuit court’s order declaring portions of
Arkansas Code Annotated section 20-18-401 unconstitutional. This section relates to the
issuance of initial birth certificates. In this case, same-sex couples have asked the Department
4 Cite as 2015 Ark. 474
of Health to issue birth certificates to their children, born subsequent to their union, with
both spouses’ names listed as the parents. The circuit court granted this request, and I think
this portion of the circuit court’s order should remain in place.
The factors we consider for determining the appropriateness of a stay weigh against
granting the stay. First, there is little likelihood of success on the merits to the State’s challenge
of the circuit court’s ruling on section 20-18-401. Nor will irreparable harm ensue. The State
has elected not to appeal the court’s ruling as it relates to these respondents. This suggests that,
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Cite as 2015 Ark. 474
SUPREME COURT OF ARKANSAS No. CV-15-988
NATHANIEL SMITH, MD, MPH, Opinion Delivered December 10, 2015 DIRECTOR OF THE ARKANSAS DEPARTMENT OF HEALTH, IN HIS PETITION FOR EMERGENCY STAY OFFICIAL CAPACITY, AND HIS GRANTED IN PART AND DENIED SUCCESSORS IN OFFICE IN PART; MOTION FOR PETITIONER EXPANSION OF PAGE LIMIT GRANTED. V.
MARISA N. PAVAN AND TERRAH D. PAVAN, INDIVIDUALLY AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF T.R.P., A MINOR CHILD; LEIGH D.W. JACOBS AND JANA S. JACOBS, INDIVIDUALLY AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF F.D.J., A MINOR CHILD; AND COURTNEY M. KASSEL AND KELLY L. SCOTT, INDIVIDUALLY AND AS PARENTS, NEXT FRIENDS, AND GUARDIANS OF A.G.S., A MINOR CHILD RESPONDENTS
PER CURIAM
Nathaniel Smith, M.D., in his official capacity as Director of the Arkansas Department
of Health, has petitioned this court for an emergency stay of an order entered by the Pulaski
County Circuit Court, Sixth Division. Petitioner requests that the order be stayed pending
an appeal to this court. We grant the petition in part and deny the petition in part. Cite as 2015 Ark. 474
Respondents, who are the plaintiffs in the lower-court action, are three female same-
sex married couples and their children. One spouse in each married couple gave birth to a
child. When the Department of Health declined to issue a birth certificate with both spouses
listed as parents, respondents filed suit in circuit court seeking a declaration that petitioner’s
refusal to issue a birth certificate with both spouses listed violated their constitutional rights,
as well as a declaration that certain statutory provisions were unconstitutional. Respondents
also sought to enjoin enforcement of petitioner’s policy against naming both spouses on the
birth certificate under these circumstances and an order requiring petitioner to issue corrected
birth certificates naming both spouses.
Petitioner answered the complaint and filed a motion for summary judgment.
Respondents filed a competing motion for summary judgment. At the conclusion of a
hearing on the motions for summary judgment on November 23, 2015, the circuit court
announced its intention to order the Department of Health to amend the birth certificates of
the child-plaintiffs. No oral ruling was made as to the other claims. Prior to the entry of a
written order, petitioner requested a stay pending appeal. On December 1, 2015, the circuit
court entered both an order and a memorandum opinion. In those documents, the circuit
court ordered petitioner to issue amended birth certificates to respondents, declared portions
of Arkansas Code Annotated section 20-18-401 (Repl. 2014) unconstitutional, and imposed
a specific definition of a phrase used in Arkansas Code Annotated section 20-18-406 (Repl.
2 Cite as 2015 Ark. 474
2014).1 The circuit court also denied petitioner’s motion for a stay. Petitioner has filed a
notice of appeal from the order.
Rule 8 of the Arkansas Rules of Appellate Procedure–Civil grants this court, by
implication, the discretion to stay a lower-court judgment pending appeal. See Smith v.
Denton, 313 Ark. 463, 855 S.W.2d 322 (1993). Our consideration of a request for a stay
includes preservation of the status quo ante, if possible, and the prejudicial effect of the passage
of time necessary to consider the appeal. Id. Also, in deciding whether to grant this petition
for emergency stay, we are guided by four factors: (1) petitioner’s likelihood of success on the
merits; (2) the likelihood of irreparable harm to the petitioner absent a stay; (3) whether the
grant of the stay will substantially injure the other parties interested in the proceeding; and (4)
where the public interest lies. See Hilton v. Braunskill, 481 U.S. 770 (1987).
The named plaintiffs either have already received or will receive the individual relief
they have requested, so a stay would not prejudice them. Also, the issues presented are
complex, with portions of a statute being struck and substantial additions being made to a
1 Specifically, the circuit court struck subsections (e) and (f) of Arkansas Code Annotated section 20-18-401 and required that the phrase “person has been legitimated” as used in Arkansas Code Annotated section 20-18-406 be defined “to include the minor child of any couple—same sex or opposite sex—who married subsequent to the birth of the minor child, and who present proof to the Arkansas Department of Health of the date of birth of the minor child and of the date of their marriage. In the event any biological parent is listed on a birth certificate sought to be amended, a court order shall be required before an amended certificate is issued which removes such person(s) name. In the event one or both of the spouses was married to another individual at any time from the birth of the minor child forward, no amended birth certificate shall be issued absent a court order naming the current spouses as the parents of the minor child.”
3 Cite as 2015 Ark. 474
provision of the Arkansas Code by the circuit court. Substantial confusion could result if the
circuit court’s order were to remain in effect and subsequently be altered by a decision of this
court on appeal. Under these circumstances, the best course of action is to preserve the status
quo ante with regard to the statutory provisions while we consider the circuit court’s ruling.
Petitioner has indicated that he does not wish to challenge the portion of the order
requiring him to provide amended birth certificates to the named plaintiffs. Accordingly, we
deny the petition for emergency stay as to the portions of the order and memorandum
opinion ordering petitioner to provide amended birth certificates to respondents. We grant
the petition for emergency stay as to the remainder of the order and memorandum opinion.
We also grant petitioner’s motion for expansion of page limit.
We note that the circuit court’s order and memorandum opinion contain inappropriate
remarks. We do not address those remarks at this time. Instead, we will address them
following our receipt of the entire record on appeal.
Petition for emergency stay granted in part and denied in part; motion for expansion
of page limit granted.
WOOD, J., concurs in part and dissents in part.
DANIELSON, J., dissents.
RHONDA K. WOOD, JUSTICE, concurring in part and dissenting in part. I
dissent from the majority’s decision to stay the circuit court’s order declaring portions of
Arkansas Code Annotated section 20-18-401 unconstitutional. This section relates to the
issuance of initial birth certificates. In this case, same-sex couples have asked the Department
4 Cite as 2015 Ark. 474
of Health to issue birth certificates to their children, born subsequent to their union, with
both spouses’ names listed as the parents. The circuit court granted this request, and I think
this portion of the circuit court’s order should remain in place.
The factors we consider for determining the appropriateness of a stay weigh against
granting the stay. First, there is little likelihood of success on the merits to the State’s challenge
of the circuit court’s ruling on section 20-18-401. Nor will irreparable harm ensue. The State
has elected not to appeal the court’s ruling as it relates to these respondents. This suggests that,
at a minimum, the State concedes that children born subsequent to a same-sex couple’s union
should be issued birth certificates and that there is no irreparable harm in issuing the
certificates. Next, the balance of the equities weighs in favor of all same-sex couples having
the right to have both spouses listed on the child’s birth certificate when the child was born
subsequent to that union. This is especially true because these respondents are receiving
immediate relief while, as a result of the majority’s stay, others will not. Last, the public
interest weighs in favor of recognizing children born of a lawful union so these children
receive certain benefits.
The same factors weigh in favor of staying the circuit court’s ruling regarding section
20-18-406, and on this point I agree with the majority.
PAUL E. DANIELSON, JUSTICE, dissenting. I respectfully dissent. Because it is my
opinion that Petitioner Smith has failed to demonstrate that a stay is warranted in this case,
I would deny the petition for emergency stay.
Cheryl K. Maples, for respondents.
Leslie Rutledge, Att’y Gen., by: Colin R. Jorgensen, Ass’t Att’y Gen., for appellee.