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Brown v. Arkansas Department of Finance and Administration

United States District Court, W.D. Arkansas, Fayetteville Division

April 8, 2016

ARKANSAS DEPARTMENT OF FINANCE AND ADMINISTRATION and LORETTA TURNER, Northwest Arkansas District Manager for the Revenue Division of the Arkansas Department of Finance and Administration DEFENDANTS


Timothy L. Brooks, United States District Judge

Now before the Court are the parties’ cross-Motions for Summary Judgment: one filed by Defendants Arkansas Department of Finance and Administration (“DFA”) and Loretta Turner, who is the Northwest Arkansas District Manager for the Revenue Division of the Arkansas Department of Finance and Administration (Doc. 19), and one filed by Plaintiff Rev. Tom Brown (Doc. 47). Once the Motions were fully briefed and ripe for decision, the Court held a hearing on the Motions on April 7, 2016, at which time the parties presented oral argument and responded to questions posed by the Court. The Court then ruled from the bench that, as the parties agreed that no genuine, material issues of fact were in dispute, and the case may be decided as a matter of law, Defendants’ Motion for Summary Judgment (Doc. 19) should be GRANTED, and Rev. Brown’s Motion for Summary Judgment (Doc. 47) should be DENIED. The following Order sets forth in greater detail the reasons for the Court’s decision in favor of Defendants on summary judgment. To the extent anything in this Order differs from what was announced from the bench, this Order will control.


Rev. Brown filed his Complaint pro se on September 4, 2015 (Doc. 1), along with a Motion for Temporary Restraining Order (Doc. 3) and Motion for Immediate Emergency Hearing (Doc. 4). What prompted Rev. Brown to seek the Court’s assistance that day was an incident that occurred the previous day, September 3, 2015, at the Fayetteville office of the Revenue Division of the Arkansas Department of Finance and Administration, located at 965 South Razorback Road (“Revenue Office”). According to Rev. Brown-who is a Rastafarian minister who states he uses marijuana as part of his faith’s religious activities[1]-he was present at the Revenue Office soliciting signatures for a statewide ballot initiative called “The Arkansas Medical Cannabis Act.” Rev. Brown had been soliciting signatures for this ballot initiative since March of 2014, doing so from a table set up under a pear tree, in a grassy area located several feet from the front door of the Revenue Office and at the edge of the Revenue Office parking lot. See Doc. 60-3, pp. 5-9 (Brown Dep.). Rev. Brown ordinarily stationed himself in this spot during the Revenue Office’s normal business hours in order to talk with patrons of the Revenue Office and persuade them to sign the ballot initiative.

At some point in the afternoon on September 3rd, Defendant Loretta Turner, the District Manager of the Revenue Office, confronted Rev. Brown and informed him that the DFA had recently established a no-solicitation policy at its revenue offices, and that he would have to leave.[2] See Doc. 19-1 (Turner Aff.); Doc. 4-1 (Brown Aff.). Rev. Brown refused to leave, citing his First Amendment right to solicit ballot initiative signatures, at which point local police were called to the scene. When the police arrived, they informed Rev. Brown that if he did not cease his solicitation of signatures and leave the premises, he would be arrested. The officers provided him with an incident report at his request, and only then did Rev. Brown pack up his materials and leave.

Rev. Brown believed he was entitled to an emergency hearing on the issue of whether he could be lawfully banned from collecting signatures at the Revenue Office because, in his view, time was of the essence in collecting signatures for the ballot initiative. He claimed that he had been given a deadline of July 1, 2016, to submit 100, 000 signatures for the ballot initiative, and the Revenue Office was a prime, “invaluable” spot to collect the necessary signatures, as it was a place where county residents reported in order to renew drivers’ licenses and vehicle registrations and pay fees and taxes. (Doc. 4-1, pp. 2-3).

A few days after the Motions for Temporary Restraining Order and for Emergency Hearing were filed, the Court entered an Order (Doc. 10) denying the latter. In doing so, the Court also found that Rev. Brown had failed to establish that he would suffer immediate and irreparable injury unless the Court issued a restraining order ex parte, in light of the fact that the signatures he needed to collect were, by his own admission, due ten months later, and he was not prohibited from collecting signatures in general, at other locations. The Court then converted Rev. Brown’s Motion for Temporary Restraining Order into a Motion for Preliminary Injunction and ordered Defendants to respond to the Motion within 21 days of receiving service of process.

In response to the Court’s Order, Defendants collectively filed an Answer (Doc. 17), a Response to the Motion for Preliminary Injunction (Doc. 18), and a Motion for Summary Judgment (Doc. 19), along with a Brief in Support (Doc. 20), and Statement of Facts (Doc. 21). The Court then issued an Initial Scheduling Order (Doc. 22) and set a case management hearing for November 10, 2015. For his part, Rev. Brown hired an attorney who entered his appearance in the case on October 15, 2015, and successfully moved the Court to continue the case management hearing and grant him additional time to respond to Defendants’ Motion for Summary Judgment. Rev. Brown’s Response in Opposition to the Motion for Summary Judgment (Docs. 29, 30) was ultimately filed on November 16, 2015, and a separate Pretrial Memorandum (Doc. 34) was filed on December 3, 2015, the day of the case management hearing.

Rev. Brown became dissatisfied with his counsel’s representation and made an oral motion at the case management hearing to represent himself pro se. The Court deferred ruling on the motion and instead conducted the hearing with counsel present. The Court determined that Defendants’ Motion for Summary Judgment was premature in light of the fact that the parties had not engaged in any discovery, and the Court was well persuaded by Rev. Brown’s counsel that a short period of expedited discovery was in order before the parties would be prepared to argue both the Motion for Summary Judgment and the Motion for Preliminary Injunction. Accordingly, the Court set hearings on these two Motions, as well as an expedited discovery deadline and supplementary briefing schedule.

The rift between Rev. Brown and his counsel was never repaired following the case management hearing, and on December 9, 2015, Rev. Brown’s counsel withdrew from the case at Rev. Brown’s request. See Doc. 41. Rev. Brown once again represented himself pro se, and almost immediately filed a second Response to Defendants’ Motion for Summary Judgment (Doc. 42), which contained an argument styled as a “Counterclaim for Summary Judgment.” Upon receiving Rev. Brown’s second Response, Defendants requested clarification as to how to treat the Counterclaim for Summary Judgment, and the Court entered a text-only Order on December 21, 2015, stating that it intended to treat Rev. Brown’s second Response to the Motion for Summary Judgment as a supplement to the original Response his attorney filed on November 16, 2015 (Doc. 29), and Rev. Brown’s Counterclaim for Summary Judgment as an affirmative cross-Motion for Summary Judgment.

To further confuse the procedural posture of the case, Rev. Brown filed a separate Motion for Summary Judgment (Doc. 47) on December 22, 2015, prior to taking any discovery in the case, and despite the fact that the Court had determined that a brief period of discovery might be helpful to the parties in clarifying the facts on summary judgment. Rev. Brown’s Motion for Summary Judgment indicates that he disagreed with his former counsel as to the need for discovery in the case, as all the relevant facts necessary to grant him summary judgment were already documented in the record and not materially in dispute.[3]

The legal claims at issue in this lawsuit, which are now before the Court on summary judgment, include the following: (1) alleged violations of Rev. Brown’s constitutional rights, which specifically include his First Amendment right, as applied to the State through the Fourteenth Amendment, to freedom of speech and to petition the government;[4] (2) alleged violations of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq.; (3) alleged violations of the Arkansas Religious Freedom Restoration Act (“ARFRA”), Ark. Code Ann. § 16-123-402 et seq.; and (4) alleged violations of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. Importantly, for purposes of evaluating these claims in light of Defendants’ sovereign immunity as state actors, Rev. Brown only requests prospective injunctive relief, not money damages. Below the Court will analyze each of Rev. Brown’s claims in turn, following a brief discussion of the legal standards the Court must consider when ruling on cross-motions for summary judgment.


A party moving for summary judgment must establish both the absence of a genuine dispute of material fact and its entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat’l Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999). The same standard applies where, as here, the parties have filed cross-motions for summary judgment. When there exists no genuine issue as to any material fact, “summary judgment is a useful tool whereby needless trials may be avoided, and it should not be withheld in an appropriate case.” United States v. Porter, 581 F.2d 698, 703 (8th Cir. 1978). Each motion should be reviewed in its own right, however, with each side “entitled to the benefit of all inferences favorable to them which might reasonably be drawn from the record.” Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir. 1983); see also Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1998). In order for there to be a genuine issue of material fact, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).


A. First Amendment Violations and the Nature of the Forum at Issue

The crux of Rev. Brown’s Complaint is that the DFA and Ms. Turner in her official capacity violated his First Amendment rights when they banned him from canvassing for signatures outside the Revenue Office, a place where he had solicited signatures for The Arkansas Medical Cannabis Act since March of 2014. After receiving numerous complaints from Revenue Office patrons about Rev. Brown and other individuals who were soliciting signatures for different ballot initiatives, the DFA implemented a so-called statewide ban on all solicitation activities. Although deemed “statewide” in name, the ban was not intended to apply to every revenue office in Arkansas, but rather would be implemented only at revenue offices located on private property, rather than offices located in city- or county-owned building or courthouses, or offices adjoining public sidewalks or town squares.

The new policy was not limited to soliciting signatures for ballot initiatives. It also banned the solicitation of alms for the poor or for charity organizations, requests for contributions for political causes, all campaigning activities by those seeking elected office, and all poll-taking and survey work. See Doc. 60-1 (McHughes Aff.). In banning these activities, the DFA reasoned that doing so reasonably furthered the interests of the State in promoting or improving the daily operation, maintenance, safety, and efficiency of the revenue offices, and the ban would only apply only to those revenue offices that were situated in non-public forums.

As discussed in greater detail below, the parties agree as to the location and ownership of the forum where Rev. Brown was collecting signatures. They also agree that Rev. Brown, along with other individuals canvassing on behalf of different causes, collected signatures for ballot initiatives at this location for a number of years without facing any particular restriction on their activities. Determining who is in the right in this dispute comes down to applying the undisputed facts about the nature of the forum to the relevant law surrounding acceptable limitations on otherwise constitutionally protected speech. After all, “[e]ven protected speech is not equally permissible in all places and at all times.” Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 799 (1985). “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities.” Id. at 799-800.

Evaluating the constitutionality of the statewide ban on solicitation activity at Arkansas’ revenue offices requires a three-step process. First, the Court must make a threshold determination as to whether the speech at issue in this case is of the kind and quality that is ordinarily granted protection pursuant to the First Amendment of the United States Constitution. Cornelius, 473 U.S. at 797. Second, the Court must make a legal determination about the nature of the forum in question and the extent to which the government may limit access to that forum. Id. Third, the ...

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