Safe Surgery Arkansas v. Thurston

          AN ORIGINAL ACTION PETITION FOR WRIT OF MANDAMUS

          Steel, Wright & Gray, PLLC, by: Alex Gray and Nate Steel; Kelly Law Firm, PLC, by: A.J. Kelly; and Ryan Owsley, for petitioners.

          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.

          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 its 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 six 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.

         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 ...