Thurston v. Safe Surgery Ark.

2021 Ark. 55

619 S.W.3d 1

John THURSTON, in His Official Capacity as Arkansas Secretary of State; and Leslie Rutledge, in Her Official Capacity as Arkansas Attorney General, Appellants

v.SAFE SURGERY ARKANSAS, a Ballot Question Committee; and Dr. Laurie Barber, Individually and on Behalf of Safe Surgery Arkansas, Appellees

No. CV-20-562

Supreme Court of Arkansas.

Opinion Delivered: March 11, 2021

Leslie Rutledge, Att'y Gen., by: Nicholas J. Bronni, Ark. Solicitor Gen.; Vincent M. Wagner, Dep. Solicitor Gen.; Dylan L. Jacobs, Ass't Solicitor Gen.; and Emily J. Yu, Attorney.

Steel, Wright, and Gray, PLLC, by: Alec Gaines and Nate Steel, Little Rock, for appellees.

KAREN R. BAKER, Associate Justice

Appellants John Thurston, in his official capacity as Arkansas Secretary of State; and Leslie Rutledge, in her official capacity as Arkansas Attorney General (collectively "Thurston"), appeal the Pulaski County Circuit Court's order granting Appellees’, Safe Surgery Arkansas, a ballot question committee; and Dr. Laurie Barber (collectively "SSA's"), request for preliminary injunction. The order also found the entirety of Arkansas Code Annotated section 7-9-601(b) (Repl. 2018) unconstitutional and enjoined Thurston from applying its provisions. Thurston presents two arguments on appeal: (1) the circuit court lacked jurisdiction to consider SSA's request for a preliminary injunction because SSA did not present a justiciable controversy; and (2) even if a justiciable controversy was present, the circuit court erred in granting the preliminary injunction. We affirm.

Facts and Procedural History

The parties agree that this case is informed by two original actions before this court in 2020, Arkansans for Healthy Eyes v. Thurston , 2020 Ark. 270, 606 S.W.3d 582, and Miller v. Thurston , 2020 Ark. 267, 605 S.W.3d 255.

In Healthy Eyes , the petitioners (AHE), an opposing ballot question committee, filed a complaint against Thurston challenging the sufficiency of a statewide-initiative petition filed by SSA.¹ Among its many challenges to the petition, AHE argued that SSA did not register its paid canvassers as required by law. Specifically, AHE argued that "SSA made no certification that any paid canvasser had passed any background check," and therefore, Thurston erroneously included over 50,000 signatures.² Id. at 5, 606 S.W.3d at 585.

We explained that the plain language of Arkansas Code Annotated section 7-9-601 provides that the sponsor "shall obtain " a current state and federal criminal record search and that the criminal record search "shall be obtained within thirty (30) days before the date that the paid canvasser begins collecting signatures." Ark. Code Ann. § 7-9-601(b)(1), (2) (emphasis added). Additionally, the statute provides that the background check is to be completed before the paid-canvasser list is submitted to the Secretary of State and requires the sponsor to "certify to the Secretary of State that each paid canvasser in its employ has passed a criminal background check in accordance with this section. Ark. Code Ann. § 7-9-601(b)(3) (emphasis added)." 2020 Ark. 270, at 7, 606 S.W.3d at 586.

Relying on our recent case, Miller v. Thurston , 2020 Ark. 267, 605 S.W.3d 255, we explained:

Miller argued to this court that the certification language, when viewed as a whole, certified that their paid canvassers had passed criminal background checks and that the Secretary violated Arkansas law in declaring the petitions insufficient for failure to comply with the statutory requirements of section 7-9-601. In construing section 7-9-601, we stated that

[u]nder Arkansas Code Annotated section 7-9-601, a sponsor is required both to obtain a criminal record search on each paid canvasser and to certify to the Secretary of State that each paid canvasser passed the criminal background check. Simply acquiring or obtaining a background check is not sufficient under the plain language of the statute.

....

[W]e cannot ignore the mandatory statutory language requiring certification that the paid canvassers passed criminal background checks, nor can we disregard section 7-9-601(f) ’s prohibition on the Secretary of State counting incorrectly obtained signatures "for any purpose."

Miller , 2020 Ark. 267, at [7, 9], 605 S.W.3d [at 259–60]. We concluded that a criminal background check must be both "obtain[ed]," pursuant to section 7-9-601(b)(1), and "passed," pursuant to section 7-9-601(b)(3). In Miller , we held as a matter of law that the petitioners did not comply with section 7-9-601(b)(3) when they failed to certify that their paid canvassers had passed criminal background checks, that the initiative petitions were insufficient, and that the petitioners were not entitled to a cure period. Miller , 2020 Ark. 267, at [9], 605 S.W.3d at 259–60.

Healthy Eyes , 2020 Ark. 270, at 8–9, 606 S.W.3d at 587. Thus, we held that Miller controls because SSA's certification language failed to certify that the paid canvassers had "passed" a criminal background check in compliance with section 7-9-601(b)(3). Id. at 9, 606 S.W.3d at 587. Further, under a strict-compliance analysis, we held that SSA's petition was insufficient for its failure to comply with section 7-9-601(b)(3). Id.³

We now turn to the facts related to the present case. On September 4, 2020, SSA filed its complaint in the Pulaski County Circuit Court. In the complaint, SSA challenged the constitutionality of certain statutes governing the initiative and referendum process and sought declaratory judgments, a temporary restraining order (TRO), and a preliminary injunction. SSA asserted that it plans to sponsor certain initiatives to appear on the November 2022 ballot. Specifically, in Count 1 and Count 2, SSA sought a declaratory judgment regarding obtaining federal background checks under Arkansas Code Annotated section 7-9-601(b)(1) and (b)(3), respectively.⁴ SSA argued that section 7-9-601(b)(1) requires sponsors to obtain federal background checks from the Arkansas State Police (the ASP), which is impossible. Thus, SSA argued that subdivision (b)(1)’s requirements regarding background checks from the ASP are unconstitutional and should be enjoined. Subdivision (b)(3) requires sponsors to certify that any paid canvasser they employ "has passed a criminal background check in accordance with this section." Therefore, SSA argued that, based on the impossibility of obtaining a federal criminal record search from the ASP pursuant to subdivision (b)(1), subdivision (b)(3)’s certification requirement is likewise impossible. SSA requested that the circuit court issue a TRO regarding Counts 1 and 2; issue a preliminary injunction on the enforcement of the foregoing statutes; declare that it is impossible for sponsors to comply with Arkansas Code Annotated section 7-9-601(b)(1) ’s requirement of obtaining federal background checks from the ASP on their paid canvassers; and declare that, because compliance with section 7-9-601(b)(1) is impossible, it is unconstitutional under amendment 7 for section 7-9-601(b)(3) to require sponsors to certify that their paid canvassers have passed federal background checks from the ASP.

On September 8, 2020, at the request of SSA, the circuit court entered an ex parte TRO. The order enjoined Thurston from enforcing subdivisions (b)(1) and (b)(3) until SSA could be heard at a preliminary injunction hearing. On the same day, the circuit court entered an order scheduling the hearing for September 18, 2020. On September 9, Thurston filed his notice of appeal from the ex parte TRO.

On September 9, in CV-20-532 (appeal of the TRO), the record was lodged in this court and we set a briefing schedule. Thurston also filed an emergency motion for stay of TRO and requested expedited consideration. On the same day, in CV-20-529, Thurston filed an emergency petition for writ of mandamus, writ of prohibition, writ of certiorari, or supervisory writ. Thurston also filed an emergency motion for stay of the TRO and requested expedited consideration.

On September 14, in CV-20-532, SSA filed a motion to dismiss and to stay briefing schedule. On September 16, this court denied the motion to dismiss the appeal and granted a stay of the briefing schedule pending an entry of the circuit court's order granting or denying the preliminary injunction. On the same day, in CV-20-529, we granted expedited consideration; denied the petition; and held that the emergency motion for stay of the TRO was moot.⁵

On September 18, the hearing on the preliminary injunction was held, during which Dr. Laurie Barber, chair of SSA, testified that SSA intends to support an initiated act for the November 2022 ballot. Dr. Barber further testified about the amount of time and expense SSA has dedicated to their efforts over the past two years. When specifically asked if she had any idea how much money it would cost to draft an initiative that would pass muster, Dr. Barber responded, "So far ... and it failed––we have spent over a million dollars."

SSA presented as exhibits testimony obtained during the special masters’ proceedings for Healthy Eyes , supra , and Miller , supra. During both hearings, Mary Claire McLaurin, ASP attorney, testified that the ASP does not provide sponsors with federal background checks for their paid canvassers. According to McLaurin, the FBI will not process a federal background check pursuant to the paid-canvassers statute, and the ASP has never provided a sponsor a federal background check under section 7-9-601(b). SSA also submitted as exhibits the special masters’ reports filed in the above cases. Both special masters found McLaurin's testimony credible and that compliance with the federal-background-check requirement in subdivision (b)(1) is impossible.

On September 24, 2020, the circuit court entered its order granting SSA's request for preliminary injunction. The order found that the entirety of section 7-9-601(b) is unconstitutional and enjoined Thurston from applying its...