Union Pac. R.R. Co. v. Franklin

687 S.W.3d 787

2024 Ark. 74

UNION PACIFIC RAILROAD COMPANY, Plaintiff/Counterdefendant

v.Randy G. FRANKLIN, Defendant/Counterclaimant

No. CV-23-653

Supreme Court of Arkansas.

Opinion Delivered: May 2, 2024

CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF ARKANSAS [NO. 4:22-CV-00960-LPR], HONORABLE LEE P. RUDOFSKY, JUDGE

Rose Law Firm, by: Cynthia W. Kolb, for plaintiff/counterdefendant.

King Law Group, PLLC, Fort Smith, by: W. Whitfield Hyman, for defendant/counterclaimant.

BARBARA W. WEBB, Justice

₁This case presents a question of law certified to this court by the United States District Court for the Eastern District of Arkansas. We accepted certification in accordance with Arkansas Supreme Court Rule 6-8. Our jurisdiction in this original action is pursuant to amendment 80, section 2(D)(3)of the Arkansas Constitution.

The certified question is as follows:

Are the prohibitions in Arkansas Code Annotated section 11-5-117 severable from the liability-immunity provisions in section 16-120-802(a) such that section11-5-117 would still apply when the liability-immunity provisions of section 16-120-802(a) cannot apply?

₂We answer in the affirmative—section 11-5-117 is not dependent on the liability-immunity provisions of section 16-120-802, and therefore, if the latter is preempted by the Federal Employers’ Liability Act (FELA), section 11-5-117 is not likewise preempted.

I. Background Information

Randy G. Franklin is a long-time employee of Union Pacific Railroad Company (Union Pacific). On August 3, 2020, Franklin arrived at work with a gun in his vehicle. In full compliance with Arkansas Code Annotated section 5-73-324 (Supp. 2023), Franklin kept the gun in a locked container, inside his locked truck, out of plain view. However, Franklin’s truck was parked in a parking lot owned by his employer, Union Pacific, which has a company policy that bans employees from carrying firearms onto its property.

Franklin’s track caught on fire, and as a result, Union Pacific discovered that Franklin had a gun stored in his truck. Because he had violated its firearm policy, Union Pacific terminated Franklin. Subsequently, an arbitration panel reduced the termination to a lengthy suspension. Nonetheless, the arbitration panel made it clear that "it remains the firm position of [Union Pacific] that bringing a firearm on property, even if stowed in a locked vehicle, continues to not be permitted."

Franklin returned to work for Union Pacific in July 2022. He still wanted to bring his gun to work and keep it out of sight, in his locked vehicle, in Union Pacific’s parking lot. Inspired by Franklin’s plight, the Arkansas General Assembly passed Act 809 of 2021, reducing the restrictions on employees who keep guns in their cars while those cars are parked in a private employer’s parking lot. The General Assembly removed the requirement of having a concealed-carry permit to exercise this right. The General Assembly also did ₃away with the requirement of keeping the gun in a locked storage container inside the car. The principal gun-rights protection at issue in this case was recodified as section 11-5-117.

In September 2022, Franklin’s attorney sent Union Pacific a letter asking Union Pacific to "clarify its position in view of recently enacted Arkansas legislation." The letter described Arkansas Code Annotated section 11-5-117 and stated that, "[i]n view of these legislative developments, Mr. Franklin’s position is that Union Pacific’s policy [of no guns in vehicles parked in Union Pacific parking lots] would run afoul of A.C.A. 11-5-117." The letter sought assurances that Union Pacific agreed with Mr. Franklin’s position.

Instead, Union Pacific filed a declaratory-judgment action in federal court. Primarily, it sought a declaration that "Ark. Code Ann. § 11-5-117 is preempted by [FELA] to the extent that it would apply to Union Pacific parking lots in Arkansas[.]" Franklin answered the complaint and brought a counterclaim seeking a declaratory judgment that Union Pacific must allow him to bring his firearm onto railroad property, as long as the firearm is legally possessed for a lawful purpose and stored out of sight in his locked car.

II. The Arkansas Statutes Under Consideration

In 2017, the 91st General Assembly enacted Act 1071. Act 1071 included five sections. Section 1 of Act 1071 contained an uncodified statement of legislative intent:

Legislative intent. It is the intent of this act to reinforce and protect the right ofeach citizen to lawfully transport and store a handgun within his or her private motor vehicle for lawful purposes in any place where the private motor vehicle is otherwise permitted to be located.

2017 Ark. Acts at 5877. Section 2 made conforming amendments to Arkansas Code Annotated section 5-73-306(18), concerning prohibited places for the carrying of a concealed handgun. Id. Section 3 added an entirely new section, 5-73-324, proscribing ₄employers from prohibiting concealed-carry licensees from possessing a firearm in the employer’s parking lot, subject to certain restrictions and exceptions. Id. at 5878. Section 4 added a second, entirely new section, 16-118-113, creating a private right of action for knowing violations of section 5-73-324. Id. at 5881. Finally, section 5 added a third, entirely new section, 16-120-802, providing a broad-liability exemption for employers for actions arising from the new section 5-73-324. Id.

In 2021, the 93rd General Assembly enacted Act 809, titled

An Act Concerning the Possession or Storage of a Person’s firearm when a Person leaves His or Her Firearm Inside of His or Her Car in His or Her Employer’s parking lot; and for Other Purposes.

2021 Ark. Acts at 3744. Act 809 contains five sections. Section 1 amended section 5-73-306, in pertinent part, by deleting reference to section 5-73-326 and substituting new section 11-5-117. Id. Section 2 repealed section 5-73-326 and section 3 added in its place new section 11-5-117. Id. at 3745. Section 11-5-117 differed from section 5-73-326 in several respects, including (1) its application to employees generally instead of only concealed-carry licensees and (2) removal of the requirement that a gun stored in an employer parking lot be locked within a "personal handgun storage container." Id. at 3748. Sections 4 and 5 of Act 809 made conforming amendments to Arkansas Code Annotated section 16-118-115 and section 16-120-802(a), replacing the previous references to section 5-73-326 with references to the new section 11-5-117. Id. at 3750.

₅III. Discussion

Neither party contends that federal law expressly preempts section 11-5-117 or its prior codification under section 5-73-324. However, Union Pacific asserts, and Franklin does not dispute, that Arkansas Code Annotated section 16-120-802, which immunizes employers from tort liability arising out of an employee exercising his or her right to conceal a handgun in a private vehicle parked on an employer’s premises as allowed by section 11-5-117, is expressly preempted by FELA, codified at 45 U.S.C. §§ 51 et seq. Likewise, both parties cite and purport to rely on Cotham v. Coffman, 111 Ark. 108, 119, 163 S.W. 1183, 1186 (1914) (quoting Cooley's Constitutional Limitations 210 (6th ed.)), in which the court stated:

[if two provisions] "are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them."

However, that is where the parties’ agreement ends.

Union Pacific argues that because section 16-120-802 was enacted at the same time as section 11-5-117, in Act 1071 of 2017, it cannot be severed. Citing Borchert v. Scott, 248 Ark. 1041, 460 S.W.2d 28 (1970), Union Pacific asserts that the "touchstone" for determining whether non-offending statutory provisions may be sev- ered from unconstitutional provisions is legislative intent. It contends that in attempting to ascertain that intent, this court has considered two primary factors: (1) whether a single purpose is meant to be accomplished by the act; and (2) whether the sections of the act are interrelated and dependent upon each other. U.S. Term. Limits, Inc. v. Hill, 316 Ark. 251, 268, 872 ₆S.W.2d 349, 357 (1994). The Hill court further stated that "it is important whether the portion of the act remaining is complete in itself and capable of being executed wholly independent of that which was rejected." Id., 872 S.W.2d at 358. Union Pacific further quotes Hill for the proposition that "[t]he presence of a severability clause is a factor to be considered," bur omits the rest of the quote in which the Hill court states "but, by itself, it may not be determinative." Id.

Union Pacific asserts that the severability factors weigh overwhelmingly, if not exclusively, in favor of finding that section 11-5-117 and section 16-120-802(a) are non-severable because (1) both provisions were enacted by the General Assembly in the same bill, which did not pass until amended to include the liability shield; (2) the two provisions do not seek to accomplish distinct purposes, but instead are part of a common statutory scheme; and (3) the provisions are "interrelated and dependent," both logically and textually insofar as section 16-120-802(a) expressly refers back to section 11-5-117 and would be nonsensical standing alone. Union Pacific further asserts that the General Assembly opted not to include a severability provision in Act 1071, which is strong evidence of legislative intent against severability. Finally, Union Pacific argues that section 16-120-802(a) is designed as "compensation" or "consideration" for securing the passage of section 11-5-117; the latter potentially exposes employers to increased liability and the former exists to offset that...