JOHN THURSTON, IN HIS OFFICIAL CAPACITY AS ARKANSAS SECRETARY OF STATE; AND LESLIE RUTLEDGE, IN HER OFFICIAL CAPACITY AS ARKANSAS ATTORNEY GENERAL v. SAFE SURGERY ARKANSAS, A BALLOT QUESTION COMMITTEE; AND DR. LAURIE BARBER, INDIVIDUALLY AND ON BEHALF OF SAFE SURGERY ARKANSAS
No. CV-20-562
SUPREME COURT OF ARKANSAS
March 11, 2021
2021 Ark. 55
KAREN R. BAKER, Associate Justice
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-20-4956]; HONORABLE MARY SPENCER MCGOWAN, JUDGE; AFFIRMED.
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
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
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.”
Id. at 2-3, 606 S.W.3d at 584 (emphasis added).
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
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
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
respectively.4 SSA argued that
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
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
On September 24, 2020, the circuit court entered its order granting SSA‘s request for preliminary injunction. The order found that the entirety of
Thurston appeals. As an initial matter, we note that the circuit court‘s order is not final. Specifically, the order states: “As the Defendants have not yet filed their responses to Plaintiffs’ Complaint, as the time for answering the Complaint has not run, the Court reserves a ruling on the prayer for Declaratory Judgment at this time.” However,
Ark. Code Ann. § 7-9-601(b)
The applicable statute,
(b)(1) To verify that there are no criminal offenses on record, a sponsor shall obtain, at the sponsor‘s cost, from the Division of Arkansas State Police, a current state and federal criminal record search on every paid canvasser to be registered with the Secretary of State.
(2) The criminal record search shall be obtained within thirty (30) days before the date that the paid canvasser begins collecting signatures.
(3) Upon submission of the sponsor‘s list of paid canvassers to the Secretary of State, the sponsor shall certify to the Secretary of State that each paid canvasser in the sponsor‘s employ has passed a criminal background check in accordance with this section.
(4) A willful violation of this section by a sponsor or paid canvasser constitutes a Class A misdemeanor.
(Emphasis added.) We review issues of statutory interpretation de novo, as it is for this court to determine the meaning of a statute. Dep‘t of Ark. State Police v. Keech Law Firm, P.A., 2017 Ark. 143, 516 S.W.3d 265. The basic rule of statutory construction is to give effect to the intent of the legislature by giving words their usual and ordinary meaning. Ark. Soil & Water Conservation Comm‘n v. City of Bentonville, 351 Ark. 289, 92 S.W.3d 47 (2002). “When a statute is clear, it is given its plain meaning, and we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. In other words, if
We construe statutes so that no word is left void, superfluous, or insignificant, and we give meaning to every word in the statute, if possible. Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493 (citing Rylwell, L.L.C. v. Ark. Dev. Fin. Auth., 372 Ark. 32, 269 S.W.3d 797 (2007)).
I. Justiciable Controversy
For his first point on appeal, Thurston argues that the circuit court lacked jurisdiction to consider SSA‘s request for a preliminary injunction because SSA did not present a justiciable controversy. Thurston argues that SSA‘s claim is merely speculative and contingent because it is entirely unknown whether SSA would be prevented from registering paid canvassers for a future initiative, or that a potential roadblock would arise in the 2022 initiative process, which SSA has not yet started. Specifically, Thurston argues that the fact that SSA must comply with
court cannot opine on the merits of the constitutional arguments raised in the Hospitals’ declaratory-judgment suit.” Id. at 5, 488 S.W.3d at 510.
SSA argues that the present case is more properly guided by Magruder v. Arkansas Game & Fish Commission, 287 Ark. 343, 698 S.W.2d 299 (1985), and Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). In Magruder, the appellant challenged an Arkansas Game and Fish Commission regulation that prohibited the taking of black bass under fifteen inches from Lake Maumelle. In holding that the appellant had standing to challenge the regulation, we explained,
The appellant alleged he was a licensed fisherman who frequently fished Lake Maumelle. Nothing in the record showed the commission challenged that allegation. If the commission‘s regulation is to be enforced it will have an effect on persons who fish Lake Maumelle regardless of who owns the lake. One whose rights are thus affected by a statute has standing to challenge it on constitutional grounds. The same rule applies to official acts other than statutes and thus it applies to the regulation in question here.
287 Ark. at 344, 698 S.W.2d at 300 (internal citations omitted).
In Jegley, the appellees challenged the constitutionality of the sodomy statute. The appellant argued that the appellees could not seek a declaratory judgment regarding the constitutionality of the statute
Clearly this statute is not moribund, and the State has not foresworn enforcement of it. Appellees are precisely the individuals against whom section § 5-14-122 is intended to operate. As they admit to presently engaging in behavior that violates the statute and intending to engage in future behavior that violates the law, and as the State has not disavowed any intention of invoking the criminal-penalty provisions of
Ark. Code Ann.
§ 5-14-122 , we cannot say that appellees are without some reason to fear prosecution for violation of the sodomy statute. To hold otherwise would leave appellees trapped in a veritable Catch-22. As long as Arkansas prosecutors exercise their discretion and fail to prosecute those individuals who violate the sodomy statute through consensual, private behavior, appellees and those similarly affected by the statute would have no choice but to suffer the brand of criminal impressed upon them by a potentially unconstitutional law. The discretionary acts of the State‘s prosecutors could effectively bar shut the courthouse doors and protect the sodomy statute from constitutional challenge. We cannot allow this to happen.Id. at 621-22, 80 S.W.3d at 343 (internal citations omitted).
On appeal, the question as to whether there was a complete absence of a justiciable issue shall be reviewed de novo on the record of the circuit court. Rutledge, supra. Despite the parties’ arguments, we recently decided justiciability in the context of a preliminary injunction. In City of Jacksonville v. Smith, this court held as follows:
Here, the circuit court has not ruled on Smith‘s underlying declaratory-judgment action, but it granted Smith‘s request for entry of a preliminary injunction. In its order granting preliminary injunction, the circuit court found that Smith had met her burden of establishing both a likelihood of success on the merits of her claims and the existence of irreparable harm in the absence of injunctive relief. This court has stated that “[a] party thus is not required to prove his [or her] case in full at a preliminary-injunction hearing.” [Ark. Dep‘t of Human Servs. v. ] Ledgerwood, 2017 Ark. 308, at 9, 530 S.W.3d at 342 (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). Accordingly, we conclude that Smith presents a justiciable controversy.
2018 Ark. 87, at 7-8, 540 S.W.3d 661, 667. Accordingly, we hold that a justiciable controversy exists in the present case.
II. Preliminary Injunction
In determining whether to issue a preliminary injunction pursuant to
likelihood of success on the merits. Baptist Health v. Murphy, 365 Ark. 115, 226 S.W.3d 800 (2006). This court reviews the grant of a preliminary injunction under an abuse-of-discretion standard. Id. The standard of review is the same for the two essential components of a preliminary injunction: irreparable harm and likelihood
When an appeal reaches a court via an order granting a preliminary injunction, the appellate court will not delve into the merits of the case further than is necessary to determine whether the circuit court exceeded its discretion in granting the injunction. Id. The sole question before the appellate court is whether the circuit court “departed from the rules and principles of equity in making the order,” and not whether the appellate court would have made the order. Id. at 121-22, 226 S.W.3d at 806-07.
A. Likelihood of Success on the Merits
Thurston argues that SSA failed to show a likelihood of success on the merits because the antifraud requirements contained in
This court has held that “to justify a grant of preliminary injunction relief, a plaintiff must establish that it will likely prevail on the merits at trial.” W.E. Long Co. v. Holsum Baking Co., 307 Ark. 345, 351, 820 S.W.2d 440, 443 (1991) (citing Smith v. Am. Trucking Ass‘n, 300 Ark. 594, 781 S.W.2d 3 (1989)). The test for determining the likelihood of success is whether there is a reasonable probability of success in the litigation. Custom Microsystems, Inc. v. Blake, 344 Ark. 536, 42 S.W.3d 453 (2001).
Thurston correctly notes that article 5, section 1 of the Arkansas Constitution, as amended by amendment 7, requires--not merely authorizes--the General Assembly to enact law “prohibiting and penalizing perjury, forgery, and all other felonies or other fraudulent practices, in the securing of signatures or filing of petitions.” However, this same section of our constitution also provides protection for the people of Arkansas. Specifically, article 5, section 1 reserves to the people of the State of Arkansas the right to propose legislative measures, laws, and amendments to the constitution, and to enact or reject the same at the polls, independent of the General Assembly, and sets out the procedure for doing so. Section 1 also prohibits unwarranted restrictions, stating that
[n]o law shall be passed to prohibit any persons or persons from giving or receiving compensation for circulating petitions, nor to prohibit the circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions[.]
This section further provides that “[n]o legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people.”
In finding that SSA is likely to succeed on the merits, the circuit court made the following findings:
A sworn affidavit from an attorney for the Arkansas State Police stated that Arkansas State Police cannot obtain and has never obtained a federal background check on paid canvassers under
Ark. Code Ann. § 7-9-601(b)(1) . The special masters in both proceedings found thatit was impossible for sponsors to comply with the federal background check requirement. The statute‘s provisions block the Plaintiffs from being able to exercise their initiative and referenda rights under Amendment 7 because the Act created at least two requirements with which compliance is impossible. Such requirements violate Amendment 7‘s prohibition on laws that interfere “with the freedom of people in procuring petitions” and that “restrict, hamper or impair the exercise of the rights herein reserved to the people.”
. . . .
The Court agrees with the Plaintiffs’ argument that “it is difficult to imagine a more textbook example of a statute that restricts, hampers, or impairs Arkansas initiative and referenda than one like the federal-background-check requirement with which compliance is impossible.”
As noted above,
Ark. Code Ann. § 7-9-601(b)(1) and601(b)(3) are unconstitutional for the same reason: they require sponsors to do the impossible on pain of either committing a crime underArk. Code Ann. § 7-9-601(b)(4) or having their entire petition set aside for lack of signatures underArk. Code Ann. § 7-9-601(f) .
During the hearing on the preliminary injunction, SSA presented as exhibits testimony obtained during the special masters’ proceedings for Healthy Eyes, supra, and Miller, supra. As set forth above, during the Healthy Eyes hearing, 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
During the Miller hearing, McLaurin testified that the only background checks the ASP can perform for sponsors seeking background checks on paid canvassers are Arkansas
background checks. She explained that even though
The circuit court also considered 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
Considering the evidence presented at the preliminary-injunction hearing, we cannot say that the circuit court clearly erred in finding it impossible to obtain a federal background check from the ASP. However, our analysis does not end there because Thurston contends that compliance with the antifraud requirements of
First, Thurston argues that far from finding
When reviewing the precise statute at issue in the present case, we explained that “[t]he first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language.” Miller, 2020 Ark. 267, at 7, 605 S.W.3d at 258-59 (quoting Berryhill v. Synatzske, 2014 Ark. 169, at 4, 432 S.W.3d 637, 640). We explained that pursuant to
(d) Before obtaining a signature on an initiative or referendum petition as a paid canvasser, the prospective canvasser shall submit in person or by mail to the sponsor:
. . .
(3) A signed statement taken under oath or solemn affirmation stating that the person has not pleaded guilty or nolo contendere to or been found guilty of a criminal felony offense or a violation of the election laws, fraud, forgery, or identification theft in any state of the United States, the District of Columbia, Puerto Rico, Guam, or any other United States protectorate[.]
forgery, or identification theft as stated in
Despite Thurston‘s arguments to the contrary, having found that the petitioners did not certify that the canvassers had passed any background check, we declined to consider the impossibility of obtaining a federal background check from the ASP. Now with the issue squarely before us, and in construing subdivision (b)(1) just as it reads, it is clear that the federal background check is to be obtained “from the Division of Arkansas State Police.” Taking into consideration the testimony above, this is impossible. Further, subdivision (b)(3) mandates that the sponsor shall certify to the Secretary of State that each paid canvasser in the sponsor‘s employ has passed a criminal background check in accordance with this section. Because subdivision (b)(3) requires the sponsor to certify that the impossible requirement contained in subdivision (b)(1) has been satisfied, it follows that compliance with subdivision
As an additional means of compliance, Thurston argues that history shows that compliance is not merely theoretical. Thurston argues that since the enactment of
a criminal background check for each paid canvasser in compliance with
While this certification may have previously been accepted, as set forth above, we had not yet determined that compliance with
Next, Thurston argues that in order to “obtain” the necessary background checks from the ASP, the ASP will fingerprint the background-check applicants and then an applicant can submit his or her fingerprints for federal background checks. Thus, Thurston contends that because the ASP plays a critical role in obtaining the federal background check, this is sufficient to satisfy the statute.
Again, in construing subdivision (b)(1) just as it reads, it is clear that the federal background check is to be obtained “from the Division of Arkansas State Police.” Accordingly, we disagree with Thurston‘s position that the ASP‘s role in fingerprinting background-check
applicants satisfies the statute‘s requirement that the background check be “obtained” from the ASP.
Having found that subdivisions 601(b)(1) and (b)(3) are impossible to comply with, we hold that the circuit court did not abuse its discretion in determining that SSA demonstrated a likelihood of success on the merits.
B. Irreparable Harm
Thurston argues that the circuit court erred by finding that irreparable harm will result in the absence of the preliminary injunction. Irreparable harm is “the touchstone of injunctive relief.” United Food & Commercial Workers Int‘l Union v. Wal-Mart Stores, Inc., 353 Ark. 902, 905-07, 120 S.W.3d 89, 92 (2003) (citing Wilson v. Pulaski Ass‘n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997) (holding that the prospect of irreparable harm is the foundation of the power to issue injunctive relief)). Further, we have said that harm is normally considered irreparable only when it cannot be adequately compensated by money damages or redressed in a court of law. AJ & K Operating Co., Inc. v. Smith, 355 Ark. 510, 140 S.W.3d 475 (2004).
On the issue of irreparable harm, the circuit court found that
[t]he Plaintiffs presented testimony from Dr. Barber as to the expense and time consuming efforts necessary in exercising initiative and referenda rights. As the impossible requirements found in
Ark. Code Ann. § 601(b)(1) and§ 601(b)(3) prevent SSA from registering any paid canvassers, SSA cannot begin the initiative process for the 2022 cycle. The Court finds that a preliminary injunction is necessary as otherwise, SSA will be irreparably harmed as money damages will not be a remedy.
We agree with the circuit court‘s finding that SSA will be irreparably harmed in the absence of a preliminary injunction.
Thurston challenges the preliminary-injunction order on multiple grounds related to whether SSA demonstrated irreparable harm. First, Thurston argues that SSA can register paid canvassers even if it is impossible to obtain a federal background check from the ASP. Thurston contends that in previous cases, SSA and others have registered their paid canvassers and collected signatures, and they have offered no evidence that the antifraud provisions have ever prevented them from registering canvassers and collecting signatures.
Despite SSA‘s having registered paid canvassers and collected signatures in the past, we reject this argument based on the impossibility of compliance with subdivisions (b)(1) and (b)(3) as set forth above.
Second, Thurston argues that the circuit court‘s finding that SSA cannot begin the initiative process if the antifraud requirements are not enjoined was clearly erroneous. Thurston contends that SSA can take the very first step of the initiative process--filing a draft proposal of their initiative pursuant to section 7-9-1077--without having to worry about
has satisfied
Below, SSA presented evidence of irreparable harm through the testimony and affidavit of Dr. Barber. We cannot say that the circuit court‘s findings regarding Dr. Barber‘s testimony detailing the time and expense necessary to exercise SSA‘s initiative and referenda rights were clearly erroneous. Further, the circuit court was correct in its finding that SSA cannot begin
Based on our standard of review, we hold that the circuit court did not abuse its discretion in determining that SSA demonstrated that irreparable harm will result in the absence of an injunction.
C. Overbroad
Thurston argues that even if the federal-background-check requirement is invalid, the circuit court‘s preliminary injunction is grossly overbroad. Thurston contends that there is no justification for enjoining the requirement that sponsors obtain state background checks from the ASP or the remainder of the antifraud provisions. Specifically, Thurston argues that
that the circuit court could have stricken “from the Division of Arkansas State Police” from the statute and retained “a sponsor shall obtain . . . a current state and federal criminal record search.” To support this position, Thurston relies on Ex parte Levy, 204 Ark. 657, 163 S.W.2d 529 (1942). In Levy, we explained that
[t]he constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is, not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. . . . If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And if they 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.
204 Ark. at 659, 163 S.W.2d at 531 (quoting Cooley‘s Constitutional Limitations 210 (6th ed.)).
SSA responds that the circuit court correctly determined that the impossible federal background-check requirements of subdivisions (b)(1) and (b)(3) were inseparably linked with the remainder of
The mere fact that an act contains a severability clause is to
As SSA correctly points out, striking just the federal criminal-record search while retaining
Next, we consider whether
If a statute attempts to accomplish two or more objects and is void as to one, it may still be in every respect complete and valid as to the other. Id.
While not alone determinative, we note that Act 1219 lacks a severability clause. McGhee, supra. Here, a review of
In sum, we cannot say that the circuit court abused its discretion in determining that SSA demonstrated a likelihood of success on the merits and that irreparable harm will result in the absence of an injunction. Accordingly, we affirm.
Affirmed.
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, for appellees.
Notes
In compliance with
Ark. Code Ann. § 7-9-601 , please find the list of paid canvassers that will be gathering signatures on the Safe Surgery Referendum. On behalf of the sponsor, this statement and submission of names serves as certification that the statewide Arkansas State Police background check, as well as a 50-state criminal background check, have been timely acquired in the 30 days before the first day the paid canvasser begins to collect signatures as required by Act 1104 of 2017.