Filing asks for Arkansas Supreme Court to toss suit in ballot bid

FILE — Alex Gray, an attorney for the Safe Surgery Committee, delivers petitions with more than 84,000 signatures to the secretary of state’s office in a bid to refer a new optometrists law to the people to vote on in 2020.
FILE — Alex Gray, an attorney for the Safe Surgery Committee, delivers petitions with more than 84,000 signatures to the secretary of state’s office in a bid to refer a new optometrists law to the people to vote on in 2020.

Secretary of State John Thurston on Wednesday asked the state Supreme Court to dismiss a lawsuit that seeks to force Thurston to place on the 2020 general election ballot a proposed referendum on a 2019 law that allows optometrists to conduct a broader variety of eye surgeries.

During this year's regular legislative session, supporters of Act 579 of 2019 said it would allow optometrists to use more of their training and would provide easier access to eye care for patients in rural areas.

But the law's opponents, including groups that represent ophthalmologists and physicians, argued it would put patients at risk.

The referendum would allow voters to decide whether the law stays on the books.

The Safe Surgery Arkansas committee and its chairwoman, Dr. Laurie Barber of Little Rock, filed a request for a writ of mandamus with the state Supreme Court on Aug. 13.

The filing came nearly two weeks after Thurston's office concluded that the committee failed to submit enough valid signatures of registered voters to qualify the proposed referendum for the Nov. 3, 2020, general election ballot.

Thurston's office said the committee needed 53,491 signatures but had only 23,953 valid signatures. Committee officials reported that they turned in more than 84,000 signatures to the secretary of state's office on July 23.

In its filing with the state Supreme Court on Aug. 13, the Safe Surgery Arkansas committee challenged the Republican secretary of state's decision to apply another new law, Act 376 of 2019, as "disenfranchising 61,065 legal voters who petitioned the secretary to certify a referendum petition to the November 2020 ballot."

Act 376 of 2019 adds a new filing requirement for canvassers, the committee said.

The committee asked the court to tell Thurston to count the 61,605 signatures; to find that the referendum's popular name and ballot title are sufficient; and to order Thurston to certify the proposed referendum for the ballot.

In his motion Wednesday, Thurston said Act 376 requires paid canvassers to file, before soliciting any signatures for petitions, statements swearing they have never been convicted of certain disqualifying crimes.

Act 376 prohibits the secretary of state from counting any signatures a canvasser solicited before the filing of this sworn statement, Thurston said in Wednesday's court filing by his office's attorneys, Gary Sullivan and Peyton Murphy.

Some of the referendum petitions submitted by Safe Surgery Arkansas "contained signatures solicited by paid canvassers prior to the canvassers' sworn statements being filed with the secretary of state," and Thurston's office didn't count those signatures, the secretary of state said in the filing.

"The facial count of the remaining signatures revealed that the [committee] had not submitted the required number and thus [Thurston] would not certify the measure," according to Thurston.

But the Safe Surgery Arkansas committee said in its Aug. 13 filing that Act 376 should not have been applied to the committee's petitions.

"Because no reasonable person would think Act 376's emergency clause [to make the law take effect in March rather than July 24] states a genuine emergency, the clause fails and the Act's provisions should not have been applied to the [petitions]," according to the committee's court filing.

Act 376 also shifted from the attorney general to the state Board of Election Commissioners the authority to certify the popular name and ballot title of proposed ballot measures. Under Act 376, the certification decision of the popular name and ballot title comes after a sponsor of a proposed measure submits its signatures to the secretary of state's office, rather than before a sponsor begins collecting signatures. On Aug. 19, the Board of Election Commissioners signed off on the ballot title and popular name.

The Safe Surgery Arkansas committee also said that the prefiling requirement violates the canvassers' and sponsors' political speech rights under Article 2, Sections 4 and 6, of the Arkansas Constitution.

In a motion to intervene in the case to defend the constitutionality of Act 376 and counter the assertion that the law's emergency clause is defective, Republican Attorney General Leslie Rutledge said the state Supreme Court "is without original jurisdiction over the constitutional challenges at issue in this case."

"More specifically, an action seeking a declaration that a state statute or act is unconstitutional clearly falls within the jurisdiction of the circuit court," Rutledge said in her office's Aug. 21 filing. The state Supreme Court's appellate jurisdiction "may only be invoked after these constitutional issues have first been considered and ruled on by a circuit court," Rutledge said.

Among other things, Thurston also asked the state Supreme Court to deny the Safe Surgery Arkansas committee's motion for the court to appoint a special master and asked that it deny the committee's motion for a stay on Thurston's decision.

The Arkansans for Healthy Eyes committee, which supports the eye-surgery law, also filed a motion to intervene in this case.

Act 579 allows optometrists to administer injections around the eye, remove bumps and lesions from the eyelids, and perform certain types of laser surgery now performed by ophthalmologists -- specifically capsulotomy, a surgery performed after cataract surgery, and trabeculoplasty, a procedure to reduce pressure from glaucoma.

Optometrists are still banned from doing cataract surgery and radial keratotomy surgery and from selling prescription drugs.

The law also requires the state Board of Optometry to establish credentialing requirements for a license to administer or perform the now-legal procedures. It also requires each optometrist who meets the certification requirements for authorized laser procedures to report to the board regarding the outcome of the procedures and to also report to the state Board of Health.

Metro on 08/29/2019

Upcoming Events