Judge dismisses lawsuit over eye surgery referendum
Pulaski County Circuit Judge Wendell Griffen on Tuesday dismissed a lawsuit filed by an optometrists group that sought to bar the state from certifying a proposed referendum on a 2019 law that allows optometrists to conduct a wider range of eye surgeries.
Secretary of State John John Thurston’s decision over certifying the proposed referendum for the Nov. 3 general election ballot “is forthcoming,” Chris Powell, a spokesman for Thurston, said Tuesday afternoon. “I’m not sure exactly when yet.”
Griffen ruled the circuit court lacks subject matter jurisdiction to rule on the Arkansans for Healthy Eyes committee’s challenge to the sufficiency of the Safe Surgery Arkansas committee’s petition for a statewide referendum on Act 579 of 2019. The referendum would give voters the opportunity to approve or reject the law.
“This is not my field,” Griffen said of the suit, because the state Supreme Court has original and exclusive jurisdiction over challenges to the sufficiency of petitions for initiatives and referenda.
“I remember whoopings that folks got from picking cotton,” Griffen said in ruling from bench. “I am not going to ask the Supreme Court to whoop me from picking this row.”
The Arkansans for Healthy Eyes committee and its chairwoman, Vicki Farmer, filed the suit Thursday against Thurston and the Safe Surgery Arkansas committee, whose members oppose Act 579 and prefer that the specified surgeries be performed only by ophthalmologists.
This suit was filed shortly after the state Supreme Court on Thursday declined a request from the Arkansans for Healthy Eyes committee for the high court to rehear its Dec. 12 ruling directing Thurston to count all of the signatures collected by the Safe Surgery Arkansas committee.
“This is just an attempt to relitigate an issue that already has been decided by the Supreme Court,” Alex
Gray, an attorney for the Safe Surgery Arkansas committee, said after Griffen’s ruling. “It is a waste of time and not a lot of cases get dismissed four days after being filed, so this case had no merit and we look forward to educating Arkansas voters on the risk of non-medical doctors performing eye surgeries.”
But Farmer said, “We’re still weighing our options moving forward.” The options include a possible appeal to the state Supreme Court.
“The legal issues in this case are complex, but the underlying facts remain simple. The opposition group didn’t follow the law — ANYlaw — in its effort to put this measure on the ballot,” she said in a written statement issued after Griffen’s ruling.
“The Supreme Court says Pre-Act 376 law was in place. That law requires a petition’s ballot title to be certified by the Attorney General before signature gathering begins, and the opposition group never did that, either. There are still a lot of questions surrounding the petition process in this case. We are committed to getting those answered, and to ensuring Act 579 — a law that will benefit patients in all parts of the state — remains in place,” Farmer said in her statement.
In the dismissed lawsuit, the Arkansans for Healthy Eyes committee said the Safe Surgery Arkansas committee’s petition for a proposed referendum is invalid because Attorney General Leslie Rutledge didn’t approve the proposal’s ballot title and name as required by state law in effect before changes were made by a new law on the initiative and referendum process — Act 376 of 2019.
Documents from the secretary of state’s office indicate the Safe Surgery Arkansas committee submitted 64,028 valid signatures of registered voters. The committee needs 53,491 signatures to qualify for the ballot.
The Arkansans for Healthy Eyes committee’s lawsuit asked Griffen to immediately and permanently prohibit Thurston from counting signatures, certifying signatures or taking any other action regarding the proposed referendum. The suit also asked the judge to declare the eye surgery law — Act 579 — was effective on July 24 of last year and remains in effect.
The committee also sought a temporary restraining order to block Thurston from certifying the proposed referendum for the Nov. 3 general election.
In addition to dismissing the lawsuit on Tuesday, Griffen ruled the request for a temporary restraining order is moot and denied it, according to the Pulaski County Circuit Court’s website.
Prior to the Supreme Court’s Dec. 12 ruling, Thurston’s office had not counted most of the signatures because of Act 376, the 2019 law that changed requirements for canvassers, or the people who circulate petitions.
In its 4-3 ruling Dec. 12, the Supreme Court said Act 376 contained a defective emergency clause, so the new requirements weren’t in effect when the Safe Surgery Arkansas committee submitted its petitions July 23. An emergency clause is added so a law takes effect sooner than it would under normal circumstances.
Act 579 will allow optometrists to administer injections around the eye, remove bumps and lesions from eyelids and perform certain types of laser surgery performed by ophthalmologists — specifically capsulotomy, a surgery performed after cataract surgery, and trabeculoplasty, a procedure to reduce pressure from glaucoma. Optometrists are still banned under the new law from doing cataract surgery and radial keratotomy surgery and selling prescription drugs.
The law also requires the state Board of Optometry to establish credentialing requirements for a license to administer or perform these new procedures. It also requires each optometrist who meets the requirements for certification of authorized laser procedures to report to the board regarding the outcome of the procedures and to also report to the state Board of Health.