State officials gather enough signatures for eye law referendum

Proposed change would allow optometrists to perform wider range of eye surgeries

The sponsors of a proposed referendum on a 2019 law that will allow optometrists to perform a wider range of eye surgeries submitted enough valid signatures of registered voters to qualify their ballot measure for the Nov. 3 general election ballot, Secretary of State John Thurston said Friday.

Thurston said he “has determined that there are no more than 64,027 valid signatures” of registered voters submitted by the Safe Surgery Arkansas committee that proposed the referendum on the eye surgery law, and the required number of signatures in 2019 for a proposed referendum is 53,491.

The committee initially submitted 84,866 signatures to the secretary of state’s office, he said.

“The secretary of state intends to certify the proposed referendum to the county boards of election commissioners in August of 2020,” Thurston said in a letter dated Friday to the Safe Surgery Arkansas committee attorney Alex Gray.

Thurston spokesman Chris Powell noted in an email to the Arkansas Democrat-Gazette that “actual certification of candidates and ballot issues to the ballot will not take place until August.”

The Republican secretary of state’s action came three days after Pulaski County Circuit Judge Wendell Griffen on Tuesday dismissed a lawsuit filed by the optometrists group, called the Arkansans for Healthy Eyes committee, that sought to block the proposed referendum for voters to consider undoing the eye surgery law — Act 579 of 2019.

The Arkansans for Healthy Eyes committee and its chairwoman, Vicki Farmer, filed the suit last week against Thurston and the Safe Surgery Arkansas committee, whose members oppose Act 579 and prefer that the specified surgeries be performed only by ophthalmologists. The Healthy Eyes committee’s lawsuit was filed shortly, after the state Supreme Court 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.

Gray said Friday in a written statement that “voters can now rest assured they will have the opportunity to vote on whether to allow non-medical doctors to perform eye surgery this November, and the more than 64,000 Arkansans who signed the petition will have their voices heard.”

Farmer said Friday that the “certification from the secretary of state only addresses the petition signatures.

“This does nothing to change the fact the ballot title in this measure was never certified by the attorney general, as required under pre-Act 376 law, and therefore, this cannot be a legally effective referendum for the ballot under that law or any Arkansas law,” she said in a written statement.

Farmer said that “we are still weighing legal options and will take action at the appropriate time. Our main priority, as from the beginning, is to ensure Arkansans have the opportunity to benefit from better access to quality eye care under Act 579.”

Gray replied that “these arguments were already raised and rejected before both the Arkansas Supreme Court and Pulaski County Circuit Court.”

Farmer countered that “we disagree. It’s noteworthy the opposition has never shown they followed applicable law in trying to put this measure on the ballot, and we know they didn’t.”

In the lawsuit dismissed by Griffen on Tuesday, 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.

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 committee also asked the judge to declare the eye surgery law was effective on July 24 of last year and remains in effect. In addition, the committee also sought a temporary restraining order to block Thurston from certifying the proposed referendum for the Nov. 3 general election.

In dismissing the Healthy Eyes committee’s lawsuit and denying the committee’s request for a temporary restraining order, Griffen ruled that the circuit court lacked subject matter jurisdiction to rule on the committee’s challenge to the sufficiency of Safe Surgery Arkansas committee’s petition for a statewide referendum on Act 579 of 2019.

“Original jurisdiction for such challenges likes exclusively in the Supreme Court pursuant to the Arkansas Constitution,” he wrote in a five-page ruling.

Secondly, the Healthy Eyes’ litigation “is barred by res judicata based on the recent Arkansas Supreme Court decision (4-3) in Safe Surgery Arkansas v. Thurston..,” in which the high court granted the Safe Surgery Arkansas committee’s request to compel Thurston to count the Safe Surgery Committee’s signatures for the proposed referendum on Act 579 of 2019, Griffen wrote.

According to Black’s Law dictionary, res judicata means “a thing adjudicated. Once a lawsuit is decided, the same issue or an issue arising from the first issue cannot be contested again.”

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,cq AH a surgery performed after cataract surgery, and trabeculoplasty,cq AH a procedure to reduce pressure from glaucoma. Optometrists are still banned under the new law from doing cataract surgery and radial keratotomycq AH 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.

State Rep. Jon Eubanks, R-Paris — the sponsor of Act 579 of 2019 — could not be reached for comment by telephone on Friday.