Eye-surgery law’s backers file lawsuit
Group aims to thwart ballot proposal
The group that supports a 2019 law that permits optometrists to perform a broader range of eye surgeries asked a circuit judge on Thursday to bar the state from certifying a ballot proposal that would allow voters to overturn the law.
The Arkansans for Healthy Eyes committee and its chairwoman, Vicki Farmer, filed the lawsuit in Pulaski County Circuit Court. The filing came shortly after the state Supreme Court declined the optometrist group’s request for the high court to rehear its Dec. 12 ruling directing Secretary of State John Thurston to count all the signatures submitted by the Safe Surgery Arkansas committee for the proposed referendum.
If certified, the referendum would be placed on the Nov. 3 general election ballot.
The suit was filed against Thurston and the Safe Surgery Arkansas committee, whose members oppose Act 579 of 2019 and prefer that
the specified surgeries be performed only by ophthalmologists. The case has been assigned to Circuit Judge Alice Gray.
The Arkansans for Healthy Eyes committee and Farmer also filed a motion seeking a temporary restraining order to bar Thurston from certifying the proposed referendum for the ballot while the lawsuit is pending.
“We are disappointed by today’s ruling from the Court, and unfortunately, there is now even more uncertainty surrounding the referendum process in this case,” Farmer said Thursday in a written statement.
“For the tens of thousands of patients across Arkansas counting on better access to quality eye care, it’s important that this law stay in place,” she said.
But Alex Gray, an attorney for the Safe Surgery Arkansas committee, which is sponsoring the proposed referendum, said Thursday that “when the highest court in Arkansas has already rejected these arguments twice, it seems desperate and futile to ask a lower court to weigh in.
“However, it’s not surprising, since this group knows that almost 90% of Arkansas voters are against this measure that would allow nonmedical doctors to perform eye surgeries,” Gray said in a written statement. “It’s not surprising that they want to deny Arkansans the right to vote and reject a measure that jeopardizes the eye health and safety of Arkansans.”
Chris Powell, a spokesman for Thurston, said Thursday in an email to the Arkansas Democrat-Gazette that “we should have a decision on the certification” of the proposed referendum this morning.
Documents from the secretary of state’s office indicate that Safe Surgery Arkansas submitted 64,028 valid signatures of registered voters, according to the committee. The committee’s petitions need 53,491 signatures to qualify for the ballot.
Before the Supreme Court’s Dec. 12 ruling, Thurston’s office had not counted most of the signatures because of another law — Act 376 of 2019 — 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.
The Arkansans for Healthy Eyes committee’s lawsuit asks Gray to immediately and permanently prohibit Thurston from counting signatures, certifying signatures or taking any other action regarding Safe Surgery Arkansas’ proposed referendum.
In addition, the lawsuit asks for the judge to declare that Act 579 was effective on July 24 of this year and remains in effect, because, the suit argues, there was never a legally effective referendum under Arkansas law.
Attorney General Leslie Rutledge “has never approved the petition’s ballot title and popular name, as required by Arkansas law as it existed before Act 376 of 2019,” the Arkansans for Healthy Eyes committee said in its lawsuit. “That certification was required before [the Safe Surgery Arkansas committee] began soliciting signatures and the failure cannot be cured. Accordingly, the petition is invalid.”
In a 4-3 decision on Thursday, the state’s high court declined to grant the Healthy Eyes committee’s request to rehear its Dec. 12 ruling directing Thurston to count all of the signatures submitted by the Safe Surgery Arkansas committee.
On Aug. 13, the Safe Surgery Arkansas committee asked the state Supreme Court to order Thurston to certify the petitions to place the referendum on the ballot.
That came after Thurston’s office concluded on Aug. 2 that the committee failed to submit enough signatures of registered voters to qualify the proposed referendum for the ballot. Thurston’s office said the committee’s petition needed 53,491 signatures, but had only 23,953.
Thurston declined to count most of the signatures submitted by the Safe Surgery Arkansas committee because he said they were obtained in violation of Act 376 of 2019, according to the state Supreme Court.
Before Act 376, paid canvassers were required to give written statements to the petition’s sponsor, swearing they have never been convicted of certain crimes that would disqualify them from serving as canvassers, the high court said last month.
Act 376 added the requirement that the sponsor must give those statements to the secretary of state’s office before the canvassers can begin collecting signatures.
Normally, a law takes effect 90 days after the adjournment of the session in which the legislation is passed, but Act 376 contained an emergency clause purporting to give it immediate legal effect last March. Ninety days after adjournment of last year’s regular session was July 24.
Justice Josephine Hart wrote in the court’s majority opinion issued Dec. 12 that the stated basis for Act 376’s emergency clause is “to avoid confusion in petition circulation.”
But, she said, “Act 376’s emergency clause is not responsive to some real-life circumstance making immediate legislative enactment ‘necessary for the preservation of the public peace, health and safety,’ as contemplated by Article 5 [Section] 1 of the Arkansas Constitution.
“Without expressing any opinion on the constitutional appropriateness of the rule-changes themselves, we can readily determine that this situation does not amount to an ‘emergency,’ and that reasonable people could not disagree on this question,” Hart said.
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 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.
The legislation creating Act 579 — House Bill 1251 — failed to clear the House Public Health, Welfare and Labor Committee last Feb. 19 before clearing the committee on March 5, after it was amended.
Laura Hawkins, a lobbyist for the Arkansas Ophthalmological Society, reported spending more than $110,000 in the group’s unsuccessful effort to defeat Act 579 in last year’s regular session, the largest amount reported by any lobbyist in the first four months of last year.
Through Dec. 31, the Safe Surgery Arkansas committee reported raising $727,465 in contributions and spending $719,037.40, leaving a balance of $8,427.60.
In contrast, the Arkansans for Healthy Eyes committee reported raising $295,626 in contributions and spending $164,667.66 through Dec. 31, leaving a balance of $130,958.34.
Thurston declined to count most of the signatures submitted by the Safe Surgery Arkansas committee because he said they were obtained in violation of Act 376 of 2019, according to the state Supreme Court.