Arkansas Supreme Court denies rehearing of eye doctor ruling; new lawsuit filed

Arkansas political observers may be cross-eyed by the time all of the legal machinations between optometrists and ophthalmologists are settled.

On Thursday (Jan. 23), the Arkansas Supreme Court denied a petition for rehearing of a ruling that allowed Safe Surgery Arkansas to proceed with its efforts to gain ballot access for its proposal to reverse Act 579.

That law was passed in the 2019 regular session and expanded optometrists’ scopes of practice, allowing them to perform certain eye procedures that have traditionally been limited to ophthalmologists. Safe Surgery Arkansas, which represents ophthalmologists’ interests, said earlier this week that it has achieved the required number of voter signatures to qualify for the 2020 November ballot for its effort to persuade voters to overturn Act 579.

However Arkansans for Healthy Eyes, which represents the state’s optometrists, said it will file a new legal challenge. The group has contended that it is unclear if Act 376, also passed in the 2019 session, is being properly interpreted. While Act 376 was at the crux of the rejected Supreme Court case, AHE says that the state’s highest court has issued conflicting rulings on how to interpret the law’s emergency clause.

AHE said the Supreme Court has issued an opinion that states the emergency clause of Act 376 is invalid. However, the court applied Act 376 as an immediately effective statute in a case last May (Arkansas True Grass v. Rutledge, 2019 Ark. 165), specifically citing the emergency clause, according to the group.

AHE’s new legal filing suggests that if Act 376 was not in place when SSA began its petition process, then it did not achieve the necessary approval to start collecting signatures under the prior law.

“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,” said Vicki Farmer, chairperson of the Arkansans for Healthy Eyes Ballot Question Committee. “Though the Court has ruled that the law governing the petition and referendum process prior to the passage of Act 376 applied to the signature-gathering process here, opponents didn’t follow that law, either. For example, the ballot title was never approved by the Attorney General, as was required by the old law,” said Farmer.

Farmer said her group has filed a new lawsuit in Pulaski County Circuit Court requesting the Secretary of State to delay any further action and keep Act 579 in place.

“We have filed a lawsuit in Pulaski County Circuit Court, asking the Court to prohibit the Secretary of State from taking any other action in connection with the opponents’ petition, since there was never a legally effective referendum in place under Arkansas law,” said Farmer. “We believe Act 579 is and should remain in effect, and we are asking the Court to make that clear,” said Farmer.

Alex Gray, attorney for Safe Surgery Arkansas, said the Supreme Court action today should lead to his group’s petition moving forward.

“The Supreme Court’s decision today affirms its previous ruling and clears the way for Arkansas voters to decide whether non-medical doctors should be permitted to perform eye surgeries. We expect the Secretary of State’s Office to act quickly to certify the petition, and Act 579 will not be in effect until voters are heard on this critical issue for eye health and safety.”

But with the new court filing, Gray added that his group is prepared to fight on.

“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 non-medical doctors to perform eye surgeries. 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,” Gray said.

In a separate motion later in the day, AHE filed a motion for a temporary restraining order asking the court to enjoin the Secretary of State from taking any action on the SSA petition. No hearing has been set yet.