Protect Fayetteville v. City of Fayetteville

• Decision Date: 23 February 2017
• Docket Number: No. CV–16–586,CV–16–586
• Citation: 510 S.W.3d 258
• Parties: PROTECT FAYETTEVILLE, f/k/a Repeal 119; Paul Sagan; Peter Tonnesson; and Paul Phaneuf, Appellants and The State of Arkansas, Intervenor v. The CITY OF FAYETTEVILLE, Washington County, Arkansas ; Lioneld Jordan, in his Official Capacity as Mayor of Fayetteville; Adella Gray; Sarah Marsh, Mark Kinion, Matthew Petty, Justin Tenant, Martin W. Schoppmeyer Jr., John Latour, and Alan Long, in their Official Capacities as Aldermen of the Fayetteville City Council, Appellees
• Court: Arkansas Supreme Court

510 S.W.3d 258

PROTECT FAYETTEVILLE, f/k/a Repeal 119; Paul Sagan; Peter Tonnesson; and Paul Phaneuf, AppellantsandThe State of Arkansas, Intervenor

v.The CITY OF FAYETTEVILLE, Washington County, Arkansas ; Lioneld Jordan, in his Official Capacity as Mayor of Fayetteville; Adella Gray; Sarah Marsh, Mark Kinion, Matthew Petty, Justin Tenant, Martin W. Schoppmeyer Jr., John Latour, and Alan Long, in their Official Capacities as Aldermen of the Fayetteville City Council, Appellees

No. CV–16–586

Supreme Court of Arkansas.

Opinion Delivered: February 23, 2017

Story Law Firm, PLLC, by: Travis W. Story, Fayetteville, Katie L. Freeman, and Bob Ballinger, for plaintiff-appellants.

Leslie Rutledge, Little Rock, Att'y Gen., by: Lee Rudofsky, Ark. Solicitor General, for intervenor-appellant.

Kit Williams, Fayetteville City Att'y, and Blake Pennington, Ass't City Att'y, for appellees.

JOSEPHINE LINKER HART, Associate Justice

Appellants, Protect Fayetteville, f/k/a Repeal 119; Paul Sagan; Peter Tonnesson; and Paul Phaneuf, appeal from the circuit court's decision finding that the passage of Ordinance 5781 by the Fayetteville City Council, entitled "An Ordinance To Ensure Uniform Nondiscrimination Protections Within The City of Fayetteville For Groups Already Protected To Varying Degrees Throughout State Law," did not violate Act 137 of 2015, the Intrastate Commerce Improvement Act, codified at Ark. Code Ann. § 14–1–401 to –403 (Supp. 2015). We reverse and remand.

On February 24, 2015, Act 137 was approved without an emergency clause. The effective date of all acts without an emergency clause or a specified effective date was July 22, 2015. Arkansas Code Annotated section 14–1–402 provides as follows:

(a) The purpose of this subchapter is to improve intrastate commerce by ensuring that businesses, organizations, and employers doing business in the state are subject to uniform nondiscrimination laws and obligations, regardless of the counties, municipalities, or other political subdivisions in which the businesses, organizations, and employers are located or engage in business or commercial activity.

(b) The General Assembly finds that uniformity of law benefits the businesses, organizations, and employers seeking to do business in the state and attracts new businesses, organizations, and employers to the state.

In sum, the General Assembly's stated purpose for passage of the Act was to improve intrastate commerce by ensuring that various entities in the state are subject to uniform nondiscrimination laws. Arkansas Code Annotated section 14–1–403 provides as follows:

(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.

(b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.

On June 16, 2015, the Fayetteville City Council passed Ordinance 5781. The Ordinance notes that various laws, including the Civil Rights Act, the Arkansas Civil Rights Act of 1993, and the Arkansas Fair Housing Act, provide "Fayetteville citizens with protections against discrimination on the basis of race, ethnicity, national origin, age, sex, religion and disability." The Ordinance further notes that the Arkansas General Assembly "has determined that attributes such as ‘gender identity’ and ‘sexual orientation’ require protection," citing Ark. Code Ann. § 6–18–514(b)(1) (Repl. 2013), which is a statute addressing antibullying policies in public schools. The Ordinance provides that the "protected classifications" in the antibullying statute "for persons on the basis of gender identity and sexual orientation should also be protected by the City of Fayetteville to prohibit those isolated but improper circumstances when some person or business might intentionally discriminate against our gay, lesbian, bisexual and transgender citizens."

As its stated purpose, Ordinance 5781 provides,

Since Federal and State law already protect citizens from most discrimination, the Uniform Civil Rights Protection Article shall extend existing protections to lesbian, gay, bisexual, and transgender citizens and visitors as recognized elsewhere in state law.

(emphasis added). The Ordinance defines "gender identity" as "an individual's own, bona fide sense of being male or female, and the related external characteristics and behaviors that are socially defined as either masculine or feminine." It defines "sexual orientation" as "heterosexuality, homosexuality or bisexuality by practice, identity or expression." In setting out a "discrimination offense," Ordinance 5781, in pertinent part, provides as follows:

The right of an otherwise qualified person to be free from discrimination because of sexual orientation and gender identity is the same right of every citizen to be free from discrimination because of race, religion, national origin, gender and disability as recognized and protected by the Arkansas Civil Rights Act of 1993.

The Ordinance set a special election on September 8, 2015, for the voters to enact or reject the Ordinance. According to the Ordinance, on approval by the voters, the Ordinance would be enacted into the Fayetteville Code and become effective 60 days after the approving election.

On August 31, 2015, appellants began their litigation by filing a complaint and a motion for declaratory judgment. The circuit court denied appellants' motion for an emergency temporary restraining order that would have prohibited the special election. On September 8, 2015, the Ordinance was approved by the voters. The circuit court subsequently denied appellants' motion to stay the Ordinance from going into effect. The State of Arkansas intervened in the lawsuit.

Following a hearing, the circuit court entered an order granting in part and denying in part appellees' motion for summary judgment. The court further denied the cross-motions for summary judgment by appellants and the State. In the section of the order pertinent to this appeal, the circuit court found that Ordinance 5781 did not violate Act 137. In its analysis, the court noted that Act 137 prohibited the adoption or enforcement of an ordinance that created a protected classification on a basis not contained in state law. The court stated that Arkansas Code Annotated section 6–18–514, the statute on antibullying policies in public schools, contained "[p]rotected classifications" that included "gender identity and sexual orientation."

The antibullying statute, we note, defines an "attribute" as "an actual or perceived personal characteristic including without limitation race, color, religion, ancestry, national origin, socioeconomic status, academic status, disability, gender, gender identity, physical appearance, health condition, or sexual orientation." Ark. Code Ann. § 6–18–514(b)(1). The statute prohibits the "bullying" of a public school student or public school employee, and defines "bullying," in part, as "the intentional harassment, intimidation, humiliation, ridicule, defamation, or threat or incitement of violence by a student against another student or public school employee by a written, verbal, electronic, or physical act that may address an attribute of the other" student or public school employee. Ark. Code Ann. § 6–18–514(b)(2).

The circuit court also noted that the Arkansas Domestic Peace Act provided that shelters for victims of domestic abuse were required to "[d]evelop and implement a written nondiscrimination policy to provide services without regard to race, religion, color, age, marital status, national origin, ancestry, or sexual preference" Ark. Code Ann. § 9–4–106(1) (Repl. 2015). The circuit court further noted that a statute in the Vital Statistics Act provides that, on receipt of a certified copy of a court order "indicating that the sex of an individual born in this state has been changed by surgical procedure and that the individual's name has been changed, the certificate of birth of the individual shall be amended accordingly." Ark. Code Ann. § 20–18–307(d) (Repl. 2014).

The court noted that appellees argued that, in view of these three statutes, gender identity and sexual orientation were already protected classifications on bases contained in state law, and therefore, Ordinance 5781 did not create any protected classifications in violation of Act 137. The circuit court noted that, in response, appellants and the State argued that the only protected classifications to be considered are those set out in the Arkansas Civil Rights Act and that gender identity and sexual orientation are not protected classifications under that Act.

In its analysis, the court observed that the Arkansas Civil Rights Act is not mentioned in Act 137. The court concluded that Act 137 does not state that Arkansas's municipalities are prohibited from creating a protected classification on a basis not contained in the Arkansas Civil Rights Act but instead are prohibited from creating a protected classification "on a basis not contained in state law." The court concluded that the classifications of gender identity and sexual orientation are classifications of persons protected on bases contained in state law, and therefore Ordinance 5781 does not create a protected classification on a basis not contained in state law in violation of Act 137.

The court further noted that the parties disagreed about the meaning of the word "basis" contained in Act 137. Appellants and the State asserted that, considering the Act's purpose, "basis" referred to the area of law in which a prohibition or discrimination is contained, such as discrimination in the area of employment law. Appellees, however, contended that the word means the reason why a person is discriminated against, such as his or her gender identity or sexual orientation. The court agreed with appellees and...