Smith v. Pavan

• Decision Date: 08 December 2016
• Docket Number: No. CV–15–988,CV–15–988
• Citation: 2016 Ark. 437,505 S.W.3d 169
• Parties: Nathaniel SMITH, M.D., MPH, Director of the Arkansas Department of Health, in his Official Capacity, and his Successors in Office, Appellant v. Marisa N. PAVAN and Terrah D. Pavan, Individually, and as Parents, next Friends, and Guardians of T.R.P., a Minor Child; Leigh D.W. Jacobs and Jana S. Jacobs, Individually, and as Parents, next Friends, and Guardians of F.D.J., a Minor Child; Courtney M. Kassel and Kelly L. Scott, individually, and as Parents, next Friends, and Guardians of A.G.S., a Minor Child, Appellees
• Court: Arkansas Supreme Court

2016 Ark. 437

505 S.W.3d 169

Nathaniel SMITH, M.D., MPH, Director of the Arkansas Department of Health, in his Official Capacity, and his Successors in Office, Appellant

v.Marisa N. PAVAN and Terrah D. Pavan, Individually, and as Parents, next Friends, and Guardians of T.R.P., a Minor Child; Leigh D.W. Jacobs and Jana S. Jacobs, Individually, and as Parents, next Friends, and Guardians of F.D.J., a Minor Child; Courtney M. Kassel and Kelly L. Scott, individually, and as Parents, next Friends, and Guardians of A.G.S., a Minor Child, Appellees

No. CV–15–988

Supreme Court of Arkansas.

Opinion Delivered December 8, 2016

Leslie Rutledge, Att'y Gen., by: Colin R. Jorgensen, Ass't Att'y Gen., Little Rock, Arkansas,for appellant.

Cheryl K. Maples, for appellees.

Holly Dickson, The Arkansas Civil Liberties Union Foundation, Inc.; and Leslie Cooper, The American Civil Liberties Union Foundation, Inc., amici curiae for appellees.

JOSEPHINE LINKER HART, Associate Justice

Nathaniel Smith, M.D., M.P.H., Director of the Arkansas Department of Health (Smith), appeals from the circuit court's order granting declaratory judgment and injunctive relief to three couples, appellees Marisa N. Pavan and Terrah D. Pavan, Leigh D.W. Jacobs and Jana S. Jacobs, and Courtney M. Kassel and Kelly L. Scott. At issue is whether the disposition of this case is controlled by the doctrine of res judicata and whether two state statutes governing the issuance of birth certificates violate federal constitutional rights to equal protection and due process under Obergefell v. Hodges , ––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), which held that the right of same-sex couples to marry is a fundamental right inherent in the liberty of the person.

In challenging the circuit court's decision on appeal, Smith argues that the circuit court (1) erred in finding that another circuit court had previously granted injunctive relief regarding birth certificates in its orders in Smith v. Wright , 60CV–13–2662 (Pulaski Co. Cir. Ct. May 9, 2014 and May 15, 2014), that was later appealed to this court and dismissed by this court as moot, Smith v. Wright , 2015 Ark. 298 (per curiam); (2) erred in granting declaratory relief based on its conclusion that Obergefell had resolved issues relating to the issuance of birth certificates for the minor children of same-sex couples; (3) erred in finding a due-process violation by the Arkansas Department of Health's (ADH) refusal to issue birth certificates for minor children of married female couples showing the name of the spouse of the mother; (4) erred in finding an equal-protection violation by ADH's refusal to issue birth certificates for minor children of married female couples showing the name of the spouse of the mother; (5) erred by not applying to the facts of this case Arkansas Code Annotated section 9–10–201(a) (Repl. 2015), which addresses children born to married women by means of artificial insemination. We reverse and dismiss.

Appellees are three married female couples. The Pavans were married in New Hampshire in 2011, and the minor child was born to Terrah in Arkansas in May 2015. The child was conceived through artificial insemination

involving an anonymous donor. ADH would not place Marisa's name on the minor child's birth certificate. The Jacobses were married in Iowa in 2010, and the minor child was born to Leigh in Arkansas in June 2015, also having been conceived through artificial insemination involving an anonymous donor. ADH would not place Jana's name on the minor child's birth certificate. Courtney Kassell and Kelly Scott resided in Arkansas when the minor child was born to Courtney in Arkansas in January 2015. The conception took place through artificial insemination involving an anonymous donor. The couple married in July 2015. Both before and after their marriage, the couple sought to have Kelly's name placed on the minor child's birth certificate, but ADH denied the request.

Appellees filed suit in the circuit court, seeking a declaration that the refusal to issue birth certificates with the names of both spouses on the birth certificates of their respective minor children violated their constitutional rights to equal protection and due process. Appellees also sought to have certain statutory provisions governing the issuance of birth certificates declared unconstitutional as written. Appellees further sought to enjoin Smith from refusing to list the names of both spouses of a same-sex couple on the birth certificate of the minor child. The three couples also asked for an order requiring Smith to issue corrected birth certificates naming both spouses.

Smith answered the complaint, and both parties filed competing motions for summary judgment. At the conclusion of the hearing on the motions, the circuit court announced its intention to order Smith to amend the birth certificates of appellees' children. Smith filed a motion for stay. In a subsequent order and memorandum opinion, the motion for stay was denied. In the order and opinion, the circuit court again ordered Smith to issue three amended birth certificates showing the names of both spouses on the birth certificates of their respective minor children.¹ The court, however, dismissed the claims made by the couples in their capacities as representatives of their respective minor children.²

In reaching its decision, the circuit court concluded that the circuit court in Wright had previously granted injunctive relief regarding birth certificates, and thus, the case was controlled by res judicata. The circuit court also declared as unconstitutional portions of Arkansas Code Annotated section 20–18–401(e), (f) (Repl. 2014), which governs entry of the name of the mother and the father of the child on birth certificates. Further, the circuit court stated that it would interpret Arkansas Code Annotated section 20–18–406(a)(2), which addresses the issuance of a new birth certificate to a "person" who has been "legitimated," in a manner that the circuit court concluded would make the statute constitutional. Smith brought this appeal from the circuit court's decision.

Summary judgment may be granted only when there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. See, e.g. , Washington Cty. v. Bd. of Tr. of the Univ. of Ark. , 2016 Ark. 34, at 3, 480 S.W.3d 173, 175. Ordinarily, upon reviewing a circuit court's decision on a summary-judgment motion, we would examine the record to determine if genuine issues of material fact exist. Id., 480 S.W.3d at 175. However, in a case where the parties agree on the facts, we determine whether the appellee was entitled to judgment as a matter of law. Id., 480 S.W.3d at 175. When parties file cross-motions for summary judgment, as in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. Id., 480 S.W.3d at 175. As to issues of law presented, our review is de novo. Id., 480 S.W.3d at 175.

We first address Smith's argument that the circuit court erred in concluding that the disposition of this case is controlled by res judicata. In its opinion, the circuit court noted that Smith was a party in Wright . The circuit court further noted that the Wright plaintiffs filed a summary-judgment motion, requesting that the court issue a permanent mandatory injunction

[r]equiring Defendant Nathaniel Smith, M.D., as interim director of the Arkansas Department of Health, and his successors, to henceforth issue birth certificates for children born of marriages between members of the same sex that were entered into in other states to reflect that the married parents are the parents of the children born of the marriage; and, also, requiring said Defendant to issue amended birth certificates to any married couples of the same sex that previously gave birth to children in Arkansas to reflect that the married parents are the parents of the children born of the marriage.

The circuit court further noted that in Wright , the final judgment of May 15, 2014, stated that

it is and was the intent of the Order to grant Plaintiff's Motion for Summary Judgment without exception and as to all injunctive relief requested therein. In fact, this was the expressly stated title of the May 9, 2014 Order. Plaintiff's motion requested injunctive relief and properly identified the relevant laws at issue in this challenge.

The circuit court concluded that the claims brought by the Pavans and the Jacobses were fully and completely litigated in Wright and that the Wright injunction is res judicata and binding on Smith.

On appeal, Smith argues that the Wright court did not expressly grant injunctive relief regarding birth certificates. The parties note that the May 15, 2014 order provided

that Plaintiff's request for a permanent injunction is GRANTED and the Court does hereby permanently enjoin all Defendants ... from enforcing Amendment 83 to the Arkansas Constitution, Act 146 of 1997, § 1(b)–(c) (codified at Ark. Code Ann. 9–11–208(a)(1)–(2) ) and Act 144 of 1997 (codified at Ark. Code Ann. §§ 9–11–107(b), –109); and all other state and local laws and regulations identified in Plaintiff's complaint or otherwise in existence to the extent they do not recognize same-sex marriages validly contracted outside Arkansas, prohibit otherwise qualified same-sex couples from marrying in Arkansas or deny same-sex married couples the rights, recognition and benefits associated with marriage in the State of Arkansas.

What is at issue here is whether the doctrine of collateral estoppel applies. Collateral estoppel, also known as issue preclusion, bars relitigation of issues of law or fact previously litigated by a party. See, e.g. , Johnson v. Union Pac. R.R. , 352 Ark. 534, 544, 104 S.W.3d 745, 750 (2003). The elements of collateral estoppel are that (1) the issue sought to be precluded must be the same as that...