Protect Fayetteville v. City of Fayetteville

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                 SUPREME COURT OF ARKANSAS
                                       No.   CV-16-586

                                                 Opinion Delivered: February   23, 2017
PROTECT FAYETTEVILLE, F/K/A
REPEAL 119; PAUL SAGAN; PETER     APPEAL FROM THE
TONNESSON; AND PAUL PHANEUF       WASHINGTON COUNTY
                       APPELLANTS CIRCUIT COURT [NO. 72CV-15-
                                  1510]
AND
                                  HONORABLE DOUG MARTIN,
THE STATE OF ARKANSAS             JUDGE
                     INTERVENOR
                                  REVERSED AND REMANDED.
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


                        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,
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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

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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.




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       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


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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


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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 observed

that the Act does not state that a municipality cannot adopt or enforce an ordinance that

prohibits discrimination in the area of employment law.

       The court concluded that, in compliance with Act 137, Ordinance 5871 prohibits

discrimination on bases already contained in state law, and therefore, Ordinance 5871 does

not violate Act 137. The court further concluded that because the Ordinance does not

violate the Act, “the court need not address the constitutionality of Act 137.” The court

granted summary judgment to appellees and denied the appellants’ and the State’s cross-

motions for summary judgment. The only claim on which appellants were granted summary

judgment was appellees’ claim that appellants did not have standing to bring the challenge.

This appeal followed.




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       On appeal, appellants and the State challenge the circuit court’s ruling that Ordinance

5781 does not violate Act 137. In its brief, the State argues that, to advance the Act’s purpose

of uniformity, the General Assembly precluded municipalities from adopting or enforcing

an ordinance that creates a protected classification or prohibits discrimination on a basis not

contained in state law. The State argues that the Act does not address specific persons or

groups; rather, it requires that the decision to prohibit any, some, or all discrimination

because of any particular personal characteristic be accomplished at the state level and be

uniform throughout the state. The State asserts that the Act is an expression of the General

Assembly’s decision that determinations of protected classes and application of particular

discrimination laws to such groups be decisions made at the state level and enforceable

statewide in order to avoid a patchwork of different local rules and standards. The State

contends that the Ordinance violates the Act by extending discrimination prohibitions to

cover sexual orientation and gender identity. The State observes, “By essentially adding

sexual orientation and gender identity to the list of protected classifications in the Arkansas

Civil Rights Act, the Fayetteville Ordinance created two new protected classifications and

thereby violated the Intrastate Commerce Improvement Act.” Further, the State challenges

the appellees’ reliance on the antibullying statute, the Arkansas Domestic Peace Act, and the

Vital Statistics Act. On appeal, the appellants adopt the State’s arguments.

       In response, appellees argue that Fayetteville voters enacted discrimination

protections that are not new but instead have been in place in state law. Appellees assert that

the Act limited its preemptive effect to an ordinance that attempted to create a protected

classification unknown and unrecognized in state law. Appellees contend that because state


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statutes have already created and referred to a protected classification for both sexual

orientation and gender identity, the Ordinance did not create a protected classification.

Appellees cite to the provisions discussed above in the antibullying statute, the Arkansas

Domestic Peace Act, and the Vital Statistics Act. Further, appellees observe that Act 137

does not preclude creation of a protected classification or prohibiting discrimination on a

basis not contained in the Arkansas Civil Rights Act, but instead says “on a basis not

contained in state law.”

       The question presented to this court is the meaning of Act 137 and its application to

Ordinance 5781. We review issues of statutory construction de novo. Harris v. City of Fort

Smith, 366 Ark. 277, 280, 234 S.W.3d 875, 878 (2006). In considering the meaning and

effect of a statute, this court construes it just as it reads, giving the words their ordinary and

usually accepted meaning in common language. Id., 234 S.W.3d at 878. When the language

of a statute is plain and unambiguous, there is no need to resort to rules of statutory

construction. Id., 234 S.W.3d at 878. When a statute is clear, it is given its plain meaning,

and this court will not search for legislative intent; rather, that intent must be gathered from

the plain meaning of the language used. Id., 234 S.W.3d at 878.

       In this case, the General Assembly expressly stated the intent. Act 137 sets out its

purpose as “ensuring that businesses, organizations, and employers doing business in the

state are subject to uniform nondiscrimination laws and obligations.” Ark. Code Ann. § 14-

1-402(a). Thus, the express purpose of Act 137 is to subject entities to “uniform

nondiscrimination laws and obligations.” The General Assembly noted the beneficial effect

of the “uniformity of law.” In keeping with the statute’s goal of uniform nondiscrimination


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laws and obligations, the General Assembly precluded municipalities from adopting or

enforcing an ordinance that “creates a protected classification or prohibits discrimination on

a basis not contained in state law.” Ark. Code Ann. § 14-1-403(a).1 “This court is very

hesitant to interpret a legislative act in a manner contrary to its express language.” Cave City

Nursing Home v. Ark. Dept. Human Servs., 351 Ark. 12, 21-22, 89 S.W.3d 884, 889. Thus,

consideration must be given to whether, in applying Act 137 to Ordinance 5781, it can be

said that the Ordinance violates the Act. Here, in defining a “discrimination offense,” the

Ordinance provides that 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 specifically states that its purpose is to “extend” discrimination to include “sexual

orientation and gender identity.” In essence, Ordinance 5781 is a municipal decision to

expand the provisions of the Arkansas Civil Rights Act to include persons of a particular

sexual orientation and gender identity. This violates the plain wording of Act 137 by

extending discrimination laws in the City of Fayetteville to include two classifications not

previously   included    under    state   law.   This   necessarily   creates   a   nonuniform

nondiscrimination law and obligation in the City of Fayetteville that does not exist under

state law. It is clear from the statutory language and the Ordinance’s language that there is


       1
         We note that the phrase “on a basis not contained in state law” modifies both the
phrase “protected classification” and the phrase “prohibits discrimination.” As one authority
has stated, “When there is a straightforward, parallel construction that involves all nouns or
verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147 (2012).

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a direct inconsistency between state and municipal law and that the Ordinance is an obstacle

to the objectives and purposes set forth in the General Assembly’s Act and therefore it cannot

stand.

         Moreover, the statutes cited by the circuit court, the antibullying statute, the

Arkansas Domestic Peace Act, and the Vital Statistics Act, are unrelated to

nondiscrimination laws and obligations and do not create protected classifications or prohibit

discrimination on some basis. Rather, in their respective contexts, these statutes (1) provide

a nonexclusive list of attributes on which a public school student or public school employee

may not be bullied at school; (2) ask domestic-abuse shelters to develop their own

nondiscrimination policies; (3) and permit the amendment of birth certificates. Accordingly,

we hold that the circuit court erred in ruling that Ordinance 5781 did not violate Act 137.

         We recognize that in this appeal the State further argues the constitutionality of Act

137. That issue, however, was not addressed by the circuit court. Issues unresolved by the

circuit court are not preserved for appeal. Priest v. Polk, 322 Ark. 673, 686, 912 S.W.2d 902,

909 (1995).2

        Reversed and remanded.
        Story Law Firm, PLLC, by: Travis W. Story, Katie L. Freeman, and Bob Ballinger, for
plaintiff-appellants.
        Leslie Rutledge, 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.
         2
         Appellees question whether the State may remain in the case as an intervenor, in
view of the circuit court’s decision not to rule on the constitutionality of Act 137, which
was the State’s asserted reason for intervention. Appellees, however, did not challenge in
the circuit court the State’s presence in the lawsuit below, nor did it file a notice of cross-
appeal. Consequently, we decline to address this issue. Landers v. Stone, 2016 Ark. 272, at
5, 496 S.W.3d 370, 375.

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