Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 1 of 465 u. f i\kiFrcQRT EASTERN DISTRICT ARKANSAS IN THE UNTED STATES DISTRICT COURT JAN 2 2 2019 FOR THE EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION iA~ES W. McCO--rACK, CLERK y, S j DEP CLERK LITTLE ROCK FAMILY PLANNING PLAINTIFFS SERVICES and PLANNED PARENTHOOD OF ARKANSAS AND EASTERN OKLAHOMA d/b/a PLANNED PARENTHOOD GREAT PLAINS v. No. lf:/q-cv-16- BRw' ARKANSAS BOARD OF HEAL TH DEFENDANT NOTICE OF REMOVAL Defendant Arkansas Board of Health removes this action from the Circuit Court of Pulaski County, Arkansas, pursuant to 28 U.S.C. § 1441. 1. Plaintiffs operate licensed abortion facilities m Arkansas. After inspecting Plaintiffs' facilities in January and February 2018, the Board discovered that Plaintiffs were not complying Arkansas's Woman's Right-to-Know Act. Among other things, the Act prohibits Plaintiffs from "requir[ing] or obtain[ing] payment for a service provided in relation to abortion ... until the expiration of the forty-eight-hour reflection period" that the Act requires. Ark. Code § 20-16-1703(d). The Board then issued an order finding Plaintiffs in violation of that prohibition. 2. Plaintiffs claim that section 20-16-1703(d) and the Board's order based on that section violate the U.S. and Arkansas Constitutions. Plaintiffs initially filed a petition for a writ of mandamus in which they argued that the Board's order did not comply with Arkansas administrative-procedure law. But on January 21, 2019, they made clear in their reply brief in support of their mandamus petition that the petition is a vehicle for pursuing their constitutional claims. They "claim that Ark. Code Ann. § 20-16-1703(d) violates the taking clauses of the U.S. This case assigned to District Judge Wi/.sot1- and to Magistrate Judge _'J...,...o-=il~~----- Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 2 of 465 Constitution and the Arkansas Constitution; the equal protection clauses of the U.S. and Arkansas Constitutions, the privacy rights of the U.S. and Arkansas Constitutions; and the Contracts Clause of the U.S. Constitution." Reply to Response to Petition for Writ of Mandamus at 4 n.1, Little Rock Family Planning Servs. v. Ark. Bd. of Health, No. 60cv-18-8090 (Jan. 21, 2019, Pulaski Cty. Cir. Ct.). 1 Plaintiffs filed a mandamus petition, in other words, to ensure "that these constitutional issues are preserved for review in this Court"-i.e., the Pulaski County Circuit Court-"and on appeal to the Arkansas Supreme Court, if necessary." Id. at 4. 3. At a January 22 hearing on Plaintiffs' petition for a writ of mandamus and other matters, the Pulaski County Circuit Court denied that petition but proceeded to the merits of Plaintiffs' claims under the U.S. and Arkansas Constitutions. That court found on the record a substantial probability that section 20-16-1703( d) violated either or both Constitutions. 4. This action is removable pursuant to 28 U.S.C. § 1441(a) because Plaintiffs' claims arise under the Constitution of the United States. See 28 U.S.C. § 1331 (providing federal courts with original jurisdiction over civil actions arising under federal law). 5. This Court has supplemental jurisdiction over Plaintiffs' state-law constitutional claims pursuant to 28 U.S.C. § 1367(a) and § 1441(c) because they are so related to the federal claim as to "form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). 6. This Notice of Removal is timely filed within 30 days after the Board's receipt "of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). 1 Plaintiffs' reply brief is included in the state-court record being filed simultaneously with this Notice of Removal. Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 3 of 465 7. True and correct copies of all process, pleadings, and orders served upon the Board are filed together with this Notice of Removal as required by 28 U.S.C. § 1446(a). 8. Pursuant to 28 U.S.C. § 1446(d), the Arkansas Board of Health will promptly serve upon Plaintiffs' counsel and file with the Circuit Court of Pulaski County, Arkansas, a true and correct copy of this Notice of Removal. For these reasons, the Arkansas Board of Health removes this action from the Circuit Court of Pulaski County, Arkansas, to this Court pursuant to 28 U.S.C. § 1441. Respectfully Submitted, LESLIE RUTLEDGE Arkansas Attorney General By: Jr4~. NICHOLAS J. BRONNI (Ark. Bar No. 2016097) Solicitor General DYLAN L. JACOBS (Ark. Bar No. 2016167) Assistant Solicitor General MICHAEL A. CANTRELL (Ark. Bar No. 2012287) Assistant Solicitor General Arkansas Attorney General's Office 323 Center Street, Suite 200 Little Rock, AR 72201 Phone: (501) 682-3661 Fax: (501) 682-2591 Email: [email protected] [email protected] [email protected] Attorneys for Defendant Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 4 of 465 CERTIFICATE OF SERVICE I, Dylan L. Jacobs, hereby certify that on January 22, 2019, I served a copy of the foregoing by electronic mail and U.S. Mail, postage prepaid, upon the following: Bettina E. Brownstein Bettina E. Brownstein Law Firm 904 West Second Street, Suite 2 Little Rock, AR 72201 [email protected] cPJ~ Dylan L. Jacobs Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 5 of 465 ELECTRONICALLY FILED Pulaski County Circuit Court Larry Crane, Circuit/County Clerk 2018-Nov-26 14:48:06 60CV-18-8090 IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKA AS C06D06 : 2 Pages ---DIVISION LITTLE ROCK FAMILY PLANNING PLAINTIFFS SERVICES and PLANNED PARENTHOOD OF ARKANSAS AND EASTERN OKLAHOMA DBA PLANNED PARENTHOOD GREAT PLAINS v. ARKANSAS BOARD OF HEALTH DEFENDANT APPEAL FROM ADMINISTRATIVE DECISION Plaintiffs Little Rock Family Planning Services and Planned Parenthood of Arkansas and Eastern Oklahoma dba Planned Parenthood Great Plains appeal from an order of the Arkansas Board of Health ("ABOH") issued November 8, 2018 which is adverse to Plaintiffs. Plaintiffs' research indicates that the order is insufficient under the law to permit judicial review of the order and have thus filed a motion with the ABOH requesting that it revise its order. However, to prevent any waiver or default of their ability to appeal, Plaintiffs file this timely notice of appeal. In the event Defendant revises its order, as requested by Plaintiffs, Plaintiffs is likely to file an amended notice of appeal. Designation and transmittal of the record is governed by Ark. Code. Ann. §25-15-212, which requires Defendant to transmit at its cost the entire record of the proceedings below for this appeal. Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 6 of 465 Respectfully submitted: edLt:--=:., Cr'/f~z------------ Bettina E. Brownstein (85019) .._____ Bettina E. Brownstein Law Finn 904 West Second Street, Suite 2 Little Rock, Arkansas 72201 Tel: (501) 920-1764 Email: [email protected] Attorney for Plaintiffs On Behalf of Arkansas Civil Liberties Foundation, Inc. for Plaintiff Little Rock Family Planning Services Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 7 of 465 Bettina E. Brownstein 904 W. Second St Little Rock, Arkansas 72201 Tel: (501) 920-1764 E-mail: hcttinahrownstcinr,, gmail.com November 26, 2018 Via E-mail to Monty Baugh at [email protected] Re: Appeal from Arkansas Board of Health Decision v. Little Rock Family Planning Services and Planned Parenthood of Arkansas and Eastern Oklahoma dba Planned Parenthood Great Plains, Case No. 60cv- l 8-8090, Pulaski Circuit Court. Mr. Monty Baugh, Assistant Attorney General Arkansas Attorney General 323 Center St., Suite 200 Little Rock, Arkansas 72201 Dear Monty: This letter is to inform you that Little Rock Family Planning Services and Planned Parenthood of Arkansas and Eastern Oklahoma dba Planned Parenthood Great Plains have appealed a decision of the Arkansas Board of Health to the Pulaski Circuit Court. The case no. is referenced above. In this appeal, Plaintiffs challenge the constitutionality of Ark. Code Ann. § 20-16-1703( d). Cordially, Bettina E. 8rownstein Attorney for Plaintiffs :RECEIVED NCV 2 9 2018 ATTORNEY GENERAL OF ARKANSAS Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 8 of 465 - Not an Official Document Page 1 of 3 Report Selection Criteria Case ID: 60CV-18-8090 Citation No: Docket Start Date: Docket Ending Date: Case Description Case ID: 60CV-18-8090 - LR FAMILY PLANNING SERV ET AL VAR BOARD OF HEALTH -NON-TRIAL Filing Monday , November 26th, 2018 Date: Court: 60 - PULASKI Location: Cl - CIRCUIT Type: AP - ADMINISTRATIVE APPEAL Status: OPEN - CASE OPEN Images: Case Event Schedule No case events were found. Case Parties Seq End Assoc Type ID Name # Date JUDGE 7965389 HON. TIM FOX - 6TH DIVISION PULASKI CIRCUIT COURT • Aliases: !Fox I PLAINTIFF 16378044 LITTLE ROCK FAMILY [TI PLANNING SERVICES D Aliases: none 6 DEFENDANT 16378046 ARKANSAS BOARD OF HEALTH https://caseinfo.arcourts.gov/cconnect/PROD/public/ck_public_ qry _ doct.cp_ dktrpt_dock... 11/29/2018 Case 4:19-cv-00046-BRW Document 1 Filed 01/22/19 Page 9 of 465 - Not an Official Document Page 2 of3 II II II Aliases: II none 4 DEFENDANT/RESPONDENT 1005736 KEHLER, LAURA ATTORNEY KATHERINE Aliases: none 5 PLAINTIFF/PETITIONER 1003620 BROWNSTEIN, ATTORNEY BETTINA ELLEN Aliases: BROWNSTEIN, BETTINA E.