A lawsuit by Republican lawmakers who accused Arkansas' Republican governor of exceeding his authority responding to the covid-19 pandemic was thrown out of court Wednesday by Pulaski County Circuit Judge Wendell Griffen.
Griffen ruled Gov. Asa Hutchinson acted within the scope of the powers delegated to his office by the General Assembly through the 1973 Arkansas Emergency Services Act to respond to major disasters, among them the outbreak of epidemic or contagious diseases.
Griffen announced his decision after hearing arguments from the sides Wednesday. Plaintiffs attorneys Travis Story and Gregory Payne plan to appeal.
"This is a case involving some pretty fundamental issues regarding the role of government in our lives and no doubt would have been appealed regardless of which party prevailed," Payne said in an email. " [T]his case is of such importance that an appeal will be filed at our earliest opportunity."
In March Hutchinson declared a public health emergency and issued directives aimed at slowing the spread of the coronavirus. Among those directives were ordering many businesses to temporarily close and mandating that masks be worn in most public places.
Hutchinson told reporters Wednesday he was pleased with Griffen's decision.
"That quick decision, I think, will clearly give great confidence and will allow us to proceed with the steps that we need to handle this emergency," Hutchinson said.
Griffen's decision comes about six weeks after 18 Republican legislators -- out of the state's 101 Republican lawmakers -- sued Hutchinson's Health Secretary Jose Romero in his role as head of the Health Department in September.
They announced the litigation with a rally on the steps of the Capitol, complaining that "unelected bureaucrats" at the agency, Romero among them, had illegally bypassed legislative authority to impose directives that subject Arkansas residents to criminal penalties for violations.
Health Department orders closed schools, government offices and businesses such as restaurants, gyms, barber shops and entertainment venues. It also restricted gatherings in public places outside the home and delayed elective surgical procedures.
Their suit described 43 such actions by the agency and argued that any covid-fighting rules the Health Department wanted to impose required legislative approval to take effect.
But the judge's ruling included a finding that legislators had endorsed the Health Department's authority to combat the coronavirus in 2018 when the Legislative Council approved the agency's rules for reportable diseases in 2018.
The judge noted that while those rules do not specifically address covid-19, like they do SARS and MERS, the rules provide for a "novel coronavirus" epidemic. Griffin further noted that both sides agree covid-19 is a novel coronavirus.
The lawsuit was expanded to add Hutchinson after Romero's lawyers, Michael Mosely and Brittany Edwards from the attorney general's office, argued the suit should be dismissed because the litigation attacked orders issued by the governor that formed the basis for the Health Department's authority to act, without including him as a defendant. Hutchinson also was represented by the attorney general's office.
The lawsuit disputed the governor's authority to extend his March emergency declaration for more than two months and that all of his executive orders past that expiration date, June 18, should be invalidated.
The cost of the litigation is reportedly being paid by the Northeast Arkansas Tea Party and Reopen Arkansas. One of the plaintiffs, state Sen. Alan Clark of Lonsdale, has asked for an advisory opinion from the Arkansas Ethics Commission about whether the expense of the litigation could be considered a gift to the legislative plaintiffs.
"None of the 18 legislators are paying for this lawsuit, and there is no personal gain for this group of legislators," Clark wrote in an Oct. 5 letter to ethics commission Chairwoman Ashley Driver Younger. "Please know that I think the whole idea that it is a gift is absurd and I hate to even bother you with it.
"However, I would rather have your opinion and live by it than be accused of taking something illegally."
Questions posed by Clark are:
• If an individual is paying the fees associated with the lawsuit, is this an illegal contribution or an improper gift to a member or members of the Arkansas General Assembly?
• If it were considered to be a gift for a legislator, is it also considered a gift for any other citizen who has attached their name to this lawsuit?
• If it were considered to be a gift, "would everyone have to legally pay the exact same amount or is there such requirement in law for those who participate in a class action lawsuit for the good of the whole?"
• "If not, what would be the minimum that one could pay, legislator or not, and not be charged with taking a gift?"
In a letter Tuesday, Commission Director Graham Sloan wrote to Clark that "it is noted that an advisory opinion, by its very nature, is intended to provide guidance related to future conduct -- not past events -- is prospective in its application.
"Accordingly, the commission refrains from opining about the permissibly of a specific past event," he said. "We will send a copy of the advisory opinion as soon as it has been issued."
Sloan said Wednesday in an email that "the opinion is not on the agenda for the October meeting," which is Friday.
Six members of the 35-member Senate and 12 of the 100-member House were plaintiffs in the lawsuit. The other five litigants from the Senate are Bob Ballinger of Berryville, Kim Hammer of Benton, Terry Rice of Waldron, Gary Stubblefield of Branch and Dan Sullivan of Jonesboro.
Plaintiffs from the House are Mary Bentley of Perryville, Harlan Breux of Holiday Island, Bruce Cozart of Hot Springs, Justin Gonzalez of Okolona, Steven Meeks of Greenbrier, Josh Miller of Heber Springs, John Payton of Wilburn, Marcus Richmond of Harvey, Laurie Rushing of Hot Springs, Brandt Smith of Jonesboro, Nelda Speaks of Mountain Home and Richard Womack of Arkadelphia.
They were joined by seven voters from around the state, among them Little Rock talk-radio host Dave Elswick. Those additional plaintiffs are Iris Stevens and James David Haigler of Jonesboro, Scott and Angela Gray of Alexander and Mike and Stephanie Duke of Benton.
Covid-related directives are being challenged in other states as well.
A judge in Madison, Wis., on Wednesday temporarily blocked an order from Gov. Tony Evers' administration that would limit the number of people who can gather in many indoor establishments, including bars and restaurants. The move comes as the state breaks records for new coronavirus cases, deaths and hospitalizations.
The Democratic governor's order, issued by state health secretary Andrea Palm last week, limited the number of customers in many establishments to 25% of capacity. Gatherings in indoor spaces without an occupancy limit were limited to 10 people. The order does not apply to colleges, schools, churches, polling locations, political rallies and outdoor venues.
The Tavern League of Wisconsin, a lobbying group, argued the capacity limits amounted to "defacto closure." It said Palm doesn't have the legal authority to issue the order, which instead should have gone through the Republican-led Legislature's rule-making process.
Information for this article was contributed by Michael R. Wickline of the Arkansas Democrat-Gazette, and Andrew DeMillo and Scott Bauer of The Associated Press.