Mask-law ruling raises rush to line up lawyers

This undated composite photo shows (from left) Arkansas Attorney General Leslie Rutledge; state House Speaker Matthew Shepherd, R-El Dorado; and Senate President Pro Tempore Jimmy Hickey, R-Texarkana. (Arkansas Democrat-Gazette file photos)
This undated composite photo shows (from left) Arkansas Attorney General Leslie Rutledge; state House Speaker Matthew Shepherd, R-El Dorado; and Senate President Pro Tempore Jimmy Hickey, R-Texarkana. (Arkansas Democrat-Gazette file photos)

Attorney General Leslie Rutledge said Friday that she will appeal to the Arkansas Supreme Court a Pulaski County circuit judge's ruling that temporarily bars authorities from enforcing a state law banning mask mandates by most state and governmental entities, including the public schools.

Meanwhile, House Speaker Matthew Shepherd, R-El Dorado, and Senate President Pro Tempore Jimmy Hickey, R-Texarkana, said they have jointly retained the law firm of Dover Dixon Horne PLLC to represent them in their official capacities as leaders of the Legislature in the pending litigation.

Gov. Asa Hutchinson, who had said earlier that the attorney general would not represent him in the case, said Friday that he has asked David R. Matthews of Matthews, Campbell, Rhoads, McClure & Thompson P.A. to represent him in his official capacity as governor.

The announcements by Rutledge, Shepherd, Hickey and Hutchinson late Friday afternoon came a week after Pulaski County Circuit Judge Tim Fox issued a preliminary injunction blocking the state from enforcing Act 1002 of 2021's ban on mask mandates.

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Fox's Aug. 6 ruling came hours after the Legislature adjourned a three-day special session called by Hutchinson, who asked lawmakers to change Act 1002 so local school boards could decide whether to require students younger than 12 years old to wear masks. Those children are ineligible to be vaccinated for covid-19.

But the Republican-dominated Legislature refused to follow the Republican governor's suggestion, which came amid surging coronavirus cases in Arkansas resulting from the delta variant and the state's low vaccination rate. Neither the House nor the Senate allowed any kind of bill on mask mandates by schools to clear a legislative committee.

Fox's ruling has prompted dozens of school districts and some colleges and universities to require that masks be worn in their buildings, with many of them starting classes soon.

DIFFERENT OPINIONS

"I will appeal the decision of Judge Fox, which blocked Act 1002 from going into effect," Rutledge said in a news release.

"For nearly seven years, I have always exercised my constitutional duty to represent the state of Arkansas and will continue to wholeheartedly defend state laws to protect Arkansans of all ages," said the Republican attorney general, who also is running for her party's nomination for governor in 2022.

Shepherd, who is an attorney, and Hickey, who is a retired banker, said in a joint news release: "We have conferred with the Attorney General and her staff as we evaluated how best to proceed.

"We appreciate their representation of us to this point," they said. "However, given the number of parties and the potential for multiple conflicts, we believe our interests in this case are best served through retaining separate counsel.

"While we understand there are many different opinions as to the specific legislation at issue, the important role of the legislative branch must be preserved among our three, separate but equal, branches of government," Shepherd and Hickey said.

Asked whether he disagrees with Rutledge's decision to appeal Fox's ruling, Hickey declined to comment in a brief telephone interview.

Asked whether Shepherd disagrees with Rutledge's decision, House spokeswoman Cecillea Pond-Mayo said in a written statement, "The statement is the only comment he will have today."

Asked about Shepherd and Hickey's decision to retain their own legal counsel, Rutledge spokeswoman Amanda Priest said, "The Office does not comment on conversations held with parties to this suit."

Sen. Trent Garner, R-El Dorado, who sponsored Act 1002, said he thought it was good that the attorney general was appealing the ruling.

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Garner, who is an attorney, said he had not been involved in conversations with the House and Senate leaders about their decision to seek separate representation, but "whatever way is the best way" to make sure the law stays in place.

Rep. Joshua Bryant, R-Rogers, who was the House sponsor of Act 1002, said in a text message Friday that he was pleased to see Rutledge defend "the clear direction of the majority of those who represent the people of Arkansas."

"I find it concerning that the Governor would first sign this law, then spend taxpayer money to pull the Legislature into special session for an amendment to Act 1002 which he could find no support on, and then publicly challenge that law's constitutionality," he said.

House Democratic leader Tippi McCullough of Little Rock said she believes Fox made the correct ruling in finding that there was merit in the lawsuit that claims Act 1002 is unconstitutional and she expects it to be upheld through the appeal process.

McCullough referred to the U.S. Supreme Court's decision this week opting not to block a vaccine mandate at Indiana University and other similar decisions by courts across the country.

"I don't think her decision's valid," McCullough said of Rutledge's choice to appeal.

But she said the attorney general has the duty to defend state statutes.

McCullough said she didn't want to assume why Hickey and Shepherd had sought outside counsel but believed it was their right to do so.

ATTORNEY'S REACTION

Attorney Tom Mars, who represents some parties in the lawsuit challenging Act 1002 that led to Fox's ruling, said Friday that he would have thought the General Assembly "would set aside partisan politics for a moment and let school districts do what they must to keep children from dying."

Particularly, he said, after seeing the number of school districts that adopted mask mandates this week, including several in conservative strongholds, and after having heard University of Arkansas for Medical Sciences Chancellor Cam Patterson warn that some kids will die without mask mandates.

"Instead, we received a Friday afternoon overdose of political grandstanding by three of our state's highest officials -- all vying for attention at the expense of every K-12 child in Arkansas," he said in a written statement, referring to Rutledge, Hickey and Shepherd. "I haven't witnessed anything more disgusting since the Josh Duggar hearing."

Hutchinson, who is an attorney, said the attorney general has always done an outstanding job of representing his office and the state of Arkansas, but it is her duty as the attorney for the state to defend Act 1002.

"I have expressed the view that Act 1002 should have been amended and questions need to be raised as to the constitutionality of the law," the governor said in a news release.

"Generally speaking, I support the decision of Judge Fox, and my position creates an unavoidable conflict; for that reason I have asked David R. Matthews of Matthews, Campbell, Rhoads, McClure & Thompson, P.A. to represent me," Hutchinson said.

The governor said Matthews has a special expertise in school law, and he has confidence that Matthews will represent him effectively in the current litigation. Matthews of Rogers is a former Democratic state representative.

'THE STATE'

Asked who the attorney general is representing if Rutledge doesn't represent Hutchinson, Hickey or Shepherd, Priest replied, "The state."

Pulaski County residents Veronica McClane and Ashley Simmons, who are parents of children too young to be vaccinated, challenged Act 1002 of 2021 in the lawsuit in Pulaski County Circuit Court. Their suit was joined by the Little Rock and Marion school districts, along with Pulaski County's County Judge Barry Hyde and Sheriff Eric Higgins. Hyde and Higgins are Democrats.

Hutchinson, Shepherd and Hickey were each named in the suit in their official capacities.

Fox ruled that the face-covering ban in Act 1002 appears to be illegal because the law discriminates against public school children, usurps judicial authority, limits gubernatorial emergency powers and infringes on the power of county officials -- all constitutional violations.

Hutchinson, who recently said he regrets signing Act 1002, said last week that his goal had been accomplished not by the Legislature, but by Fox. He called Fox's decision limited, well-reasoned and constitutionally based.

On March 30, Hutchinson announced that he was lifting the state's mask mandate, which he imposed in 2020 in response to the coronavirus pandemic.

Fox's order is temporary, lasting until a full trial can be held on the legality of Act 1002. That proceeding has not been scheduled, but Fox said he wants to expedite it, so the Supreme Court can make the final ruling on the inevitable appeal.