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Pulaski County officials make case for mask-mandate ban to be ruled unconstitutional

by Dale Ellis | October 12, 2021 at 7:01 a.m.
A gavel and the scales of justice are shown in this photo.

Two Pulaski County officials who have publicly opposed a state law that would ban local government mask mandates asked Pulaski County Circuit Judge Tim Fox to set the law aside permanently because it infringes upon the constitutional right of local officials to govern as they see fit.

Act 1002 of 2021, which would prohibit local governmental entities -- including county governments, sheriff's offices, and school districts -- from mandating masks to help limit the spread of covid-19, has been on hold since August after a temporary injunction from Fox.

The lawsuit -- Veronica McClane et al vs. State of Arkansas et al -- seeks to strike down the state law, which was passed in the legislative session earlier this year.

Pulaski County Judge Barry Hyde and Sheriff Eric Higgins intervened in the case on the side of the plaintiffs challenging the law. In a motion for summary judgment late Friday, the officials from Arkansas' largest county argued that the law violates the Arkansas Constitution in three ways.

First, they argued it infringes on the judicial branch's authority to prescribe court rules.

Second, it violates the separation of powers outlined in the state constitution by preventing county judges from exercising their powers as custodians of county properties, the motion states.

Lastly, the Pulaski County officials argued that the law treats state-run detention facilities differently from county-run facilities because some state facilities are exempt.

A final hearing in the case is scheduled for Nov. 22-24.

Hyde in a Monday interview said his opposition stems from his belief in local control, a philosophy he said has guided his actions since his days in the Arkansas House of Representatives.

"We're in the midst of the problem," he said. "I'm in the midst of trying to find better ways to protect our employees and trying to better protect members of the public who are coming to our buildings trying to do business."

Hyde, a Democrat from North Little Rock, served in the state House in District 40 from 2009-13. Hyde has served as Pulaski County's county judge since 2015.

"I think the Legislature is trying to do work that they think is good work," Hyde said, regarding the recently concluded legislative session. "In this case, I think this is a decision that should be left to local leadership."

Hyde said the mask requirement in Pulaski County deals only with county buildings, which he said are under the authority of county government.

Hyde clarified that his opposition does not extend to school buildings, over which he said he has no authority. That, he said, would be an issue for school districts to decide.

"That's exactly my point," he said.

Higgins agreed that local officials should be allowed to assert control over local issues. He said that sheriffs should be able to give consideration to local conditions in deciding what protocols should be in place rather than the state exerting its own control. He said that conditions in state prisons, which are given leeway in mask requirements, are no different than those in local jails.

Asked if the law, should it be allowed to go into effect, would affect Higgins' ability to control conditions inside his jail, the Pulaski County sheriff was unequivocal regarding how he would approach the matter.

"We'll continue to do whatever we have to do to ensure the safety of the detainees in our facility," Higgins said.

As of Monday evening, Higgins said, anyone entering the Pulaski County sheriff's office or the jail is required to wear a mask.

Higgins said since the coronavirus outbreak began in March 2020 in Arkansas, his focus has been on keeping up with guidelines issued by the U.S. Centers for Disease Control and Prevention and other health authorities and putting into place policies that follow those recommendations.

"We've been talking to the Health Department about the best ways to protect the safety of the detainees in our facility," Higgins said. "Our plan is to continue to do that. ... I think if you look at the corrections facilities and our facility you'll come to the same conclusion that the best way to prevent the spread is to require masks."

Sen. Trent Garner, R-El Dorado, sponsored the bill that became Act 1002. Garner said he believes the law is a good law, and he pointed to Northwest Arkansas as an example of the law's effectiveness. There parents successfully challenged schools' decisions to implement mask mandates.

"I think that could apply just as easily to sheriffs and other municipalities," Garner said. "County governments, whoever."

Garner said he did not consult any studies regarding the effectiveness of masks and vaccines prior to filing his bill and said he is unaware of any studies that may be measuring how the ban on mandates may affect different counties, municipalities or school districts.

"Most of the things we do to stop it, outside of vaccinations, has been largely ineffective in stopping it," he said.

Print Headline: Officials speak against mask-rule ban

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