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OPINION | JOHN BRUMMETT: An ego-bruising ruling

by John Brummett | January 2, 2022 at 1:41 a.m.


Pulaski Circuit Judge Tim Fox issued an order Wednesday declaring that the Legislature's ban on public schools' discretion to mandate masks set a world's record for unconstitutionality.

He also ruled that Leslie Rutledge may as well run for the pointless office of lieutenant governor because attorney general is a real job and she's not much of one.

The judge didn't put it that way, of course. He did no actual compilation of unconstitutional elements or research into Ripley's for most elements ever. He took no actual position on Rutledge's political angling.

He would never do that. He's a judge, not a newspaper wiseacre.

I'm using journalistic license to cut through formality and get down to it. I'm advising readers to beware of the columnist's hyperbole but to consider that sometimes hyperbole makes a clearer point.

If I'd simply written that the judge struck down the ban as legislative over-reach and faulted the attorney general's office on several deficiencies in its attempted defense of the statute, you'd have missed the richness of it all.

Fox struck the law down over and over. He stomped it like grapes. He danced on its grave. And he wrote at several places in his ruling that he couldn't get much handle on what the heck the attorney general's office was doing.

Attorney Tom Mars, who filed one of the suits for a couple of parents against this Trent Garner-led right-wing attack on local control and public health protection, put on Twitter, where he spends perhaps as much time as I do, a post reflecting some self-celebration. What he wrote was that he'd never before seen a judge issue an order finding a law unconstitutional in 10 ways. He said he couldn't remember five ways, but maybe three.

There is no need to go into all of those unconstitutionalities. When it comes to laws and unconstitutional elements, one'll do.

We'll cite the highlights. The ruling was that the mask-ban law unconstitutionally:

• Violated the separation-of-powers doctrine by usurping the governor's executive authority as well as the local authority of county judges, which reminds me to point out that the legislative ban on mandating masks against covid wasn't merely applied to schools, though that got all the attention, but to state and local government at large.

• Violated the equal-protection doctrine by applying only to some school students, not all, and essentially saying schoolchildren could not be protected by a mask mandate, but that state prison inmates could.

• Violated the constitutional guarantee of an equal and equitable educational opportunity for all children.

The ruling was so thoroughly expected that more interesting were the varied references in the judge's main text and footnotes to the lame attorney general. Fox found almost as many deficiencies in Rutledge as unconstitutionalities in the law her office hardly defended.

Fox faulted the attorney general's office for holding out too long, meaning at all, that it could defend both Gov. Asa Hutchinson and the Legislature.

It was true that the Legislature passed the draconian nonsense at question and that the governor signed it. But the governor went on to repent of that signature and to retain his own counsel to argue he shouldn't have done what he did. Meanwhile, the House speaker and the president pro tem also got their own private counsel, even as Rutledge was arguing there would be no conflict of interest in her representing defendants with contradicting positions on the lawsuit.

Fox seemed to find that quite bogus.

At the very least, it seems a good way for an attorney general to split her britches.

The judge also wrote of his curiosity that the attorney general's office argued as its essential point that the state's sovereign immunity permitted the law in question. Fox pointed out that such an interpretation would mean that the sovereign immunity section of the state Constitution meant more than any other section, including the one about separation of powers, and essentially that the Legislature could pass any kind of crazy law it wanted and aggrieved parties would be utterly without recourse.

Then the judge wrote that the attorney general filed a post-trial brief providing a never-before-seen timeline that was not supported by any evidence in the trial, considering that the attorney general's office produced no defense witnesses, apparently because--and this is the wiseacre and not the judge talking--it didn't trust state legislators on the witness stand ... or knew it was legless in the field of having something to stand on.

In the end, the ruling was marginally page-one news on central substance owing to its predictability. But it proved worthy of that placement because of its laying bare the state's twin burdens of legislative irrationality and the attorney general's ineptitude.

The ruling also made a case, no doubt unintended by his honor, that the Capitol's second-floor lieutenant governor's closet would be a good place to store the attorney general for a while.


John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at jbrummett@arkansasonline.com. Read his @johnbrummett Twitter feed.



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