Rutledge files notice of appeal of court ruling blocking Arkansas law forbidding government mask mandates

Judge found state’s mandates ban on face coverings unconstitutional

Arkansas Attorney General Leslie Rutledge is shown during a press conference in Little Rock in this March 15, 2021, file photo. (Arkansas Democrat-Gazette/Stephen Swofford)
Arkansas Attorney General Leslie Rutledge is shown during a press conference in Little Rock in this March 15, 2021, file photo. (Arkansas Democrat-Gazette/Stephen Swofford)

Attorney General Leslie Rutledge's office filed Friday notice of an appeal of a Pulaski County circuit judge's ruling that found unconstitutional the state Legislature's ban on mask mandates imposed by government.

Act 1002 of 2021 prohibits state and local governments, including public school districts, from mandating that individuals wear masks during the coronavirus pandemic.

Circuit Judge Tim Fox ruled last month that the act violates the separation of powers clause by attempting to usurp the constitutional authority of county judges and the Arkansas Supreme Court. Fox said the act also violates the equal protection provisions of the Arkansas Constitution by discriminating between minors in public and private schools, along with other violations.

By appealing, Rutledge is taking the case to the Arkansas Supreme Court.

Amanda Priest, spokeswoman for the attorney general, said the office is letting the legal brief speak for itself.

Rutledge was in Texas on Friday morning holding a joint news conference with other attorneys general to discuss illegal immigration at the border.

Sen. Trent Garner, R-El Dorado, a sponsor of the bill that became law, said he was happy to hear about the appeal.

"We need to fight to give power back to the parents on how to protect and raise their children," he said.

Fox's ruling came in December after the court heard testimony from 12 witnesses in November. The attorney general's office didn't call any witnesses or attempt to introduce any exhibits to defend the constitutionality of Act 1002.

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"I've never heard of a successful appeal when the AG had to show that the trial judge was wrong on every one of the 10 grounds on which the statute was deemed to be unconstitutional," Tom Mars, a Rogers attorney who filed the lawsuit on behalf of plaintiffs Veronica McClane and Ashley Simmons, said Friday afternoon. "And let's be honest, we're not talking about Leslie Rutledge, whose track record for losing comes close to Rudy Giuliani's record."

Fox's ruling also questioned Rutledge's argument that the state had sovereign immunity regarding Act 1002.

"It is unclear from the Attorney General's brief whether that office is actually arguing that sovereign immunity means there is absolutely no situation in which an action may proceed against the State," the ruling said. "If such an argument is being made, it is untenable. For the argument to be valid, specific constitutional provision would have to be interpreted as being superior or 'super-preemptive' to every other provision of the Arkansas Constitution. Under such theory, the General Assembly could violate the separation of powers doctrine at will and there would be no judicial review of such legislation."

Gov. Asa Hutchinson, who signed Act 1002 into law but said he regretted it, said Friday in an emailed statement that he was hopeful Fox's original ruling stands.

"Appeals are never a surprise; however, Judge Fox's ruling was well reasoned, and I am hopeful the case will be affirmed on appeal," he said. "The constitutional problems with the law are serious. I will continue to work with my outside counsel on this case."

Several state agency leaders testified in support of allowing mask mandates to continue, including Pulaski County Sheriff Eric Higgins; Solomon Graves, secretary of the Arkansas Department of Corrections; Ronnie Routh, director of the Pulaski County Juvenile Detention Center; Mike Poore, superintendent for the Little Rock School District; and Michael Crump, director of youth services at the Department of Human Services.

Jose Romero, the state's secretary of health, testified during the November trial that there had been more than 6 million pediatric covid-19 patients diagnosed nationwide, with 700 children dying from the disease. He said children ages 5-11 made up about a third of the covid-19 pediatric patients, and covid was then among the top 10 causes of death for pediatric patients.

Romero testified that data compiled by the Arkansas Department of Health showed that there was a 20% reduction in infection at schools where masks were worn by both adults and children compared with schools where masks were not worn. He said during testimony that there was "no doubt" that not allowing schools to have a mask policy put children at excessive risk.

Fox issued a temporary injunction of Act 1002 in August after several parents, two school districts and Pulaski County officials filed a lawsuit challenging the legality of the face-covering ban passed by the General Assembly in April.

In the wake of the injunction, school districts across the state began implementing mask mandates for students, teachers and staffs. Some of those mandates were relaxed when covid-19 cases in the state declined.

Public health officials have said wearing masks helps protect people from the coronavirus and curtails its spread. Parents and school administrators who supported a mask mandate voiced concerns about protecting students who are too young to be eligible for a covid-19 vaccine.

The plaintiffs contended that the legislation was too strict and overreaching. Local entities, especially school districts, should have the flexibility to enforce the mandates, they argued.

After Fox's injunction in August, Rutledge said she would appeal the ruling to the Arkansas Supreme Court to end the temporary ban on enforcing the mask act. The state Supreme Court in October denied the request to remove the injunction ahead of the November hearing.

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