Sarah Huckabee Sanders addresses the crowd outside the state Capitol on Jan. 10, 2023, after she was sworn in as Arkansas' 47th governor. In her inaugural address, she promised there would be no coronavirus-related restrictions as long as she is governor. (Photo by Karen E. Segrave/Arkansas Advocate)
The Arkansas governor’s office asserts that it is unconstitutional for public entities to require people to wear masks as a COVID-19 prevention measure, Gov. Sarah Huckabee Sanders announced Wednesday, just over a week after taking office.
Sanders’ predecessor, fellow Republican Gov. Asa Hutchinson, signed a 2021 law prohibiting state and local governments, including public school districts, from implementing mask mandates.
Hutchinson later said he regretted signing the law, Act 1002, and instead said local government entities should decide for themselves whether to require masks.
In December 2021, Hutchinson said he was pleased with Pulaski County Circuit Judge Tim Fox’s ruling that the ban on mask mandates violated the Arkansas Constitution. The ruling came from an August 2021 challenge to the law from several parents, two school districts and Pulaski County officials. Fox placed an injunction on the law shortly after the suit was filed.
Fox’s December 2021 ruling stated that Act 1002 violated the separation of powers clause and the equal protections provision in the Arkansas Constitution.
Sanders, on the other hand, stated while running for office that there would be no coronavirus-related restrictions while she is governor, emphasizing “personal freedom and responsibility” instead.
“Arkansans need to talk with their medical professionals, with their doctors, and make the decisions that are best for their family and their kids,” Sanders said in a Wednesday news release. “I promised in my inaugural address that here in Arkansas, government would never loom larger than liberty in our lives.”
Attorney General Tim Griffin said in Sanders’ news release that he looks forward to a ruling from the Arkansas Supreme Court.
House Speaker Matthew Shepherd (R-El Dorado) and Senate President Pro Tempore Bart Hester (R-Cave Springs) also supported Sanders’ decision in the news release. Both are defendants in the lawsuit in their official capacities.
“I welcome this development and believe it is consistent with the proper Constitutional authority of the legislative branch,” Shepherd said in the statement.
Last week, Sanders signed an executive order disbanding five COVID-19 committees and advisory groups that Hutchinson formed in 2020. None of the groups had been active in at least a year.
Each claim in this case is moot.
– Hannah Templin, a lawyer with the Arkansas Attorney General's Office
No need for outside counsel
Since Hutchinson’s positions differed from those of the other defendants in the lawsuit, he hired attorney David Matthews of Rogers in August 2021 to represent him in his official capacity as governor.
Then-Attorney General Leslie Rutledge represented the rest of the defendants and appealed the injunction to the Arkansas Supreme Court. Rutledge is now lieutenant governor after she and Griffin, both Republicans, were elected into each other’s positions in November 2022.
Hutchinson did not run for reelection due to term limits, and Sanders became a defendant and appellee in the lawsuit upon becoming governor.
On Tuesday, Matthews filed to withdraw from his role as counsel for the governor’s office, according to court records.
Sanders wrote a letter to Griffin on Tuesday, according to circuit court documents, stating she had no need for Hutchinson’s external legal counsel because the arguments on behalf of the former governor do not apply to her.
“Because my positions are no longer ‘directly adverse’ to those taken by the Attorney General and because I have not asserted a claim against the State of Arkansas, I have asked the Attorney General to resume his representation of me in my official capacity as Governor,” Sanders wrote.
An oral argument in the case before the state Supreme Court was canceled Jan. 10, the day Sanders took the oath of office, according to court records.
Hutchinson ordered a statewide mask mandate in July 2020 and lifted it at the end of March 2021.
The plaintiffs in the lawsuit are two Little Rock parents, Veronica McClane and Ashley Simmons; the Little Rock and Marion school districts; and Pulaski County Judge Barry Hyde and Sheriff Eric Higgins.
McClane and Simmons both had children under 12 years of age, the minimum for COVID-19 vaccine eligibility just before the start of the 2021-22 school year. A draft of the lawsuit became public in late July 2021, helmed by lawyers representing LRSD after Superintendent Mike Poore recommended the legal challenge.
”No rational reason exists for denying public school students, teachers and staff, and the school boards that are obligated to keep them safe, the ability to ensure that all who work and learn in our public schools are as safe as possible,” the lawsuit states.
Hutchinson then called a special session of the Arkansas Legislature to discuss amending Act 1002 to allow school boards to decide whether to mandate masks for children under 12. The lawsuit was filed on the second day of the three-day session, which adjourned without any changes to the law. A majority of legislators voted down two bills and argued that parents, not school boards, should decide whether children wear masks at school.
Fox enjoined Act 1002 hours after the session wrapped.
The lawsuit went to trial in November 2021. Dr. Jose Romero, the Arkansas Secretary of Health at the time, said schools without mask mandates had a 25% higher rate of COVID-19 transmission than schools with mask mandates.
Lawyers with the attorney general’s office argued that legislators knew the effectiveness of masks was being debated when they passed the bill that became Act 1002 and that a judge’s disagreement with the Legislature was not a good enough reason to overturn the law.
Exceptions to Act 1002 included prisons, juvenile detention facilities and state health care operations. Ronnie Routh, the director of the Pulaski County Juvenile Detention Center, testified for the plaintiffs that masks were the facility’s primary defense against COVID-19 infections, so a mandate made sense for the facility.
Those exception mandates are no longer in place, so “each claim in this case is moot,” wrote Hannah Templin, an attorney with Griffin’s office, in a Tuesday letter to Supreme Court clerk Kyle Burton.
Templin cited a past decision from Hyde, the Pulaski County judge and a plaintiff in the case, in which he stated that public interest in governmental power to enforce mask mandates “has diminished substantially with the decline of the virus and the lifting of the mask requirement.”
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