As students in most Arkansas school districts return to class wearing masks to fight the coronavirus, Gov. Asa Hutchinson, Attorney General Leslie Rutledge, and lawmakers prepare for battle in court.
At least 60 public school districts and charter schools approved various forms of mask requirements in the state after Pulaski County Circuit Judge Tim Fox issued a preliminary injunction against the law banning mask mandates by governmental entities.
Signed into law by Hutchinson, in April, Act 1002 is being challenged by lawsuits, including one from the Marion School District, arguing that the ban violates the Arkansas Constitution.
Hutchinson called the Legislature into special session earlier this month to amend the law so that schools could at least issue mask mandates for children, age 12 and under, who are too young to receive COVID-19 vaccinations.
This was done as the Delta variant of the virus, which is more contagious, including among young people, surged in the state. The Legislature rejected bills that would have returned decisions about mask mandates to local schools, however.
Hutchinson has said he regretted signing the bill into law, and while he is not in favor of government-issued statewide mask requirements, he did think there needed to be exceptions to Act 1002 that would give school districts some flexibility for the youngest students who are required to go to school, but are not able to be vaccinated against the virus.
On Friday, Rutledge announced that she is appealing Judge Fox’s decision.
“I will appeal the decision of Judge Fox which blocked Act 1002 from going into effect,” Rutledge said in a prepared statement. “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.”
Also on Friday, Hutchinson announced he has retained his own counsel in the case regarding Act 1002.
“The Attorney General has always done an outstanding job in representing my office and the state of Arkansas, but it is her duty as the attorney for the state to defend Act 1002,” Hutchinson said. “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. 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. David Matthews has a special expertise in school law, and I have confidence that he will represent me effectively in the current litigation.”
Republican leaders of the House and Senate, who were named as defendants in the lawsuit, also announced Friday that they hired a separate attorney to represent them in the case.
Arkansas Senate Pro Tempore Jimmy Hickey and Arkansas House Speaker Matthew Shepherd released this joint statement regarding “McClane, et al v. State of Arkansas, et al,” a lawsuit filed by two Arkansas parents that also claims that the mask mandate ban is unconstitutional, and asked the judge to block its enforcement:
“Today we jointly retained the law firm of Dover Dixon Horne, PLLC to represent us in our official capacities as the leaders of the Arkansas General Assembly in the pending litigation.
“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. 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.”