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Judge: State's ban on mask mandates ruled unconstitutional

by Stephen Simpson | December 30, 2021 at 12:00 a.m.

An unprecedented case that has been ongoing for several months took a step towards a conclusion Wednesday after Pulaski County Circuit Judge Tim Fox ruled that the state's ban on government mask mandates was unconstitutional.

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

The El Dorado School District, along with the School Board and Superintendent Jim Tucker, are currently being sued by a group of local parents over a mask mandate it enacted for district students in August. Masks are currently being mandated based on local case rates, and a decision is made week-by-week whether students have to mask up the following week or not.

Fox said in his ruling that Act 1002 of 2021 violates the separation of powers clause by attempting to usurp the constitutional authority of county judges and the Arkansas Supreme Court. He said it also violates the equal protection provisions of the Arkansas Constitution by discriminating between minors in public and private schools, along with other violations.

The ruling also put into question Attorney General Leslie Rutledge's brief when it came to 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," Fox said in ruling. "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."

The ruling came after the court heard testimony from 12 witnesses, but the Attorney General's office failed to call any witnesses or attempt to introduce any admissible exhibits to defend the constitutionality of Act 1002 of 2021.

"Given the testimony of Dr. Romero, the Arkansas Secretary of Health, about the combined use of vaccinations and masks this seems to be an intentional act on the part of the Attorney General to deliberately mislead the court," Fox said in a footnote. "Several pages of the Attorney General's brief contain a timeline about who knew what and when they knew it. Absolutely none of the statements are supported in the record before the court because the Attorney General chose not to call any witnesses."

Tom Mars, a Rogers attorney who filed the lawsuit on behalf of Veronica McClane and Ashley Simmons, said this was just one of multiple statements that stood out in what he is calling an unprecedented ruling.

The case surrounding the legality of Act 1002 of 2021 has been in the public eye for several months.

Fox issued a temporary injunction of Act 1002 of 2021 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 Fox's ruling, school districts across the state began implementing mask mandates for students, teachers and staff. Many of those mandates remain in place, while others have been relaxed as the number of COVID-19 cases in the state have declined in recent weeks.

On Wednesday, the state saw the third largest number of new COVID cases added to its cumulative total since the pandemic hit Arkansas in March 2020.

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

Under this law, however, it's illegal for most state and local government entities, including public schools, to require masks. The plaintiffs contend the legislation is too strict and overreaching.

Local entities, especially school districts, should have the flexibility to enforce mask mandates without violating the law, they argued.

After the August injunction, Rutledge said she would appeal the ruling to the state Supreme Court to end the temporary ban on enforcing the mask act.

The Arkansas Supreme Court in October denied the state's request to remove the injunction ahead of a November hearing where the ultimate fate of the new law could be determined by a lower court.

Mars said he "was not at all surprised" by the court's ruling.

"Even before I filed the lawsuit I knew this was going to be the result," he said. "The statute was plainly unconstitutional."

Mars said Fox's ruling was unprecedented due to the number of counts the law was found unconstitutional.

"The ruling found the statute unconstitutional for 10 different reasons," he said. "The state Supreme Court and U.S. Supreme Court will find something unconstitutional for two or three reasons, but I have yet to find a case that any court has found more than five reasons, much less 10."

Mars said the effect of this ruling is that if Rutledge decides to appeal then they would have to win on all 10 grounds to have the Supreme Court overturn the ruling.

"There is almost a zero percentage chance anyone finds he was wrong on all 10," he said.

Amanda Priest, spokeswoman for the Attorney General, said Rutledge was reviewing the trial court's opinion and will determine the next steps.

Gov. Asa Hutchinson, who signed Act 1002 into law but later said he regretted it, said in an emailed statement that he was pleased with Wednesday's ruling.

Hutchinson, who was a named defendant in the initial lawsuit, retained his own counsel on appeal to argue that the injunction should remain in place, placing the Republican governor at odds with Rutledge and legislative leaders.

"The ruling that Act 1002 is unconstitutional serves as a restraint against the legislative branch and helps reset the correct balance between the branches of government," he said. "The ruling also makes it clear that local school boards have the authority to protect the health of students during this pandemic. I am in favor of schools and local government having the authority to keep students and their constituents safe as we see another surge in COVID-19 cases."

Mars said Hutchinson not only distancing himself from Act 1002, but also hiring himself a lawyer and siding with those who were calling it unconstitutional, was just another line in a series of oddities when it comes to this case.

Dr. Jose Romero, the Secretary of Health for the State of Arkansas, testified that there have been more than six million pediatric COVID patients diagnosed nationwide, with 700 children dying from the disease. He said children ages five through eleven comprised about a third of the COVID-19 pediatric patients, which is now among the top 10 causes of death for pediatric patients.

Romero testified that data compiled by the Arkansas Department of Health showed there was a 20% reduction in infection between schools wearing masks and not wearing masks for both adults and children. He said that there was no doubt that not allowing schools to have a mask policy is putting children at excessive risk and that it is particularly important that masks be used in schools.

Mars said statistics like these are the reason why this case has been so important to him.

"The unsung heroes of this case are the parents," he said. "One person or two, in this case, can make a significant difference and in our opinion saved lives across Arkansas. These parents had the courage to step up and put themselves in the spotlight and receive the criticism and attacks and spend days in court... It reminds me of a saying that there is no fiercer warrior then a mother protecting their child and I think that is what this case will be remembered for."

Mars said he was originally on the fence about taking this case because of the political nature of the pandemic, but he has found this to be the most rewarding thing he has done as a lawyer.

"We recognized all along that if people who were opposed to what we were doing where right and they showed masks did not prevent the disease then there would be no harm to school children, but if we were right and they were wrong and we did nothing then a lot of kids would have gotten sick and potentially died," he said.

Mars said the next step is if Rutledge decides to appeal then it will make the pending appeal by the state on preliminary injunction mute.

Earlier this month, lawyers representing the ESD, school board and Tucker filed a motion to dismiss the lawsuit against the parties.

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