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Mask law ban heads to state's high court

by Jeannie Roberts | September 5, 2021 at 12:00 a.m.

Arkansas Attorney General Leslie Rutledge on Friday afternoon appealed to the Arkansas Supreme Court a Pulaski County circuit judge's ruling that temporarily bars authorities from enforcing a state law banning covid-19 mask mandates by most state and governmental entities, including the public schools.

The three-page notice of appeal was short and lacked additional details.

"I have filed a notice of appeal regarding Act 1002. This action officially appeals to the Arkansas Supreme Court the decision of Pulaski County Circuit Judge Tim Fox, which blocked the statewide mask ban from going into effect. I have a constitutional duty to defend the laws passed by the state legislature and signed by the Governor," Rutledge said in a statement emailed to the Arkansas Democrat-Gazette.

The filing comes one day after Assistant Attorney General Sammie Strange Jr. filed a 27-page answer in the case brought on Aug. 2 by Pulaski County residents Veronica McClane and Ashley Simmons.

That filing was numerous pages of Strange repeatedly saying that there was insufficient information "to admit or deny" the allegations made by the plaintiffs or "no response is required."

Parents of children too young to be vaccinated, McClane and Simmons challenged Act 1002 of 2021 in Pulaski County Circuit Court. Their suit was joined by the Little Rock and Marion school districts, along with Pulaski County's County Judge Barry Hyde and Sheriff Eric Higgins. Hyde and Higgins are Democrats.

Fox issued a preliminary injunction on Aug. 6 blocking the state from enforcing Act 1002's ban on governmental mask mandates.

Fox said in his ruling that the face-covering ban in Act 1002 appears to be illegal because the law discriminates against public school children, usurps judicial authority, limits gubernatorial emergency powers and infringes on the power of county officials -- all constitutional violations, the judge said.

Fox's order is temporary, lasting until a full trial can be held on the legality of Act 1002. Fox has scheduled a three-day court hearing at 9 a.m. Nov. 22-24.

His ruling prompted many school districts across the state and some colleges and universities to require that masks be worn in their buildings in an attempt to slow the spread of coronavirus.

Also on Friday, Christopher Heller and Cody Kees, attorneys for the Little Rock School District and the Marion School District, filed a 14-page motion asking Fox to declare that Act 1002 of 2021 was unconstitutional.

The motion recapped testimony in filings from Gov. Asa Hutchinson, who was also sued in the case, saying that Hutchinson agrees "that the health of children in Arkansas is threatened" by the legislative ban on mask mandates.

Hutchinson was named in the suit in his official capacity, along with House Speaker Matthew Shepherd, R-El Dorado, and Senate President Pro Tempore Jimmy Hickey, R-Texarkana.

In a filing Tuesday, attorneys for Shepherd and Hickey asked the state Supreme Court to stay Fox's ruling, saying that mask mandates interfere with efforts to encourage more people to get vaccinated.

Hutchinson has said publicly many times that he regrets signing Act 1002 into law and that he supports Fox's ruling. In mid-August, Hutchinson called a special session in the hopes that lawmakers would change Act 1002 to allow school boards to decide whether to require students under age 12, who are ineligible to be vaccinated for covid-19, to wear masks. The legislation never got out of committee.

"Governor Hutchinson has admitted that a general suitable and efficient system of public education is not one which may be accessed only at great risk to the students and their teachers," Heller and Kees wrote in Friday's motion. "The Governor further admits that requiring students to risk their health and that of their families to receive the education they are promised in the Arkansas Constitution cannot survive even rational basis review."

Elsewhere in the state, at least two lawsuits have been filed challenging the authority of local school boards to require mask wearing. In one of the cases, a Lonoke County circuit judge denied a request to temporarily block the Cabot schools from requiring masks.

Print Headline: Mask law ban heads to state's high court

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