Judge blocks enforcement of mask mandate ban
A Pulaski County judge on Friday barred authorities from enforcing the state’s recently enacted ban on government mask mandates for the time being.
The face-covering ban 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 — Pulaski County Circuit Judge Tim Fox ruled.
Fox’s order is temporary, lasting until a full trial can be held on the legality of Act 1002 of 2021, which was passed in April by the General Assembly to prohibit government agencies from requiring masks, which have been generally seen as a deterrent to prevent the spread of the coronavirus.
That proceeding has not been scheduled, but the judge said he wants to get it over with as soon as possible so the Arkansas Supreme Court can make the final ruling on the inevitable appeal of whatever he does decide.
Gov. Asa Hutchinson, who recently said he regrets sign
ing Act 1002, praised Fox’s decision, calling it limited, well-reasoned and constitutionally based.
Hutchinson said he would not enact a statewide mask mandate, though the ruling gave him the authority to use his emergency powers to do so.
“[Act 1002] needed to be changed because of the new reality with the delta variant, but it failed to recognize the limits on legislative authority over the different branches of our state government,” the Republican governor said.
The ruling came hours after lawmakers gaveled out of a special session that Hutchinson called for the purpose of allowing local school boards to implement masking protocols for academic facilities where children under 12 are present. Lawmakers left without enacting legislation granting that flexibility.
Act 1002 has been in effect for about 1 1/2 weeks, barring all government entities from requiring face coverings with exceptions for prisons, juvenile detention facilities and state healthcare operations.
Veronica McClane and Ashley Simmons, parents of children too young to be vaccinated, the school districts of Little Rock and Marion County along with Pulaski County Judge Barry Hyde and Sheriff Eric Higgins all challenged the law, with Fox joining their separate lawsuits into a single case at Friday’s hearing.
The parents and schools complained that the mask-requirement ban prevented them from protecting children, especially ones too young for the vaccine, from COVID infection while the sheriff and county judge said the prohibition interferes with their efforts to keep county offices and the jail safe.
The ban “violates the equal protection provisions of Article 2 of the Arkansas Constitution, in that it discriminates, without a rational basis, between minors in public schools and minors in private schools,” where mask requirements are permitted, the judge stated in his decision.
The law also conflicts with Amendment 55, which gives county judges authority over county property, and Amendment 80, which makes the state Supreme Court solely responsible for judicial rule-making, including any decision about requiring face coverings for courts, the judge said.
“Act 1002 of 2021 … facially violates the separation of powers clause in that it attempts to usurp the constitutional authority granted to county judges over county buildings and property [and] the exclusive superintending authority concerning the procedures and conduct of the courts of the state that is granted to the Arkansas Supreme Court,” Fox stated in his four-page ruling.
Further, the ban illegally usurps the governor’s emergency powers, Fox stated.
Friday’s hearing lasted about an hour and included restrictions on attendance to allow for social distancing in the courtroom. Fox required everyone to be masked and limited attendance, limiting the number of attorneys in attendance as well as spectators.
The judge had planned to broadcast the proceedings over the Internet to make them publicly accessible, but technical difficulties prevented that, which included someone broadcasting “worse than inappropriate things” over the video link established by the court, Fox said. The judge said he will refer the matter to law enforcement.
State lawyers were reviewing Fox’s ruling and determining how to proceed late Friday.
Hutchinson was named in the suit in his official capacity alongside House Speaker Matthew Shepherd, R-El Dorado, and Senate President Pro Tempore Jimmy Hickey, R-Texarkana.
Asked whether he would make a court filing in support of keeping Fox’s ruling in place, Hutchinson said he would need to see how the case develops before determining whether he should have representation separate from Attorney General Leslie Rutledge’s office. If the case is appealed to the state Supreme Court, there would be a conflict, and Hutchinson said he wanted to be able to have his “independent voice.”
“I want to be able to speak to the court directly about my views on Act 1002,” he said.
In response to Fox’s rulings, local government entities began implementing mask mandates on Friday. Hyde, the Pulaski County judge, said that he was reinstating a mask mandate effective Monday in all county buildings “unless you are vaccinated and have the wristband issued” by county human resources officials.
Speaking for local governments around the state, Mark Hayes, executive director of the Arkansas Municipal League, called Fox’s decision Friday a win for local control — one of the top issues for the league.
“The entire structure of our government in this state is to allow local governments to be responsive as quickly as possible in a matter of crisis,” Hayes said. “And when there are preemptions to that it usually causes — just from a practical standpoint — a very difficult set of circumstances.”
Now freed up to do so by Fox’s ruling, Hayes said he expects government bodies around the state institute mask mandates especially at county jails, courtrooms, city halls and some sporting events.
“I don’t know if it will go as far as it did when we first started all this, but I do think you’ll see some of those things pop up across the state,” Hayes said.