All lawyered up

While we count covid cases and fret for schoolchildren, let’s take a moment to update the lawyer scorecard.

Gov. Asa Hutchinson disagrees with the legislative ban on school mask mandates, the one he signed but regrets. So, he has hired his own lawyer — old Clinton Democrat David Matthews — to explain, presumably to the state Supreme Court, that he agrees with the plaintiffs against him and with Pulaski Circuit Judge Tim Fox that the ban is invalid because of constitutional flaws.

Matthews, a law student of Bill Clinton and a pulpit-styled orator of a Baptist persuasion, was seen in the 1980s as a rival to Mike Beebe as a future governor. But he settled on lawyering and has done very well. He has a lot of experience in public school law, so it makes sense that Hutchinson would pick him, partisanship aside.

Attorney General Leslie Rutledge has announced she will appeal Fox’s decision, apparently meaning the one for the preliminary injunction. That probably means she will seek from the Supreme Court a stay of Fox’s preliminary injunction, which, if granted, would jerk masks off little schoolchildren lucky enough for the moment to live in responsible school districts.

Rutledge’s clients and the named defendants — Hutchinson, the House speaker, the Senate president pro tem and the state of Arkansas itself — are split. Hutchinson, as explained, is on the plaintiff’s side. The speaker and president pro tem … well, we’ll get to them in a minute. That’s a bit of a head-scratcher.

At one point last week, two good sources tell me, Rutledge was thinking she might step aside altogether because of a conflict considering that her clients were divided on the issue. But then she reeled herself back in, perhaps thinking that abandoning the cause of taking masks off children would hurt her with the Trump base. She is, after all, still nominally opposing Trump’s former right hand for the next GOP gubernatorial nomination.

It’s always possible that Rutledge read the same national article I read that said the monstrous Donald Trump had refused urging to encourage vaccinations because it might offend his base and thus trouble his ego.

At any rate, Rutledge will be acting in direct representation of only one of the named defendants — the state of Arkansas. Hutchinson has bailed for Matthews and the other side. Now House Speaker Matthew Shepherd and Senate president pro tem Jimmy Hickey have jointly hired outside counsel, the Dover Dixon Horne law firm of Little Rock.

They have explained their reasoning only to the extent that, since there are multiple parties and since the issue of separation of powers in the executive and legislative branches is on the table, they chose to get their own lawyer to protect the legislative interest.

It’s odd. Rutledge’s job is to defend the supposed official state government interest, which is the law banning mask mandates. Shepherd and Hickey aren’t being sued personally, but in their official roles representing their legislative chambers, which enacted and then declined to change the ban on mask mandates. Thus, the Rutledge job description and the Shepherd-Hickey interest would seem a perfect mesh.

So, naturally, there is speculation, but just that. Shepherd and Hickey have made a vow to say nothing more, at least until their special outside lawyer files something.

Some people note that Hickey opposed the mask mandate and that Shepherd, while not voting, generally seems sane. They think maybe Hickey and Shepherd want to distance themselves from the ban on mandates because they know what likely is coming with school starting.

But that would amount to betrayal of their memberships, which voted for the ban. And — remember — they are named not as individuals but as leadership agents of those memberships.

It could be that the legislative leaders got their own lawyer during that period when word was out that Rutledge might withdraw, and simply opted to proceed that way when she decided to wage war on reason and responsibility herself.

Or there always is this possibility: The reason is what they say it is — that, with the defendant group split and with a major issue having to do with the separation of legislative and gubernatorial power, and with the governor gone to the other side with his own rather highly regarded lawyer, Shepherd and Hickey decided to get their own lawyer merely to be able to react in the specific interest of their memberships in defense of legislative power.

If that’s so, the percolating criticism that they are more interested in their power than in children’s safety seems fair, as long as we make clear that Shepherd and Hickey find themselves defending not their own callousness necessarily, but that of one of the more illogically extreme and destructive legislative memberships in the country.

Sit back and behold the lawyer-palooza. But say a prayer that the central issues — sick kids, broader illness, deaths, overflowing hospitals and efficient schooling—won’t get lost.