Governor hiring own lawyer in challenge of mask-rule ban
Gov. Asa Hutchinson said Tuesday that he will retain outside legal counsel to represent him in a lawsuit in which he is a defendant — a case in which a Pulaski County circuit judge on Friday temporarily barred authorities from enforcing a state law banning mask mandates by most state and local governmental entities, including public schools.
The Republican governor said he has advised Attorney General Leslie Rutledge’s office of his decision to use an outside team to represent him in his official capacity.
“Let me emphasize the attorney general has always provided the best level of representation for me,” Hutchinson said at a news conference in the governor’s conference room in the state Capitol. “She has the responsibility to represent the people of Arkansas.
“It is just that there is an inherent conflict here that is unavoidable, so I will be seek
ing counsel that will be able to represent my views on that case as it proceeds,” he said.
Hutchinson, who is an attorney, said at this point he doesn’t know whether Rutledge will immediately appeal Friday’s decision to the Arkansas Supreme Court or whether the case will go to trial. The judge’s ruling temporarily blocked the covid-19 mask law until a trial could be held.
On Tuesday night, the attorney general’s office released a statement from Rutledge:
“I am not commenting on conversations held with parties to this suit. I will be making decisions that uphold my duties and responsibilities as Attorney General as I make determinations going forward.”
Hutchinson said his legal counsel will be financed out of the governor’s operational budget and “we have adequate budget for that out of the governor’s office.”
“I have identified counsel. We are not prepared to announce yet,” Hutchinson said.
Pulaski County residents Veronica McClane and Ashley Simmons, who are parents of children too young to be vaccinated, challenged Act 1002 of 2021 in the lawsuit 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.
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.
Pulaski County Circuit Judge Tim Fox ruled Friday 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 ruling was issued hours after the Republican-dominated General Assembly ended a three-day special session called by Hutchinson, who hoped 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.
Hutchinson, who recently said he regrets signing Act 1002, said Friday his goal had been accomplished not by the Legislature, but by Fox, who issued a preliminary injunction blocking the state from enforcing the law’s ban on mask mandates. He praised Fox’s decision calling it limited, well-reasoned and constitutionally based.
On March 30, Hutchinson announced that he was lifting the state’s mask mandate, which he imposed in 2020 in response to the coronavirus pandemic.
Fox’s order is temporary, lasting until a full trial can be held on the legality of Act 1002. That proceeding has not been scheduled, but Fox said he wants to expedite it, so the Supreme Court can make the final ruling on the inevitable appeal.
Both Hickey and Shepherd declined to comment Tuesday about the governor’s decision to retain outside legal counsel.
The bill’s chief sponsor, Sen. Trent Garner, R-El Dorado, said, “I think he wants the affected lawsuit to go forward.
“That’s my take on it. He can’t win legislatively and he knows we restricted the executive branch, so he’s hoping the judicial branch will open this wide open and we are starting to see that,” he said Tuesday.
Hutchinson said Tuesday that he doesn’t support another statewide mask mandate.
“I don’t know of very many governors that are moving in that direction,” he said at a news conference on the latest in the pandemic.
He said he doesn’t favor cities imposing mask mandates, but he favors schools exercising that option.
As far as Fox’s ruling on Friday, Garner said, “A liberal judge made an extremist decision. He’s legislating from the bench and I hope it gets overturned on appeals. …
“If the courts take the route of legislating from the bench I will be calling for a special session to come in and to change the laws to make sure we are in compliance with whatever ruling they do, and I’ll be putting pressure on the governor and legislative leaders to do that,” Garner said. He said he thinks that the law “is fine as it is,” and he doesn’t trust “the court to do the right thing.”