Bad orders and bad actors

Alawyer put it in an interesting way Monday, moments after Gov. Asa Hutchinson signed three executive orders presumably making it near-impossible to sue anyone in Arkansas over the coronavirus.

He noted that Hutchinson had chosen the executive-order route to immunize businesses and health-care providers while, at the same time, indicating the virus made it too risky for 135 legislators to enact a law to that effect in special session while distantly spaced in a vast basketball palace at the University of Arkansas at Little Rock.

The point is rich. Legislators don’t want to come to Little Rock to work because they’re scared, but they want working people to get to their jobs and take on plenty of risk without any legal recourse.

The governor’s executive orders do not extend the liability immunity to “bad actors.”

What does that mean? What makes one a “bad actor,” thus still sue-able?

One of the orders defines bad acting as knowing you have a virus on your premises and yet proceeding willfully or recklessly or with conscious disregard to endanger employees or customers or patients by flouting CDC regulations.

That same lawyer said that practically means you lose immunity only if you attach a vat of covid-19 to a leaf blower and aim the device at your workers or customers.

Basically, the governor is saying you can get sued only if you probably ought to be up on criminal charges.

Otherwise, all you regular people get back to work and out to eat—because these businesses need the money. Meantime, all you legislators stay safe and let the governor presume to make law dictatorially because you don’t like the idea of getting out right now with all this mess going on.

You know the mess these legislators mean—the virus and all those scruffy protesting people.

Or it could be that legislators don’t want to bother with public debate about whether these executive orders are unconstitutional, as they may well be, or unfair to regular people who must work and interact with businesses or health-care facilities.

This is all the idea of the Arkansas State Chamber of Commerce and business-only Republican legislators who cite frivolous virus-related lawsuits in other states and similar policies arising from a few red-state legislatures.

It’s about employers mattering much and employees and patrons mattering less, if at all.

It’s about the age-old right-wing notion that poor people will sue you if they can, and suing is uppity and wrong. It’s about boardroom fear that these poor people are apt to get Democrats on the jury and everyone knows Democrats can’t be trusted. It’s about not wanting your insurance premium to go up and slow your path to recovery to pre-virus profits.

Hutchinson said his staff had found “scores” of such lawsuits nationwide but none as yet in Arkansas. “Scores”—that’s all? Nationwide? And nary a one in the state we’re talking about?

I was reminded of something Hutchinson said to me late last year, on other specifics. He said, “I just don’t like doing unnecessary things, whether from either extreme, that don’t address a serious problem. So, yes, I try to restrain on those kinds of things that stir the pot more than they do any good.”

Yet here is the governor saying he must stop something that isn’t happening.

Another lawyer, reading that quotation, said Hutchinson may be aware that a law made from the legislative process would carry valid enforcement but that an executive order bearing his signature … well, it may not.

It should be noted that the governor stressed that one of the orders lets workers newly seek Workers’ Compensation for contracting the virus on the job, even as he admitted it’s always been hard legally to link a virus to the workplace and will remain so under the order.

There are tons of places a guy has to go if he’s told to get back to work. He might have contracted the virus at the gas pump or the grocery store or maybe at the dollar store while looking for a pair of work britches.

Now he presumably can’t sue any of those places either unless somebody got after him at one of them with a virus blower.