An injunction barring the enforcement of a ban on government mask mandates will stay in place after the Arkansas Supreme Court on Thursday denied the state's request to remove the injunction ahead of a November hearing where the ultimate fate of the new law could be determined by a lower court.
Pulaski County Circuit Judge Tim Fox issued a temporary injunction of Act 1002 of 2021 in August after several parents, two school districts and Pulaski County officials filed a lawsuit challenging the legality of the face-covering ban, passed by the General Assembly in April.
In the wake of Fox's ruling, school districts across the state began implementing mask mandates for students, teachers and staff. Many of those mandates remain in place, while others have been relaxed as the number of covid-19 cases in the state have declined in recent weeks.
Public health officials have said wearing masks helps protect people from the coronavirus and curtails its spread. Parents and school administrators have voiced concerns about protecting students who are too young to be eligible for a covid-19 vaccine.
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But under this law, it's illegal for most state and local government entities, including public schools, to require masks. The plaintiffs contend the legislation is too strict and overreaching. Local entities, especially school districts, should have the flexibility to enforce mask mandates without violating the law, they argued.
After the August injunction, Attorney General Leslie Rutledge said she would appeal the ruling to the state Supreme Court to end the temporary ban on enforcing the mask act.
In an emailed statement, Rutledge said she was "disappointed" in the ruling, "but it is only the first step in the appeal."
"I will wholeheartedly defend Arkansas law as this appeal progresses," the Republican attorney general said.
Justices Barbara Webb and Shawn Womack would have granted the stay of Fox's order, according to the Thursday order. Justice Rhonda Wood didn't participate.
House speaker Matthew Shepherd, R-El Dorado, and Senate President Pro Tempore Jimmy Hickey, R-Texarkana, who were named in the suit and who filed a motion to stay the August decision didn't comment Thursday.
Cecillea Pond-Mayo, chief information officer for the Arkansas House of Representatives, directed questions to Randy Bynum, an attorney with Dover, Dixon, Horne PLLC, which is representing Shepherd and Hickey. Bynum also did not respond for comment late Thursday.
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Gov. Asa Hutchinson, who signed Act 1002 into law but later said he regretted it, said in an emailed statement that he was pleased with Thursday's ruling.
Hutchinson, who was a named defendant in the initial lawsuit, retained his own counsel on appeal to argue that the injunction should remain in place, placing the Republican governor at odds with Rutledge and legislative leaders.
"I am gratified with the Arkansas Supreme Court ruling allowing the decision of Judge Fox to stand," Hutchinson said. "Judge Fox determined the law was unconstitutional and allowed local school districts to make their own decisions on masks."
Hutchinson previously said the law needed "to be changed because of the new reality of the delta variant" and that it imbued the Legislature with too much power over other branches of government.
Pulaski County resident Veronica McClane, one of the parents challenging Act 1002 whose children -- ages 8 and 3 -- are too young to be vaccinated, said she is relieved school districts still have the ability to choose whether mask mandates are needed.
"Local school districts being able to decide what is best for the children they serve is how this should work," McClane said. "I hate the courts had to intervene, but when the state legislature continues to put forth unconstitutional laws over and over, we, the people, have no other recourse than to appeal to the judicial branch.
"No child, or adult for that matter, should be exposed to this virus if we can avoid it," McClane said.
State attorneys argued that Fox should not have blocked the law because without Act 1002 there will be different rules across the state.
"Acting through the General Assembly, Arkansans decided this year that a uniform, statewide rule regarding face coverings is preferable to the patchwork of rules issued by varying authorities over the last 18 months," Deputy Solicitor General Vincent M. Wagner wrote in a filing before the Supreme Court. "Such a policy choice -- unpredictable local rules preempted by a uniform, statewide one -- is often made by the General Assembly."
Tom Mars, a Rogers attorney who filed the lawsuit on behalf of McClane and Ashley Simmons, also a parent in Pulaski County whose children are too young for a covid vaccine, said he "was not at all surprised" by the court's ruling to leave the temporary injunction in place until the trial, which is scheduled to begin Nov. 22.
Mars said the opposing arguments presented on the appeal by lawyers representing Hickey and Shepherd to stop the temporary injunction were "absurd."
"They said, apparently with a straight face, that this ban on mask mandates was always intended to promote vaccinations," Mars said. "They invented that assertion. What's more is anyone paying attention knows kids under 12 cannot be vaccinated. It is almost comical they thought anyone was going to buy into that."
"These two legislators are the ones who decided what their argument would be to justify suspending Fox's ruling," Mars said. "What they said reached new heights of absurdity."
During the upcoming November hearing, Fox will hear arguments from both sides.
Mars said he plans "to call to the witness stand virtually every chief medical officer of every significant hospital organization in the state of Arkansas" to testify.