Lawsuit filed to halt health directives, governor’s emergency actions

A group of GOP lawmakers and several citizens filed a lawsuit against Arkansas Department of Health Director Dr. Jose Romero on Thursday (Sept. 3) claiming the director had overstepped boundaries on its directives and that Gov. Asa Hutchinson violated state law through his emergency declarations regarding the COVID-19 pandemic.

The lawsuit, spearheaded by Rep. Dan Sullivan, R-Jonesboro, says 43 directives issued by the ADH should be invalidated because the executive branch overstepped its emergency powers authority and did not consult with the legislative branch. The lawsuit says the state’s Administrative Procedures Act grants lawmakers oversight of such matters as a “procedural safeguard.”

“Having not been presented to and reviewed by the Legislative Council of the General Assembly, the forty-three (43) directives of the Director of the Department of Health issued between March 13, 2020 and August 21, 2020 and any ‘directives’ of the Director of Health issued since August 21, 2020 have not been appropriately promulgated under the emergency rulemaking provisions of the Administrative Procedures Act [A.P.A.] and are invalid,” the lawsuit reads.

“By labeling his actions as ‘directives’ rather than ‘rules,’ the Director of Health has effectively avoided legislative input and oversight or any involvement of the Arkansas legislature whatsoever from rulemaking as it relates to the COVID-19 breakout that should be subject to legislative review pursuant to the A.P.A., and therefore said actions of the Director are beyond the scope of the rulemaking authority delegated to him by the legislature and an unconstitutional violation of separation of powers,” it further stated.

The lawsuit also challenges the emergency declaration Gov. Hutchinson first issued in March and has since extended multiple times. The suit claims that under the Administrative Procedures Act, no emergency rule may be effective for more than 120 days and a successive emergency rule may not be adopted earlier than 30 days after the previous rule expires.

Dr. Romero became ADH director on Aug. 5 when he took over for Dr. Nate Smith, who left for a job with the U.S. Centers for Disease Control and Prevention in Atlanta. Smith instituted most of the directives outlined in the lawsuit.

GOP GOVERNOR VS. GOP LEGISLATORS
“I think it goes without saying that this is really not an attack on the Department of Health, but is a broad attack on the executive authority that I, as governor, have acted under during this emergency,” said Gov. Hutchinson in response to the lawsuit at his Thursday press briefing. “Under the legislators’ argument, the General Assembly would be deciding what the public health guidelines should be for the Salt Bowl at War Memorial Stadium.”

Hutchinson said his decisions have required “urgent action” and that seven of the legislators who have signaled support for the lawsuit were on the Legislative Council, which he contends approved the rules under which he and the ADH are operating.

“When people are dying, you don’t need delay. You need quick action,” said Gov. Hutchinson. “There is a national emergency and 50 states have declared an emergency. President Trump has declared a national emergency.”

Earlier in the week, Gov. Hutchinson said the General Assembly had given the executive branch the ability for public health guidelines to restrict delays.

“You cannot have public health guidelines delayed by three or four weeks as they might go through a legislative process. I want to have confidence in our public health team, which is composed of epidemiologists and public health officials that have been trained in dealing with pandemic. I trust them to do it versus a legislative review,” Gov. Hutchinson said.

The ADH referred all comments in the case to the governor’s office.

Rep. Sullivan, who is one of 18 Republican legislators listed as a plaintiff in the lawsuit, said the governor’s response was neither adequate nor appropriate.

“He’s told us to not just sit on the bench, but go sit in the stands and just watch. He’s really created a branch of government outside of government with these commissions and committees that are making decisions from schools to athletics,” Sullivan said.

“This [lawsuit] is not legislator-initiated. This is initiated by the citizens, who are losing their businesses, who have parents and grandparents in nursing homes, who felt like the restrictions were overbearing on school children, little kids in elementary school wearing masks and they can’t breathe and are coming home on hot buses,” Sullivan added. “They’re the ones that contacted us and said that we need you to have some input.”

Other legislators who are listed as plaintiffs in the lawsuit include: State Senators Bob Ballinger; Alan Clark; Kim Hammer; Terry Rice; and Gary Stubblefield; and State Reps. Mary Bentley; Harlan Breaux; Bruce Cozart; Justin Gonzales; Steven Meeks; Josh Miller; John Payton; Marcus Richmond; Laurie Rushing; Brandt Smith; Nelda Speaks; and Richard Womack. Sullivan is a Senator-elect. All of the lawmakers are Republican.

Citizen plaintiffs include: Iris Stevens and James David Haigler of Jonesboro; Scott and Angela Gray of Alexander; Mike and Stephanie Duke of Benton; and David Elswick of Little Rock. The 56-page lawsuit was filed in Pulaski County Circuit Court on Thursday (Sept. 3).

A RESOLUTION, A CALL FOR TRANSPARENCY
There is not unity on the Republican front, however. Sen. Blake Johnson, R-Corning, issued a statement saying he and other lawmakers supported local citizens and businesses and supported co-equal functions of government. But, he said there is no state statute to address an emergency of this nature.

“The current emergency was declared under a process created by previous legislative acts and constitutional amendments. An emergency process as lengthy as this one has never been addressed in state law, and there has been an outcry for relief from its restrictions by many,” Johnson said.

“Though I too would like to see an immediate remedy, I do not agree that legislators should be a party to a lawsuit asking the court for remedies without adequate forethought in our own body,” he added.

Though he called for more deliberation, he said information gathering for a legislative body would be a “cumbersome process, and during a time of emergency immediate action is often needed.”

“If the Arkansas legislature wants to extend its authority in executive oversight and policy making during times of emergency, it should be done through the legislative process and not through litigation,” he said.

Johnson and Gov. Hutchinson indicated that the Arkansas Legislature could call a meeting and pass a concurrent resolution to end the public emergency. A two-thirds vote of both legislative chambers would be necessary for that to happen, they said. Hutchinson warned that ending the emergency would also end many actions that he’s put in place during the pandemic.

“If the emergency ends, then so does telemedicine. If the emergency ends, the liability protection for small businesses would end. If the emergency ends, the suspension of rules to allow virtual education as an option would be curtailed.”

Hutchinson also said Sullivan and the supporters of the lawsuit should disclose the sources of funding for the lawsuit.

“They are raising money as official acts as public officials, elected officials, and they should disclose each and every donor that has contributed to the filing of this lawsuit,” Hutchinson said.

Editor’s note: KATV senior political reporter Marine Glisovic contributed to this report.