Gov. Hutchinson, legislative leaders lawyer up in Act 1002 legal challenge

Attorney General Leslie Rutledge on Friday (Aug. 13) said she would defend the controversial state law that would prevent local governments and schools from enacting mask mandates, but Gov. Asa Hutchinson and legislative leaders have hired their own legal counsel.

Act 1002, sponsored by Sen. Trent Garner, R-El Dorado, passed this spring prohibiting state and local governments, including schools, from requiring masks. Gov. Hutchinson signed the veto-proof bill into law but then called legislators into special session Aug. 4, asking them to amend the law. He wanted to let school boards have the option of requiring masks to be worn by children under age 12 who are too young to be vaccinated against COVID-19. The bill failed to advance out of committee.

On Aug. 6, Pulaski County Circuit Judge Tim Fox granted a restraining order that temporarily blocks the state from enforcing the mask mandate ban, Act 1002, for the 2021-22 School Year. The lawsuit was brought by the Little Rock and Marion school districts who sued along with two parents and Pulaski County Judge Barry Hyde and Sheriff Eric Higgins. The action by Fox sets up a hearing on the constitutionality of the legislation.

“I will appeal the decision of Judge Fox which blocked Act 1002 from going into effect,” Attorney General Leslie Rutledge said in a statement. “For nearly seven years, I have always exercised my constitutional duty to represent the State of Arkansas and will continue to wholeheartedly defend state laws to protect Arkansans of all ages.”

While the Attorney General’s office typically represents state government on legal challenges, Gov. Hutchinson said likely legal conflicts resulted in him seeking separate counsel.

“The Attorney General has always done an outstanding job in representing my office and the state of Arkansas, but it is her duty as the attorney for the state to defend Act 1002. I have expressed the view that Act 1002 should have been amended and questions need to be raised as to the constitutionality of the law. Generally speaking, I support the decision of Judge Fox, and my position creates an unavoidable conflict; for that reason I have asked David R. Matthews of Matthews, Campbell, Rhoads, McClure & Thompson, P.A. to represent me. David Matthews has a special expertise in school law, and I have confidence that he will represent me effectively in the current litigation,” noted a statement from Hutchinson.

For the same reason, Arkansas Senate Pro Temp Jimmy Hickey, R-Texarkana, and Arkansas House Speaker Matthew Shepherd, R-El Dorado, jointly announced they would hire the law firm of Dover Dixon Horne, PLLC to represent them “in our official capacities as the leaders of the Arkansas General Assembly.”

“We have conferred with the Attorney General and her staff as we evaluated how best to proceed. We appreciate their representation of us to this point. However, given the number of parties and the potential for multiple conflicts, we believe our interests in this case are best served through retaining separate counsel,” Hickey and Shepherd noted in the statement. “While we understand there are many different opinions as to the specific legislation at issue, the important role of the legislative branch must be preserved among our three, separate but equal, branches of government.”