HomeMy WebLinkAbout203-21 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution:203-21
File Number: 2021-0584
SUPPORT TO JOIN SUIT:
A RESOLUTION TO SUPPORT AND JOIN, IF FEASIBLE, THE LITIGATION TO ENJOIN THE
MISGUIDED AND DANGEROUS ACT 1002 OF 2021
WHEREAS, Act 1002's prohibition of State Agencies, counties, and cities from being able to
continue to require face masks of unvaccinated persons during this rising pandemic of unvaccinated
persons threatens the health, safety and welfare of our children who are still too young to be
vaccinated; and
WHEREAS, Act 1002, if not promptly enjoined, will result in the unnecessary, avoidable, and
tragic deaths of many children and persons with immune deficiencies because of cancer,
chemotherapy and other causes; and
WHEREAS, Act 1002 prevents Arkansas cities from adequately performing their most fundamental
and vital duty to preserve and protect the health, welfare and safety our citizens during this
pandemic of the unvaccinated; and
WHEREAS, with over 6,000 Arkansans already killed by Covid-19, and the new Delta Variant of
Covid-19 filling our hospitals with young formally healthy unvaccinated persons and rapidly
increasing the tragic death toll of this virus, Act 1002 has prevented essential life-saving measures
to be employed by the government.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby expresses its strong
support for the litigation to restore the rights of school districts to protect their staff and students and
the cities and counties to protect their citizens from this raging epidemic of the unvaccinated.
Page 1 Printed on 813121
Resolution: 203-21
File Number: 2021-0584
Section I That the City Council of the City of Fayetteville, Arkansas hereby authorizes the City
Attorney to join any litigation attempting to block the implementation of Act 10021 and/or undertake
any other legal or litigation measure to try to prevent the harm to our children and citizens that will
be caused by Act 1002.
PASSED,*d APPROVER on 8/3/2021
Lioneld j4rdXi. Mayor Lisa Branson, Deputy City Clerk
Page 2 Printed on 813121
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479)575-8323
Text File
File Number: 2021-0584
Agenda Date: 8/3/2021 Version: 1 Status: Passed
In Control: City Council Meetinq File Type: Resolution
Agenda Number: C.7
SUPPORT TO JOIN SUIT:
A RESOLUTION TO SUPPORT AND JOIN, IF FEASIBLE, THE LITIGATION TO ENJOIN THE
MISGUIDED AND DANGEROUS ACT 1002 OF 2021
WHEREAS, Act 1002's prohibition of State Agencies, counties, and cities from being able to continue to
require face masks of unvaccinated persons during this rising pandemic of unvaccinated persons threatens the
health, safety and welfare of our children who are still too young to be vaccinated; and
WHEREAS, Act 1002, if not promptly enjoined, will result in the unnecessary, avoidable, and tragic deaths of
many children and persons with immune deficiencies because of cancer, chemotherapy and other causes; and
WHEREAS, Act 1002 prevents Arkansas cities from adequately performing their most fundamental and vital
duty to preserve and protect the health, welfare and safety our citizens during this pandemic of the
unvaccinated; and
WHEREAS, with over 6,000 Arkansans already killed by Covid-19, and the new Delta Variant of Covid-19
filling our hospitals with young formally healthy unvaccinated persons and rapidly increasing the tragic death toll
of this virus, Act 1002 has prevented essential life-saving measures to be employed by the government.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby expresses its strong support for
the litigation to restore the rights of school districts to protect their staff and students and the cities and counties
to protect their citizens from this raging epidemic of the unvaccinated.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the City Attorney to
join any litigation attempting to block the implementation of Act 1002 and/or undertake any other legal or
litigation measure to try to prevent the harm to our children and citizens that will be caused by Act 1002.
City of Fayetteville, Arkansas Page 1 Printed on 81412021
Legistar ID No.:
AGENDA REQUEST FORM
FOR: Council Meeting of
FROM: Council Member Matthew
2021
ORDINANCEOSON TITLE AND SUBJECT:
A RESOLUTION TO SUPPORT AND JOIN, IF FEASIBLE, THE LITIGATION TO
ENJOIN THE MISGUIDED AND DANGEROUS ACT 1002 OF 2021
APPROVED FOR AGENDA:
' fdrw` b em,.; S 11 z7 Zazl
Member Matthew Petty Date
July 27, 2021
City Attorney Ki Williams Date
Approved
Ll�
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
Kit Williams
City Attorney
TO: Mayor Jordan Blake Pennington
Assistant City Attorney
CC: Susan Norton, Chief of Staff Jo B satker
Paralegal
FROM: Kit Williams, City Attorney
DATE: July 12, 2021
RE: Mandatory Face Masks For Entry Into City Buildings
Act 1002 of 2021 enacted a new A.C.A. § 20-7-142 Prohibition on
mandatory use of face masks, face shield, or other face coverings. This Act
becomes effective on July 28, 2021. It states:
(b) "A ... local official shall not mandate an individual in this state to
use a face mask...
(c) The use of a face mask... shall not be a condition for entry,
education, or services."
The Mayor is a "local official" who will be prohibited from requiring
that face masks be worn in City Hall after July 28, 2021.
This is so broadly written that it even prevents a city from using its
property ownership rights to require a face mask for entry into our own
buildings. I have attached a copy of this new law.
Stricken language would be deleted from and underlined language would be added to present law.
Act 1002 of the Regular Session
1 State of Arkansas As Engrossed: H4119121
2 93rd General Assembly A Bill
3 Regular Session, 2021 SENATE BII,L 590
4
5 By: Senator T. Gamer
6 By; Representative Bryant
7
E For An Act To Be Entitled
9 AN ACT TO END MANDATORY FACE COVERING REQUIREMENTS IN
10 THE STATE OF ARKANSAS; TO DECLARE AN EMERGENCY; AND
11 FOR OTHER PURPOSES.
12
13
14 Subtitle
15 TO END MANDATORY FACE COVERING
16 REQUIREMENTS IN THE STATE OF ARKANSAS;
17 AND TO DECLARE AN EMERGENCY.
18
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20 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
21
22 SECTION 1. DO NOT CODIFY. TEMPORARY LANGUAGE. Ending of mandatory
23 face covering requirements,
24 a l On the effective date f this act, all mandate,, face covering
25 requirements. Z 1 ding wi tho C 1' it t' t em is im
posed e c tiv
26 order of the Governor and the Department of Health under directives issues
27 under B 20-7-109 or 6 20-7 110 or both shall end,
28 -L22 Anv mandatory face covering requirement imposed b
y an
29 executive order of the Governor or the de artment under directives issues
30 under 20-7-109 or B 20-7-110 or both, isLLCIALS611ed by this t on the
31 effective date of this act
32 (b) This section doe, n t a Ito a face co r o e nt imoosed
33 by a Private business or state-owned or state nt olled healthcaref it tv
34
35 SECTION 2. Arkansas Code Title 20, Chapter 7, Subchapter 1, is amended
36 to add an additional section to read as follows:
04-19-2021 13:53:25 JMB362
As Engrossed: H4/19/21
SB590
1 20-7-142. Prohibition on mandator use of face mask face shield or
2 other face covering
3 a The General A se blv reserves the right to enact legislation
4 regarding the ndatory use of face k face shields or other face
5 coverings.
6 (b) A state agency or entity, a political subdivision of the state, r
7 a state or local official shall not mandate an individual in this state to
8 use a face mask face shield or other face covering,
9 (c) The use of a face mask face shield or th f
h 11
10 not be a condition for entrI education or services.
11 (d) if a state agency or entity, a oolitic 1 s bd visio of the State,
12 or a state or local official recommends that an individual in this state use
13 a face mask face shield or other face covering, a state agency or entity, a
14 political subdivision of the state, t t local Official shall
15 provide notice that the c mm datio is not mandatory,
16 (e) This section does not apply to a face coveringrequirement imposed
17 by.
18 (1) A private business;
19 !22 A state-owned or state-controlled healthcare facility;
20 (3) A facility oa at d b the Dep t t f C t ns or
21 (4) A facilit o t d b the Di 'si f Y th S v e of the
22 Department of A Services.
23
24 SECTION 3. EMERGENCY CLAUSE. It is found and determined by the General
25 Assembly of the State of Arkansas that face masks face shields and other
26 face coverings are currently required in certain instances
c In this state;
27 that a regulation chat is not ec ss v is b de th bl
health and safer
pe ce
n8 of the citizens of this state• that the re uirement of
face cove_ rt�g h ld be rem d s s'bje sit t j
on er
30 necessary and should not be continuedi and that this t should become
31 effective as soon as i2ossible as the re uirement of face coverings is not
32 necessary to rotect the health and safer of the citizens of Arkansas and is
33 a burden on the public peace, health and safety of the citizens of this
34 state. Therefore an emeEge-cE is declared to exist and this act being
35 immediateZv necessarE for the 2resenr9tion of the ublic Peace, health and
36 safety shall become effective
04-19-2021 13:53:25 JMB362
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As Engrossed: H4/19/21
SB590
(1) The date f its approval by theGovernor;
(2) If the bill 11 neither o d o v t d b the Gov rnr
the 0ira tl f the Period f timeduring which the Governor L th
bill:; of
C32 If the bill 11 vetoed by the Governor and the veto is
overridden the date the last house overrides the veto.
Is/T. Garner
APPROVED: 4/28/21
3 04-19-2021 13:53:25 JMB362
M ARS TOM MARS
tom@mars-law.com
LA W F I R I C I ROGERS,AR
479.381.5535
ATLANTA,GA
404.583.2222
mars-law.com
DELIVERED VIA E-MAIL
July 27, 2021
Hon. Asa Hutchinson
Governor of Arkansas
Arkansas State Capitol
Room 250
Little Rock, AR 72201
Hon. Jimmy Hickey, Jr.
President Pro Tempore
Arkansas Senate
3216 East 351h Street
Texarkana, AR 71854
Hon. Matthew Shepherd
Speaker
Arkansas House of Representatives
200 N. Jefferson Ave.
El Dorado, AR 71730
RE: Additional Reasons to Repeal or Suspend Act 1002 of 2021
Gentlemen,
I'm writing to you regarding a matter that requires your immediate attention, the exigency
and severity of which cannot be overstated. I represent several parents of K-12 public school
children from across Arkansas ("K-12 parents"). My clients are typical of similarly situated parents
throughout Arkansas whose children's health is threatened by Act 1002 — the legislative ban on
mask mandates that will go into effect at the peak of a raging pandemic that took the lives of 23
Arkansans just yesterday — almost one death per hour. As the Delta variant rages through Arkansas
1
while virtually every state and federal public health official is recommending face mask mandates in
all K-12 schools, neither the executive or legislative branches of state government have seemed
willing to reverse course and allow Arkansas' 262 local school districts to follow these life-saving
recommendations. That said, the K-12 parents I represent are encouraged to know that you met
today to discuss the ban on mask mandates. We hope and pray that the meeting was productive and
will lead to a decision to protect the thousands of Arkansas children who desperately need your
help. One need look no further than Children's Hospital to realize how dire the situation has
become:
Nicole Clowney Q
@NicoleClowneyAR
Arkansas Children's
reporting a record high 24
children hospitalized with
COVID-19.Of those
hospitalized, 7 are in the ICU.
4 are on ventilators.
None of those hospitalized
have been fully vaccinated.
Kids under 12 don't yet have
that choice. Please get
vaccinated, if you do.
On behalf of all K-12 public school parents, I respectfully ask that you forget about policy
and partisanship for the moment. If any of you feel strongly that Arkansas should have a ban on face
masks in perpetuity, you can take up that debate when the pandemic is behind us. But now is not the
time to worry about policy, ideology, politics, or personal ambitions. Now is the time to exercise the
outstanding leadership that each of you promised you would provide to the people who elected you.
Good leaders recognize when circumstances have changed and take action to make
appropriate adjustments. Repealing Act 1002 under circumstances that are vastly different than they
were two months ago would be no different than what the CDC did today by revising its guidance
about school children and fully vaccinated people wearing masks. By the same token, repealing Act
1002 would not be an acknowledgement that anyone made a mistake in enacting Act 1002. It would
simply be a recognition that the situation with the COVID pandemic has changed dramatically and
unforeseeably since the Governor signed the ban on mask mandates into law.
Regardless of one's political affiliation, any person holding office right now would have to
recognize how irresponsible it would be to ignore the unanimous recommendations of state and
federal health officials to implement mask mandates in schools. Throughout Arkansas, K-12
parents, teachers, and school board members want you to heed that advice and are counting on you
2
to protect our state's school children. By repeal or otherwise, please take whatever action is
necessary to allow local school districts to decide whether to implement mask mandates. By law and
even by conservative public policy, that should be their decision — not yours.
Given that Arkansas schools will soon begin classes, the K-12 parents of Arkansas cannot
afford to wait any longer to see if the executive and legislative leaders of Arkansas will come
together and do the right thing. Knowing that many more children will get infected and that more
will likely die if the ban on mask mandates is not lifted, the K-12 parents I represent are prepared to
turn to the Arkansas judiciary for protection from a law that threatens their children with irreparable
harm.
If you think that the ban on face masks isn't causing irreparable harm, please read part of an
e-mail message a received from a K-12 parent earlier today:
Missy Irvin sponsored the resolution. She hold him in her arms and took him on the
Senate floor to read the resolution. She asked all kinds of questions and was really
wonderful to us. She told me to call her if I ever needed anything. I saw her name as a 'y'
on the bill far Act 1005 and decided to call her this morning. I should a been bettor
prepared. I didn't realize what I would be walking in to. I asked her if she remembered me
and she did. I told her I was calling because [REDAGTED] desperately needs to be in
school but because of his CF, he is more vulnerable if he gets COVID. I also told her that
without the ability for our district to have a mask requirement, school is not a risk we feel
that we can face and that supporting Act 1005 takes away the last tool parents like me
have to protect our children. I begged her to please consider carving out elementary
schools from the prohibition, that she said DEVASTATED me. She told me that the bast
way for [REDACTED] to be protected from GOVID is for him to get GOID because the
antibodies from infection offer more protection than the vaccine. This from a doctor's wife?
COVID infection could cause permanent lung damage in CF lungs, resulting in decline in
quality of life. Parsons with CF currently have a life expectancy of 33 gears. When I told
her that, Sen. Irving's response to me was that I have allowed influences to instill fear in
me over the virus and that I should have faith in 0 od and Providence that my son will
survive, She promised I would see the numbers go down before school starts and
encouraged me to get involved with my school district so that parents can agree to send
their kids in masks - without a mandate. She said a bunch of other things but all I heard
was that she didn't care that my son, who deserves access to a public education but who
is also higher risk, isnI worth protecting. To me, anyone who doesn't want to wear a mask
should have to attend virtual. I'm tired of [REDACTED] not getting to participate in life and
getting left out and behind because of selfish people and leaders like Sen. Irvin who'd
rather get the r way and be rig ht than do the right thing far others, I'm embarrassed to say
I cried on the phone. It's just so personal to me. She didn't care.
Thank you,
For what it's worth, I'd be glad to provide you other heart -breaking examples of the fear,
anxiety, and significant health threats Act 1002 has created among K-12 parents in every Arkansas
community — small and large. I've received dozens of messages like this one in the past week.
I can't imagine that any of you would wish to see the Arkansas judiciary resolve another
power struggle between the executive and legislative branches of government. Yet, that's precisely
what will happen unless both branches come to an agreement that allows local school districts to
decide whether to impose mask mandates for K-12 students.
Although conflicts between governors and legislatures over COVID-19 pandemic responses
have often been presented as partisan in nature, the lawsuit we are on the verge of filing will present
no political questions — only questions of law. The K-12 parents are likely to succeed on the merits,
and the public interest will strongly favor the issuance of an injunction pending a trial on the merits.
For your information, the Complaint we are prepared to file this week will seek the following relief:
1. An Order temporarily enjoining the enforcement of Act 1002 pending a hearing on the
merits of this case;
2. An Order requiring Defendants to respond to this Complaint on an expedited basis;
3. A hearing on an expedited basis either in person or via Zoom;
4. An Order requiring the 93rd General Assembly to designate one of the sponsors of Act
1002 to appear at the hearing;
5. An Order requiring Governor Hutchinson to appear at the hearing;
6. An opportunity at the hearing for the parties to present witnesses, cross-examine
witnesses, and make oral arguments in support of their positions; and
7. A ruling on Plaintiffs' request for a temporary injunction not later than August 13, 2021
prohibiting the enforcement of Act 1002 in public schools pending adjudication of
arguments that Act 1002 is unconstitutional and void in every setting.
While lawyers can debate almost any legal issue, our extensive legal research demonstrates
that Act 1002 is constitutionally defective on several grounds, each of which will provide adequate
grounds for the Circuit Court of Pulaski County to enjoin its enforcement and declare that Act 1002
is null and void. Though we are still evaluating additional legal theories to invalidate Act 1002, we
are confident our lawsuit will result in the judicial nullification of Act 1002 on one or more of the
following grounds:
To begin with, Act 1002 violates the separation of powers doctrine established in Article 4, §
2 of the Arkansas Constitution. Consistent with the Kentucky Supreme Court's interpretation of
language in its Constitution that is identical to the language in the Arkansas Constitution, Act 1002
intrudes on the Governor's exclusive authority to respond to emergencies that arise from
"contagious diseases." See Beshear v. Acree, 2020 WL 6736090 (Ky. 2020).
El
If you have doubts about whether the Arkansas Supreme Court would give any weight to the
Kentucky Supreme Court's interpretation of the language in Ark. Const. 6, § 19, you'd be badly
mistaken. In case you didn't know, much of Arkansas law is derived from Kentucky law. Sw. Bell
Tel. Co. v. Wilkes, 269 Ark. 399, 402, 601 S.W.2d 855, 856 (1980). More to the point, the Arkansas
Supreme Court has relied on that shared history to adopt the Kentucky Supreme Court's analysis of
a similar provision in that state's constitution. Id. For instance, in Sw. Bell Tel. Co. v. Wilkes, 269
Ark. 399, 402, 601 S.W.2d 855, 856 (1980), the Supreme Court of Arkansas said:
"We have no case directly in point in Arkansas, but the Supreme Court
of Kentucky, a state from whence much of our basic law was derived,
has considered the question. We agree with their interpretation of
a similarly worded constitutional provision that "injuries to persons
or property" was intended to mean physical injuries to the person and
physical damage to property. Jacobs v. Underwood, 484 S.W. 2d 855
(Ky. 1972)."
In the likely event that the Arkansas Courts will follow the Kentucky Supreme Court's
decision in Beshear v. Acree, the result will be a ruling that Act 1002 is an unconstitutional
infringement of the powers of the executive branch and is therefore null and void. It goes without
saying that such a ruling would have far-reaching implications with respect to the legislature's
authority to interfere with the Governor's management of any "contagious disease." A ruling based
on Article 6, § 19 would leave the legislature constitutionally powerless to do anything in such a
situation without the Governor's consent. Stating the obvious, a ruling in favor of the K-12 parents
based on Ark. Const. 6, § 19 would also nullify the recently enacted legislative bans on mandatory
vaccinations and vaccine passports.
In addition to violating Article 6, § 19 of the Arkansas Constitution, Act 1002 violates the
guarantees of due process and equal protection, as established by Article 2 of the Arkansas
Constitution. On its face and as applied, Act 1002 advances no conceivable legitimate government
interest, fails to satisfy the "rational basis" standard of constitutional scrutiny, and creates
nonsensical and irrational exemptions that deprive certain classes of citizens and organizations of
the health and safety measures provided to others. For any statute to survive constitutional scrutiny,
there must be a conceivable rational basis that supports a legitimate governmental interest. Act 1002
comes nowhere close to meeting this standard.
As always, an Arkansas court reviewing the constitutionality of Act 1002 will begin by
determining the legislative intent of the statute. The Arkansas Supreme Court has made clear that
courts may consider extrinsic evidence of the legislature's intent. Here, the court will need to look
no further than the several public statements made by Senator Trent Garner, the key sponsor and
drafter of the Bill that became Act 1002.
6i
Among other things, Senator Garner has said that Act 1002 was intended to subordinate
"comfortable safety" to "dangerous freedom," implying either that: (a) most Arkansans prefer
"dangerous freedom" for themselves and their children than "comfortable safety"; or (b) there is
some fundamental right to "dangerous freedom." For what it's worth, the absurdity of this remark
pales in comparisons with some of Senator Garner's other comments, e.g., that Act 1002 is a matter
of "public safety," that wearing a mask is a "medical decision," and that only a "30% mortality rate"
would cause him to reconsider Act 1002's ban on mask mandates.
We are fully prepared to rebut these groundless notions. As far as the law is concerned, there
is no right to "dangerous freedom" that puts others at risk, and there never has been. Furthermore, in
other areas of life, the Arkansas General Assembly has squarely rejected the notion that any
Arkansan has the right to engage in "self -endangerment" (the legal equivalent of "dangerous
freedom") — even when such behavior poses no risk to anyone but themselves. For that reason, the
General Assembly has passed laws requiring motorcycle drivers under 21 years of age to wear a
helmet, requiring front seat passengers to wear a seat belt, requiring small children to ride in car
seats, requiring children 12 and younger to wear life jackets while boating, and allowing civil
commitment of mentally ill persons who pose a risk to themselves — not to mention mandatory
vaccinations for school children.
But that's not all. For the past 116 years, the United States Supreme Court's decision in
Jacobson v. Massachusetts, 197 U.S. 11 (1905) has been the law of the land. In Jacobson, the State
of Massachusetts enacted legislation authorizing local governments to require immunizations that in
the opinion of the locality's governing authorities were necessary to protect the public health. The
City of Cambridge noted that smallpox cases had been increasing in that community and ordered the
residents of the City to be vaccinated. When Jacobson refused vaccination, the City proceeded
criminally against him. Jacobson asserted that the ordinance adopted by the City violated the United
States Constitution— specifically the Fourteenth Amendment — and guaranteed against deprivations
of life, liberty, and property without due process of law and further violated the "spirit" and the
preamble of the Constitution. Jacobson was found guilty, with the Massachusetts Supreme Judicial
Court upholding his conviction.
On appeal to the United States Supreme Court, Jacobson raised the same arguments. After
rejecting the appellant's general arguments which were based on the preamble and the "spirit" of the
Constitution, the Court moved on to determine if the statute in question violated the appellant's
liberty that was protected by the Fourteenth Amendment. To preface its analysis, the Court noted
that police powers are broad and generally empower the state to enact laws to protect the public
health and safety of its citizens. These may include quarantine laws and a broad range of public
health measures. Additionally, the state may invest local governments with the power to enact
regulations addressing the protection of public health.
G7
As to Jacobson's right to "dangerous freedom," the Supreme Court noted that under our
system of government, liberty and freedom are not a license to do what one wants. Specifically, the
Court quoted from Crowley v. Christensen:
"The possession and enjoyment of all rights are subject to such reasonable conditions
as may be deemed by the governing authority of the country essential to the safety,
health, peace, good order and morals of the community. Even liberty itself, the
greatest of all rights, is not unrestricted license to act according to one's own will. It
is only freedom from restraint under conditions essential to the equal enjoyment of
the same right by others. It is then liberty regulated by law. In the constitution of
Massachusetts adopted in 1780, it was laid down as a fundamental principle of the
social compact that the whole people covenant with each citizen, and each citizen
with the whole people, that all shall be governed by certain laws for "the common
good," and that government is instituted "for the common good, for the protection,
safety, prosperity and happiness of the people, and not for the profit, honor or private
interests of any one man, family or class of men."
Crowley v. Christensen, 137 U.S. 86 (1890).
The principles articulated by the Supreme Court in Jacobson have stood the test of time for
more than a century. In civilized societies governed by the "Rule of Law," individuals do not have
the right to unfettered "personal freedom" — dangerous or otherwise. In a surging deadly pandemic,
advancing "dangerous freedom" that threatens the lives of others is not a legitimate state interest.
For that reason alone, Act 1002 fails the "rational basis" test for judging the constitutionality of a
statute.
Worse yet, the exemptions in Act 1002 make the application of Act 1002 inherently
irrational. Whether by design or thoughtless mistakes in drafting the Senate Bill that became Act
1002, this piece of legislation is fundamentally flawed in countless ways. Indeed, as the examples
that follow illustrate, Act 1002 is the product of legislative malpractice and has produced results that
are indefensibly irrational and ridiculously absurd. Please consider the following:
Act 1002 exempted from the ban on government mask mandates "a facility operated by the
Department of Corrections." Other detention facilities were not exempted, meaning that Act 1002
prohibits County Sheriffs from requiring prisoners in county jails to wear masks. This irrational
dichotomy results in death row inmates being afforded more protection against the Delta variant
than the protection given to K-12 school children. Likewise, the legislation allows the Department
of Corrections to follow CDC guidelines to provide the safest possible health environment for long-
term prison inmates convicted of heinous felonies who never leave the prison. Yet, on the other
hand, Act 1002 prevents County Sheriffs from creating the safest possible environment or following
CDC guidelines with respect to persons convicted of far less serious offenses (e.g., DWI and
shoplifting) and pre-trial detainees who are being transported to and from courtrooms every day.
fd
County jail inmates in almost a dozen other states have filed class action lawsuits based on
the failure to provide adequate protection from COVID. It will happen sooner or later in Arkansas,
and Act 1002 is like handing a big paycheck to a plaintiff's lawyer on a silver platter. After all, there
will soon be 75 targets that don't provide the same protection for detainees as what's available for
the prisoners serving time at Cummins.
However, that's not the worst problem created by the irrational exemption in Act 1002 that
will impact County Sheriffs. The bigger problem has constitutional dimensions and sets up a
showdown between the State of Arkansas and the federal judiciary.
To begin with, Arkansas County Sheriffs have exclusive responsibility for the County Jail:
"County sheriffs and other keepers or administrators of jails within the State of
Arkansas are responsible for managing the populations and operations of their
respective facilities in compliance with the laws and the Arkansas Constitution and
within the requirements of the United States Constitution."
Ark. Code § 12-41-503(a).
As I assume you know, many of Arkansas' county jails are used to detain federal prisoners
while awaiting arraignment and/or a bond hearing on federal criminal charges.! According to an
Administrative Order recently issued by the Chief District Court Judge for the Eastern District of
Arkansas (No. 15), "[t]he Eastern District of Arkansas has almost six hundred individuals in
custody at fourteen facilities in Arkansas and surrounding states." In re: Court Operations During
Covid-19 Pandemic, Admin. Order No. 15 (E.D. Ark. June 18, 2021) (emphasis added). I don't
know how many federal prisoners in the Western District are being confined in county jails, but if I
were just spit -balling, I'd say the number is also in the hundreds.
The arrangements that allow individuals in federal custody to be confined in county jails
arise from what are called "Intergovernmental Service Agreements" ("IGSAs") between Arkansas
counties and the U.S. Marshals Service ("USMS") and/or U.S. Homeland Security. Those IGSAs
contain contractual requirements regarding the health and safety of federal detainees and
incorporate rules and guidelines published by the USMS, such as the ones shown below:
1 A well-known recent example involves Josh Duggar, who was confined in the Washington County
Jail pending arraignment and a bond hearing after being arrested by federal agents for possessing
child pornography.
Rl
USMS Prisoner Housing and Operations
• Facilities housing USMS prisoners are responsible for the medical care that prisoners receive. These facilities work closely
with state health departments and the Centers for Disease Control and Prevention (CDC) to ensure that infectious
diseases are promptly identified and treated. All training protocols, quarantine decisions or policy adjustments are made
at the facility level.
• The USMS takes very seriously its prisoner detention mission to provide safe, secure and humane custody, housing,
medical care and transportation for federal prisoners throughout the United States and its territories. We have modified
our policies and procedures during the COVID-19 pandemic, in accordance with guidance from the CDC, "Interim
Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities."
• Decisions regarding the detention of prisoners are made and issued by the U.S. Courts. Many federal court districts
across the country continue to operate; therefore, the U.S. Marshals must continue to safely and securely manage
prisoners while executing the lawful orders set by the federal judiciary. USMS district offices are limiting prisoner
movements within their federal district and between facilities as much as possible.
• The USMS adhe�nes set forth by the CDC for the handling of prisoners with suspected or actual reportable
cases of infectious disease within USMS cellblocks. Symptomatic prisoners are isolated from other prisoners and staff.
• USMS personnel have been issued specific COVID-19 guidance for screening prisoners that was developed by infectious
disease experts from the U.S. Public Health Service, who regularly update it in accordance with evolving CDC guidance.
• For more information on USMS prisoner operations, see the fact sheet available from
www.usmarshals.gov/duties/factsheets.
The population, hereinafter referred to as "federal detainees," will
include individuals charged with federal offenses and detained while
awaiting trial, individuals who have been sentenced and are awaiting
designation and transport to a BOP facility, and individuals who are
awaiting a hearing on their immigration status or deportation.
The Local Government shall accept and provide for the secure custody,
safekeeping, housing, subsistence and care of federal detainees in
accordance with all state and local laws, standards, regulations,
policies and court orders applicable to the operation of the facility.
Detainees shall also be housed in a manner that is consistent with
federal law and the Federal Performance -based Detention Standards.
Act 1002 creates several previously unidentified problems for county governments in
complying with the obligations they've undertaken in their IGSAs. However, the most imminent
and troubling one arose just yesterday when the Chief District Court Judge for the Eastern District
of Arkansas entered another Administrative Order that requires everyone in an Eastern District
federal courthouse to wear a face mask. In re: Court Operations During Covid-19 Pandemic, Admin.
Order No. 16 (E.D. Ark. July 26, 2021).
Under the terms of the IGSAs with the U.S. Marshals Service, when federal detainees are
taken to court for hearings, the only people who can ensure compliance with the face mask directive
ordered by the chief federal judge for the Eastern District are the County Sheriff and the Deputies
who staff the jail. Compliance with Act 1002 will therefore require County Sheriffs in the Eastern
District to: (a) breach the terms of their IGSA with the USMS (exposing the county to significant
liability and loss of their government contract); and (b) violate an Order issued by a federal judge.
1•1
On the other hand, compliance with the federal court's Order cannot be accomplished without the
Sheriffs and their Deputies violating Act 1002:
(b) A state agency or entity, a political subdivision of the state, or
a state or local official shall not mandate an individual in this state to
use a face mask, face shield, or other face covering.
(c) The use of a face mask, face shield, or other face covering shall
not be a condition for entry, education, or services.
d) If a state aeencv or entitv. a Dolitical subdivision of the state
or a state or local official recommends that an individual in this state use
a face mask, face shield, or other face covering, a state agency or entity, a
Dolitical subdivision of the state. or a state or local official shall
provide notice that the recommendation is not mandatory.
Remarkably, the failure to exempt all detention facilities isn't the only irrational exemption
in Act 1002. When exempting "state-controlled health care facilities" from the ban on face mask
mandates, the drafters of Act 1002 apparently forgot to consider that Arkansas has many "county -
controlled hospitals," predominantly in rural parts of Arkansas. This legislative blunder will have
real and immediate adverse consequences the minute Act 1002 becomes effective. In a matter of
days, Act 1002 will make it illegal for any of the county -controlled hospitals shown on the map
below to require patients, visitors, or the medical staff to wear face masks.
Arkansas Hospitals, 2020
.....
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10
(I) A private business:
(2) A state-owned or scace-controlled healchcare facility:
(3) A facility operated by the Department of Corrections: o
(4) A facility o rated by the Division of Youth Services of the
County Controlled Hospitals
near Arkansas • Choose area
Stone County
Medical Center Advanced Care Hospital
o • �of White County
Oklahoma City
Ouachita County
" edical Center Allan
• o
Stone County Medical Center
3.3 ***1 (26)
Hospital • Mountain View, AR
Open 24 hours CALL
O Emergency room: Open 24 hours
Advanced Care Hospital of White County
4.5 - ---: (2)
Medical Center • Searcy, AR
Open 24 hours CALL
a Online care
Ouachita County Medical Center
2.6 **1 (32)
Medical Center • Camden, AR
Open 24 hours
CALL
41 "1 will start by saying the nurses at this
No matter how hard you look for one, there's no exemption in Act 1002 that even arguably
includes county -controlled hospitals. There should have been, however. By arbitrarily creating two
classes of government hospitals, the General Assembly has denied equal protection of the laws to a
population that is already underserved, many without access to internet service, and already
challenged by the distance they must travel to receive adequate medical care. This is yet another
reason why we believe that no judge in Arkansas would be able to find any conceivable rational
basis to support the constitutionality of Act 1002. The poorly drafted narrow exceptions to the ban
on mask mandates make the application of the law's prohibition both irrational and absurd.
Aside from failing to meet constitutional due process and equal protection requirements, Act
1002 also violates the rights of K-12 public school children, as guaranteed by Article 14, § 1 of the
Arkansas Constitution, by preventing the State of Arkansas and local school districts from
"maintain[ing] a general, suitable and efficient system of free public schools" and "adopt[ing] all
suitable means to secure the people the advantages and opportunities of education." Consistent with
11
Amendment 55 to the Arkansas Constitution,2 the statutes that govern secondary schools make clear
that the General Assembly has treated each school district as essentially a mini -agency, consistent
with the remainder of Art. 14, § 4. When the General Assembly has passed laws regulating student
dress or conduct in the past, it has done that by requiring school districts to include a provision in
their written student conduct policies. For example, Ark. Code. § 6-18-502(a) provides: "The
Division of Elementary and Secondary Education shall establish rules for the development of
school district student discipline policies." Then in the following section, the General Assembly
said: "Each school district in this state shall develop written student discipline policies in
compliance with the rules established by the Division of Elementary and Secondary Education and
shall file the policies with the division." Ark. Code § 6-18-503(a)(1)(A).
The Arkansas Department of Education has implemented those regulations in its "Rules
Governing Student Discipline and School Safety," which do not include anything preventing school
districts from requiring masks. That's not surprising. After all, the General Assembly hasn't just
delegated the authority to regulate school discipline and safety to local school officials. Consistent
with the Arkansas Supreme Court's decision in Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark.
31, 91 S.W.3d 472 (Ark. 2002), which reinforced the state's obligation to provide an "adequate"
education for K-12 school children, the General Assembly has mandated that local school districts
enforce school policies to "ensure the safety of every student during school hours." Ark. Code § 6-
15-1005. Furthermore, the General Assembly has required local school districts to enforce a code of
behavior for students that respects the rights of others and maintains a sa e and orderly
environment." Id.
"The existence of an absurd result is yet another case where a canon is used both as a de
facto justification for interpretation and as a canon of interpretation." Statutory Interpretation in
Arkansas: How Arkansas Courts Interpret Statutes. A Rational Approach, Ark. Law Notes (Prof.
M.W. Mullane, 2005). Applying this rule of statutory construction to Act 1002, forcing this
unconstitutional law on school districts would create a result that is nothing short of absurd. After
all, if school districts are prohibited from requiring students from wearing face masks: (a) a student's
face would be the only body part the school could not require the student to cover; and (b)
preventing student illness and death from a highly contagious disease would be the only
governmental interest the district was not allowed to consider. Because there is no express reference
to school districts in Act 1002, we believe that Act 1002 could be construed not to have been
intended to apply to public schools, which the General Assembly has referred to specifically and
regulated indirectly in other statutes.
2 Amendment 55 adopts the conservative principle of "home rule" by granting broad authority to
County Quorum Court to self -manage local matters, including such things as public health and
education.
12
We are willing to indulge in the fiction that the General Assembly never intended for Act
1002 to apply to K-12 public schools. The Arkansas Supreme Court has embraced the rule of
statutory construction that, in the absence of a clear expression of intent to apply a general statute to
a more specific one, courts should interpret conflicting statutes by giving meaning to the statute that
is most specific. "Where a specific statute conflicts with a general statute dealing with the same
subject matter, the plain meaning of the specific is presumed to control that of the general statute."
Statutory Interpretation in Arkansas: How Arkansas Courts Interpret Statutes. A Rational Approach,
Ark. Law Notes (Prof. M.W. Mullane, 2005) (citing $75 in U.S. Currency v. State, 205 WL 668605
(Ark. App. 2005). Act 1002 is far less specific than Ark. Code § 6-18-503 and makes no mention of
school districts. Therefore, a Court could assume that the General Assembly did not intend to
withdraw or modify the broad authority to school discipline and safety when it enacted Act 1002.
Therefore, in addition to invalidating this statute on constitutional grounds — we believe a Court
could also rule that Act 1002's ban on mask mandates does not apply to local school districts.
Aside from the several constitutional defects in Act 1002 that I've just outlined, Act 1002 is
preempted, at least in part, by federal law, to -wit: the CDC Order of February 1, 2021, requiring
operators of public conveyances, including school buses, to ensure that all passengers are wearing
face masks.3 The issue of federal preemption is not even debatable, so I'll leave it at that.
The Complaint we have prepared goes into much more detail than what I've outlined here
and includes quite a bit of additional evidence. That said, I hope this letter has given you enough of
a preview of our intentions to be helpful.
Please let me know if you come to an agreement to remove the barriers that are preventing
local school officials from creating the safest possible environment for Arkansas' K-12 public
school children. If you do, you'll be saving lives, and K-12 parents in all 75 counties will applaud
you.
In the meantime, we'll proceed with our plans to file our Complaint in the Circuit Court of
Pulaski County but will continue to hope that it won't be necessary.
3 CDC Regarding Order Under Section 361 of the Public Health Service Act (42 U.S.C. § 264) (Feb. 1, 2021)
"Requirement for Persons to Wear Face Masks While on Conveyances") ("[P]assengers and drivers must wear a
mask on school buses, including on buses operated by public and private school systems, subject to the exclusions
and exemptions in CDC's Order." (www.cdc.gov)).
13
Respectfully,
Tom Mars
cc: John C. Everett
Walter A. Paulson
Ryan K. Culpepper
14
41
DEPARTMENTAL CORRESPONDENCE
OFFICE OF THE
CITY ATTORNEY
TO: Mayor Jordan
City Council
CC: Susan Norton, Chief of Staff
Kara Paxton, City Clerk/ Treasurer
FROM: Kit Williams, City Attorney
DATE: July 30, 2021
Kit Williams
City Attorney
Blake Pennington
Assistant City Attorney
Jodi Batker
Paralegal
RE: Governor Hutchinson's July 29th Proclamation of a Statewide Public
Health Emergency and Fayetteville's request for the return of cities' rights
to mandate face masks
Mayor Jordan asked me today to prepare a Resolution for the City Council's
consideration to request that Governor Hutchinson include within his proposed
call for a Special Session not only the absolutely vital and needed legal ability of
Arkansas School Districts to require masks for their students, but also to return the
historic power of cities to preserve and protect the health and safety of its citizens
by taking necessary contagion -reducing measures such as mask mandates if
needed in a local community as determined by the local governing body.
Attached please find Governor Hutchinson"s Proclamation of July 29, 2021
and my draft proposed Resolution which can be revised after Mayor Jordan s
review and analysis on Monday, August 2nd. I believe a Resolution of some form
will be presented to the City Council as a walk-on by Mayor Jordan for the August
3rd City Council Meeting. Therefore, I wanted to give the City Council as much
notice as possible.
RESOLUTION NO.
A RESOLUTION TO REQUEST THAT GOVERNOR HUTCHINSON INCLUDE WITHIN
HIS CALL FOR A SPECIAL SESSION THE HISTORIC AND NECESSARY AUTHORITY
OF LOCAL GOVERNMENTS TO PROTECT THE HEALTH AND SAFETY OF THEIR
CITIZENS THROUGH AN AMENDMENT OF ACT 1002 OF 2021
WHEREAS, Governor Hutchinson issued his Executive Order To Declare A Statewide Public
Health Emergency For The Purpose Of Meeting And Mitigating The Impact Of Covid-19 On
The Healthcare System Of Arkansas on July 29, 2021; and
WHEREAS, the statutory primary purpose of the City of Fayetteville, as all other Arkansas
cities, is "to provide for the safety (and) preserve the health... of such (cities) and the inhabitants
thereof"(A.C.A. §14-55-102); and
WHEREAS, the first power granted to Arkansas cities by the Legislature in the First Act of
1875 is: "Cities and incorporated town shall have the power to: (1) Prevent injury... within the
limits of the municipal corporation from anything dangerous, offensive or unhealthy..." A.C.A.
§14-54-103; and
WHEREAS, those duties cannot be accomplished nor the powers utilized by cities to protect our
citizens in this declared public health emergency because of Act 1002's ill-advised prohibition
against cities to require face masks for unvaccinated persons; and
WHEREAS, until a far larger percentage of Arkansans have been fully vaccinated, face masks
are again being recommended for all public indoor activities in areas of high contagion such as
Arkansas by the CDC, the Arkansas Department of Health and the Fayetteville City Board of
Health.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby determines that is
in the best interest of the citizens of Fayetteville and every other city in Arkansas to have the
historic and necessary authority to protect the life and health of its citizens returned to the local
government.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby requests that
Governor Hutchinson include in any call for a Special Session of the Legislature and its
reconsideration of Act 1002 of 2021, the removal of restrictions upon the local government's
ability to address the ongoing and increasingly dangerous Covid-19 Delta variant pandemic
including allowance of face mask mandates for persons on city property, in city buildings and in
public indoor areas within the city limits.
PASSED and APPROVED this 3`d day of August, 2021.
APPROVED:
ATTEST:
LIONELD JORDAN, Mayor KARA PAXTON, City Clerk/Treasurer
MWEdmifil
PP a C I'd.& vI.ATI 01V
TO ALL TO WHOM THESE PRESENTS COME — GREETINGS EO 21-14
EXECUTIVE ORDER TO DECLARE A STATEWIDE PURI,IC HEALTH
EMERGENCY FOR THE PURPOSE OF MEETING AND MITIGATING THE
IMPACT OF COVID-ig ON THE HEALTHCARE SYSTEM OF ARKANW.
WHEREAS: The Delta Variant of COVID-19 has infected thousands of Arkansans in
recent months. Infections and hospitalizations continue to rise at an
alarming rate, placing the accessibility to healthcare. facilities for all
Arkansans at risk; and
WHEREAS: A public health emergency was declared on March 11, 2020, to meet and
mitigate the effects of COVID-19 in Arkansas. The emergency was
renewed several times until its final expiration on May 30, 2021; and
WHEREAS: At the expiration of the public health emergency on May 30, 2o2i, there
were 1,938 active cases of COVID-ig in Arkansas and 194 hospitalizations
in Arkansas due to COVID-ig. On July 27, 2o2i, there were 15,491 active
rases of COVID-ig in Arkansas and i,o25 hospitalizations in Arkansas due
to COVID-19; and
WHEREAS: In the two months since the expiration of the public health emergency,
hospitalizations have climbed near the record of hospitalizations ever
recorded in the state due to COVID-19. On January 13, 2021,
hospitalizations reached 1,362. It is expected that hospitalizations will
match or exceed that number in the coming weeks; and
WHEREAS: The rapid rise in cases and resulting hospitalizations is placing an
unsustainable strain on Arkansas hospitals already struggling to staff their
facilities; and
WHEREAS: Emergency action is warranted to utilize all available resources from the
federal government and the Emergency Services Act of 1973 to provide
hospitals with adequate staffing to meet the healthcare needs of all
Arkansans during this surge in COVID-ig cases.
NOW, THEREFORE, I, Asa Hutchinson, Governorof the State of Arkansas, acting under
the authority vested in me by Ark. Code Ann. §§ 12-75-101, et seq. hereby
declare a statewide state of disaster emergency related to public health,
resulting from the catastrophic statewide impact of the Delta Variant of
COVID-ig on the healthcare system of Arkansas. This emergency shall
expire sixty (6o) days from the signing of this order, unless the emergency
is terminated at an earlier date, or it is approved for renewal by the
Arkansas Legislative Council.
FURTHERMORE, I order the following:
(i) The Arkansas Division of Emergency Management is hereby ordered
to seek necessary staffing assistance for Arkansas healthcare facilities
and hospitals through available avenues to include the Emergency
Management Assistance Compact.
(2) Pursuant to Ark. Code Ann. § 12-75-114(e)(1), the Arkansas
Department of Health is ordered to identify any regulatory statutes,
orders, or rules related to Iicensure of healthcare professionals that
may be preventing, hindering, or delaying necessary. action for coping
with this emergency. Once identified, those statutes, orders, or rules,
shall be reported to the Governor and posted on the Arkansas
Department of Health website, and they shall be suspended for the
duration of this emergency.
IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the Great Seal
of the State of Arkansas to be affixed this 29th day of July, in the year of
our Lord 2021.
Asa Hutchinson, Governor
74�
John Th,,toa See,-.tary of State