There is a lawsuit headed to the Supreme Court of Arkansas that seeks to dismiss the rules promulgated by the Arkansas Department of Health at the direction of Governor Hutchinson. How have these rules affected us, and how does this lawsuit hope to repeal them?
For ten months now, Arkansas has been under these “directives” from the Arkansas Department of Health, (ADH). These directives severely restricted eating establishments, entertainment venues, and many other activities. Arkansas saw a 38.9% drop in Small Business Revenue by the end of March, which returned by June, but has steadily decreased to around -20%.
These restrictions have now carried into our schools and are quarantining entire classes. Not only does this hamper the children’s education, it also forces parents to find care for their child, or keeps them home from work. This results in significant loss of pay until the child returns to school, only to be re-quarantined a few days later, all in spite of negative COVID test results.
This is because of ‘directives’ published at whim by the ADH, in spite of Arkansas law. There is no statute in Arkansas Law defining directives. The only law allowing anything like that is the Administrative Procedures Act (APA), which allows state agencies to create “Rules”. It also requires the Legislature’s approval for an extension beyond 120-day expiration dates.
At no point were those requirements followed to produce these rules. Instead, they called them ‘directives’ in order to bypass the Legislature and simply publish them.
Twice, Senator-Elect Dan Sullivan attempted to contact the ADH about this, and both times, the ADH doubled down on what they were doing.
On August 28th, a lawsuit was filed by eighteen legislators, including Senator-Elect Sullivan, and seven other Arkansas residents. This lawsuit was asking for a clarification of the APA, showing that the ADH’s so-called directives were in violation. This lawsuit was funded through hundreds of Arkansas residents. If successful, it will remove the mandates until they can go through the legislative process to be approved. This means that some of them, we may see again, but all of them will have to face our representatives and the voice of the people.
However, on October 14th, Judge Wendell Griffin dismissed the case. He chose not to acknowledge any such requirements of the APA, and instead granted that the Emergency Services Act of 1973 grants the Governor the ability to do as he will with State Agencies. Given the Judge’s history, this was not a surprise. So, as every other state who has successfully challenged their Governor’s unconstitutional mandates has done, Arkansas will take the case to the Supreme Court.
In the meantime, emboldened by the case dismissal, the mandates and rules have only gotten worse. Cases have climbed since the rules were put in place, but clearly the rules are not at fault, it’s the people of Arkansas. Instead of fining us, they fine our small businesses who dare to let residents make their own choices. The Alcoholic Beverage Control agency is being used to strongarm these businesses, threatening to strip liquor licenses as they did with TempleLive in early May. Now they are doing random inspections across the state, anywhere that sells liquor, and looking for violations. In Logan county, they did four such inspections, and failed two of them.
This is in spite of Logan county doing very well in regards to the Coronavirus. They have had less than a thousand cases and have lost only six residents. Yet, none of this matters to the blanket mandates put out by the ADH. Their Representatives and Senators had no say in these directives–Just the Governor and his appointed Secretary of Health.
These stories are across the state. The bottom line is, these rules are unconstitutional, unsupported by Arkansas law, arbitrary, and confusing. Yet our state’s executive Administration continues to push them.
The Arkansas Supreme Court date is yet to be set, but the lawsuit is filed. When, and if, the Court sees the case in favor of the people, your legislators need to know where you stand on these issues. We need the voice of the people back in Little Rock to combat this unchecked control of power over a highly survivable virus before our economy, livelihoods and incomes are wrecked beyond repair.
–Op-ed Contributed by JD Haigler