Arkansas Supreme Court to hear COVID-19 directives case

Arkansas Supreme Court to hear COVID-19 directives case

LITTLE ROCK, Ark. (KAIT) - A case filed by 18 state lawmakers challenging Gov. Asa Hutchinson’s ability to issue directives related to the COVID-19 pandemic will be heard by the state’s highest court.

The Arkansas Supreme Court said Thursday it will hear oral arguments in the Sullivan v. Romero case at 10 a.m., April 8 at the Supreme Court chambers in Little Rock.

The lawmakers filed suit in Pulaski County Circuit Court last September, saying the state-issued directives were done without the approval of the state legislature.

The area lawmakers who filed suit include Sen. Dan Sullivan (R-Jonesboro), Rep. Josh Miller (R-Heber Springs), Rep. Brandt Smith (R-Jonesboro) and Rep. Nelda Speaks (R-Mountain Home).

A Pulaski County Circuit Judge dismissed the suit last October and the case was appealed to the state Supreme Court.

The Arkansas Attorney General’s office filed a brief with the court Feb. 8 on the issue.

In the 49-page brief, they argued that the Emergency Services Act of 1973 gives any governor the power to respond to health emergencies in the state and the Department of Health has been given power by the legislature to make “all necessary and reasonable rules” on the issue.

The attorneys also argued that Gov. Hutchinson used a careful approach in dealing with the pandemic.

“But in stark contrast to governors elsewhere (like in California, Michigan and Wisconsin), Governor Hutchinson took a sensible, measured approach. He did not order Arkansans to stay home or otherwise restrict their travel,” the attorneys said in the brief. “Rather, he declared an emergency under the Emergency Services Act of 1973 and directed the Arkansas Department of Health to respond to the threat of contagious disease.”

The attorney for Sullivan and the lawmakers, Travis Story of Fayetteville, filed a brief Feb. 23 to respond.

In the 19-page response, Story argued that Gov. Hutchinson violated constitutional principles on the issue.

“The Governor, as Chief Executive Officer, cannot make up law as he goes along,” Story said in the brief. “He has no inherent authority within the constitutional framework of separation of powers to either add or detract from existing law. If he had chosen to invoke the existing 2019 ADH Rules, he could have instructed the Director to ‘take whatever steps necessary for the investigation and control of the disease, including ‘quarantine restrictions and regulations upon commerce and travel.’ The Governor, however, sought authority ‘over all instances of quarantine, isolation and restrictions on commerce and travel throughout the state.’ So, he simply assumed by mandate, power unauthorized by statute, knowing it would be almost a year before the legislature would be back in session and able to invoke, by concurrent resolution, an end to the Governor’s emergency declaration.”

The Attorney General’s office countered the separation of powers issue was clear.

“This appeal fails to invoke the subject-matter jurisdiction of this Court because it presents a political question that cannot be entertained. Or, at least, the Court must reject Plaintiffs’ challenge on separation-of-powers grounds. In either case, this Court should decline Plaintiffs’ invitation to sit in judgment of the Governor’s management of the COVID-19 crisis, and it should affirm the circuit court’s dismissal of the amended petition,” the AG’s brief noted.

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