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Lawmakers drop challenge to governor's covid mandates

by Neal Earley | April 7, 2021 at 4:27 a.m.

The lawsuit led by Republican state legislators challenging the governor's coronavirus-related mandates is no more.

The group of lawmakers, led by Sen. Dan Sullivan, R-Jonesboro, declared victory Tuesday, saying that a bill passed by the Arkansas General Assembly curtailing the governor's emergency powers made their lawsuit irrelevant.

With oral arguments scheduled before the state Supreme Court on Thursday, Sullivan asked for a motion to dismiss his lawsuit, which was granted Tuesday.

"You know, if you gauge victory by did -- which I do -- did we achieve what we sought," Sullivan said. "What we sought was legislative engagement -- that has happened."

The lawsuit, originally filed in September, sought to overturn Gov. Asa Hutchinson's public health executive orders, which Sullivan and other conservative lawmakers said violated the governor's authority.

Sullivan filed the lawsuit in September, saying "unelected bureaucrats" were making decisions that the Legislature should be weighing-in on instead. With the General Assembly out of session in September, Sullivan said hoped he could get a judge to overturn Hutchinson's pandemic orders.

But in October, a Pulaski County Circuit judge ruled that Hutchinson's orders were legal, prompting the group of lawmakers to appeal to the state Supreme Court.

The lawsuit was one of many conflicts between conservative lawmakers and Hutchinson in an inter-party fight between state Republican leaders. In March 2020, Hutchinson issued an executive order declaring an emergency and giving the Arkansas Department of Health more authority to enforce social-distancing-related measures and other restrictions to fight the covid-19 pandemic.

But months after his original executive order, some Republican lawmakers wanted to revisit the public health mandates, hoping to relax the state's various coronavirus-related regulations.

With the General Assembly out of session, lawmakers looking to override the governor's mandates had to wait until January when the Legislature returned to the state Capitol.

On March 15, the General Assembly passed Senate Bill 379, giving the Legislature the ability to overturn the governor's emergency orders. Greg Payne, the attorney who represented Sullivan and the other lawmakers in the case, said when Hutchinson signed SB 379 into law the case became "moot."

"That is, we have achieved the results we sought, not through the adversarial process and by asking the Supreme Court to inject itself as referee in this battle between the executive and legislative branches, but as it should be, by the Legislature itself, acting in its representative capacity," Payne said.

While lawmakers granted Hutchinson an extension to his emergency order, the governor has ended many of his pandemic-related mandates. At the end of March, Hutchinson lifted the state's mask mandate after previously ending the capacity limit on bars and restaurants.

The group of lawmakers and a citizens group called "Reopen Arkansas" sought to curtail the power of Hutchinson and other members of his administration, including his health secretary, Dr. Jose Romero, who was named as a defendant in the lawsuit.

Sen. Bob Ballinger, R-Ozark, one of the lawmakers who joined the lawsuit, said the Legislature "needed to put a check" on the governor's orders.

"You know, I appreciate the fact that the Legislature, when we got into session, we got an opportunity to address it and to bring everything back into balance to, frankly, to get the voice of the citizens," Ballinger said.

Hutchinson, who recently obtained the General Assembly's approval on a 60-day extension to his emergency order, said in a statement he was "pleased" that the lawsuit was over.

"The Supreme Court has entered an Order of dismissal on Sen. Sullivan's appeal of a lower court ruling supporting the emergency powers of the executive branch during this pandemic," Hutchinson said in a statement. "This is appropriate and I am pleased with the dismissal."

The lawsuit is not the first clash between Sullivan and Hutchinson related to the pandemic. In March, Hutchinson vetoed a bill, sponsored by Sullivan, that would have required the state to return fines levied on businesses for covid-related health violations.

Only needing a majority, the House failed to override Hutchinson's veto of the bill.

CORRECTION: The Arkansas House of Representatives failed to override the governor’s veto. An earlier version of this story incorrectly stated which chamber failed to override the veto.

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