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Court's order stirs clash on shot eligibility

Governor disputes justices’ ‘essential’ label for legal jobs by Andy Davis | March 5, 2021 at 7:40 a.m.
Pharmacist Jack Kann places boxes of the Johnson & Johnson covid-19 vaccine into a refrigerator at South Shore University Hospital in Bay Shore, N.Y., on Wednesday, March 3, 2021. Janssen Pharmaceuticals is a division of Johnson & Johnson. (AP/Mark Lennihan)

Gov. Asa Hutchinson and the state's highest court on Thursday aired conflicting views on eligibility for coronavirus vaccinations, with the Arkansas Supreme Court declaring that certain members of the legal profession can now get the shots and Hutchinson disputing that.

In an opinion issued on behalf of the court, Chief Justice Dan Kemp said the court had classified court clerks and certain attorneys, judges and others in the legal system as "essential workers" who fall under the current Phase 1-B of the state's vaccination plan.

He said the court "orders them to be eligible for the vaccine immediately."

Hutchinson issued a statement rebuffing the order.

"I appreciate the Supreme Court's concern for judges and staff members of the court system and for attorneys whose cases require them to work in person at a court house," the Republican governor said.

"Our schedule for vaccinations takes into account the needs and risk level for all Arkansans, and this group is not yet eligible in the 1B phase. As our allocation of vaccine increases, we will be able to move more quickly, but currently, court employees who don't otherwise qualify for a shot will have to wait for their eligibility."

Kemp said he planned "no response at this time" to Hutchinson's statement.

"We're considering things," he said.

He said he hadn't spoken to Hutchinson about the matter.

The dispute unfolded as the state's count of covid-19 cases rose by 403 -- the fourth daily increase in a row that was smaller than the one a week earlier.

The number of people hospitalized in the state with covid-19 fell by 25, to 372, reaching its lowest level since July 8.

The state death toll from the virus, as tracked by the Department of Health, rose by 12, to 5,273.

The Supreme Court's opinion was issued two days after Hutchinson extended eligibility for the coronavirus vaccine to workers at poultry plants and other food manufacturing sites.

Like employees of schools and child care centers and people age 65 and older, they fall under the state vaccination plan's Phase 1-B that began in January.

Several other types of "essential priority workers," including grocery store employees, postal workers and workers at other types of factories, also are listed under Phase 1-B but are not yet eligible for the shots.

Health care workers, first responders, and residents and workers at long-term-care facilities fall under Phase 1-A of the effort, which began in December.

In the court's opinion, Kemp noted that the court had implemented emergency precautions in response to covid-19, including the suspension of jury trials through April 30.

"This suspension has been necessary to protect the safety of jurors, litigants, attorneys, judges, court personnel, and the public," Kemp said in the opinion.

"Despite the pandemic, attorneys, circuit clerks, district courts, circuit courts, and staff engage daily with numerous members of the public to protect these citizens' constitutional rights. These essential justice-system workers have placed themselves in harm's way for nearly a year, with severe consequences."

He noted that Hutchinson this week "expanded vaccine eligibility to include more essential workers" and said the U.S. Department of Homeland Security has identified state court judges and staff as "essential critical infrastructure workers."

Those the court had decided, "after careful review," to make eligible for the shots included circuit judges and their staffs with criminal or juvenile court dockets; district judges, clerks and staff members; the clerk of the Supreme Court and staff members; court-employed security officers; Administrative Office of the Courts staff members who have regular contact with the public or other branches of government; prosecuting attorneys, public defenders and their staffs; attorneys with pending in-person appearances in criminal or juvenile courts; and jurors set to begin serving after April 30.

[Interactive Arkansas map not showing up above? Click here to see it: nwaonline.com/arvirus]

"We will add others as we monitor the Governor's statewide rollout," Kemp said in the opinion.

CONSTITUTIONAL ISSUES

John DiPippa, the former dean of the University of Arkansas at Little Rock's William H. Bowen School of Law, said deciding who's eligible for the vaccine is up to the governor, who is exercising his authority to execute state laws as head of the executive branch of government.

The Supreme Court's job under the state constitution is to interpret the laws, he said. That might involve access to the vaccines if it were at issue in a lawsuit before the court.

"In the abstract, without any case in front of them, they're just exercising raw power and not judicial power," DiPippa, now a professor of constitutional law and public service at the law school, said.

The court also regulates matters involved in the administrative justice, such as by setting rules for courtrooms, but DiPippa said that power doesn't extend to matters, such as the vaccine supply, that are under Hutchinson's purview.

DiPippa said he didn't think the court could hold Hutchinson in contempt of court for violating its order since the governor is not involved in a case before it.

Although the judicial and executive branches have clashed before, DiPippa said he didn't recall a similar dispute that involved the court acting on its own rather than issuing rulings in a case.

John Vinson, chief executive of the Arkansas Pharmacists Association, said at least 100 pharmacies contacted the association with questions about the Supreme Court's opinion, including some who had customers show up with copies of the opinion in hand.

"It certainly puts the providers in an awkward spot, because you have two of the three branches of the government giving conflicting orders," Vinson said.

He said his group has been advising the pharmacists to follow the directives from the governor and Health Department.

After the Supreme Court opinion, the department sent a memo to providers listing the groups that are eligible for the vaccine.

A copy provided by the department to the Arkansas Democrat-Gazette doesn't mention the Supreme Court opinion, but it also doesn't list the court personnel the court named as being eligible on Thursday.

State Epidemiologist Jennifer Dillaha said she hadn't heard from any providers who were resistant to Hutchinson's view on who is eligible for the shots.

When the Health Department learns of a provider vaccinating people who are not eligible, she said, "we take steps to educate them, reemphasize who the eligible people are."

"If it's persistent, then we would likely take action and not provide them with additional vaccine," she said.

Gregg Parrish, executive director of the Arkansas Public Defender Commission, said one of his coworkers inquired on Thursday about getting the vaccination and was told by her pharmacy that it was awaiting word from Hutchinson's office on the Supreme Court opinion.

"This one person I spoke to in my office says her pharmacist was not going to vaccinate her based solely upon the per curiam," he said.

He had spoken to both Kemp and Hutchinson about the situation.

"They're both aware of wanting to get us vaccinated as fast as possible, but they're also fully aware there's a lot of Arkansans out there that are a lot older than us and more susceptible than us who need it and who can't get it, and there would be no reason for us to jump in front of those people to get the shot," he said.

Vinson said he's heard from pharmacies that demand among Arkansans who are eligible for the shots is waning in some of the state's more populous counties.

"There's lots of open appointments, and it becomes more difficult to schedule five at a time or six at at time or 10 at a time," he said.

Citing a "significant increase in vaccine supplies," the Central Arkansas Veterans Healthcare System, which is following a different vaccine plan from the state's, announced this week that it had expanded eligibility to veterans who are age 50-64.

Veterans age 65 and older, and younger veterans who are homeless, in congregate living settings or who have certain medical conditions also remain eligible, as do those employed as "essential front-line workers," such as firefighters, police officers, postal workers, and those working in factories and grocery stores.

DOSES REPORTED

According to the Health Department, providers participating in the effort coordinated by the state had received 999,240 doses of vaccine as of Thursday morning, up by 21,530 from the total as of a day earlier.

The doses the providers reported having administered rose by 13,571, to 636,290.

In addition, Walmart, Walgreens, CVS and Community Pharmacy Enhanced Services Network pharmacies had been allotted 119,170 doses through federal programs, up 28,100 from the total as of a day earlier.

The doses those providers reported having administered rose by 4,847, to 50,907.

The number of doses reported to have been delivered and administered includes some booster shots.

The actual number of shots given is higher than the Health Department's figures because providers have three days to report the doses they administer.

According to the U.S. Centers for Disease Control and Prevention, 452,615 Arkansans, or 15% of the state's population, had received at least one dose of vaccine as of Thursday.

That included 249,956 people, or 8.3% of the state's population, who had received two doses.

ACTIVE CASES FALL

Thursday had the seventh-straight daily decline in the number of virus patients in state hospitals.

After rising Wednesday, the number of covid-19 patients on ventilators and in intensive care units both fell Thursday.

The number of virus patients on ventilators fell by six, to 85. The number in intensive care as of 2 p.m. fell by two, to 165.

The cases added in the state included 306 that were confirmed through polymerase chain reaction, or PCR, tests.

The other 97 were "probable" cases, which include those identified through less-sensitive antigen tests.

The state's cumulative count of cases rose to 323,756.

That comprised 254,943 confirmed cases and 68,813 probable ones.

The number of cases that were considered active fell by 17, to 4,261, as 408 Arkansans were newly classified as having recovered.

Benton County had the largest number of new cases, 64, followed by Washington County, which had 57; Garland County, which had 28; Pulaski County, which had 27; and Sebastian County, which had 19.

Among prison and jail inmates, the Health Department's count of cases rose by 10.

Department of Corrections spokeswoman Cindy Murphy said the number of cases among inmates rose by 10, to 1,604, at the Ouachita River Unit in Malvern; by four, to 240, at the Omega Supervision Sanction Center in the same city; and by one to 846, at the Varner Unit in Lincoln County.

Of those prisons, the Ouachita River Unit had the largest number of cases that were active, 46. The Varner Unit had 21 active cases, and the Omega Center had 13.

The state death toll rose by 11, to 4,283, among confirmed cases and by one, to 990, among probable cases.

Among nursing home and assisted-living facility residents, the count of virus deaths grew by two, to 1,990.

The number of people who have ever been hospitalized in the state with the virus grew by 50, to 14,876.

The number of state virus patients who have ever been on a ventilator with the virus rose by four, to 1,525.

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