Gov. Asa Hutchinson issued three executive orders yesterday to protect businesses from lawsuits should workers or customers claim a business caused them to catch COVID-19.
He decreed that businesses are protected from lawsuits; that health care workers are protected from lawsuits, and, in a sop to workers, said they could claim workers compensation benefits if they get infected by COVID-19, BUT ONLY IF THEY CAN PROVE THEY CAUGHT THE VIRUS AT WORK. Good luck with that, even the governor was forced to admit under questioning.
Can he do this? I said before and many others have said before and again that he cannot. If the law counts.
I wrote last Friday about analyses offered by labor lawyer John Burnett and veteran journalist Ernest Dumas on the state of things, both the threats of extending immunity from lawsuits to business by executive order or special session and the evolving pro-business/Republican slant of the Arkansas Supreme Court.
John Moritz of the Arkansas Democrat-Gazette included a quote of an opinion I’ve stated previously:
“It doesn’t matter if it is the Legislature, the governor, whomever, no one can take away the rights of the citizens under the [Arkansas] Constitution,” said Paul Keith, the president of the Arkansas Bar Association, predicting that the executive order would fail judicial scrutiny.
Within minutes of yesterday’s ruling, I heard from a big business lawyer — no friend of tort lawsuits — who said the same thing. He cited the Arkansas Supreme Court decisions Dumas wrote about (but which might be in peril going forward thanks to business lobby influence in elections.)
Gov. Mike Huckabee and the legislature enacted “tort reform” in 2003, but the law was largely deflated by successive decisions of the Arkansas Supreme Court in 2007, 2009 and 2011 because the act’s various business protections limited the amount of damages to an injured person in violation of the Constitution and also ran afoul of the sternest provision in the Arkansas Constitution’s bill of rights: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character . . .” It continues: “he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay . . .”
Questions about Hutchinson’s decrees are not only constitutional, though that’s a big one. Another is whether the governor has such broad executive power by law. I went back to Burnett, who concluded again, that he does not. He writes:
I’ll have to revert to my earlier comment:
Ark Code 12-75-114 provides that the Gov can:
(e)(1) Suspend the provisions of any regulatory statutes prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency;”
Perhaps the best way to approach this is to start out with what, to me, is obvious: if the law grants the governor such powers to do what he did in the executive orders on workers compensation and employer immunity, that’s dangerous indeed, for all the obvious reasons we should have learned in the ninth grade.
So the next fair question is: exactly where do you get such authority? If it’s from section 114(e)(1), I don’t think a fair reading of “regulatory statutes prescribing the procedures for conduct of state business” or “orders, rules, or regulations of any state agency” extends to such broad actions as in these EOs in order to “cope with the emergency” — if it does, I fail to see much of a limit on the Gov’s powers, as long as he can link it to anything going on anywhere, since just about everything is affected in some way by this pandemic. . . all he has to do is declare something “hinders” the effort to “cope” with the emergency; but the effort to cope is supposed to be the state’s effort (read the entirety of section 114, below), not Tyson Foods’ and WalMart’s efforts. . . .
In short, I cannot believe anyone would just swallow these executive oreders without first at least reflecting on where such extraordinary power comes from and whether it does or should exist. . . .(and in the case of these executive orders on workers compensation and employer liability, regardless of what you think of their merits, the answer as to whether such power should exist is, again, obvious: no–the governor has become the Legislature. And what, we can all go to the dentist but the legislature can’t meet in an arena?)
The press has got to do its job here. .
Here’s the full passage of the law from which Burnett quoted:
(e) In addition to any other powers conferred upon the Governor by law, the Governor may:
(1) Suspend the provisions of any regulatory statutes prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency;
(2) Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the disaster emergency;
(3) Transfer the direction, personnel, or functions of state departments and agencies or units of state departments and agencies for the purpose of performing or facilitating emergency management;
(4) Subject to any applicable requirements for compensation under § 12-75-124 , commandeer or utilize any private property if he or she finds this necessary to cope with the disaster emergency;
(5) Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if the Governor deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery;
(6) Prescribe routes, modes of transportation, and destinations in connection with evacuation;
(7) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;
(8) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles; and
(9) Make provision for the availability and use of temporary emergency housing.
One more thing. This was always a put-up job. Business apologist Randy Zook said this is necessary to stop frivolous lawsuits. Frivolous lawsuits are not winning lawsuits and there are sanctions under the law for filing them. Nobody has yet sued a business in Arkansas.
Proving a business caused COVID-19 to anyone will be even more difficult than a worker proving it in a workers comp claim. This is the business camel sticking its nose in the big tent of its long-lusted-after lawsuit protection. Yesterday, if you believed the governor, you’d think this was all about protecting a one-man barbershop from a frivolous lawsuit. The stakes are much higher — see the congregant workplaces around the country with big outbreaks of the disease, from assembly plants to meat processors.
The most outrageous thing the governor said with his usual smile yesterday was that freeing business from lawsuit fears would give them an “incentive” to operate safely.
PS: If things are going so good with COVID-19 as Hutchinson indicates with back-to-business encouragement, the executive orders will come to an end before there’s any practical application of them. But the field will be plowed for more incursions on the working person’s health and welfare in the name of enhancing profits of a few.