Circuit Judge Wendell Griffen granted today a state motion to dismiss a lawsuit filed by several legislators challenging pandemic health directives issued by Health Director Jose Romero under Governor Hutchinson’s emergency powers.

The suit originally named only Romero as defendant, but was amended Monday to add Hutchinson. That made it clear, the judge said, that the actions taken were legal.

The judge posted this note on the Court Connect state website:

The Court finds that joinder of Governor Hutchinson rendered the “necessary and indispensable party” contention of the Motion to Dismiss moot. All parties agree that the Administrative Procedure Act does not apply to Governor Hutchinson, as the Governor is not an “agency.”

 

The Petitioners concede that the Arkansas Emergency Services Act of 1973 (A.C.A. Section 12-75-101 et seq. conferred emergency powers upon the Governor and upon certain state agencies to address natural or human-caused disasters. The Court holds that Ark. Code Ann. Section 20-7-110(b) constitutes a legislative delegation of authority to the Governor to order the Secretary of Health to “take such action as the public safety of the citizens demands to prevent the spread of … epidemic or contagious disease.”

 

Executive Order 20-03, issued March 11, 2020, and successive Executive Orders issued by Governor Hutchinson ordering the Secretary of Health to “issue orders of isolation and/or quarantine as necessary and appropriate to control the disease [COVID-19] fall within that legislative delegation of authority. The Arkansas State Board of Health Department of Health promulgated Rules pertaining to Reportable Diseases in April 2018 which were reviewed by the Legislative Council, approved by that body in December 2018, and which took effect in January 2019. The 2019 Rules explicitly included “novel coronavirus” among the reportable diseases.

The parties agree that COVID-19 is a novel coronavirus. Novel coronavirus is specifically included in the 2019 Rule promulgated by the Board of Health and approved by the Legislature.

 

Therefore, the Court holds that Governor Hutchinson’s Executive Orders concerning the coronavirus infection pandemic associated with COVID-19 are within the powers delegated to the Governor by the General Assembly concerning the COVID-19 emergency and that the 2019 Rules of the Arkansas State Board of Health Pertaining to Reportable Diseases satisfy the rulemaking requirement of the Adminstrative Procedure Act insofar as the Secretary of Health is concerned.

 

The Motion to Dismiss the petition for declaratory judgment is granted. Mr. Mosley is directed to submit a precedent consistent with the Court’s bench ruling to the Court’s law clerk within five (5) days from this date.

Eighteen ultraconservative legislators filed the suit, led by Rep. Dan Sullivan of Jonesboro and joined by such legal lights as Sen. Bob Ballinger, former law partner to the losing attorney in this case, Travis Story (the latter two both with rich Ecclesia connections, if that tells you anything.)

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The funding for the legal action has been kept secret, apart for some alleged unspecified contributions from individual lawmakers.

This one looked like a loser from the get-go. The suit aimed to end the state of emergency, which the governor extended yesterday for two months. (With more extensions likely based on predictions about the growth in virus cases.) It was done under the banner Reopen Arkansas.

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I’ve sent Sullivan an email asking if an appeal is planned. He responded, “Probably,” but a meeting was set this afternoon to discuss.

AP’s Andrew DeMillo said at a news conference later that he’d been told an appeal was planned. He asked the governor for comment. Hutchinson said he was pleased with the ruling and said the judge handled it in an appropriate and quick fashion.

“Whenever we’re seeing high hospitalizations and a continued number of high cases, we want the public to have confidence in the emergency rules we put in place.” He said the judge found every action taken had been done pursuant to legislative approval.

UPDATE FROM SULLIVAN:

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We always knew that this case would go to the Supreme Court.  Today, when Judge Wendell Griffen issued a ruling that contradicts the plain language of the Emergency Powers Services Act, we learned that it would be the plaintiffs filing that appeal.  Judge Griffen’s ruling, unfortunately, would result in the Governor having unlimited authority to keep Arkansans under the yoke of an unending state of emergency, with absolutely no input from the legislature.  That cannot be the law, and, in fact, that isn’t the law.  Such an extreme position is both unconstitutional and all but ensures the realization of the maxim that “power corrupts and absolute power corrupts absolutely.”  The plaintiffs here represent all of the people of Arkansas who seek to maintain some control over their own lives pursuant to their God-given rights as recognized in the Constitution, and we’re hopeful that the Supreme Court will agree.