It’s clear as a practical matter that the legislature’s closing rush to prohibit local public health rules on masking and vaccinations was a bad idea. The state is leading the country with a new surge of illness and death and school is about to begin with school leaders stripped of tools to curb infections.
There’s also growing evidence that legal work was abysmal in a session that has already produced two laws blocked by courts — with more on the way.
Other points are technical but hang around. Lawyers with whom I’ve spoken make several points: 1) Wednesday may NOT be the date new laws take effect; 2) the legislature can meet to correct COVID problems, and 3) the ban on mask mandates may not be operative.
When does the law take effect?
In theory, laws take effect 90 days after the final day of a session, unless otherwise specified. The legislature went in recess on April 27 (but did not adjourn) and the interpretation has been that laws without emergency clauses were to take effect 90 days later, or Wednesday.
But wait: The resolution (HCR 1015) providing for this extended recess says: “should the General Assembly remain in extended recess for longer than ninety (90) days, all acts that do not contain an emergency clause or a specific effective date shall become effective on the 91st day following April 30, 2021.” That would be July 30, in other words.
Do plain words of the legislature have meaning? The Arkansas Supreme Court of late has said that they do. But on to bigger issues:
Can the legislature meet to change the mask mandate ban?
Governor Hutchinson is to meet with House Speaker Matthew Shepherd and Senate President Jimmy Hickey today to gauge the legislature’s willingness to act on a rising clamor about the inability of schools to impose mask and vaccination rules. Shepherd sounds cool to the idea. Hickey seems open to providing some relief for school districts, though he says the continuing resolution mentioned above allows the legislature only to meet to deal with the handling of federal COVID relief money.
Again with the plain meaning of words: The resolution says purposes for meeting during the extended recess could include “CONSIDERING LEGISLATION RELATED TO THE COVID-19 PUBLIC HEALTH EMERGENCY AND DISTRIBUTION OF COVID-19 RELIEF FUNDS.” A literal court might say that includes more issues than money, such as the emergency of public health rules.
Did the legislature pass all the laws it thought it passed?
Now we get technical, but in a potentially significant way. The legislature passed three COVID-related acts and an unrelated Medicaid Act that used the same section number for the acts’ statute — 20-7-142. Bill A became 20-7-142 and the governor signed it. Then B, then C and then D. Four acts have the same section number. By some lawyers’ construction, each new act nullified the one before it, as is the case with amendments to acts. Legislative staff sees it differently. They say this happens occasionally and they just renumber acts when they are codified. Can staff do that, rewrite an act? Don’t the laws mean what they say on their face?
A lawyer with legislative experience pointed this out to me and I mentioned it to Tom Mars, who’s working on a lawsuit to challenge the mask mandate. He’d noted this irregularity as well.
Act 886 (new Medicaid law) – approved April 25, 2021
Act 977 (prohibition on vaccine mandates) – approved April 28, 2021
Act 1002 (prohibition on mask mandates) – approved April 29, 2021
Act 1030 (prohibition on vaccine passports) – approved April 29, 2021 (but apparently after mask mandate prohibition given subsequent act number)
I know legislators will howl, but a literal court might not when faced with a lawsuit that argues under construction normally applied to amendments that only one of these laws remains in effect, the last one.
Mars dopes it out this way:
So, the question becomes whether K-12 school parents will ask the Pulaski County Circuit Court to invalidate both the ban on masks and the ban on mandatory vaccinations (which is also plainly unconstitutional) or whether the Governor and the Legislature will repeal the ban on face masks this week – thus avoiding an inevitable injunction.
Technicalities aside, it’s clear this was one of several sloppy messes created by a legislature more concerned with power, including usurping the state and U.S. Constitutions and stripping executive branch prerogatives, than the rule of law.