Did Arkansas's pandemic mask mandate (Executive Order 20-43) violate the state constitution?

Plain-English summary

Senator Bob Ballinger asked whether Governor Hutchinson’s Executive Order 20-43, the face-covering mandate, violated the Arkansas Constitution and whether it met the limits of the nondelegation doctrine. Attorney General Leslie Rutledge declined to answer either question because they appeared to relate directly to Sullivan, et al. v. Romero, et al., a case then pending before the Arkansas Supreme Court.

The AG cited her statutory duty to advise legislators and other state officials on certain state-law questions, but said her office followed a long-standing policy against opinions on matters in litigation. Footnote 2 cited earlier opinions, 2019-068 and 2018-082, as examples of that practice. This opinion gave no view on the mandate’s constitutionality or the nondelegation question.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG decide whether Arkansas’s mask mandate was constitutional? No. She declined to opine because the questions appeared to overlap with a case then pending before the Arkansas Supreme Court.

Did the opinion decide whether the executive order violated nondelegation limits? No. That was Ballinger’s second question, and the AG declined to answer it for the same pending-litigation reason.

Why did the AG decline a legislator’s request?
She said her office followed a long-standing policy against issuing opinions on matters in litigation, despite its statutory advisory duty. Footnote 2 cited two prior AG opinions as examples.

Background and statutory framework

The opinion cited Ark. Code Ann. § 25-16-706 for the AG’s duty to render opinions to legislators and other officials on certain state-law matters. It did not analyze Executive Order 20-43 or the merits of Sullivan, et al. v. Romero, et al..

Citations

Statutes:

• Ark. Code Ann. § 25-16-706 (Repl. 2014)

Case:

• Sullivan, et al. v. Romero, et al., Case No. CV-20-721

Prior AG opinions:

• Ops. Att’y Gen. 2019-068, 2018-082 (footnote 2)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2020-040

January 22, 2021

The Honorable Bob Ballinger
State Senator

508 Dr. Spurlin Circle
Berryville, AR 72616-3825

Dear Senator Ballinger:

This is in response to your request for my opinion on the following questions concerning the Governor’s Executive Order 20-43:

1) Does the Governor’s face covering/mask mandate violate the Arkansas Constitution?

2) Specifically, does it conform to the limitations of our non- delegation doctrine?

RESPONSE

Your questions appear to relate directly to a case pending before the Arkansas Supreme Court. See Sullivan, et al. v. Romero, et al., Case No. CV-20-721. While I have a statutory duty to render my opinion to legislators and other state officials on certain matters of state law,' my office follows a long-standing policy against issuing opinions on matters that are in litigation.? I must, therefore, respectfully decline to opine on these questions.

' See Ark. Code Ann. § 25-16-706 (Repl. 2014).
? See, e.g., Ops. Att’y Gen. 2019-068, 2018-082 (and opinions cited therein). 323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201

TELEPHONE (501) 682-2007 * FAX (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Bob Ballinger
State Senator

Opinion No. 2020-040

Page 2

I regret that I cannot be of assistance in this matter. Please do not hesitate to contact me if I may be of future assistance in some other respect.

Sincerely,

LESLIE RUTLEDGE
Attorney General