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

Plain-English summary

Senator Bob Ballinger asked whether Governor Asa Hutchinson's Executive Order 20-43, the statewide mask mandate issued during the COVID-19 pandemic, violated the Arkansas Constitution, and specifically whether it conformed to the nondelegation doctrine.

Then-Attorney General Leslie Rutledge declined to answer. The same questions were then pending before the Arkansas Supreme Court in Sullivan v. Romero, Case No. CV-20-721. The AG's office has a long-standing policy, treated as a structural matter and not just a courtesy, of refusing to opine on questions actively before the courts. The opinion cited the AG's statutory advisory duty under Ark. Code Ann. § 25-16-706 but explained that issuing an opinion on a contested live case would interfere with the judicial branch's authority. Prior examples (Op. Att'y Gen. 2019-068 and 2018-082) confirmed the office's consistent application of the rule.

The substantive answer about Executive Order 20-43, accordingly, would have to come from the Arkansas Supreme Court's eventual ruling in Sullivan v. Romero, not from this AG opinion.

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

What is the AG's "long-standing policy" against opining on pending litigation?
The opinion described it as a self-imposed limit on the AG's advisory function, grounded in the AG's role as an executive-branch officer. Issuing an opinion on a question already before a court risks pre-judging the case, prejudicing parties, and stepping on the judicial branch's authority. It is not codified in any statute; it is an internal office practice consistently followed across many AGs.

Does the AG ever break the policy?
The opinion did not lay out exceptions. In practice, when a question is only tangentially related to a pending case, or when the AG's statutory duty under § 25-16-706 directly compels a response on a different aspect, the AG may opine on the part that does not overlap. Here, the opinion saw the constitutional and nondelegation challenges as overlapping completely with Sullivan v. Romero.

What was the nondelegation issue at stake?
The Arkansas Constitution's nondelegation doctrine limits the legislature's ability to hand off lawmaking authority to the executive branch. A mask mandate issued by executive order, rather than by legislation, raised the question of whether the underlying emergency-powers statute (typically Ark. Code Ann. § 12-75-114 or related provisions) lawfully delegated enough power to support the order. The AG's opinion did not analyze the question.

Where did Sullivan v. Romero end up?
The case is the Arkansas Supreme Court's 2020-2021 mask-mandate challenge. Researchers should consult the docket and any later opinions for the resolution; the AG opinion itself does not.

Background and statutory framework

The AG's advisory function under Ark. Code Ann. § 25-16-706 includes responding to opinion requests from state legislators and other state officials. The statute does not condition that duty on the absence of pending litigation. The opinion's policy of declining in those situations is therefore an exercise of prosecutorial-style discretion within the statutory function: the office responds, but the response is "we decline."

Sullivan v. Romero involved the constitutional challenge to Executive Order 20-43. Because Senator Ballinger's questions were essentially the same questions presented to the Arkansas Supreme Court, an AG opinion would have effectively published an executive-branch view on a live judicial controversy.

Citations

Statutes:

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

Cases:

• Sullivan, et al. v. Romero, et al., Case No. CV-20-721 (Ark. Sup. Ct.)

Prior AG opinions:

• Op. Att'y Gen. 2019-068
• Op. Att'y Gen. 2018-082

Source

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

Original opinion text

Opinion No. 2020-040
January 22, 2021
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
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 nondelegation 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.

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