State v. McClane

2023 Ark. 3

657 S.W.3d 872

The STATE of Arkansas, Acting THROUGH the 93RD GENERAL ASSEMBLY, Appellant

v.Veronica MCCLANE, as Parent and Next Friend of Her Minor Children ; Ashley Simmons, as Parent and Next Friend of Her Minor Children ; Asa Hutchinson, in His Official Capacity as Governor of Arkansas; Barry Hyde, in His Official Capacity as County Judge for Pulaski County; Eric Higgins, in His Official Capacity as Pulaski County Sheriff; Little Rock School District ; and Marion School District, Appellees

No. CV-22-254

Supreme Court of Arkansas.

Opinion Delivered: January 26, 2023

Leslie Rutledge, Att'y Gen., by: Asher L. Steinberg, Sr. Ass't Solicitor Gen.; and Sammie P. Strange, Jr., Ass't Att'y Gen., for appellant.

Mars Law Firm, by: Tom Mars, for separate appellees Vernoca McClane and Ashley Simmons.

Adam Fogleman, Veletta Smith, Little Rock, Frank W. Jenner, and Dominique Lane, Pulaski County Attorney's Office, for appellees Pulaski County Judge Barry Hyde and Pulaski County Sheriff Eric Higgins, in Their Official Capacities.

Matthews, Campbell, Rhoads, McClure & Thompson, P.A., Rogers, by: David R. Matthews and Sarah L. Waddoups, for appellee Asa Hutchinson, in His Official Capacity as Governor of Arkansas.

Friday, Eldredge & Clark, LLP, Little Rock, by: Christopher Heller and Martin A. Kasten ; and Bequette, Billingsley & Kees, P.A., for appellees Little Rock School District and Marion School District.

Wright, Lindsey & Jennings LLP, Little Rock, by: Randall L. Bynum, Mark H. Allison, and Eli Bauer : brief of amici curiae Jimmy Hickey, Jr., in His Official Capacity as the President Pro Tempore of the Arkansas Senate; and Matthew Shepherd, in His Official Capacity as Speaker of the Arkansas House of Representatives.

ROBIN F. WYNNE, Associate Justice

The State of Arkansas appeals from an order of the Pulaski County Circuit Court declaring Act 1002 of 2021 unconstitutional and permanently enjoining its enforcement. Because the circuit court did not have subject-matter jurisdiction to enter the order, we vacate the order and dismiss the appeal for lack of jurisdiction.

In April 2021, the Arkansas General Assembly passed Act 1002 of 2021, codified at Arkansas Code Annotated section 20-7-144 (Supp. 2021), which prohibits state agencies, political subdivisions of the state, and state and local officials from mandating the use of face masks, face shields, or other face coverings. Two lawsuits were filed seeking to declare Act 1002 unconstitutional and to enjoin its enforcement. In the first lawsuit, two parents, Veronica McClane and Ashley Simmons, as parents and next friends of Arkansas schoolchildren, sued the State of Arkansas as well as Senate President Pro Tempore Jimmy Hickey, Jr., Speaker of the House of Representatives Matthew Shepherd, and Governor Asa Hutchinson in their official capacities. Pulaski County Sheriff Eric Higgins and Pulaski County Judge Barry Hyde moved to intervene in this suit. In the other lawsuit, the Little Rock and Marion School Districts sued the State and the Governor. On August 6, 2021, the Pulaski County Circuit Court consolidated the lawsuits, granted the motion to intervene, and issued an "Order for Declaratory Relief and Preliminary Injunction" enjoining the enforcement of Act 1002 and preliminarily declaring the Act unconstitutional under the separation-of-powers and equal-protection clauses of the Arkansas Constitution.

Senator Hickey and Speaker Shepherd filed a notice of appeal from the preliminary injunction on August 20, 2021 (CV-21-421), and lodged the record on August 31. The State filed a notice of appeal on September 3, 2021 (CV-21-441), and lodged a partial record on September 10 and a supplemental record on October 21. Also on October 21, this court consolidated these interlocutory appeals under CV-21-441.

While the appeal from the preliminary injunction was pending in this court, proceedings continued below. The circuit court held a trial on November 22, 2021. On December 29, 2021, the circuit court entered a "Final Order for Declaratory Relief and Permanent Injunction" declaring Act 1002 unconstitutional on ten grounds. The circuit court held that the Act violates the separation-of-powers clause, article 2's equal-protection provisions, amendment 14's prohibition on local and special legislation, and article 14, section 1's guarantee of public education. The final order also dismissed, with prejudice, all claims against Senator Hickey and Speaker Shepherd. The State filed a notice of appeal from this order on January 28, 2022, and timely lodged the record. This appeal is before us now.

On February 4, 2022, the State filed a "Statement Regarding Mootness of Interlocutory Appeal Due to Entry of Final Judgment and Subsequent...