Home/Supreme Court of Arkansas/The State of Arkansas, Acting Through the 93rd General Assembly 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

The State of Arkansas, Acting Through the 93rd General Assembly 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

2023 Ark. 3, 657 S.W.3d 872
CourtSupreme Court of Arkansas
DecidedJanuary 26, 2023
StatusPublished
Cited by2 cases

This text of 2023 Ark. 3 (The State of Arkansas, Acting Through the 93rd General Assembly 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) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The State of Arkansas, Acting Through the 93rd General Assembly 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, 2023 Ark. 3, 657 S.W.3d 872 (Ark. 2023).

Opinion

Cite as 2023 Ark. 3 SUPREME COURT OF ARKANSAS No. CV-22-254

Opinion Delivered: January 26, 2023 THE STATE OF ARKANSAS, ACTING THROUGH THE 93RD GENERAL APPEAL FROM THE PULASKI ASSEMBLY COUNTY CIRCUIT COURT APPELLANT [NO. 60CV-21-4692]

V. HONORABLE TIMOTHY DAVIS FOX, JUDGE

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 APPEAL DISMISSED; CIRCUIT JUDGE FOR PULASKI COUNTY; ERIC COURT ORDER VACATED. HIGGINS, IN HIS OFFICIAL CAPACITY AS PULASKI COUNTY SHERIFF; LITTLE ROCK SCHOOL DISTRICT; AND MARION SCHOOL DISTRICT APPELLEES

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

2 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 Appeal” in CV-21-

441, in which the State requested that this court dismiss the appeal from the preliminary

injunction, arguing that the appeal became moot when the circuit court entered the final

order. We dismissed the interlocutory appeal on February 24, 2022, without reaching the

merits.

Before we can reach the merits of this appeal, we must first determine whether the

interlocutory appeal from the preliminary injunction—which was pending in this court when

the circuit court entered the final order—divested the circuit court of jurisdiction to enter

the final order. Although no party raised this issue on appeal, the question of subject-matter

jurisdiction is one that we are obligated to raise on our own, because when the circuit court

3 lacks subject-matter jurisdiction, this court also lacks subject-matter jurisdiction. Keep Our

Dollars in Indep. Cnty. v. Mitchell, 2017 Ark. 154, at 5, 518 S.W.3d 64, 67.

Once the record is lodged in the appellate court, the circuit court no longer exercises

jurisdiction over the parties and the subject matter in controversy. Myers v. Yingling, 369 Ark.

87, 89, 251 S.W.3d 287, 290 (2007). An appeal divests the circuit court of jurisdiction only

as to matters necessarily or directly involved in the matter under review. Fewell v. Pickens, 346

Ark. 246, 257, 57 S.W.3d 144, 151 (2001) (internal citations omitted). An appeal does not

stay further proceedings with respect to rights not passed on or affected by the judgment or

decree from which the appeal is taken. Id. The circuit court retains jurisdiction over matters

that are independent of, or collateral or supplemental to, the matter under review. Id.

The circuit court entered its final order in this case on December 29, 2021, while the

interlocutory appeal from the preliminary injunction was pending in this court. The matter

at issue in the final order—whether Act 1002 of 2021 is constitutional—is not independent

of, or collateral or supplemental to, the matter under review in the interlocutory appeal.

Both the preliminary injunction and the final order address the constitutionality of Act

1002. Therefore, the circuit court lacked jurisdiction to enter the final order while the

interlocutory appeal was pending. When a circuit court acts without jurisdiction, its orders

and judgments are void. Ward v. Hutchinson, 2018 Ark. 270, at 5, 555 S.W.3d 866, 868.

Because the circuit court was without jurisdiction to enter the final order, the order is void,

and we lack jurisdiction to hear an appeal from it. Accordingly, we vacate the order and

dismiss the appeal for lack of jurisdiction. 4 Appeal dismissed; circuit court order vacated.

Special Justice HOWARD W. BRILL joins.

WOOD, J., not participating.

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, 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., by: David R. Matthews and

Sarah L. Waddoups, for appellee Asa Hutchinson, in His Official Capacity as Governor of

Arkansas.

Friday, Eldredge & Clark, LLP, by: Christopher Heller and Martin A. Kasten; and

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Edward Ivan Peters; Jennifer Ann Stark; And Jasp Real Estate LLC v. Lisa Woods, Individually and in Her Capacity as Trustee of the Peters Family Living Trust
2024 Ark. App. 500 (Court of Appeals of Arkansas, 2024)
Reliance Health Care, Inc. Ovation Health Systems, Inc. Rhc Operations, Inc. Eagle Health Systems, Inc. Gnnc, Inc., D/B/A Gosnell Therapy and Living Srcnc, Inc., D/B/A the Crossing at Riverside Health and Rehabilitation Bvnc, Inc., D/B/A Mountain Meadows Health and Rehabilitation Slnc, Inc., D/B/A Southfork River Therapy and Living Nashville Nursing and Rehab, Inc. Beebe Retirement Center, Inc. Wcnc, Inc., D/B/A Katherine's Place at Wedington Gvnc, Inc., D/B/A Gassville Therapy and Living Mhcnc, Inc., D/B/A Care Manor Nursing and Rehab Mhhnc, Inc., D/B/A Hiram Shaddox Geriatric Health and Rehab Nwa Nursing Center, LLC, D/B/A the Maples at Har-Ber Meadows Fpnc, Inc., D/B/A Twin Lakes Therapy and Living Txknc, Inc., D/B/A Bailey Creek Health and Rehab Westwood Health and Rehab, Inc. Bryan M. Adams Anthony Brandon Adams John Ellis Gena Turner Amy Rollins And Andrea Neil v. Katherine Jones Mitchell, as Special Administrator of the Estate of John L. Mitchell, Barbara Ann Phillips, as Special Administratrix of the Estate of Barbara Jean Crowe, Michael Askue, as Special Administrator of the Estate of Debra Irene Watkins, Martha Gray Donnell Jessie Marie Melton, as Special Administrator of the Estate of Vernie Marie Graveline, Dale Fountain, as Special Administrator of the Estate of Laura Fountain, Mike Mims, as Special Administrator of the Estate of Mary Mims, Betty Sue Bradford Kristin McCuistion Billy Ray Brewer Lois Henley Heather Staton Peggy Howerton, as Personal Representative of the Estate of Melvin Howerton, Tammie Skaggs, as Special Administratrix of the Estate of Patricia Ann San Migel, Mary Molitor, as Special Administrator of the Estate of Willard Molitor, Steve Harrelson, as Special Administrator of the Estate of Harvey "curtis" Jones Jana Dawn Smith, as Personal Representative of the Estate of Donald Keith Smith, And Andy Wiggs, as Personal Representative of the Estate of Harold Lee Wiggs
2023 Ark. 165 (Supreme Court of Arkansas, 2023)

Cite This Page — Counsel Stack

Bluebook (online)
2023 Ark. 3, 657 S.W.3d 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-state-of-arkansas-acting-through-the-93rd-general-assembly-v-veronica-ark-2023.