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Arkansas Justice Hears Mask Case Despite Lawyer Bias Assertion

Jan. 14, 2022, 9:56 PM

A special associate justice for the Arkansas top court declined to recuse himself from a suit over a school district’s mask policy despite claims his prior work biased him against an attorney.

Matt Sitton, Matthew Bennett, and Elizabeth Bennett sued the Bentonville School District, alleging that its mask policy violates their fundamental right to the care, custody, and management of their children. The circuit court issued a preliminary injunction enjoining the policy.

On appeal before the Arkansas high court, Marshall Ney of Friday Eldredge & Clark LLP, counsel to the Bentonville School Board, asked Special Associate Justice Howard W. Brill to recuse himself based on an “adverse opinion” issued when Brill was an attorney.

Brill rejected that request. The justice said he was retained to provide a professional ethics analysis of Ney in 2014, and that there was no basis to question his impartiality.

“At no time have I been involved in a contentious and personal dispute with Mr. Ney,” Brill wrote in the opinion on Thursday. “Indeed, to the best of my knowledge, I have never met him or spoken with him.”

Appellees are represented by Story Law Firm PLLC.

The case is Bentonville Sch. Dist. v. Sitton, Ark., No. CV-21-498, 1/13/22.

To contact the reporter on this story: David McAfee in Los Angeles at

To contact the editors responsible for this story: Rob Tricchinelli at; Steven Patrick at