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Arizona Supreme Court Rules Against Mask Mandate Ban

November 2, 2021

By Corinne Murdock |

On Tuesday, the Arizona Supreme Court ruled against the state’s mask mandate ban challenged by the Arizona School Boards Association (ASBA). The court noted that while it didn’t agree with the lower court’s reasoning completely, it did concur with the judgment. An opinion will be issued in the near future. Justice Kathryn King recused herself; Court of Appeals Judge Randall Howe took her place. Roopali Desai argued on behalf of the plaintiffs, ASBA, while Attorney General Mark Brnovich’s Solicitor General Beau Roysden argued on behalf of the defense, the State of Arizona.

In September, Maricopa County Superior Court Judge Katherin Cooper ruled that ASBA had standing to challenge the mask mandate ban of SB 1819. The court also ruled that the SB 1819 was entirely unconstitutional and therefore invalid because it contained more than a single subject. In addition to SB 1819, the court also invalidated certain provisions in HB 2898, SB 1824, and SB 1825 on the grounds that they violated the Arizona Constitution’s title requirement: the titles of those bills didn’t accurately reflect the content of the legislation. As a result, 58 provisions of state law were invalidated prior to their start date on September 29.

During the hearing, the judges went back and forth with Roysden over whether the challenged laws truly did violate the single subject and title requirements. Their questions to Desali largely indicated a concern with how they were going to uphold Cooper’s prior ruling without overstepping into their bounds as the judiciary.

Roysden argued that plaintiffs weren’t showing a concrete and particularized injury from SB 1819. Vice Chief Justice Ann Timmer challenged that repeatedly, saying plaintiffs merely had to show they were affected by the issue at hand.

Roysden then argued that the court’s ruling on SB 1819 would be historic because no other laws in state history were struck down based on an interpretation of single subject and title requirements like the superior court gave.

“I think this is a watershed moment in Arizona Constitutional law because I’ve surveyed the case law […] – there is no case in Arizona law where this court has struck down a provision because the substantive provisions were not sufficiently interrelated. This would be uncharted territory by the court,” said Roysden. “What the court has enforced uniformly – going back to 1916 all the way up through the late 1970s cases – is the title requirement, and that is what the court must consider and limit its judicial review. The purpose of the title requirement is a procedural rule to put the public on notice of the potential contents of an act may be.”

Roysden also argued that the questions decided on by the superior court weren’t within the court’s function anyway. He said that the courts could decide whether legislation abided by the single subject and title rules – but not whether the provisions within the legislation were interrelated enough to qualify within those single subject and title rules. Roysden cited the intent of the constitutional convention delegates.

Desai argued that the legislature didn’t offer adequate notice or proper information on legislative content to the public. She characterized the state’s argument as requesting sole discretion on deciding what abides by the title and single subject rule.

“That could lead to some very problematic results. What’s to say the legislature doesn’t say that about every act that they pass?” asked Desai.

Timmer asked how the court could rule on this issue without overstepping their constitutionally-drawn bounds as the judicial branch. Justice William Montgomery echoed that question.

“Just how strict do you expect us to be in this regard? Because this does affect the legislature going forward?” asked Montgomery.

Desai responded that the term “budget reconciliation” was a “term of art” – a narrow, concrete definition – and that the legislature shouldn’t get to decide the standards for satisfying title requirements and the single subject rule. She said that the legislature was “throwing the Constitution out the window.”

“The test is not whether it relates to the budget. The test is whether it’s a budget reconciliation provision,” said Desai. “[B]udget reconciliation is a provision that is necessary to carry out and effectuate the budget.”

Montgomery challenged Desai on this point, asking whether that was what the state legislature did when issuing limitations for use of the budget funds. Desai responded that it wasn’t a budget reconciliation provision.

“In this case, the legislature chose a very narrow title,” asserted Desai. “We have to decide what these things mean. The court doesn’t have to come up with its own definition or adopt the stretch of an argument the state is advocating for because budget reconciliation is a term of art that is clearly understood.”

Desai then further argued that the court shouldn’t attempt to salvage certain provisions of SB 1819 because there was no way of knowing if the legislature would’ve passed them on their own, sans the logrolling. This is something that Chief Justice Robert Brutinel vocalized as Desai was making the argument; her agreement prompted a pleased look and chuckle from Brutinel.

In closing arguments, Roysden clarified that the original purpose and intention of the title requirement was to notify and not intentionally mislead the public. Howe challenged him several times on this argument, stating that Roysden’s position was that it was only for the state legislature to decide what constituted compliance with the constitutional rules on single subject and title requirements for bills.

Roysden urged the judges to not apply their ruling retroactively, but rather to allow the legislature to adjust accordingly in the future.

“The history here is that the legislature in good faith has followed what the court has suggested, and that should continue,” said Roysden.

In a statement after the hearing, Governor Doug Ducey expressed that he was “extremely disappointed” with the ruling.

“There are three separate co-equal branches of government and we respect the role of the judiciary, but the court should give the same respect to the separate authority of the legislature,” stated Ducey.

Watch the hour-long hearing here.

Corinne Murdock is a reporter for AZ Free News. Follow her latest on Twitter, or email tips to corinne@azfreenews.com.

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