Efforts by the Biden Administration to coerce Arizonans to obtain the COVID-19 vaccination or risk losing their jobs is “one of the greatest infringements upon individual liberties, principles of federalism, and separation of powers ever attempted by any administration in the history of our Republic,” according to a lawsuit filed Tuesday by Arizona Attorney General Mark Brnovich.
“Under our Constitution, the President is not a king who can exercise this sort of unbridled power unilaterally,” Brnovich argues in the lawsuit, adding that “even George III wouldn’t have dreamed that he could enact such sweeping policies by royal decree alone.”
Over the last few weeks, President Joe Biden has pushed for more Americans to be vaccinated, including tens of thousands of Arizonans who work for the federal government, private contractors doing business with the U.S., healthcare workers whose employers received Medicare or Medicare payments, and those working for companies with at least 100 employees.
Among those the mandate would apply to are nearly 300,000 employees of the federally-funded Head Start program. The lawsuit does not address Biden’s recent announcement that all military personnel, including reserves, must be vaccinated.
Employees who refuse to be vaccinated under various Presidential executive orders or OSHA rules will be forced to undergo weekly COVID-19 testing, or face termination.
Brnovich’s lawsuit seeks ruling that Biden and the other federal defendants do not have authority to impose the vaccination mandate on U.S. citizens and lawful permanent residents. It also seeks a declaratory judgment finding such policies and mandates unconstitutional.
Another prong of Brnovich’s lawsuit takes aim at the fact U.S. citizens, lawful permanent residents, and even lawfully present aliens face the prospect of much harsher public health mandates and punishment than hundreds of thousands of unauthorized aliens present in the country. As a result, Brnovich is asking for a court order enjoining the President and other federal officials from engaging in unconstitutional discrimination.
Brnovich’s lawsuit was not the only major COVID-19 vaccination development to occur Tuesday.
A federal judge in New York issued an emergency injunction on Tuesday against the State of New York’s requirement that all healthcare workers provide proof of COVID-19 vaccination. The order by U.S. District Judge David Hurd temporarily suspends a mandate put forth last month by then-Gov. Andrew Cuomo which applied to all hospitals and congregate care facilities such as nursing homes.
Cuomo’s mandate did not protect employees who hold sincere religious beliefs against receiving the vaccine, and Gov. Kathy Hochul did not amend the mandate when she was recently sworn in.
The New York Department of Health is now prohibited from initiating “any action, disciplinary or otherwise” which would impact the licensure, certification, residency, admitting privileges, or other professional status or qualification of any healthcare worker who objected to the mandatory COVID-19 vaccination due to a religious exemption.
Additional legal proceedings could lead to all or part of the New York mandate being permanently enjoined.
Also on Tuesday, the U.S. Department of Homeland Security issued an advisory to all immigrants who apply for a Green Card on or after Oct. 1 that they must provide proof of COVID-19 vaccination in order to ensure their application is not rejected.
The U.S. Citizenship and Immigration Services advisory pertains to all applicants seeking permanent residency, who must undergo an immigration medical examination to show the applicant is “free from any conditions that would render them inadmissible under the health-related grounds.”
Under the new policy, applicants will not be able to receive the immigration medical examination without first providing proof of COVID-19 vaccination.
Proposed changes to how federal capital gains and inheritances are taxed would cost Arizona families billions of dollars in lost economic output and investment income over the next decade, not to mention kill thousands of jobs, according to an economic impact analysis released last week.
The report issued Sept. 9 by Committee to Unleash Prosperity examined the direct effects federal legislative proposals like the Sensible Taxation and Equity Promotion (STEP) Act put forth by the Biden Administration would have on financing costs, labor productivity, costs to small and family-owned businesses and farms, and federal non-military spending of new revenue.
U.S. Senator Chris Van Hollen (D-Maryland) is joined by Sens. Cory Booker, Bernie Sanders, Sheldon Whitehouse, and Elizabeth Warren in supporting the STEP Act and other proposed federal legislation also seek to make death a tax realization event and to increase the tax liability of trusts commonly utilized by small businesses, family- and privately-owned enterprises, farm and ranch operations, and others.
And the result over the next decade would hit thousands of Arizonans hard, according to the analysis conducted by Regional Economic Models, Inc. (REMI). The results would include sustained annual job losses in the state from 8,000 to nearly 20,000. That translates to 80,000 to almost 200,000 fewer job-year equivalents over 10 years, the report states.
In addition, the Biden-supported STEP Act and similar legislation would increase the top capital gains tax rate to 39.6 percent, which becomes 43.4 percent if the taxpayer is also subjected to a 3.8 percent net investment income tax (NIIT).
The changes would create $12 billion in private investment losses for Arizonans, a $120 million decline in research & development spending, and a 10-year loss in personal income of about $20 billion in Arizona, the analysis showed. The analysis does not address any further effect attributed to state capital gains, estate, or inheritance taxes.
The negative impact of changing federal tax law is driven by several factors, including increased capital and tax liability costs faced by businesses and farms. In turn, that translates into higher prices for consumer goods and services and makes the domestic private sector less hospitable for new and existing businesses, especially small and family-owned businesses and farms that are often less resilient to economic shocks.
“Higher prices mean that consumers are able to make fewer purchases, slowing demand throughout the economy from retailers to manufacturers to service providers,” the report states. “A less hospitable private sector means that prospective businesses may choose not to open, existing businesses may be forced to downsize or close altogether, and export-focused businesses lose market share to international competitors.”
And despite likely increased federal non-military spending to provide a direct boost to the economy, REMI found the negative impacts “dominate” in the end in Arizona.
Stephen Moore, the Committee to Unleash Prosperity’s co-founder, calls the proposed federal legislation a tax scheme that is “an assault on the American tradition of family-owned and operated businesses being passed on” from one generation to the next.
“Many families will literally have to sell the farm to pay the Biden taxes,” Moore said. “The damage to jobs and the economy would be multiple times larger than any revenue gained for the government from this unfair tax proposal.”
The boundaries of Arizona’s 30 legislative districts and 9 congressional districts are redrawn from scratch every 10 years based on U.S. Census population data. The task belongs to the Arizona Independent Redistricting Commission (IRC).
With the census data finally released last month, the IRC’s first mapping activity is to create Grid Maps showing the districts with equal population without regard to any other issues. Those Grid Maps are expected to be presented Tuesday when the IRC’s two Democrats, two Republicans, and Independent chairperson meets at 8 a.m. The public is invited to watch live at www.irc.az.gov
The commissioners have the option of adopting the Grid Maps during the meeting. Those maps will be followed in a few weeks by Draft Maps and then Final Maps by year-end.
Another IRC activity is to seek citizen feedback, which is one reason the same mapping software tool and database will be available to the public. A training session on the mapping tool will livestreamed Monday at 10 a.m., with a recording of the training posted on the IRC website on Tuesday.
Arizona voters passed Prop 106 in November 2000 to amend the Arizona Constitution by removing state lawmakers the power to draw state legislative and congressional legislative districts. The districts are to have equivalent population “to the extent practicable” in order to follow the one-person, one-vote premise of Arizona election law.
For the soon to be created legislative districts, that comes out to about 238,00 residents per district. Each congressional district would have about 794,000 residents.
However, each final district map may have populations which vary by several thousands due to the other five areas the IRC must consider: district shape, the federal Voting Rights Act, geographical features, potential competitiveness, and respect for communities of interest.
Steve Gaynor of Fair Maps Arizona is excited for the release of the Grid Maps, as they will show where Arizona’s nearly 12 percent population growth over the last decade has occurred.
“The Grid Maps are the first time we will see exactly how our population has changed,” he told AZ Free News. “We will see significant population growth, especially in metropolitan areas, and a few areas that have declined.”
Gaynor, a 2022 Republican gubernatorial candidate, founded Fair Maps Arizona in advance of this year’s redistricting effort due to concerns the previous IRC drew maps which did not follow the Arizona Constitution. He believes it is important for citizens to understand and participate in the IRC process, which Gaynor calls a “vital process in maintaining our democracy.”
That participation can involve expressing comments or concerns to the IRC in writing or at public hearings.
“I think individual comments to the IRC are important and do make a difference,” Gaynor said. “Of the six constitutional requirements for redistricting, the requirement to respect communities of interest is the most subjective, which is why hearing from people about it is so important. I think the commissioners will produce better maps as a result of having heard directly from the people.”
The IRC will conduct public hearings later this month about the Grid Maps. Those hearings will be the second time commissioners involved in the 2021 redistricting will hear from the public.
Earlier this summer, IRC commissioners took part in 15 public hearings about how the requirement of communities of interest should be considered. Gaynor said he was impressed that the commissioners took the time to travel across the state to hear from people on the subject.
“The commissioners listened carefully to the testimony and asked good questions,” he said. “They were clearly engaged with the people testifying.”
Development agreements such as the one which required a former Gilbert property owner to pay the town nearly $760,000 toward the cost of public infrastructure improvements such as streets and sidewalks are legally binding contracts and not assessments that expire after a certain period of time, the Arizona Court of Appeals ruled this week.
In a unanimous opinion released Sept. 7, the court of appeals affirmed a 2005 development agreement between the Town of Gilbert and the property owner of an 11-acre parcel on the northwest corner of East Ray Road and South Lindsay Roads. The contract called for the owner -Greater Phoenix Income Properties- to pay “a proportionate share” of public improvements.
Those improvements, which included irrigation measures and relocating utilities, were completed long ago, according to court records.
The agreement also allowed a lien to be placed on the land until full payment was made. There was also a provision in the agreement expressly binding successor owners to the contract.
Fast forward to 2016 when Ray and Lindsay 11 LLC purchased the vacant land. Company officials acknowledged knowing the terms of the development agreement, including the lien provision. Ray and Lindsay 11 sold the still-undeveloped parcel to Richmond American Homes of Arizona in 2019 and paid off the lien in order to provide the new owners with clear title.
But before that, the company sued in Maricopa County Superior Court in an effort to void the development agreement with the Town of Gilbert. The litigation initiated in 2018 has cost the town almost $155,000 in attorney’s fees to defend the agreement.
Ray and Lindsay 11 argued that the agreement’s infrastructure reimbursement requirement was an assessment which under Arizona Revised Statutes 9-243(C) abates or expires after 10 years if the property has not been developed. If the agreement was treated as an assessment, the company could have pursued a refund.
Judge Pamela Gates, however, ruled the contractual development agreements like the one Gilbert utilized are governed by a different statute, ARS 9-500.05, and that there was no assessment against the property.
Gates’ ruling was upheld by the Arizona Court of Appeals, which noted state lawmakers passed ARS 9-500.05 to provide cities and towns the ability to negotiate and enter into broad development agreements as to “the conditions, terms, restrictions and requirements” for public infrastructure as well as the financing of and subsequent reimbursements for the costs “over time.”
The appellate opinion also pointed out a key difference between an assessment and a development agreement – specifically the required mutual assent of the parties.
Gilbert officials have been represented in the case by Charles Wirken of Gust Rosenfeld. Last July, Gates signed an order and judgment against Ray and Lindsay 11 LLC for $123,603 plus interest to cover the town’s attorney fees.
The Arizona Court of Appeals affirmed the lower court award of attorney’s fees. It also awarded the town another $30,342 for Wirken’s fees expended to fight the appeal. That award has not yet been converted into a judgment. Ray and Lindsay 11 has until Sept. 22 to file a petition for review with the Arizona Supreme Court.
The Sept. 7 opinion is not the first time the Arizona Court of Appeals ruled on this case.
In May, the parties received a memorandum decision from the court with the same conclusion. However, Wirken asked the court to consider rewriting the decision as a published opinion which can be cited by other municipalities threatened with litigation over the same type of assessment argument. The court of appeals agreed, hence this week’s opinion.
Gilbert City Councilwoman Aimee Rigler Yentes told AZ Free News she welcomed the news coming out of the Arizona Court of Appeals.
Yentes has lived in Gilbert for 20 years, and is the co-founder of the Gilbert Small Business Alliance. She supports bringing development to the town and is pleased to see the town’s development agreement upheld in this case.
“The Town’s approach to ensure reimbursements were honored to make taxpayers whole was well within their authority, as affirmed by the Court of Appeals,” Yentes said. “When a municipality enters into a development agreement, it is most critical that the private interest benefits do not exceed the public returns.”
The City of Tucson has placed its controversial employee COVID-19 vaccine mandate on hold after Arizona Attorney General Mark Brnovich announced Tuesday that the city acted unlawfully last month when it passed an ordinance allowing for a five-day unpaid suspension of employees who do not provide proof of vaccination.
“Until we have a better understanding of our legal position in relation to today’s report, I have instructed staff to pause on the implementation of the policy,” Tucson City Manager Mike Ortega said after the attorney general issued his legal opinion on Tucson City Ordinance 11869 which took effect Aug. 20.
Brnovich’s opinion also noted that if the ordinance is not repealed within 30 days, he will advise State Treasurer Kimberly Lee to withhold millions of dollars from the city’s portion of state shared revenues until the city comes into compliance. He also said Tucson city officials could face potential liability claims from employees affected by the ordinance.
“Our office determined today that Tucson’s vaccine mandate is illegal, and the city could be held liable for attempting to force employees to take it against their beliefs,” Brnovich said. “COVID-19 vaccinations should be a choice, not a government mandate.”
A March 2021 report by the Arizona League of Cities and Towns estimated Tucson’s FY2021-2022 shared revenues at more than $175 million.
It is unclear whether simply putting enforcement of the ordinance on hold is sufficient for compliance with the attorney general’s 30 day deadline. Mayor Regina Romero said on Tuesday the city is reviewing its options and that she and the council “will need to provide direction as to how we proceed from here.”
Brnovich’s legal opinion came in response to an inquiry from Sen. Kelly Townsend about whether Tucson’s COVID-19 vaccine mandate for employees violated state law, particularly Senate Bill 1824 which prohibits the state and any cities, towns, and counties from implementing such a mandate.
Although SB1824 does not take effect until Sept. 29, Gov. Doug Ducey used his statutory emergency powers to issue Executive Order 2021-18 earlier this year to prohibit mandated COVID-19 related vaccinations for state, city, and county employees.
After Brnovich’s announcement, Townsend (R-LD16 called on Tucson Mayor Regina Romero to formally end the city’s ordinance, which applied to not only current employees but applicants as well.
“It is imperative that we not only respect the rule of law, but that we not allow our fear of a virus to run roughshod over the rights of the citizens of Arizona,” Townsend. “I wish to thank the Attorney General for his response and I encourage every elected official and bureaucrat to remember that it is the people of this State that employ us and whom we answer to, not the other way around.”
But Townsend did not stop there, calling on Tucson city employees to pursue legal action due to the ordinance.
“I further encourage those who were forced into taking a COVID-19 vaccine against their will in order to maintain employment to seek damages and to hold [Romero] fully accountable for this illegal act.”
It is unclear whether any Tucson employees have been disciplined with suspension, or whether ongoing refusals have subjected employee to more severe discipline, such as termination.
Private businesses are exempt from the provisions of Ducey’s executive order and SB1824. However, last month Brnovich issued a legal opinion making it clear such COVID-19 vaccination mandates must allow for religious and medical exemptions for employees.
That legal opinion was also issued in response to a request from Townsend.
