Arizona law affords students forced to quarantine by their schools for COVID-19 the right to court-appointed counsel at the expense of the state, according to Attorney General Mark Brnovich. In an opinion issued last Friday, Brnovich responded to an inquiry from State Senator Kelly Townsend (R-Mesa) on the issue.
The attorney general explained that schools relying on county health department quarantine or isolation protocol must also adhere to the requirement of counsel outlined in the same law:
“The court shall appoint counsel at state expense to represent a person or group of persons who is subject to isolation or quarantine pursuant to this article and who is not otherwise represented by counsel,” reads the law. “Representation by appointed counsel continues throughout the duration of the isolation or quarantine of the person or group of persons. The department or local health authority must provide adequate means of communication between the isolated or quarantined persons and their counsel.”
The law also stipulates that legal counsel must be acquired at state expense and last the duration of the isolation or quarantine.
In reference to mandatory quarantines for students exposed to COVID-19, Brnovich referenced the authority cited by the Maricopa County Department of Public Health (MCDPH) in their letter to communities in August. The letter cited MCDPH authority for student quarantines came from a statute which, in turn, cited the two statutes outlined by Brnovich granting legal counsel.
“When a county health department or public health services district is apprised that infectious or contagious disease exists within its jurisdiction, it shall immediately make an investigation. If the investigation discloses that the disease does exist, the county health department or public health services district may adopt quarantine and sanitary measures consistent with department rules and sections 36-788 and 36-789 to prevent the spread of the disease. The county health department or public health services district shall immediately notify the department of health services of the existence and nature of the disease and measures taken concerning it.”
Brnovich concluded that parents may seek a court order to lift the quarantine immediately, which would initiate the appointment of state-provided legal counsel to the student. A court would have 24 hours to hear the case, and 48 hours to submit its ruling. Counsel would also be available for parents petitioning to change quarantine conditions. In that case, a court would have 10 days to hold a hearing.
“[U]nder MCDPH’s quarantine requirements, which appear to be issued pursuant to A.R.S. § 36-788, MCDPH, through public schools, is mandating student quarantines without a court order. Once a parent or guardian receives the MCDPH letter requiring quarantine, the parent or guardian is entitled […] to immediately seek a court order lifting the quarantine,” wrote Brnovich. “And once a parent or guardian requests court review, A.R.S. § 36-789(M) requires the court to appoint counsel for the student at state expense. Similarly, if a parent or guardian files an action on behalf of the student challenging the conditions of a quarantine, the court is required to appoint counsel for the student at state expense.”
The attorney general noted that Arizona law doesn’t necessarily define “state expense.” He opined that the cost of counsel could fall on county health departments.
I wish to thank @GeneralBrnovich for this opinion regarding the quarantine of non-vaccinated students in school, which is exactly as I suspected. Parents, read this immediately and demand compliance! pic.twitter.com/djIEqbY5Ma
That wasn’t Kelly’s only request for Brnovich’s legal opinion as of late. The state senator requested Brnovich’s opinion on religious tests and denial of religious exemptions by employers.
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.
The Attorney General’s Office issued a legal opinion sought by Arizona State Rep. Kelly Townsend regarding COVID-19 vaccine mandates for employees, patrons of businesses, and airline passengers under existing state and federal laws. The 40-page Opinion finds that due to the fact that government and private businesses have varying legal requirements, there is no one-size-fits-all answer.
Attorney General Mark Brnovich emphasized what he says is the “importance of relying on the constitution during a crisis when personal liberties are most at risk. While public health measures may be pursued during emergencies, they cannot trample constitutionally guaranteed liberties. Arizonans should be free, without coercion, to make medical decisions regarding vaccination that they feel are best for themselves and their families. Recent actions by government and private employers mandating Emergency Use Authorization (EUA) vaccinations demonstrate that a proper balance may have yet to be achieved by policymakers.”
“We must hold the Constitution close in times of crisis because that’s when our rights are most at risk,” said Attorney General Mark Brnovich. “In all medical and health decisions, Americans have the right to try and the right not to try; we cannot have one without the other.”
The Opinion provides a summary of current protections for employees and others from vaccination mandates. An Attorney General Opinion must explain the law as it currently exists, and not how the Attorney General or others might desire it to be.
Only a member of the legislature, a public officer of the State, or a county attorney can submit an opinion request to the AGO on legal questions pertaining to their office. The AGO cannot issue opinions for private citizens, nor offer legal advice to private citizens.
The Opinion answered the following three questions:
Whether an employer can require a COVID-19 vaccine as a condition of employment?
Whether a business can compel an individual to prove that they have received a vaccination before that person can patronize the business?
Whether, under a contract of carriage, a domestic airline can require proof of vaccination as a prerequisite for flying?
As explained below, Attorney General Brnovich determined that, under Arizona law, the government cannot mandate COVID-19 vaccines for public employees. This includes schools, public universities, community colleges, and state and local government. Private businesses can require COVID-19 vaccines for employees but must allow for reasonable accommodations. Per federal law, private entities that carry out an EUA activity like administering COVID-19 vaccines must inform those to whom they are administering the vaccines (which may include employees) that they have an option to decline.
1. Whether an employer can require a COVID-19 vaccine as a condition of employment?
Government
Schools, public universities, community colleges, and state and local governments are statutorily prohibited from requiring employees to obtain COVID-19 vaccinations. While some of these statutory prohibitions will take effect on September 29, 2021, existing Arizona law (A.R.S. §§ 36-114, -184), prohibits state and county governments from imposing vaccine mandates.
Private Businesses
Under federal and state law, private businesses can mandate vaccinations for employees but must provide reasonable accommodations for employees who cannot obtain the COVID-19 vaccine due to a disability or a sincerely held religious belief.
2. Whether a business can compel an individual to prove that they have received a vaccination before that person can patronize the business?
Private Businesses
Under federal and state law, private businesses that mandate vaccination for patrons must provide reasonable accommodations to patrons who cannot obtain the COVID-19 vaccine due to disability, and they must not discriminate against customers who cannot obtain such a vaccine due to a sincerely held religious belief.
Students
Under Arizona law, effective September 29, 2021, certain educational institutions will be prohibited from requiring proof of COVID-19 vaccination from students. Currently, public, private, and parochial schools are limited in conditioning student attendance on documentation of vaccines when parents have a personal objection or if a vaccine would be detrimental to a student’s health.
3. Whether, under a contract of carriage, a domestic airline carrier can require proof of vaccination as a prerequisite for flying?
Domestic airlines in the United States are primarily governed by federal law. Currently, there is no federal law that allows a domestic airline to require proof of a COVID-19 vaccine or refuse transportation of a passenger out of fear he/she might have a communicable disease. Under federal regulation, an airline may not refuse a customer based on a communicable disease unless the customer (1) actually has a communicable disease (2) that is a direct threat to other passengers, and (3) cannot obtain a medical certificate setting forth preventative measures. It will be difficult for an airline to establish these requirements with respect to COVID-19 when airline service has continued throughout the pandemic with masking and ventilation as the primary preventative measures.
The Arizona Attorney General’s Office has joined 19 other state attorneys general in calling on the U.S. Senate to reject David Chipman’s confirmation as director of the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), citing concerns over his approach to public safety and Americans’ right to keep and bear arms.
In a letter sent to U.S. Senate Republican and Democratic leadership, the coalition of attorneys general outlined the threat President Joe Biden’s ATF nominee would pose to law-abiding gun owners if confirmed to lead the agency responsible for regulating firearms.
The attorneys general cite Chipman’s long history of anti-gun rights lobbying and activism.
The attorneys general ATF agents play an important role in upholding the public safety of communities around the country and will be disserved by an agency director with a political agenda.
“Its agents deserve a director who will inspire confidence from the people they serve. Given Mr. Chipman’s history of anti-gun lobbying and political activism, Americans cannot be reasonably expected to believe he will be an unbiased enforcer of current laws,” the attorneys general wrote. “As the chief legal and law enforcement officers in our respective states, we are concerned that Mr. Chipman will make Americans less safe by diverting ATF resources to attack the rights of law-abiding gun owners instead of cracking down on violent criminals and criminal organizations.”
The effort is led by Montana Attorney General Austin Knudsen. In addition to Attorney General Brnovich and Knudsen, attorneys general from Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri,
Last week, the Small Business Legal Center for the nation’s largest and leading small business association filed an amicus brief supporting the Arizona Attorney General’s lawsuit against the federal government over a provision in the American Rescue Plan Act of 2021 that would prevent states from lowering their own taxes.
The American Rescue Plan Act of 2021 made funds available to states if and only if states agree to not pass any laws or take any administrative actions that decrease their net revenue, whether that decrease comes through tax credits, rebates, reductions in tax credits, or new or expanded deductions.
“Congress passed the American Rescue Plan to relieve some of the financial pressure caused by the pandemic, but a provision that blocks Arizona and other states from cutting taxes is eroding state sovereignty and hurts local businesses,” said Karen Harned, executive director of the NFIB Small Business Legal Center, which filed the brief today in the U.S. District Court of Arizona.
In a March 25 news release announcing the filing of his lawsuit, the Arizona Attorney General said, “It’s unacceptable for the federal government to commandeer states’ tax policies and micromanage their budgets. We will always fight on behalf of hardworking taxpayers and push back against federal overreach.”
“Every state should be insulted by the last-minute amendment the US Senate adopted into the American Rescue Plan,” said Chad Heinrich, Arizona state director for NFIB. “If a state can no longer be a master of its own destiny on tax and spending matters, then we may as well resort to a central planning model run out of DC. What needs to be made clear and repeated often is that the State of Arizona’s financial health is a product of prudent fiscal management with sound policies that attract businesses and residents to live, work and enjoy life in Arizona.”
