Whether a new state law concerning mask mandates is effective now, or doesn’t go into force until Sept. 29 is the question a Maricopa County judge must answer, but even he admits the final decision will be made by someone else.
Judge Randall Warner held oral arguments Friday morning in a petition for a temporary restraining order (TRO) requested by Douglas Hester against his employer, Phoenix Union High School District, which recently announced a mandatory mask policy for its students, parents, and staff when on school property, including buses.
The Centers for Disease Control and Prevention (CDC) currently recommend K-12 students, parents, and staff wear masks when indoors even if vaccinated for COVID-19. Phoenix Union and at least nine other districts across the state have announced or implemented mask mandate.
Hester contends the new state law barring cities, towns, charter and public schools, community colleges, and public universities from ordering or enforcing any such mandated mask usage became effective June 30.
One or both the sides in the case could appeal Warner’s decision on the effective date of the no-mask mandate statute, depending on how he rules and the reasoning behind his decision. Warner acknowledged as such Friday when he said his ultimate duty in the case is to “tee it up for the Supreme Court” and let the justices make the final ruling
Hester, a science teacher for the district, contends HB2898, the K-12 Education Budget Reconciliation Bill which created the new law, is already in effect due to a retroactive clause. Therefore, he wants Warner to issue a TRO to block enforcement of Phoenix Union’s new policy.
Phoenix Union, through its attorney Mary O’Grady, opposes any TRO. O’Grady also filed a motion on the district’s behalf asking Warner to dismiss the case. It is the district’s position that the effective date of the new statute is not until Sept. 29, the ninety-first day after the legislative session ended.
The district also questioned why legislators would include a retroactive effective date if the new law took effect on the schedule Hester’s attorney Alex Kolodin contends is in place.
According to Kolodin, the 90-day provision does not apply to HB2898m the K-12 Budget reconciliation bill. He argued Friday that is one reason appropriations bills are not subject to voter referendums.
“The retroactivity clause, the governor, and members of the Legislature have all expressed their intent was for schools to not be able to do this after June 30 by putting in that retroactivity clause,” he argued.
Hester named the Phoenix Union District and its eight board members as defendants. Warner’s decision is expected next week.
As the Senate-authorized audit of 2.1 million Maricopa County ballots continues, a judge announced Thursday he will hear arguments in a lawsuit about whether communications, reports, and other documents between Senators, their contracted auditors, and volunteers are public records.
Judge Michael Kemp of the Maricopa County Superior Court has set July 7 for oral arguments in the case filed earlier this month by American Oversight, a Washington DC-based nonprofit which has been trying since April to obtain records related to planning, procedures, costs, and payments for the election audit.
Several audit-related documents have been turned over to American Oversight by Norm Moore, the Senate’s public records attorney, before and after the May 20 lawsuit was filed. However, Moore has also responded that the Senate “does not have in its possession, custody or control” many of the documents American Oversight wants.
Those records are reportedly in the possession, custody, and control of Florida-based Cyber Ninjas, the company Senate President Karen Fann selected back in March to conduct the audit “on behalf of the Senate.” Cyber Ninjas is being paid through public funds, and is also believed to be receiving “donations” to cover the costs of its work as well as that of various subcontractors.
Other records are believed to be under the control of subcontractors as well as Ken Bennett, a former Arizona Secretary of State serving as the Senate’s liaison with the auditors.
The legal issue for Kemp is whether the companies and non-government employees involved in the audit are subject to Arizona Revised Statute 39-121, the state’s public records law. Attorneys for American Oversight contend the Senate’s position goes against the spirit and the letter of Arizona’s public records law which is based on a presumption of public access.
In an April 6 letter to Fann, the company noted access to the requested records “would contribute significantly to public understanding of operations of the government, including whether or to what extent partisan political considerations influenced the senate’s decision to pursue an additional audit, or guided the selection of the auditing team.”
The defendants in American Oversight’s lawsuit include the Senate as a public body, as well as Fann and Sen. Warren Petersen. It was Petersen, as chair of the Senate Judiciary Committee, who joined Fann in signing a subpoena served on Maricopa County in January to obtain access to the county’s voting system equipment, election records, and original ballots.
Judge Kemp also set a June 9 deadline for the Senate to file for dismissal of the lawsuit which, if filed, would be heard July 7 before the other arguments.