On Monday, Maricopa County Superior Court Judge Katherine Cooper ruled that many laws passed within the recent budget were unconstitutional. Cooper stated that the legislation violated the single subject rule of the Arizona Constitution. The case, Arizona School Boards Association Inc., et al., v. State of Arizona, et al. (CV2021-012741) had a total of 15 plaintiffs. In all, Cooper’s ruling impacted a variety of budget-related bills, or BRBs: HB2898, SB1824, SB1825, and struck down SB1819 in its entirety.
“Subject and title of bills[:] Section 13. Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such an act shall be void only as to so much thereof as shall not be embraced in the title.” (emphasis added)
In a copy of the opinion obtained by 12 News, Cooper asserted that Section 13 was made with the intent to prevent “logrolling”: inserting a multiplicity of subjects into one bill in order to push a vote through. The judge supported her claim with Arizona Supreme Court precedent. In explaining her decision to strike down all of SB1819, a sweeping bill that expanded voter registration, modified ballot security requirements, removed the secretary of state’s legal authority over election laws, established an election integrity fund, limited the length of public health emergencies, and created a special committee to audit the voter rolls, among other things.
“No matter how liberally one construes the concept of ‘subject’ for the single subject rule, the array of provisions are in no way related to nor connected with each other or to an identifiable ‘budget procedure.’ The bill is classic logrolling – a medley of special interests cobbled together to force a vote for all or none,” wrote Cooper. “In this case, the State’s view would allow the Legislature to re-define ‘budget reconciliation’ to mean anything it chooses. Going forward, the Legislature could add any policy or regulatory provision to a BRB, regardless of whether the measure was necessary to implement the budget, without notice to the public. The State’s idea of ‘subject’ is not and cannot be the law.” (emphasis added)
Cooper also asserted that the bills in question weren’t in compliance with the state constitution’s requirement that bill titles clearly reflect the content of the legislation.
In striking down the entirety of SB1819, Cooper explained that prior court decisions don’t allow for severability to salvage portions of the bill.
“When an act violates the single subject rule, the whole act fails,” stated Cooper.
Whereas for the other bills, Cooper explained that the certain provisions banning mask, vaccine, and testing mandates; critical race theory education; and vaccine passports weren’t reflected in the bill titles. Therefore, they were invalid.
As AZ Free News reported last week, the main plaintiff in the case, Arizona School Boards Association (ASBA), recently hosted a law conference where photos showed attendees maskless and not social distancing, though spokespersons informed us that masks were required. ASBA also told us they encouraged some attendees to take off masks momentarily and group together for pictures.
The mask mandate ban would’ve gone into effect on Wednesday.
Governor Doug Ducey’s spokesperson characterized the ruling as “judicial overreach.” The governor’s office promised that they would challenge the ruling.
“We are still reviewing the ruling, but this decision is clearly an example of judicial overreach. Arizona’s state government operates with three branches, and it’s the duty and authority of only the legislative branch to organize itself and to make laws,” stated Ducey’s spokesman. “Unfortunately, today’s decision is the result of a rogue judge interfering with the authority and processes of another branch of government. Further action will be taken to challenge this ruling and ensure separation of powers is maintained.”
If COVID-19 cases are trending down in 14 of Arizona’s 15 counties, as one public health doctor says, then why are some many hospitals in the state saying they don’t have room treat patients?
According to Dr. Joe K. Gerald, an associate professor at the University of Arizona’s Zuckerman College of Public Health, all but one county in Arizona reported lower numbers last week. The outlier was Greenlee County, which is “experiencing worsening outbreaks” and is nearing its all-time pandemic high infection rate, Gerald wrote for the Arizona Public Health Association.
But what cannot be reflect a positive COVID-19 test result (referred to as a case even if asymptomatic) or vaccination rates is what percent of people actually end up in the hospital.
According to Gerald, 2,050 of Arizona’s 8,747 general ward beds (23 percent) were assigned to COVID-19 patients as of Sept. 15, with another 695 beds available statewide for COVID-19 use. At the same time, 565 of Arizona’s 1,743 ICU beds (32 percent) were occupied by COVID-19 patients, with only 143 additional ICU beds available across the state for COVID-19 patients.
But even if infection rates continue to fall in upcoming weeks, Gerald believes COVID-19 related hospitalization occupancy by a percent of available beds will remain high “for several more weeks.” He also notes excess capacity is nearly as low now as it was at the peak of the winter 2020 / 2021 surge when 577 COVID-19 patients were admitted to hospitals statewide.
The problem is that simply having an open bed in a room is not what qualifies as an available bed. The statistic means not only the bed, but also the appropriate equipment and staffing available to treat a COVID-19 patient.
A hospital administrator in southern Arizona told AZ Free News there have already been issues at smaller hospitals in ensuring available beds due to delays with replacing equipment. Conditions worsened when the Delta Variant uptick began in Arizona in July.
But the main issue, the administrator said, is that Arizona’s larger hospital chains, including Banner, HonorHealth, and Mayo Clinic, are losing experienced medical staff due to mandated proof of vaccination from all staff regardless of position.
Those hospitals -mostly in Maricopa and Pima counties- often accept patients from smaller counties, whether it be COVID-19 patients or trauma patients. However, as many doctors and patients are learning, those options are drying up across the state.
Thousands of health professionals across Arizona are pushing back on the requirement, with many leaving voluntarily instead of waiting to be fired. The result is staffing shortages which in turn impacts the number of available beds not only to treat COVID-19 patients but also those in need of other emergency treatment and even non-emergency procedures.
Gerald, in his article for Arizona Public Health Association, noted that with hospitalizations already at above seasonal levels, hospital administrators need to be prepared for COVID-19 related occupancy to exceed 20 percent of all general ward beds and 25 percent of ICU beds in the near future..
He also noted that Arizona’s fatality rate due to COVID-19 has been staying below 300 a week since February 2021 after hitting an all-time weekly high of nearly 1,100 deaths the month before. That compares to the worse week last year when roughly 600 deaths were recorded as COVID-19 related during one week in mid-July 2020.
“It now appears unlikely that Arizona will reach 300 deaths per week. Instead, the peak should occur at 200 deaths or a bit more per week,” Gerald wrote.
An executive order issued by Gov. Doug Ducey is temporarily protecting Arizonans from having to reveal their COVID-19 vaccination status in order to shop, attend public events, or receive government benefits. But Ducey’s executive orders issued under the state’s emergency powers laws cannot last forever, so Rep. Bret Roberts is pushing his fellow legislators to provide ensure permanent protections.
On Thursday, Roberts will be watching as the Senate considers HB2190. The bill started out as criminal justice legislation sponsored by Roberts but later became the subject of a strike-everything amendment by Sen. Kelly Townsend to prohibit businesses and government agencies in Arizona from demanding citizens provide proof, or what is referred to as a vaccine passport, of their vaccination status.
Many communities across the country are supporting the use of a vaccine passport policy, despite what Roberts called the risk of creating “a second-class society” of people who will not -or cannot- receive the COVID-19 vaccine. HB2190 seeks to protect the rights and private medical data of Arizonans while ensuring citizens are not forced to prove their vaccine status in order to shop for groceries, enter a bank, or visit their child’s school.
According to Roberts, the bill would also prohibits the government or private businesses from seeking information about a person’s post-transmission recovery if they ever fell ill from COVID-19.
Under HB2190, a business entity, a ticket issuer, or the state, a county, or local government entity or official is prohibited from basing access to a good or service or benefit on whether a person has received a vaccine. The bill also prohibits the state, a county or local government entity or official from requiring a person to receive a vaccine.
One thing Ducey’s temporary executive order and HB2190 do not address is the employee – employer relationship. That means a boss could possibly terminate an employee who won’t, or can’t, take the COVID-19 vaccine. Another thing HB2190 does not do is interfere with healthcare professionals who need to ask a patient’s vaccination status as a matter of public health concern.
Roberts has waited several weeks to see HB2190 get on the Senate calendar. He tweeted Wednesday evening that anyone seeking office should “give serious thought to their position” on vaccine passports.
“I could be wrong but I don’t think this…one will be forgotten,” he tweeted.
If HB2190 passes, it would make a violation of the new law a Class 3 misdemeanor. It would also allow a state court to suspend any state or local business license, permit, or certification for up to 30 days if the business violates the statute. The bill must receive at least 16 ayes from the 30 senators.
Vaccines should always be voluntary and never be forced. But COVID-19 came in like a wrecking ball last year, and perhaps its most significant contribution to the world has been an overwhelming growth in government overreach.
From the abuse of emergency orders to the senseless “mask mandates,” some government officials have leapt at the chance to dangle the carrot of “normalcy” in the faces of their citizens in order to take away more of their freedoms. Unfortunately, many have taken the bait. And now, we find ourselves at a crossroads.
The latest promise to return to normal comes in the form of “vaccine passports.” This ridiculous concept would serve as “proof” that a person has been vaccinated so he or she can have access to all the freedoms they should already be able to enjoy as an American citizen. As you would expect, Big Tech is first in line to team up with the government on such an initiative. And New York has already implemented the “Excelsior Pass” so that its citizens can “be a part of [the state’s] safe reopening.” (Given Governor Cuomo’s handling of the pandemic, what could go wrong?)
But nothing about this is normal.
It’s not normal for companies to collect the private health data of individuals. And it’s certainly not normal to force American citizens to submit to certain medical procedures as the price of doing business.
Thankfully, some of our lawmakers here in Arizona have not fallen asleep on this issue. Earlier this month, Congressman Andy Biggs introduced his No Vaccines Passports Act. This piece of legislation would prevent federal agencies from issuing any standardized documentation that could be used to certify a U.S. citizen’s COVID-19 status to a third party, such as a restaurant or an airline.
And just a few days ago, Arizona became the sixth state to ban COVID-19 passports when Governor Ducey signed Executive Order 2021-09. This prevents state agencies, counties, cities, and towns from issuing measures that require an individual to provide documentation of their COVID-19 vaccination status in to order to enter a business, building, or area to receive a government service, permit, or license. It also prevents businesses that contract with the state to provide services to the public from requiring documentation.
That’s why lawmakers should consider additional action on this issue. One option being considered is HB2190. This bill, sponsored by Rep. Bret Roberts (R-LD11) and Sen. Kelly Townsend (R-LD16), would prohibit a company that conducts business in Arizona from refusing to provide everyday services, transportation, or admission because a person does not divulge whether they have received a particular vaccine. It would also prohibit a state, county, or local government entity from offering anyone a special privilege or incentive to receive a vaccine.
Currently, HB2190 is awaiting action in the senate, and negotiations are underway on potential amendments to the bill. Regardless of what those amendments are, Arizona lawmakers need to work toward stopping vaccine passports. They are a serious threat to our civil liberties. And while we all want to return to normal, we must remember that “normal” shouldn’t come with a price tag.
An effort by the Arizona Legislature to craft permanent legislation to prevent a person from being denied access to businesses, government facilities, and even their child’s school unless they showed proof of being vaccination for COVID-19 was pushed aside Monday when Gov. Doug Ducey issued an executive order about the issue.
Under Executive Order 21-09, most private businesses in Arizona will be free to refuse service to “a customer” who does not provide proof of COVID-19 vaccination. Only companies which receive state funding to provide services to the public are banned from inquiring about someone’s status, although Ducey’s order does not protect those citizens who cannot receive a vaccine for a medical reason
“While we strongly recommend all Arizonans get the COVID-19 vaccine, it’s not mandated in our state — and it never will be,” Ducey said in announcing his latest COVID related executive order. “Vaccination is up to each individual, not the government.”
Daycares, schools, colleges, and universities would still be able to ask about a student’s vaccination record as already allowed by law, but parents could not be asked about their own vaccination status if the educational program receives any state funding.
In addition, hospitals and other healthcare facilities can inquire about the vaccination status of patients, prospective patients, vendors, visitors, and staff, even if the organization receives state funds.
There was initially some confusion Monday morning about what EO 2021-09 encompassed, as Ducey’s official Twitter account read “I’ve issued an Executive Order banning ‘vaccine passports’ and preventing state and local governments from requiring Arizonans to provide their #COVID19 vaccination status to receive service or enter an area.”
Many took the first sentence to mean businesses could not impose a vaccine requirement on customers. However, that misinterpretation was quickly corrected by the rest of the governor’s comments.
Ducey noted in the executive order that no person should be compelled to disclose their private health information -including their vaccination record- to a government entity as a condition of receiving services, obtaining a license or permit, or entrance to a public facility unless state law already requires proof of vaccination.
He added that federal and state laws allow individuals to refuse to be vaccinated, and that “it is not and will not be mandated in the State of Arizona.”
EO 2021-09 also prohibits any other state subdivision -including cities towns, counties, and state agencies- from adopting a policy or ordinance that contradicts the governor’s order. This ensures cities, towns, and counties cannot demand proof of vaccinations for people to use public parks and other public recreational and entertainment amenities.
Rep. Bret Roberts (R-LD11) first introduced legislation to ban such “vaccine passports” in Arizona. His effort was taken up by Sen. Kelly Townsend on March 28 in the form of HB2190, which would have protected Arizonans from having to divulge their vaccination record to shop, dine, or do most everyday activities.
HB2190 hit a snag in early April over concerns that it did not allow healthcare providers nor business owners to inquire about vaccination status of their employees. Negotiations have been underway all month on possible amendments to Townsend’s bill.
For his part, Roberts announced his support for EO 2021-09, noting Ducey’s “reasons for doing so are sound.” But he went on to note that many of those sounds reasons “also apply to the private sector.”
“No one should be required to give up their medical history to participate in commerce,” Roberts tweeted Monday morning. “When all businesses require it the individuals choice is lost. Allowing private business to do this amounts to segregation.”
Roberts also expressed concern that executive orders are intended to be temporary. After the governor’s announcement, Rep. Leo Biasiucci (R-LD4) said SB2190 should be voted on in the coming days as it “solves the issue with businesses requiring vaccine mandates.”
Also on Monday, Ducey rescinded a section of his EO 2020-51 which had directed K-12 schools to require masks.
“We will continue to work with public health professionals and Arizona’s schools as more students return to the classroom and our state moves forward,” the governor said.