William H. Doyle, Ariz. Bar No.007285 Brian R. Hauser, Ariz. Bar No. 006181 THE DOYLE FIRM, P.C. 1313 E. Osborn Road, Suite 220 Phoenix, Arizona 85014 wdoyle@doylelawgroup.com bhauser@doylelawgroup.com alg@doylelawgroup.com Telephone: (602) 240-6711 Facsimile: (602) 240-6951 Attorneys for Respondents Paul Deasy and City of Flagstaff SUPREME COURT STATE OF ARIZONA JOSEPH MARTIN MCGHEE, Petitioner, vs. PAUL DEASY, in his official capacity as Mayor of the City of Flagstaff; THE CITY OF FLAGSTAFF, Respondents, and DOUG DUCEY, in his official capacity as Governor of the State of Arizona, Real Party In Interest. Case No.: CV-21-0002-SA RESPONDENTS PAUL DEASY AND CITY OF FLAGSTAFF’S RESPONSE TO PETITION FOR SPECIAL ACTION ii TABLE OF CONTENTS INTRODUCTION .....................................................................................................1 JURISDICTIONAL STATEMENT ..........................................................................1 STATEMENT OF THE ISSUES...............................................................................2 STATEMENT OF FACTS ........................................................................................3 ARGUMENT .............................................................................................................6 I. McGhee Has Not Suffered A “Distinct And Palpable Injury” From The Mayor’s June 18, 2020, Face Covering Proclamation ................... 6 II. McGhee’s Challenge To The Proclamation Does Not Raise Issues Of Constitutional And Statewide Public Importance Sufficient For This Court To Waive The Standing Requirement ................... 8 III. McGhee Lacks “Implicit” Standing Under The Declaratory Relief Statute, A.R.S. § 12-1832 ..................................................................... 9 IV. This Court Should Decline Special Action Jurisdiction Because No Factual Record Exists On Material Issues, Including Whether McGhee’s Petition Is Barred By Laches ........................................10 V. Mayor Evans Had The Statutory Authority To Declare A Local Emergency Due To The COVID-19 Pandemic .............................................12 VI. The Proclamation’s religious belief exemption does not violate the Arizona Constitution Privileges and Immunities or the Local or Special Laws Clauses ......................................................................16 VII. The Proclamation Does Not Require Any Person Other Than An Arizona Peace Officer To Enforce A.R.S. § 26-317 ...............................20 CONCLUSION ................................................................................................................................... 22 iii TABLE OF AUTHORITIES Cases Bennett v. Napolitano 206 Ariz. 520 (2003) ..............................................................................................6 Dali v. City of Phoenix 128 Ariz. 199 (App. 1980) .....................................................................................9 Dobson v. State ex rel., Com’n on Appellate Court Appointments 233 Ariz. 119 (2013) ............................................................................................10 Globe School Dist. No.1 of Globe, Gila County v. Board of Health of City of Globe, 20 Ariz. 208 (1919) ....................................................................................... 15, 16 Graham v. Moore 56 Ariz. 106 (1940) ................................................................................................2 In re Abbott 954 F.3d 772 (5th Cir. 2020) ................................................................................18 In re Rutledge 956 F.3d 1018 (8th Cir. 2020) ..............................................................................18 Keggi v. Northbrook Prop. & Cas. Ins. Co. 199 Ariz. 43 (App. 2000) .......................................................................................9 Kenyon v. Hammer 142 Ariz. 69 (1984) ....................................................................................... 17, 18 League of Arizona Cities and Towns v. Martin 219 Ariz. 556 (2009) ............................................................................................11 Mathieu v. Mahoney 174 Ariz. 456 (1993) ..................................................................................... 11, 12 McGhee v. City of Flagstaff No. 3:20-cv-08081-GMS, 2020 WL 2308479 (D. Ariz. May 8, 2020) ...............18 Pompa v. Superior Court 187 Ariz. 531 (App. 1997) .....................................................................................2 iv Rios v. Symington 172 Ariz. 3 (1992) ..................................................................................................8 Sears v. Hull 192 Ariz. 65 (1998) ....................................................................................... 6, 7, 8 Tigges v. Northam 473 F.Supp. 3d 559 (E.D.Va. 2020) .....................................................................17 Town of Gilbert v. Maricopa County 213 Ariz. 241 (App. 2006) ...................................................................................19 Statutes 42 U.S.C. § 1983 ............................................................................................... 11, 20 A.R.S § 26-317.........................................................................................................21 A.R.S. § 12-1832....................................................................................................2, 9 A.R.S. § 26-301(10) .................................................................................................14 A.R.S. § 26-301(15) .................................................................................................14 A.R.S. § 26-311............................................................................................. 4, 12, 14 A.R.S. § 26-311(A) ........................................................................................... 15, 16 A.R.S. § 26-311(B) ........................................................................................... 15, 16 A.R.S. § 26-311(B)(1)–(4) .......................................................................................14 A.R.S. § 26-317............................................................................................... 3, 5, 20 City of Flagstaff Code Section 1-22-001-0002....................................................4, 12 City of Flagstaff Code Section 1-22-001-0002(D) ..................................................14 Other Authorities Executive Order 2020-40 ................................................................................. passim Third Proclamation of the Mayor Under Declaration of Emergency Dated March 15, 2020 ........................................................................................4, 8 v Rules Ariz. R. Evid. 201 (b) (2) ...........................................................................................6 Rules of Procedure, Special Actions 7(d) ................................................................23 Constitutional Provisions A RIZ C ONST . art. II, § 13 .........................................................................................16 A RIZ C ONST . art. IV, pt. 2, § 19 ..............................................................................18 A RIZ C ONST . art. VI, § 5(1) ...................................................................................1, 2 1 INTRODUCTION Seven and one-half months ago, the Mayor of the City of Flagstaff issued a Proclamation—consistent with Guidelines issued by the Centers For Disease Control (“CDC”)—requiring the wearing of face coverings in all public places in the City to curb the spread of COVID-19. Petitioner McGhee (McGhee), a private citizen residing in the City of Flagstaff, raises various constitutional and statutory challenges to the validity of the Flagstaff Mayor’s Proclamation. He invokes this Court’s original jurisdiction where none exists and where fact questions abound. For the reasons discussed below, this Court should deny McGhee’s petition for special action. JURISDICTIONAL STATEMENT The Supreme Court has original jurisdiction of the issuance of extraordinary writs to state officers pursuant to A RIZ C ONST . art. VI, § 5(1). Petitioner McGhee has filed an original petition for special action in this Court requesting declaratory and injunctive relief against Paul Deasy (Deasy), in his official capacity as the Mayor of the City of Flagstaff, the City of Flagstaff, and Doug Ducey, in his official capacity as Governor of the State of Arizona. The Court does not have original jurisdiction to consider McGhee’s petition for special action insofar as it requests any form of relief against Deasy or the City of Flagstaff through the issuance of an 2 extraordinary writ as neither of these respondents is a state officer. Graham v. Moore , 56 Ariz. 106, 108-9 (1940) (no original jurisdiction in Supreme Court of petition for mandamus against clerks of boards of supervisors). McGhee’s petition for special action relief against Respondents Deasy and the City of Flagstaff should be denied for this reason, alone. Even when the Court has original jurisdiction pursuant to A RIZ C ONST . art. VI, § 5(1), the Court has the discretion to decline jurisdiction and require the petitioner to file the action in the superior court to resolve disputed questions of fact. Pompa v. Superior Court , 187 Ariz. 531, 535 (App. 1997). As is argued below, because this petition raises unresolved issues of fact that are significant and material to the requested relief, the Court should decline jurisdiction of this special action. STATEMENT OF THE ISSUES 1. Does McGhee have standing arising from a “distinct and palpable injury” caused by the City of Flagstaff Mayor’s June 18, 2020, Proclamation (Proclamation) requiring all persons five years old and over to wear a face covering in public places? 2. Does McGhee’s constitutional challenge to the Proclamation raise issues of statewide great public importance sufficient for the Court to waive the standing requirement? 3. Does the Declaratory Relief Statute, A.R.S. § 12-1832, confer “implicit” 3 standing on McGhee in place of a distinct and palpable injury? 4. Does the absence of any factual record illustrating the application of the Proclamation caution against accepting special action jurisdiction? 5. Did Mayor Evans have statutory authority to issue the Proclamation? 6. Does a religious belief exemption in the Proclamation that is available to all persons violate the Arizona Constitution? 7. Does the Proclamation require any person other than an Arizona peace officer to enforce A.R.S. § 26-317? STATEMENT OF FACTS On June 17, 2020, Governor Doug Ducey signed Executive Order 2020-40 entitled Containing the Spread of COVID-19, Continuing Arizona Mitigation Efforts . (E.O. 2020-40). See APP-25. E.O. 2020-40 states that as of June 17, 2020, Arizona suffered over forty thousand diagnosed cases of COVID-19, causing 1,239 deaths. E.O. 2020-40 authorizes counties, cities, and towns to “... adopt policies regarding the wearing of face coverings in public for the purpose of mitigating the spread of COVID-19.” E.O. 2020-40 requires law enforcement and regulatory agencies to inform a non-compliant person about the provisions of the Executive Order and to allow such person to comply those provisions before instituting any enforcement action. No directive in E.O. 2020-40 authorizes any Arizona county, city or town to grant private entities or persons any law enforcement power in 4 connection with a face covering policy. On June 18, 2020, Coral J. Evans, then Mayor of the City of Flagstaff, issued the “ Third Proclamation of the Mayor Under Declaration of Emergency Dated March 15, 2020 .” (Proclamation) See APP-28. The Proclamation recites the sequence of actions Mayor Evans took in response to the COVID-19 pandemic, beginning with the Mayor’s March 15, 2020, declaration of local emergency pursuant to City of Flagstaff Code Section 1-22-001-0002 and A.R.S. § 26-311, and continuing with subsequent proclamations on March 16 and March 26, 2020, closing business establishments to mitigate the spread of COVID-19. The Proclamation notes that the Coconino County Health and Human Services Department confirmed that, as of June 13, 2020, the City of Flagstaff had 419 presumptive positive COVID-19 cases. The Proclamation states: “WHEREAS, the COVID-19 pandemic and outbreak is an immediate threat to life, public health, safety, welfare, and economic viability which constitutes a continuing local emergency.” See APP-28. The Proclamation further notes the CDC recognizes that face coverings have a “critical role” in containing and mitigating the spread of COVID-19. The Proclamation, pursuant to E.O. 2020-40, thereupon amends the Mayor’s March 16, 2020, proclamation to add “Section 10. Face Coverings .” Section 10 requires all persons five years of age and older to wear a face covering when in a public place in the City of Flagstaff, with certain exceptions. The 5 exception challenged by this petition states: i. A person is not required to wear a Face Covering in a Public Place: ... 3. when a person’s religious beliefs prevent the person from wearing a Face Covering. See APP-30. The Proclamation further expressly provides, in accordance with E.O. 2020- 40, that persons shall be given an opportunity to comply with the proclamation before any enforcement action is taken. The Proclamation then states: “Continued failure to comply with an emergency proclamation is a misdemeanor under A.R.S. § 26-317.” See APP-31. The Proclamation states: 8. Private businesses and venues shall enforce this proclamation by asking any person failing to comply with the emergency proclamation to leave their premises. Business owners are not liable for members of the public who are in violation of this proclamation and refuse to leave their establishment when asked. See APP-31. As of January 28, 2020, the Arizona Department of Health Data Dashboard for updated guidance for identifying COVID-19 cases and deaths reported that Coconino County has had 14,959 COVID-19 cases, 266 deaths, and an 11.9% diagnostic positivity tests rate. See 6 https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious- disease-epidemiology/covid-19/dashboards/index.php. On January 22, 2021, the Coconino County Health and Human Services Department Weekly Update reported that as of January 16, 2021, there have been 8,196 confirmed COVID-19 cases in the City of Flagstaff with a 9.4% diagnostic positivity tests rate. See https://www.coconino.az.gov/DocumentCenter/View/42142/Coconino-County- COVID-19-Weekly-Update--Week-2?bidId= . Ariz. R. Evid. 201 (b) (2) (court may judicially notice any fact that may be accurately determined “from sources whose accuracy cannot reasonably questioned”). ARGUMENT I. McGhee Has Not Suffered A “Distinct And Palpable Injury” From The Mayor’s June 18, 2020, Face Covering Proclamation Even though the Arizona Constitution contains no express case or controversy requirement to acquire standing, as in federal court, a person seeking constitutional relief against the government in the Arizona courts is required, nevertheless, to demonstrate standing. Bennett v. Napolitano , 206 Ariz. 520, 524 (2003). The standing requirement in Arizona is fulfilled when the person seeking redress pleads and proves a distinct and palpable injury that is personal to themselves. Sears v. Hull , 192 Ariz. 65, 71 (1998). McGhee’s petition for special action fails to allege that he has suffered any 7 injury personal to himself arising from the Proclamation. The only fact that McGhee alleges that is personal to himself is that he is a “... person residing within the city limits of Flagstaff.” Pet. at 7. McGhee’s other allegations are conclusions of law only, not factual allegations, and those allegations are common to every person who merely is present in a public place within the city limits after the Proclamation’s effective date. McGhee alleges: “Petitioner is now placed at immediate risk of serious injury in the form of : (1) unlawful arrest, prosecution, and fine and/or imprisonment; and (2) violations of his civil rights...” Pet. at 8. These allegations are altogether untethered to any action McGhee himself has taken or proposes to take, such as refusing to wear a face covering in general or refusing to wear a face covering in a private business or venue. Anyone reading McGhee’s petition will search in vain for an allegation describing how the Proclamation affects McGhee differently, even in the slightest manner, from any other person who exists within the Flagstaff city limits. Thus, McGhee alleges only “generalized harm that is shared alike by all or a large class of citizens that generally is not sufficient to confer standing.” Id. at 69. For this reason, the Court should find that McGhee lacks standing to bring this special action. 8 II. McGhee’s Challenge To The Proclamation Does Not Raise Issues Of Constitutional And Statewide Public Importance Sufficient For This Court To Waive The Standing Requirement McGhee’s petition fails to allege that the two aspects of the Proclamation which he challenges apply on a statewide basis or are common to face covering requirements in any other political subdivision of the state. And—as the Court undoubtedly is aware—there is no statewide face covering requirement in Arizona. See https://www.usnews.com/news/best-states/articles/these-are-the-states-with- mask-mandates. McGhee challenges the religious exemption from wearing a face covering found in Section 10(d)(i)(3) and the requirement that “private businesses and venues enforce the proclamation by asking any person failing to comply with the emergency proclamation to leave their premises.” See APP-30, 31 at ¶¶ 3, 8. The petition does not allege that these provisions apply outside the City of Flagstaff. This Court rarely waives the requirement of standing, doing so “... only in exceptional circumstances, generally in cases involving issues of great public importance that are likely to recur.” Sears , 192 Ariz. at 71 ¶ 25. In this case, where the petition challenges provisions of only one city’s face covering proclamation, there is no issue of great public and statewide importance, such as where the dispute involves the highest levels of state government. Rios v. Symington , 172 Ariz. 3, 5 (1992). 9 III. McGhee Lacks “Implicit” Standing Under The Declaratory Relief Statute, A.R.S. § 12-1832 McGhee grounds his last-ditch effort to establish standing in the Declaratory Relief statute, A.R.S. § 12-1832, contending that the statute confers “implicit” standing. A declaratory judgment, however, must be based on a real and not theoretical, controversy; a plaintiff must have sufficient, concrete interests at stake to enable the court to answer the questions presented in relation to those interests. Dali v. City of Phoenix , 128 Ariz. 199, 203 (App. 1980). A person has standing to bring a declaratory judgment action only if a justiciable controversy exists, one where “... there is an assertion of a right, status, or legal relation in which the plaintiff has a definite interest and a denial of it by the opposing party.” Keggi v. Northbrook Prop. & Cas. Ins. Co., 199 Ariz. 43, 45 ¶ 10 (App. 2000). In this case, McGhee does not allege that he has any right, status, or legal relation that either the Mayor or the City of Flagstaff has denied him through issuing the Proclamation. McGhee does not allege that he will suffer harm if another person does not wear a face covering because of the other person’s religious beliefs. McGhee does not allege that he is a business owner or venue operator (or their employee) who will be dragooned into enforcing the Proclamation. Because McGhee does not allege any personal and particularized right, status, or other legal relation affected by the Proclamation, the declaratory judgment statute provides him no standing. Dobson v. State ex rel., Com’n on Appellate Court Appointments , 233 10 Ariz. 119, 120 ¶ 11 (2013). The Declaratory Relief statute does not provide McGhee the requisite standing, implicit or otherwise, to comfort this Court in exercising discretion to accept jurisdiction. IV. This Court Should Decline Special Action Jurisdiction Because No Factual Record Exists On Material Issues, Including Whether McGhee’s Petition Is Barred By Laches Mayor Evans issued the Proclamation on June 18, 2020. McGhee waited two hundred-five days to file the petition for special action on January 8, 2021. During that time, the residents of the City of Flagstaff, like the rest of humanity, have lived under ever-changing circumstances, both self-imposed and imposed from without, in order to, literally, survive the Covid-19 pandemic while awaiting the day when they may lead their lives as before. Likewise, during those months, the residents of the City of Flagstaff have lived under provisions of the Proclamation, including the provisions McGhee presently challenges. By his own admission, McGhee contends the Proclamation, as applied , violates his constitutional rights. See Pet. at 13. The City respondents are entitled to establish evidence showing how the Proclamation has been applied over the past two hundred-plus days to demonstrate that the Proclamation, as applied , has, in fact, violated no one’s constitutional rights. To rebut McGhee’s allegations, the City respondents should be allowed to gather and present evidence that no private citizen has enforced the Proclamation’s requirements leading to criminal charges against a 11 non-compliant person and no private person has been the subject of a § 1983 civil rights complaint for “enforcing” the Proclamation. In particular, the City respondents should be able to produce scientific evidence that, contrary to McGhee’s argument that the Proclamation’s religious exemption (and other exceptions) to the face covering requirement “appears to run directly contrary a legitimate interest,” the exceptions are scientifically justifiable in terms of virus transmission rates and are not arbitrary. See Pet. at 14. This Court should have the benefit of a fully developed factual record in the superior court before deciding novel constitutional issues of statewide importance. The Court should exercise its discretion to decline this case based also on McGhee’s unreasonable delay in bringing this action. McGhee offers no reason why he delayed over two hundred days to file a constitutional challenge to the City’s face covering requirement. If the Proclamation causes such serious infringements on the rights of City residents, McGhee must have known this at the outset and he has provided no excuse, let alone a satisfactory one, for his delay in filing the petition. The defense of laches requires both an unreasonable delay in filing suit and prejudice to the opposing party or to the administration of justice. League of Arizona Cities and Towns v. Martin , 219 Ariz. 556, 558 ¶ 6 (2009). Public litigation, however, unlike private disputes, affects the interests of citizens beyond the parties themselves. Mathieu v. Mahoney , 174 Ariz. 456, 460 (1993). This Court has noted 12 the strain on “the quality of appellate decision making in questions of great public importance” when, due to time constraints and other reasons, there has not been a “complete exposition of the issues” because the parties have had no opportunity to develop and present evidence. Id. (barring, under laches doctrine, an action to enjoin proposed initiative measure’s printing filed more than one year after petition circulation). Although the jurisprudential concerns may be most acute in election cases, the fundamental fairness that underlies those concerns applies in all cases. Id (“Simple fairness is the real basis for applying the equitable doctrine of laches here and in most other circumstances.”). McGhee, without explanation, took nearly eight months to bring his petition. Now, he seeks relief in the first instance in the appellate courts, thereby depriving respondents of the opportunity to develop and present facts that would adequately inform the appellate court about the issues and ensure the highest quality of decision making. Fundamental fairness dictates that the matter be heard first in the superior court where a complete record can be made. V. Mayor Evans Had The Statutory Authority To Declare A Local Emergency Due To The COVID-19 Pandemic Mayor Evans issued the Proclamation pursuant A.R.S. § 26-311 and City of Flagstaff Code Section 1-22-001-0002. A.R.S. § 26-311 provides, in pertinent part: A. In addition to the powers granted by other provisions of the law or charter, whenever the mayor of an 13 incorporated city or town or the chairman of the board of supervisors for the unincorporated portion of the county, shall deem that an emergency exists due to fire, conflagration, flood, earthquake, explosion, war, bombing, acts of the enemy or any other natural or man- made calamity or disaster or by reason of threats or occurrences of riots, routs, affrays or other acts of civil disobedience which endanger life or property within the city, or the unincorporated areas of the county, or portion thereof, the mayor or chairman of the board of supervisors, if authorized by ordinance or resolution, may by proclamation declare an emergency or a local emergency to exist. B. If an emergency is declared pursuant to subsection A, the mayor or the chairman of the board of supervisors shall, during such emergency, govern by proclamation and shall have the authority to impose all necessary regulations to preserve the peace and order of the city, town, or unincorporated areas of the county, including but not limited to: 1. Imposition of curfews in all or portions of the political subdivision. 2. Ordering the closing of any business. 3. Closing to public access any public building, street, or other public place. 4. Calling upon regular or auxiliary law enforcement agencies and organizations within or without the political subdivision for assistance. 5. Notifying the constitutional officers that the county office for which they are responsible may remain open or may close for the emergency. 14 City of Flagstaff Code Section 1-22-001-0002(D) contains substantially the same provisions as A.R.S. § 26-311(B)(1)–(4). A local emergency is defined as follows: “Local emergency” means the existence of conditions of disaster or of extreme peril to the safety of persons or property within the territorial limits of a county, city or town, which conditions are or are likely to be beyond the control of the services, personnel, equipment and facilities of such political subdivision as determined by its governing body and which require the combined efforts of other political subdivisions. A.R.S. § 26-301(10). McGhee contends that A.R.S. §§ 26-301(10) and 26-311 provide no authority for the Mayor to govern by proclamation in response to the COVID-19 pandemic because, as opposed to A.R.S. § 26-301(15), where the Legislature defined a state of emergency to include an “epidemic,” A.R.S. § 26-301(10) does not reference emergencies caused by disease. State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state caused by air pollution, fire, flood or floodwater, storm, epidemic, riot, earthquake or other causes, except those resulting in a state of war emergency, which are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county, city or town, and which require the combined efforts of the state and the political subdivision. A.R.S. § 26-301(15). During a pandemic, the exigencies of the situation call for a liberal construction of the validity of local governmental action intended to accomplish a 15 public good. During the “raging” Spanish influenza epidemic which killed fifty million people worldwide, including 675,000 people in the United States, ( see https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html), this Court liberally construed the authority granted by the legislature to local boards of health to determine the existence of a public health emergency to prevent the spread of the disease and to close the public schools during the pendency the epidemic. Globe School Dist. No.1 of Globe, Gila County v. Board of Health of City of Globe, 20 Ariz. 208, 218 (1919). “Necessity is the law of time and place, and the emergency calls into life the necessity for the operation of the law. The emergency calls forth the occasion to exercise the power to protect the public health.” Id. The COVID- 19 pandemic is such an occasion for the courts to liberally construe the executive’s power to protect the public health. Pursuant to A.R.S. § 26-311(A) and (B), whenever the Mayor shall deem that an emergency exists due a natural or man-made calamity, the Mayor may by proclamation declare an emergency or a local emergency to exist. Once the Mayor declares the emergency, the Mayor shall, during such emergency, govern by proclamation and shall have the authority to impose all necessary regulations to preserve the peace and order of the city, town, or unincorporated areas of the county, including, but not limited to , imposing curfews and ordering the closing of any business. The power to impose curfews and close any business is not a minor