1 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOSEPH MARTIN MCGHEE P.O. Box 91 Flagstaff, AZ 86002 Tel: (928) 600-0954 mcghee.v.city.of.flagstaff.et.al @ gmail .com Petitioner , in Pro Per IN THE SUPREME COURT STATE OF ARIZONA JOSEPH MARTIN MCGHEE , P etitioner , v. PAUL DEASY, i n his official capacity as Mayor of the City of Flagstaff; THE CITY OF FLAGSTAFF, Respondents, and D OUG DUCEY , in his official capacity as Governor of the State of Arizona, Real Party in Interest No. PETITIONER’S REPLY TO RESPONDENTS PAUL DEASY AND CITY OF FLAGSTAFF’S RESPONSE TO PETITION FOR SPECIAL ACTION 2 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS TABLE OF AUTHORITIES............................................................3 INTRODUCTION......................................................................... 5 ARGUMENT .............................................................................. 6 I Petitioner Need Not Establish He Has Suffered A “Distinct And Palpable Injury” From The “Face Covering Requirement”.. .................. 6 II. Petitioner’s Challenge To The Proclamation Raises Issues Of Constitutional And Statewide Public Importance Sufficient For This Court To Waive The Standing Requirement........................ ...... 7 III. Petitioner Has Standing Under The Declaratory Judgments Act.. ............ 8 IV. Respondents Have Failed To Construct A Facially-Plausible Argument That The Petition May Be Barred By Laches.....................10 V. Arizona Mayors Lack Any Statutory Authority To Declare A Local Emergency Due To The COVID-19 Pandemic........................11 VI. The Proclamation’s Religious Exemption Provision...........................13 VII. The Proclamation’s Business Enforcement Provision........................13 CONCLUSION...........................................................................13 3 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES CASES Connolly v. Great Basin Insurance Company , 6 Ariz. App. 280, 431 P.2d 921 (1967)...........................................9 Farmers Insurance Group v. Worth Insurance Co. , 8 Ariz. App. 69, 443 P.2d 431 (1968)............................................9 Globe School Dist. No.1 of Globe, Gila County v. Board of Health of City of Globe , 20 Ariz. 208, 218 (1919).......................................................11, 12 Goodyear Farms v. City of Avondale , 148 Ariz. 216, 714 P.2d 386 (1986)...............................................7 Iman v. Southern Pacific Co. , 7 Ariz. App. 16, 435 P.2d 851 (1968).............................................9 Keggi v. Northbrook Property and Cas. Ins. Co. , 199 Ariz. 43, 45 (Ariz. Ct. App. 2000)...........................................9 Kleck v. Wayland , 53 Ariz. 432, 90 P.2d 179 (1939)..................................................9 Lucking v. Schram , 117 F.2d 160, 162 (6 th Cir. 1941).................................................10 Maricopa Realty Trust Co. v. VRD Farms, Inc. , 10 Ariz. App. 524, 460 P.2d 195 (1969)..........................................9 Mathieu v. Mahoney , 174 Ariz. 456 (1993)...............................................................10 Moore v. Bolin , 70 Ariz. 354, 220 P.2d 850 (1950).................................................9 Perini Land and Dev. Co. v. Pima Cnty. , 825 P.2d 1, 4 (Ariz. 1992).........................................................12 Planned Parenthood Center of Tucson, Inc. v. Marks , 17 Ariz. App. 308, 312-13 (Ariz. Ct. App. 1972).............................6, 7 Prutch v. Town of Quartzsite , 296 P.3d 94, 231 Ariz. 431, 655 Ariz. Adv. Rep. 32 (Ariz. Ct. App. 2013)..............................................................10 Riley v. County of Cochise , 10 Ariz. App. 55, 455 P.2d 1005 (1969)..........................................9 Rios v. Symington , 172 Ariz. 3, 833 P.2d 20 (1992)...............................................7, 12 Samaritan Health Services v. City of Glendale, 148 Ariz. 394, 395, 714 P.2d 887, 888 (App.1986).............................9 Sears v. Hull , 192 Ariz. 65, 71 (1998)..............................................................7 State v. B Bar Enterprises , 133 Ariz. 99, 649 P.2d 978 (1982).................................................8 Tucson Unified Sch. Dist. v. Borek ex rel. Cnty. of Pima , 322 P.3d 181, 185 (Ariz. Ct. App. 2014).......................................12 United States v. Clintwood Elkhorn Min. Co. , 553 U.S. 1, 9 (2008)...............................................................10 4 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONSTITUTIONAL PROVISIONS Ariz. Const. Art. 2, § 2.............................................................................5 ARIZONA STATUTES A.R.S. § 12-1832...........................................................................8 A.R.S. § 12-1842...........................................................................8 5 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I NTRODUCTION The Covid-19 pandemic has created and nurtured an “anything goes” attitude by elected officials towards slowing or stopping its spread. This case is about the rule of law and in this case Arizona law is clear: mayors have no authority to declare a local emergency based upon epidemics of disease. Rather, this authority is vested solely in the Arizona governor. Respondents nevertheless now ask this Court to brazenly and irrationally second guess the legislature and to ignore this Court’s own past decisions. Ultimately they ask that this Court disregard the rule of law itself because “this time it’s different!” No, it is not. Neither exigency nor convenience summarily create exceptions to existing laws or constitutional provisions. Arizona is a constitutional republic. It is not a monarchy or a benevolent dictatorship. That Respondents may be motivated by the desire to protect the public is irreverent when the methods used violate the law and ultimately the rights of Arizona citizens. There is no recognized right not to get sick during a pandemic, or even to die from such an illness. There is however a right to be free from unlawful imprisonment by the state. Needless to say that government officials throwing their hands into the air and yelling “safety,” even during a pandemic, still does not grant special dispensation to ignore established law or the purpose of government: "[G]overnments ... are established to protect and maintain individual rights." Ariz. Const. Art. 2, § 2. This case needs its day in court – in this Court. Denying special action jurisdiction here threatens the interests of all Arizonans and calls into serious question the right of Arizonans to be free from arrest and prosecution for the “violation” of executive edicts created without any apparent lawful basis. Accepting special action jurisdiction here is therefore imperative and this Court should do so. 6 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARGUMENT I Petitioner Need Not Establish He Has Suffered A “Distinct And Palpable Injury” From The “Face Covering Requirement” Petitioner has asserted that: 1) a public official has enacted a regulation; 2) carrying a criminal enforcement provision to which Petitioner is subject; 3) in the complete absence of any lawful statutory authority; 4) and which violates Petitioner’s rights under the Arizona Constitution. Notwithstanding that Respondent has not yet been arrested for violation of the Face Covering Requirement he need not wait until such injury occurs before seeking relief in this Court. “To require statutory violation and exposure to grave legal sanctions; to force parties down the prosecution path, in effect compelling them to pull the trigger to discover if the gun is loaded, divests them of the forewarning which the law, through the Uniform Declaratory Judgments Act, has promised.” Planned Parenthood Center of Tucson, Inc. v. Marks , 17 Ariz. App. 308, 312-13 (Ariz. Ct. App. 1972) (“Begrudging availability of the declaratory vehicle is inconsistent with the Act's expressed remedial tenor directed to the elimination of uncertainty and insecurity and the settlement of controversy. Whenever facts are present justifying prosecution, prosecution will serve to test the statute and tell the whole story. A declaratory judgment in such case is ordinarily as superfluous as medicine administered to a corpse. Violation of a criminal statute as a prerequisite to testing its validity invites disorder and chaos and subverts the very ends of law. The court will not indulge in the fomentation of lawlessness.”) (emphasis added). 7 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner has a right to due process under the Arizona Constitution. 1 There can be no due process where persons are subject to arrest for violating an imaginary law: an emergency proclamation issued without any lawful authority. Declaration is proper with reference to a criminal statute. Planned Parenthood Center of Tucson, Inc. at 312 (citing Planned Parenthood Committee v. Maricopa County , 375 P.2d 719 (Ariz. 1962)). II. Petitioner’s Challenge To The Proclamation Raises Issues Of Constitutional And Statewide Public Importance Sufficient For This Court To Waive The Standing Requirement Petitioner again asserts that his standing is implicit under the Declaratory Judgments act. Regardless, even if he lacked standing this case still presents an exceptional circumstance involving issues of great public importance that are likely to recur. Sears v. Hull , 192 Ariz. 65, 71 (1998); see also Rios v. Symington , 172 Ariz. 3, 833 P.2d 20 (1992) (accepting special action jurisdiction notwithstanding the existence of "potential standing issues" where the President of the State Senate brought a special action challenging the constitutionality of the Governor's use of the line item veto); Goodyear Farms v. City of Avondale , 148 Ariz. 216, 714 P.2d 386 (1986) (accepting special action jurisdiction without addressing whether they had standing to challenge the validity of a municipal annexation ordinance because the action required the 1 See Kamen v. Kemper Financial Services , 500 U.S. 90 (1991) (holding that it was immaterial that plaintiff failed to advert to state law until her reply: " [O]nce an issue or claim is properly before a court, the court is not limited to the particular legal theories advanced by the parties but retains the independent power to identify and apply the proper construction of governing law.") (emphasis added); Lebron v. National R.R. Passenger Corp. , 513 U.S. 374 (1995) (holding that it was “proper for this court to consider the argument that Amtrak is part of the Government, even though Lebron disavowed it in both lower courts and did not explicitly raise it until his brief on the merits ... and it was fairly embraced within both the question presented and the argument set forth in the petition.”) 8 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 court to decide whether the Arizona statute governing procedures for municipal annexation violated the equal protection clauses of the federal and state constitutions and where the action directly raised issues of great public importance that were likely to recur); State v. B Bar Enterprises , 133 Ariz. 99, 649 P.2d 978 (1982) (accepting special action jurisdiction where owners of "massage parlors," who apparently lacked standing challenged a public nuisance statute on grounds that the statute both unlawfully infringed their right to sexual privacy and deprived them of procedural and substantive due process and where the challenge not only occurred in conjunction with a constitutional claim properly argued by the appellants, but also required the court to determine the constitutionality of an Arizona statute that had not previously been interpreted). As set forth in Petitioner’s Motion for Judicial Notice, which he incorporates by reference, at least 600,000 Arizonans reside within a political subdivision where “face covering requirements” have been enacted with a criminal enforcement provision. This fact alone presents an issue of such great public importance that this Court should waive standing: the potential arrests of more than a half-million Arizonans , including Petitioner, under mask mandates enacted in the absence of any lawful statutory authority. III. Petitioner Has Standing Under The Declaratory Judgments Act “Any person ... whose rights, status or other legal relations are affected by a statute ... may have determined any question of construction or validity arising under the ... statute ... and obtain a declaration of rights, status or other legal relations thereunder.” A.R.S. § 12-1832 (Power to construe, etc.) “This article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered." A.R.S. § 12-1842 (Construction) 9 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To vest the court with jurisdiction to render a judgment in a declaratory judgment action the complaint must set forth sufficient facts to establish that there is a justiciable controversy. Maricopa Realty Trust Co. v. VRD Farms, Inc. , 10 Ariz. App. 524, 460 P.2d 195 (1969); Connolly v. Great Basin Insurance Company , 6 Ariz. App. 280, 431 P.2d 921 (1967). Under the Declaratory Judgments act (“the Act”) a justiciable controversy exists if 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.” Samaritan Health Services v. City of Glendale , 148 Ariz. 394, 395, 714 P.2d 887, 888 (App.1986) (citation omitted). This case presents facts sufficient to establish a justiciable controversy: Respondents’ mask mandate and their Declaration of Local Emergency are not based on the exercise of a lawful statutory authority. A declaratory judgment must be based on an actual controversy which must be real and not theoretical. Moore v. Bolin , 70 Ariz. 354, 220 P.2d 850 (1950); Kleck v. Wayland , 53 Ariz. 432, 90 P.2d 179 (1939); Riley v. County of Cochise , 10 Ariz. App. 55, 455 P.2d 1005 (1969); Farmers Insurance Group v. Worth Insurance Co. , 8 Ariz. App. 69, 443 P.2d 431 (1968); Iman v. Southern Pacific Co. , 7 Ariz. App. 16, 435 P.2d 851 (1968). This case presents a real controversy: follow an illegal order or face potential arrest and prosecution. Both Arizona law and prior rulings by Arizona appellate courts make clear that the Act is interpreted liberally. Keggi v. Northbrook Property and Cas. Ins. Co. , 199 Ariz. 43, 45 (Ariz. Ct. App. 2000) (citing Planned Parenthood Center of Tucson, Inc. v. Marks , 17 Ariz. App. 308, 310, 497 P.2d 534, 536 (1972)). Its “purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations.” A.R.S. § 12-1842. And whereas A.R.S. § 12-1842 unambiguously states that it is “to be liberally 10 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 construed and administered , ” Respondents here incorrectly, vaguely, and without foundation contend that a narrow interpretation applies instead . 2 To the point: Petitioner has asserted not only that he may be subject to arrest and prosecution for violating the “face covering requirement” of Respondents’ Proclamation but that the Declaration of Local Emergency upon which this requirement exists is itself wholly-unsupported by Arizona law. Respondents assert that this matter is not appropriate for declaratory or special action relief. Petitioner and Arizona law respectfully disagree. So too should this Court. IV. Respondents Have Failed To Construct A Facially-Plausible Argument That The Petition May Be Barred By Laches The doctrine of laches is rooted in the principle that “equity aids the vigilant, not those who slumber on their rights.” Lucking v. Schram , 117 F.2d 160, 162 (6 th Cir. 1941); see also United States v. Clintwood Elkhorn Min. Co. , 553 U.S. 1, 9 (2008) (“A constitutional claim can become time-barred just as any other claim can.”). The defense of laches bars a claim when, under the totality of circumstances the delay in prosecuting the claim “would produce an unjust result.” Prutch v. Town of Quartzsite , 296 P.3d 94, 231 Ariz. 431, 655 Ariz. Adv. Rep. 32 (Ariz. Ct. App. 2013) (citing Harris v. Purcell , 193 Ariz. 409, 410 n. 2, ¶ 2, 973 P.2d 1166, 1167 n. 2 (1998)). A mere delay in pursuing a claim is not enough to establish laches. Mathieu v. Mahoney 174 Ariz. 456 (1993) (“We emphasize that laches may not be imputed to a party for mere delay in the assertion of a claim ... the delay must be unreasonable under the circumstances , including the party's knowledge 2 This is in stark contrast to their argument that this Court should not apply strict construction – the clearly-appropriate standard – to A.R.S. § 26-301. Respondents are perhaps unaware that “opposite day” is not a holiday recognized by the State of Arizona. 11 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of his or her right, and it must be shown that any change in the circumstances caused by the delay has resulted in prejudice to the other party sufficient to justify denial of relief.”) (emphasis added). A defendant therefore must not only prove that a plaintiff’s delay prejudiced the defendant , the court, or the public, but also that the plaintiff acted unreasonably Id. at 459, 461, 851 P.2d at 84, 86. Respondents assert that Petitioner’s claims may be barred by laches and offer in support only that “[Petitioner] waited two hundred-five days to file the petition for special action.” (Resp. at 10, ¶2). Nevertheless, to construct a facially-plausible argument that laches may apply requires that three separate elements be established: 1) that there was a delay; 2) that the delay was unreasonable under the circumstances; and 3) that the change in circumstances caused by the delay has resulted in prejudice sufficient to deny relief. Respondents have argued merely that there was a delay and have not even attempted to argue that any of the other necessary elements exist here. Respondents have failed to construct even a semblance of a facially- plausible laches argument. This reason alone is sufficient to establish that the Court need not, and should not, consider the matter further – it is a one-way dead-end street. V. Arizona Mayors Lack Any Statutory Authority To Declare A Local Emergency Due To The COVID-19 Pandemic Respondents argue, based upon a single opinion of this Court 3 issued more than one-hundred years ago, that this Court should now disregard its own well- established subsequent holdings on statutory construction because “[d]uring a pandemic, the exigencies of the situation call for a liberal construction of the 3 Globe School Dist. No.1 of Globe, Gila County v. Board of Health of City of Globe , 20 Ariz. 208, 218 (1919). 12 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 validity of local governmental action intended to accomplish a public good.” (Resp. at 14, 15). This argument fails for at least two reasons. First, Globe dealt only with the authority of public health boards which unlike mayors are explicitly-granted by Arizona law the powers and duty to protect public health from infectious disease epidemics. The “liberal construction” based on Globe that Respondents now ask the Court to apply here essentially hinged on the meaning of the word “herein.” Globe School District No. 1 v. Board of Health , 20 Ariz. 208, 217 (Ariz. 1919) (“We think the construction contended for by the appellant is too strict; that the word ‘herein,’ as used in paragraph 4385, has reference to chapter 1 of title 41, and must be understood as meaning ‘in this chapter’”) (emphasis added). That this Court in one particular case deferred to a liberal construction during a pandemic is irrelevant. In Globe there was an ambiguity requiring this Court to interpret the statute. Here there is no such confound and the Court therefore need not even consider Globe. Secondly, strict construction of the plain language of A.R.S. § 26-301(10), especially in light of A.R.S. § 26-301(15), is clear: mayors have no authority under Arizona law to declare emergencies based upon disease epidemics. Judicial construction here is therefore neither required nor proper. Perini Land and Dev. Co. v. Pima Cnty. , 825 P.2d 1, 4 (Ariz. 1992). As much as Respondents may wish otherwise this Court is not “at liberty to rewrite [a] statute under the guise of judicial interpretation.” Tucson Unified Sch. Dist. v. Borek ex rel. Cnty. of Pima , 322 P.3d 181, 185 (Ariz. Ct. App. 2014) (citation omitted). Special action jurisdiction is clearly appropriate here. Rios v. Symington , 172 Ariz. at 5, 833 P.2d at 22.3, 5, 833 P.2d 20, 22 (1992) ("In limited 13 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 circumstances, a judicial proceeding by way of special action may be appropriate to test the constitutionality of executive conduct.” ) (emphasis added). VI. The Proclamation’s Religious Exemption Provision Petitioner has erroneously asserted an as-applied constitutionality challenge instead of the correct facial challenge to the religious exemption provision of the Proclamation’s “Face Covering Requirement.” He therefore concedes and hereby waives this particular claim in this case. 4 VII. The Proclamation’s Business Enforcement Provision Petitioner does not offer a Reply on this matter. C ONCLUSION This Petition presents purely legal questions and these questions are ripe for adjudication. There is no issue of fact to decide because the only "facts" relevant to the Petition are the language of the relevant constitutional and statutory provisions. This case moreover presents urgent matters of statewide importance requiring an immediate and final resolution – matters appropriate for special action jurisdiction. This Court should therefore accept original jurisdiction and grant declaratory, and special action relief, to end Respondents’ ongoing unlawful acts. 4 Regardless, this claim is mooted when this court correctly finds that Respondents had no lawful statutory authority to declare a local emergency in the first place. Petitioner’s waiver on this issue substantively changes nothing as to his other claims. 14 Petitioner’s Reply To Respondents Paul Deasy And City Of Flagstaff’s Response To Petition For Special Action 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D ated: February 10 , 2021 Respectfully Submitted, /s/ Joseph M. McGhee Joseph Martin McGhee Respondent, in Pro Per CERTIFICATE OF COMPLIANCE Petitioner, p ursuant to Rule 7(e), Ariz.R.P.Spec.Act., certifies that this Reply uses proportionate typeface of 14 points or more, is double spaced, using a times new roman font, and does not exceed 5 , 250 words. /s/ Joseph M. McGhee Joseph Martin McGhee Respondent, in Pro Per