Reply to Deasy/Flagstaff’s Response to Petition for Special Action - Joseph McGhee

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