1 Petitioner’s Reply To Governor Ducey’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. CV-21-0002-SA PETITIONER’S REPLY TO GOVERNOR DUCEY’S RESPONSE TO PETITION FOR SPECIAL ACTION 2 Petitioner’s Reply To Governor Ducey’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......................................................................... 4 ARGUMENT .............................................................................. 5 I. The Equal Privileges And Immunities And Local Or Special Laws Clauses Of The Arizona Constitution As They Pertain To The Petition......................................................5 II. Petitioner’s Claims As To The “Face Covering Requirement’s” Criminal Enforcement Provision Present A Justiciable Matter Of Statewide Importance..................................5 III. Executive Order 2020-40 As It Pertains To The Petition......................6 CONCLUSION.............................................................................6 3 Petitioner’s Reply To Governor Ducey’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 Arizona Indep. Redistricting Comm'n v. Brewer , 229 Ariz. 347, 275 P. 3d 1267 (2012).......................................... ... 4 Fraternal Order of Police v. Phoenix Employee rel , 133 Ariz. 126, 127 (Ariz. 1982)...................................................6 Sears v. Hull , 192 Ariz. 65, 69 (Ariz. 1998).......................................................4 State Ex Rel. Romley v. Martin, 49 P.3d 1142 (Ariz. Ct. App. 2002)...............................................5 State v. Nichols, 224 Ariz. 569, 572 (Ariz. Ct. App. 2010)........................................4 4 Petitioner’s Reply To Governor Ducey’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 There can be no doubt that the ongoing Covid-19 pandemic presents an exceptional circumstance. There can likewise be no doubt that the potential arrest and prosecution of Arizonans for violating a city’s proclamation, enacted without any lawful authority, is an issue of great public importance. This case raises fundamental questions of statutory construction and of the constitutionality of government action and presents a justiciable claim for relief in this Court. It does not present a mere allegation of “generalized harm.” Sears v. Hull , 192 Ariz. 65, 69 (Ariz. 1998) (“An allegation of generalized harm that is shared alike by all or a large class of citizens generally is not sufficient to confer standing”). Rather, the harm alleged is specific and manifest: follow an unlawful order or face the possibility of incarceration. And notwithstanding that an individual found in violation of a “face covering requirement” carrying a criminal enforcement provision “shall be ... given an opportunity to comply prior to any enforcement action being taken,” compliance nevertheless requires one to defer to an order issued without lawful authority or face arrest and prosecution. That police are instructed to first seek voluntary compliance before making such an arrest is immaterial; there can be no due process afforded when an arrest is made based upon the imaginary violation of a proclamation that was issued without any lawful authority. Presented here is a pure question of law: whether political subdivisions have any authority under Arizona law to declare local emergencies based upon disease epidemics. See State v. Nichols, 224 Ariz. 569, 572 (Ariz. Ct. App. 2010) (“The proper interpretation of constitutional language presents a question of law this court reviews de novo.”) (citations omitted). This is a question that “requires an immediate and final resolution.” See Ariz. Indep. Redistricting 5 Petitioner’s Reply To Governor Ducey’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 Comm’n v. Brewer , 229 Ariz. 347, 351 ¶ 14, 275 P.3d 1267, 1271 (2012) (exercising its “discretion to accept special action jurisdiction because the legal issues raised required prompt resolution”). Accepting special action jurisdiction by this Court here is the only reasonable manner now in which to determine this case. ARGUMENT I The Equal Privileges And Immunities And Local Or Special Laws Clauses Of The Arizona Constitution As They Pertain To The Petition Petitioner concedes that Governor Ducey has correctly asserted that Petitioner’s claims under Art. 2, § 13 – Equal Privileges and Immunities, and Art. 4, Part 2, § 19 – Local or Special Laws, present issues of material fact. Petitioner therefore waives these claims as to his Petition. II. Petitioner’s Claims As To The “Face Covering Requirement’s” Criminal Enforcement Provision Present A Justiciable Matter Of Statewide Importance This is not a “local issue” as Governor Ducey incorrectly contends. (Ducey Resp. at 8 1). Petitioner has alleged that he, like hundreds of thousands of ⁋ other Arizonans, is subject to arrest for the violation of “face covering requirements” 1 which lack any explicitly-defined expiration date. Special action jurisdiction is appropriately invoked, as in here, when there is an issue of statewide importance. See State ex rel. Romley v. Martin , 203 Ariz. 46, 47, ¶ 4, 49 P.3d 1142, 1143 (App. 2002) (“Special action jurisdiction is appropriate in matters of statewide importance, issues of first impression, cases involving purely legal questions, or issues that are likely to arise again.”) 2 1 As set forth in Petitioner’s Motion for Judicial Notice filed on February 7, 2021, more than a half-million Arizonans reside in cities that have enacted “face covering requirements” containing a criminal enforcement provision, including cities in Maricopa County. 2 Affirmed on other grounds, 205 Ariz. 279, 69 P.3d 1000 (2003). 6 Petitioner’s Reply To Governor Ducey’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 This case moreover does not present an “abstract question” – its controversy is concrete. Even if it did however the issues presented here nevertheless warrant consideration by this Court because they are of great public importance and likely to recur. 3 Fraternal Order of Police v. Phoenix Employee rel , 133 Ariz. 126, 127 (Ariz. 1982) ("[O]ur Court has consistently held that it will refrain from considering moot or abstract questions. We will make an exception, however, to consider a question of great public importance or one which is likely to recur even though the question is presented in a moot case.") (citations omitted). Accepting special action jurisdiction here by this Court is the proper manner in which to determine this case. III. Executive Order 2020-40 As It Pertains To The Petition Petitioner concedes that Governor Ducey has correctly asserted that Petitioner’s claim as to Executive Order 2020-40 seeks an impermissible advisory opinion by this Court. Petitioner therefore waives this claim as to his Petition. C ONCLUSION The Petition for special action raises purely legal issues of immediate statewide importance affecting hundreds of thousands of Arizonans; issues that that are likely to recur and which hinge upon the proper interpretation of constitutional language. Petitioner therefore respectfully asks this Court exercise its discretion here and accept special action jurisdiction. 3 One would be hard-pressed to reasonably assert that the Covid-19 pandemic will be the last time ever that any political subdivision in Arizona seeks to proclaim a local emergency based upon the existence of a disease epidemic. 7 Petitioner’s Reply To Governor Ducey’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 14 , 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