Reply to Govenor Ducey’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 [email protected] Petitioner, in Pro Per 4 5 6 IN THE SUPREME COURT 7 STATE OF ARIZONA 8 JOSEPH MARTIN MCGHEE, No. CV-21-0002-SA 9 Petitioner, 10 v. 11 PAUL DEASY, in his official capacity PETITIONER’S REPLY TO as Mayor of the City of Flagstaff; THE GOVERNOR DUCEY’S 12 CITY OF FLAGSTAFF, RESPONSE TO PETITION FOR SPECIAL ACTION 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 Governor Ducey’s Response To Petition For Special Action 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES……………………………………………………3 3 INTRODUCTION………………………………………...……….……………4 4 ARGUMENT……………………………………………………………………5 5 I. The Equal Privileges And Immunities And Local Or Special Laws Clauses Of The Arizona Constitution As 6 They Pertain To The Petition………………………………………………5 7 II. Petitioner’s Claims As To The “Face Covering Requirement’s” Criminal Enforcement Provision Present 8 A Justiciable Matter Of Statewide Importance………………………….…5 9 III. Executive Order 2020-40 As It Pertains To The Petition………………….6 10 CONCLUSION……………………………………………………………..…...6 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Petitioner’s Reply To Governor Ducey’s Response To Petition For Special Action TABLE OF AUTHORITIES 1 2 CASES 3 Arizona Indep. Redistricting Comm'n v. Brewer, 229 Ariz. 347, 275 P. 3d 1267 (2012)……………………………………...4 4 Fraternal Order of Police v. Phoenix Employee rel, 133 Ariz. 126, 127 (Ariz. 1982)……………………………………………6 5 Sears v. Hull, 192 Ariz. 65, 69 (Ariz. 1998)……………………………………………....4 6 State Ex Rel. Romley v. Martin, 49 P.3d 1142 (Ariz. Ct. App. 2002)………………………………………..5 7 State v. Nichols, 224 Ariz. 569, 572 (Ariz. Ct. App. 2010)……………………………….…4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Petitioner’s Reply To Governor Ducey’s Response To Petition For Special Action 1 INTRODUCTION 2 There can be no doubt that the ongoing Covid-19 pandemic presents an 3 exceptional circumstance. There can likewise be no doubt that the potential 4 arrest and prosecution of Arizonans for violating a city’s proclamation, enacted 5 without any lawful authority, is an issue of great public importance. 6 This case raises fundamental questions of statutory construction and of the 7 constitutionality of government action and presents a justiciable claim for relief 8 in this Court. It does not present a mere allegation of “generalized harm.” Sears 9 v. Hull, 192 Ariz. 65, 69 (Ariz. 1998) (“An allegation of generalized harm that is 10 shared alike by all or a large class of citizens generally is not sufficient to confer 11 standing”). Rather, the harm alleged is specific and manifest: follow an unlawful 12 order or face the possibility of incarceration. And notwithstanding that an 13 individual found in violation of a “face covering requirement” carrying a 14 criminal enforcement provision “shall be … given an opportunity to comply 15 prior to any enforcement action being taken,” compliance nevertheless requires 16 one to defer to an order issued without lawful authority or face arrest and 17 prosecution. That police are instructed to first seek voluntary compliance before 18 making such an arrest is immaterial; there can be no due process afforded when 19 an arrest is made based upon the imaginary violation of a proclamation that was 20 issued without any lawful authority. 21 Presented here is a pure question of law: whether political subdivisions 22 have any authority under Arizona law to declare local emergencies based upon 23 disease epidemics. See State v. Nichols, 224 Ariz. 569, 572 (Ariz. Ct. App. 24 2010) (“The proper interpretation of constitutional language presents a question 25 of law this court reviews de novo.”) (citations omitted). This is a question that 26 “requires an immediate and final resolution.” See Ariz. Indep. Redistricting 27 28 4 Petitioner’s Reply To Governor Ducey’s Response To Petition For Special Action 1 Comm’n v. Brewer, 229 Ariz. 347, 351 ¶ 14, 275 P.3d 1267, 1271 (2012) 2 (exercising its “discretion to accept special action jurisdiction because the legal 3 issues raised required prompt resolution”). 4 Accepting special action jurisdiction by this Court here is the only 5 reasonable manner now in which to determine this case. 6 ARGUMENT 7 I. The Equal Privileges And Immunities And Local Or Special Laws 8 Clauses Of The Arizona Constitution As They Pertain To The Petition 9 Petitioner concedes that Governor Ducey has correctly asserted that 10 Petitioner’s claims under Art. 2, § 13 – Equal Privileges and Immunities, and 11 Art. 4, Part 2, § 19 – Local or Special Laws, present issues of material fact. 12 Petitioner therefore waives these claims as to his Petition. 13 II. Petitioner’s Claims As To The “Face Covering Requirement’s” Criminal Enforcement Provision Present A Justiciable Matter Of Statewide 14 Importance 15 This is not a “local issue” as Governor Ducey incorrectly contends. (Ducey 16 Resp. at 8 ⁋ 1). Petitioner has alleged that he, like hundreds of thousands of 17 other Arizonans, is subject to arrest for the violation of “face covering 18 requirements”1 which lack any explicitly-defined expiration date. Special action 19 jurisdiction is appropriately invoked, as in here, when there is an issue of 20 statewide importance. See State ex rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4, 21 49 P.3d 1142, 1143 (App. 2002) (“Special action jurisdiction is appropriate in 22 matters of statewide importance, issues of first impression, cases involving 23 purely legal questions, or issues that are likely to arise again.”)2 24 1 As set forth in Petitioner’s Motion for Judicial Notice filed on 25 February 7, 2021, more than a half-million Arizonans reside in cities that have enacted “face covering requirements” containing a criminal 26 enforcement provision, including cities in Maricopa County. 2 Affirmed on other grounds, 205 Ariz. 279, 69 P.3d 1000 (2003). 27 28 5 Petitioner’s Reply To Governor Ducey’s Response To Petition For Special Action 1 This case moreover does not present an “abstract question” – its 2 controversy is concrete. Even if it did however the issues presented here 3 nevertheless warrant consideration by this Court because they are of great public 4 importance and likely to recur.3 Fraternal Order of Police v. Phoenix Employee 5 rel, 133 Ariz. 126, 127 (Ariz. 1982) ("[O]ur Court has consistently held that it 6 will refrain from considering moot or abstract questions. We will make an 7 exception, however, to consider a question of great public importance or one 8 which is likely to recur even though the question is presented in a moot case.") 9 (citations omitted). 10 Accepting special action jurisdiction here by this Court is the proper 11 manner in which to determine this case. 12 III. Executive Order 2020-40 As It Pertains To The Petition 13 Petitioner concedes that Governor Ducey has correctly asserted that 14 Petitioner’s claim as to Executive Order 2020-40 seeks an impermissible 15 advisory opinion by this Court. Petitioner therefore waives this claim as to his 16 Petition. 17 CONCLUSION 18 The Petition for special action raises purely legal issues of immediate 19 statewide importance affecting hundreds of thousands of Arizonans; issues that 20 that are likely to recur and which hinge upon the proper interpretation of 21 constitutional language. 22 Petitioner therefore respectfully asks this Court exercise its discretion here 23 and accept special action jurisdiction. 24 25 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 26 Arizona seeks to proclaim a local emergency based upon the existence of a disease epidemic. 27 28 6 Petitioner’s Reply To Governor Ducey’s Response To Petition For Special Action 1 Dated: February 14, 2021 2 3 Respectfully Submitted, 4 /s/ Joseph M. McGhee Joseph Martin McGhee 5 Respondent, in Pro Per 6 7 8 CERTIFICATE OF COMPLIANCE 9 Petitioner, pursuant to Rule 7(e), Ariz.R.P.Spec.Act., certifies that this 10 Reply uses proportionate typeface of 14 points or more, is double spaced, using 11 a times new roman font, and does not exceed 5,250 words. 12 /s/ Joseph M. McGhee 13 Joseph Martin McGhee Respondent, in Pro Per 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Petitioner’s Reply To Governor Ducey’s Response To Petition For Special Action