SUPREME COURT STATE OF ARIZONA JOESPH MARTIN MCGHEE, No. CV-21-0002-SA Petitioner, v. PAUL DEASY, in his official capacity as Mayor of the City of Flagstaff; THE CITY OF FLAGSTAFF, Respondents, DOUGLAS A. DUCEY, in his official capacity as the Governor of the State of Arizona, Real Party in Interest. RESPONSE TO PETITION FOR SPECIAL ACTION Brett W. Johnson (#021527) Anni L. Foster (#023643) Colin P. Ahler (#023879) General Counsel Tracy A. Olson (#034616) Office of Arizona Governor Ian R. Joyce (#035806) Douglas A. Ducey SNELL & WILMER L.L.P. 1700 West Washington Street One Arizona Center Phoenix, Arizona 85007 400 E. Van Buren, Suite 1900 Telephone: 602-542-4331 Phoenix, Arizona 85004-2202 E-Mail: afoster@az.gov Telephone: 602.382.6000 E-Mail: bwjohnson@swlaw.com Attorneys for Real Party in cahler@swlaw.com Interest Douglas A. Ducey, tolson@swlaw.com Governor of the State of Arizona ijoyce@swlaw.com TABLE OF CONTENTS I. INTRODUCTION ..................................................................................................1 II. JURISDICTIONAL STATEMENT......................................................................2 III. STATEMENT OF THE ISSUES ........................................................................9 IV. STATEMENT OF MATERIAL FACTS ............................................................9 V. STANDARD OF REVIEW ................................................................................12 VI. ARGUMENT .....................................................................................................12 VII. CONCLUSION ................................................................................................14 -i- TABLE OF AUTHORITIES Page(s) Cases Aguila v. Ducey, CV2020-010282 (Ariz. Super. Ct. Sept. 8, 2020) .................................................5 Aguila v. Ducey., CV2020-010282 (Ariz. Super. Ct. Nov. 4, 2020) ..................................................6 Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550 (1981) ..............................................................................................6 Ariz. Multihousing Assoc. v. Fritz, No. CV-20-0228-SA (Ariz. Oct. 7, 2020) .................................................... 2, 3, 5 Beaver v. Ducey, No. CV-20-0190-SA (Ariz. Aug. 25, 2020) ............................................. 2, 3, 5, 6 Bennett v. Brownlow, 211 Ariz. 193 (2005) ............................................................................................13 Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269 (2019) ............................................................................................13 Giss v. Jordan, 82 Ariz. 152 (1957) ..............................................................................................12 Gregory Real Estate and Management LLC v. Keegan, CV2020-007629 (Ariz. Super. Ct. July 22, 2020) .................................................5 Haag v. Steinle, 227 Ariz. 212 (App. 2011) .....................................................................................2 McGhee v. Flagstaff, No. CV-20-08081-PCT-GMS, 2020 WL 2308479 (D. Ariz. May 8, 2020) .....4, 9 Mountainside Fitness Acquisitions LLC v. Ducey, CV2020-093916, 2020 WL 4218218 (Sup. Ct. July 6, 2020) ...............................5 Pima County v. Pima Cnty. Law Enforcement Merit Sys. Council, 211 Ariz. 224 (2005) ............................................................................................12 State Comp. Fund v. Symington, 174 Ariz. 188 (1993) ..............................................................................................6 Statutes A.R.S. § 26-303................................................................................................... 7, 14 A.R.S. § 26-307(A) .......................................................................................... passim A.R.S. § 36-787................................................................................................. 13, 14 - ii - Rules Ariz. R. Civ. P. 65 ......................................................................................................4 Ariz. R.P. Spec. Actions 3 .........................................................................................3 Ariz. R.P. Spec. Actions 7 .....................................................................................3, 5 Constitutional Provisions Ariz. Const. Art. 2, § 13 .............................................................................................6 Ariz. Const. Art. 4, pt. 2, § 19 ....................................................................................6 - iii - I. INTRODUCTION The Petition for Special Action challenges the validity of an emergency proclamation issued by the Flagstaff City Mayor that, among other things, incorporates face covering requirements within the Flagstaff city limits due to the COVID-19 pandemic. The Petition’s only reason for naming Governor Douglas A. Ducey as a real-party-in-interest is an assertion that he somehow “delegated” authority to local governments to adopt face covering requirements. But, that is not correct. The reality is that nothing in Executive Order (“EO”) 2020-40, or any other order issued by Governor Ducey in response to the undisputed emergency that is COVID-19, ever included such a delegation of emergency power. The Petition thus seeks an improper advisory opinion as to purely hypothetical events. So what did EO 2020-40 do? In short, it clarified that the State was not preempting local governments from adopting local face covering policies. This was necessary because A.R.S. § 26-307(A) prohibits local governments from taking action that is inconsistent with the Governor’s actions during a state of emergency. The clarification in EO 2020-40 did not transfer any emergency power from the Governor to local governments that they did not already have, and it did not require any local government to adopt face covering policies. Because the Petition ascribes a meaning to EO 2020-40 that finds no support -1- in the EO’s actual text, there is no justiciable controversy involving Governor Ducey, and the Petition had no legitimate reason for naming him in this matter. To the contrary, these preliminary issues show why challenges to Governor Ducey’s emergency orders should first be addressed by a trial court to make initial factual findings and legal conclusions. On two occasions, this Court has required petitioners challenging COVID-19-related orders to first seek relief in the lower courts. See Ariz. Multihousing Assoc. v. Fritz, No. CV-20-0228-SA (Ariz. Oct. 7, 2020) (order) (APP’X 0004-0006); Beaver v. Ducey, No. CV-20-0190-SA (Ariz. Aug. 25, 2020) (order) (APP’X 0008-0009). The Court should reach the same determination here because Petitioner’s claims raise issues specific to Flagstaff’s emergency proclamation that would benefit from factual development and initial review by a trial court. Accordingly, Governor Ducey respectfully requests that this Court decline to accept jurisdiction, or in the alternative, determine that Petitioner’s challenges to EO 2020-40 are not justiciable. II. JURISDICTIONAL STATEMENT “A special action petition seeks extraordinary relief that is usually granted only where justice cannot be satisfactorily obtained by other means.” Haag v. Steinle, 227 Ariz. 212, 213-24 ¶ 4 (App. 2011). The petitioner bears “the burden of -2- persuasion” to establish the “discretionary factors” supporting the acceptance of special action jurisdiction. Ariz. R.P. Spec. Actions 3, State Bar Comm. Note. Further, where a special action “might lawfully have been initiated in a lower court in the first instance,” the petitioner must “set forth the circumstances which in the opinion of the petitioner render it proper that the petition should be brought in the particular appellate court to which it is presented.” Ariz. R.P. Spec. Actions 7(b). In Arizona Multihousing and Beaver, this Court cited Rule 7(b) as grounds for declining special action jurisdiction over petitions challenging COVID-19-related orders because those petitioners failed to “provide a compelling reason as to why this matter could not be initiated in a lower court where a factual record could be developed.” Ariz. Multihousing Assoc., No. CV-20-0228-SA, at *2; Beaver, No. CV- 20-0190-SA, at *1 (similar). The Petition here suffers from the same defect. Although it is primarily focused on the actions of one city, the Petition argues that a need for a prompt decision justifies leapfrogging the lower courts. See Pet. at 8, 10. However, this Court heard the same arguments in Arizona Multihousing and Beaver and did not find them a compelling reason to accept jurisdiction. See APP’X 0015 (arguing that special action jurisdiction was necessary because “traditional appellate avenues fail to afford prompt and immediate redress”); APP’X 0022-0023 (raising similar concerns due to the “cost and delay” of appellate procedures). -3- Moreover, the Petition does not even attempt to explain why the Petitioner could not have proceeded through the lower courts in the more than seven months that EO 2020-40 and the City of Flagstaff’s face covering policies have been in place. But, even if there was some reason for this delay, nothing prevents Petitioner from filing this case in a lower court now and seeking expedited consideration and relief. See Ariz. R. Civ. P. 65. Petitioner’s own litigation history demonstrates the availability of expedited consideration in matters challenging COVID-19-related orders. Last March, Petitioner filed suit against Governor Ducey, the City of Flagstaff, and the Flagstaff City Mayor in superior court in Coconino County, raising similar challenges to emergency proclamations and related orders. See APP’X0027-0059. The superior court rejected Petitioner’s motion for a temporary restraining order without notice within one day of receiving that motion. APP’X 0061-0064. Then, after removal to federal court, Petitioner separately moved for a preliminary injunction against EO 2020-33, under which Governor Ducey implemented a temporary stay-at-home policy. In just eight days, the federal district court held a hearing and ruled on Petitioner’s motion, denying it in full. 1 McGhee v. Flagstaff, No. CV-20-08081- PCT-GMS, 2020 WL 2308479, at *2 (D. Ariz. May 8, 2020). 1 Shortly after this motion was denied, Petitioner voluntarily dismissed that case. -4- As this and other COVID-19 related cases show, Petitioner could have already been through preliminary trial court proceedings and established a record for appellate court review by the time briefing is complete in this matter. See Aguila v. Ducey, CV2020-010282, at *1-2, *17-18 (Ariz. Super. Ct. Sept. 8, 2020) (ruling) (rejecting motion for a temporary restraining order 14 days after plaintiff filed challenge to certain executive orders) (APP’X 0066-0079); Gregory Real Estate and Management LLC v. Keegan, CV2020-007629, at *1 (Ariz. Super. Ct. July 22, 2020) (under advisement ruling) (entering judgment 14 days after plaintiff filed challenge to EO 2020-14) (APP’X 0086-0096); Mountainside Fitness Acquisitions LLC v. Ducey, CV2020-093916, 2020 WL 4218218 at *1, 12 (Ariz. Super. Ct. July 6, 2020) (deciding motion for temporary restraining order within seven days of filing) (APP’X 0098-0110). 2 By itself, Petitioner’s ability to initiate this case in a lower court and seek expedited consideration supports the denial of special action jurisdiction. See Arizona Multihousing Assoc., No. CV-20-0228-SA at *2; Beaver, No. CV-20-0190- SA at *1; see also Ariz. R.P. Spec. Actions 7(b). However, even if this Court were to consider Petitioner’s other jurisdictional arguments, those arguments do not warrant the exercise of jurisdiction by this Court either. 2 See also APP’X 0081-0084, 0112-0113. -5- 1. Petitioner is wrong that this case raises purely legal questions. Several issues raised in the Petition would benefit from factual development. For example, Petitioner asserts that Flagstaff has violated the Privileges and Immunities Clause (Ariz. Const. Art. 2, § 13). Pet. at 13-14, 20-22. In Beaver, this Court explained that it is “unable to consider” such a claim without a factual record. See Beaver, No. CV- 20-0190-SA at *1; see also Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 555 (1981) (explaining that an equal protection claim under the Privileges and Immunities Clause requires a court to evaluate the connection between the challenged law and a legitimate government purpose). Additionally, Petitioner contends that Flagstaff’s face covering restrictions are unconstitutional local or special laws, see Pet. at 14-15, 20-22, a claim which requires an assessment of whether the law “applies only to certain members of a class or to an arbitrarily defined class which is not rationally related to a legitimate legislative purpose.” State Comp. Fund v. Symington, 174 Ariz. 188, 192 (1993) (emphasis added) (quoting Ariz. Downs, 130 Ariz. at 557). These are factual issues and should be treated as such. 3 3 As discussed throughout this Response, Petitioner’s claim that the Governor had no statutory authority to issue EO 2020-40 is not properly before this Court—and thus does not raise any ripe issue of statewide concern—given that the Petitioner has misinterpreted the order, which did not implement a statewide face covering policy or delegate any similar authority to local governments. But, even assuming this issue was justiciable, trial courts have relied on evidence to decide issues concerning the scope of the Governor’s emergency authority. See Aguila v. Ducey, No. CV 2020- 010282, at *13 (Ariz. Super. Ct. Nov. 4, 2020) (ruling) (concluding that the Governor had statutory authority to issue EO 2020-43 when “[t]he evidence and -6- 2. The cost of proceeding below is not a reason for proceeding directly to this Court. The same argument was made, unsuccessfully, in Beaver. See APP’X 0022-0023. If saving money in the lower courts warranted the exercise of special action jurisdiction by this Court, every single case would qualify. 3. Petitioner ignores the Flagstaff-specific issues raised by his Petition. In arguing that the Petition raises issues of statewide concern, the Petitioner states, without any supporting citation, that Flagstaff’s face covering policy is “substantially the same” as other local policies across the state. Pet. at 10. This is not accurate. Some cities, like Kingman, do not currently have face covering policies in effect. See APP’X 0140 (rescinding prior policy regarding face coverings). Moreover, while Flagstaff requires private businesses to enforce its face covering restrictions, Pet. at 12-13, other cities, including very large ones like Phoenix and Tucson, have not imposed any similar requirement on private businesses. See APP’X 0147 (permitting businesses to “refuse service for failure to comply” with the face covering mandate, but not requiring businesses to do so); APP’X 0188-0189 (“establishments that are open to the public . . . may refuse to allow a person . . . who is not wearing a face covering to enter the establishment . . .”) (emphasis added). testimony persuasively established that” its provisions “continue to be necessary mitigation activities”) (APP’X 0115-0132); see also A.R.S. § 26-303(E)(1) (giving the Governor “the right to exercise . . . all police power vested in the state . . . in order to effectuate the purposes of” Title 26, Chapter 2). -7- This is an important distinction given that the Petition spends several pages arguing that the private business enforcement mechanism within the Flagstaff proclamation is unconstitutional and outside the City’s statutory authority. See Pet. at 15-22. These local variations are further reason why Petitioner should have initiated this case in superior court in Coconino County, which is best equipped to address these sorts of local issues in the first instance. In addition to addressing Flagstaff- specific issues, that court can also provide an initial decision on any claims that may have broader application, such as the dubious argument that local governments have no authority to proclaim a local emergency due to a worldwide pandemic such as COVID-19. But, because at least some of the issues raised by the Petition do not have any obvious statewide application, Petitioner has an even weaker jurisdictional argument than the petitioners in Arizona Multihousing and Beaver, which solely challenged statewide orders. APP’X 0023-0024 (challenging EO 2020-43 which, among other things, temporarily paused in-person operations at bars); APP’X 0012 (challenging EO 2020-49, an expired order that directed law enforcement officers to not enforce writs of restitution in residential eviction proceedings). For all these reasons, the Court should decline to accept jurisdiction of this special action. -8- III. STATEMENT OF THE ISSUES A. Whether this Court’s exercise of special action jurisdiction is appropriate when this action primarily challenges a city proclamation, could have been initiated in a lower court, and would benefit from robust factual development. B. Whether Petitioner’s challenge to EO 2020-40 seeks an impermissible advisory opinion when the order does not implement a statewide face covering mandate or “delegate” to local authorities the power to issue face covering policies. IV. STATEMENT OF MATERIAL FACTS As of February 3, 2021, there have been 767,379 COVID-19 cases in Arizona and 13,576 deaths. APP’X 0150. The virus “is primarily spread from person to person such that a person can become infected by coming into close contact (within 6 feet) with a person who has COVID-19. “The CDC has also reported that a person may be infected with COVID-19 but not show any symptoms.” McGhee, 2020 WL 2308479, at *1 (D. Ariz. May 8, 2020) (taking judicial notice of COVID-19 data and reported characteristics). Because of the undisputable threat that COVID-19 presents, Governor Ducey issued a Declaration of Emergency for Arizona on March 11, 2020. APP’X 0152- 0154. Since that Declaration, Governor Ducey has issued a number of orders aimed -9- at reducing the spread of the virus and mitigating the associated impact on Arizona’s healthcare system as well as secondary economic impacts. On March 30, 2020, for instance, Governor Ducey issued EO 2020-18, which directed that “all individuals in the State of Arizona shall limit their time away from their place of residence or property,” with various exceptions for essential functions, activities, and businesses. APP’X 0157-0158. On April 29, 2020, Governor Ducey modified this stay-at-home policy through the issuance of EO 2020-33. APP’X 0162-0167. On May 12, after citing the “continued progress in mitigating and limiting the spread of COVID-19 and sustaining adequate hospital capacity,” Governor Ducey rescinded EOs 2020-18 and 2020-33 through EO 2020-36. APP’X 0169-0170. EO 2020-36 also directed that “[a]ll individuals . . . when in public areas, should maximize physical distance. . .” and required businesses to implement protocols to slow the spread of COVID-19. APP’X 0171. Of relevance here, EO 2020-36 also stated: “Pursuant to A.R.S. § 26-307, no county, city or town may make or issue any order, rule or regulation that conflicts with or is in addition to the policy, directives or intent of this Executive Order . . . ” Id. On June 17, Governor Ducey issued EO 2020-40. The recitals to this order explained, among other things, that Arizona had seen an increase in COVID-19 cases and hospitalizations and that a recent study had “demonstrated the effectiveness of - 10 - face coverings in preventing the transmission of COVID-19.” APP’X 0174. The order then stated: “[n]otwithstanding directives in Executive Order 2020-36 . . . regarding A.R.S. § 26-307, a county, city or town may, based on conditions in its jurisdiction, adopt policies regarding the wearing of face coverings in public for the purpose of mitigating the spread of COVID-19.” APP’X 0176. The EO also provided that all local mask policies should “focus first on educating and working to promote best practices to accomplish . . . mitigation.” Id. Thus, any individual found in violation of a local mask requirement “shall be . . . given an opportunity to comply prior to any enforcement action being taken.” Id. 4 Three days later, on June 20, Flagstaff Mayor Coral Evans updated her previous emergency proclamation regarding COVID-19 to include a requirement that individuals wear a face covering when in public places, subject to certain exceptions (such as for religious beliefs). APP’X 0178-0181. The updated proclamation also stated that “[p]rivate businesses and venues shall enforce this proclamation by asking any person failing to comply with the emergency proclamation to leave their premises.” APP’X 0181. Several months later, the Petition was filed. 4 EO 2020-40 also contained other provisions designed to respond to and mitigate the spread of COVID-19 that are not challenged by the Petition. Specifically, the order required ADHS to implement a contact tracing system, vested the Adjutant General with authority to utilize the Arizona National Guard to assist with contract tracing efforts, and ordered businesses to develop policies “to limit and mitigate the spread of COVID-19.” APP’X 0175. - 11 - V. STANDARD OF REVIEW This court reviews questions of law, including statutory interpretation questions, de novo. Pima County v. Pima Cnty. Law Enforcement Merit Sys. Council, 211 Ariz. 224, 227 ¶ 13 (2005). “Generally, every legislative act is presumed to be constitutional and every intendment must be indulged in by the courts in favor of validity of such an act.” Giss v. Jordan, 82 Ariz. 152, 159 (1957). VI. ARGUMENT For the most part, the Petition raises constitutional and statutory challenges to the Flagstaff City Mayor’s emergency proclamation, including the face covering restrictions within that updated proclamation. Because these arguments are not directed towards Governor Ducey, he will not address them. At the very end of the Petition, however, the Petitioner seemingly asks for a declaration that the Governor has no statutory authority to issue a statewide face covering mandate and, thus, has no power to “delegate” the authority to local governments to issue such mandates within their own jurisdictions. See Pet. at 27- 30. Petitioner does not actually identify any statewide face covering mandate—none exists. Instead, Petitioner expresses uncertainty on whether the Governor has delegated authority to local governments regarding face covering policies, arguing - 12 - that “to the extent that [EO] 2020-40 purports to delegate this wholly-imaginary authority to municipalities,” it is void. Pet. at 29 (emphasis added). Petitioner’s hypothetical musings merit no consideration because EO 2020- 40 does not delegate such authority to local governments. The order instead explained that if a local government elected to implement a face covering policy, such a policy would not conflict with Governor Ducey’s orders and, therefore, would not run afoul of A.R.S. § 26-307(A). APP’X 0176. 5 Because EO 2020-40 is not a statewide mask mandate or a “delegation” of authority to local governments, Petitioner seeks to have this Court opine on the validity of an emergency order that does not exist. “[C]onsistent with notions of judicial restraint,” however, this Court “refrain[s] from issuing advisory opinions.” Bennett v. Brownlow, 211 Ariz. 193, 196 ¶ 16 (2005). This ensures that the Court will not render a “decision on an issue that may never arise.” Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 280 ¶ 36 (2019). The Court should likewise decline to issue an advisory opinion here. 6 Even if the Court accepts jurisdiction, any claims against the Governor should be rejected as non-justiciable. 5 Similarly, EO 2020-40’s guidance to municipalities regarding the enforcement of face covering restrictions did not delegate authority from Governor Ducey to local governments, but instead informed these governments on how to remain compliant with A.R.S. § 26-307(A). 6 Because Petitioner misconstrues EO 2020-40, he does not challenge that the Governor has statutory authority to do what is actually within that order. Any such challenge would fail. Separate and apart from the powers delineated in A.R.S. § 36- 787, during a state of emergency, the Governor has “the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of - 13 - VII. CONCLUSION For the foregoing reasons, the Court should deny jurisdiction or, alternatively, should deny relief to the Petitioner. this state in order to effectuate the purposes of [Title 26,] chapter [2].” A.R.S. § 26- 303(E)(1). The Governor acted within this authority in instructing local governments how to remain compliant with A.R.S. § 26-307(A). Further, even assuming that A.R.S. § 36-787 required the Governor to consult with the Arizona Department of Health Services before issuing EO 2020-40, that order expressly states that such a consultation did, in fact, take place. APP’X 0175. - 14 - RESPECTFULLY SUBMITTED this 3rd day of February, 2021. SNELL & WILMER L.L.P. By /s/ Brett W. Johnson Brett W. Johnson Colin P. Ahler Tracy A. Olson Ian R. Joyce One Arizona Center 400 E. Van Buren, Suite 1900 Phoenix, Arizona 85004-2202 Anni L. Foster General Counsel Office of Arizona Governor Douglas A. Ducey 1700 West Washington Street Phoenix, Arizona 85007 Attorneys for Real Party in Interest - 15 -
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