Arizona high court upholds ruling blocking school mask bans

Arizona Gov. Doug Ducey speaks emphatically at a lectern as a masked person stands behind him.

By BOB CHRISTIE

Associated Press

Nov. 3, 2021 2:26 AM PT

PHOENIX —

The Arizona Supreme Court on Tuesday unanimously upheld a lower court judgment that found the Republican-controlled Legislature violated the state constitution by including new laws banning school mask mandates and a series of other measures in unrelated budget bills.

The swift ruling from the state’s high court came less than two hours after the seven justices heard arguments in the state’s appeal of a trial court judge’s ruling. The justices had hammered Solicitor General Beau Roysden with questions about the Legislature’s insertion of policies on such disparate matters as dog-racing and secure ballot papers into one of the budget bills.

The state constitution says each bill must cover one subject, with each item properly connected to others. Separately, the titles of each bill must reflect the contents and give lawmakers and the public adequate notice of what’s included.

The decision will have far-reaching ramifications for the Legislature. Republicans who control the Senate and House have worked around that requirement for years, slipping policy items into budget bills. This year, the Legislature was particularly aggressive and packed the 11 bills that make up the budget with a hodgepodge of conservative policy items, some of which had failed as standalone bills.

The court upheld a September ruling from Maricopa County Superior Court Judge Katherine Cooper that blocked the ban on school mask mandates and a host of other provisions in the state budget package from taking effect. Cooper found that provisions in three budget bills — including the ban on school mask mandates — violated the title rule. She blocked those provisions while allowing the rest of the bills funding education, universities and health to take effect.

She entirely struck down another budget bill because it violated the single-subject rule. The Legislature had packed it with a conservative wish list of unrelated policy items including a ban on local governments imposing COVID-19 restrictions, requiring special security paper to be used on ballots, allowing the Game and Fish Department to register voters and a required investigation of social media companies.

Other provisions included a special committee to review the 2020 election, stripping Democratic Secretary of State Katie Hobbs of her duty to defend election laws and handing it to Republican Atty. Gen. Mark Brnovich, and converting dog-racing permits to harness-racing licenses.

“Can you tell me, and this is a serious question, how dog- and harness-racing relates to anti-fraud ballot paper in order for us to find a single subject within SB 1819?” Justice Bill Montgomery asked Roysden.

“Here’s what I would say to that,” Roysden responded. “I would say the court should not start down that path 110 years into statehood.”

Chief Justice Robert Brutinel asked why not, and Roysden said it was not the place of the judiciary to enforce the single-subject rule.

“So the single-subject rule is just a suggestion?” Brutinel asked.

Montgomery and other justices also questioned Roysden on the mask-mandate ban, asking what it had to do with school funding. The constitution says appropriations are to be contained in legislation known as the “feed bill,” while directions on how to spend the money is contained in separate bills for items such as K-12 schools and health.

“So how does ... the face-covering mandate and the vaccination mandate, or precluding a mandate, how does that relate to the appropriations?” Montgomery asked.

Roysden said the Legislature believed mask mandates would cut attendance, but Montgomery and Brutinel were not persuaded and pressed him on how a ban on mask mandates specifically related to the spending in the “feed bill.”

“What I’m hearing is, it doesn’t have to relate to spending,” Brutinel asked.

“It doesn’t,” Roysden said. “Because it’s the Legislature.”

He warned of “chaos” if the high court upheld the trial court ruling.

Gov. Doug Ducey‘s spokesman C.J. Karamargin had called the trial court ruling “clearly an example of judicial overreach” made by a rogue judge. On Tuesday, he said: “We are extremely disappointed in the ruling.

“There are three separate co-equal branches of government, and we respect the role of the judiciary — but the court should give the same respect to the separate authority of the Legislature,” Karamargin said in a statement.

He also said Arizonans should have the ability to make their own health decisions free of government mandates.

Ducey had appointed four of the seven judges who heard Tuesday’s case. Newly appointed Justice Kathryn King recused herself from Tuesday’s hearing, and an appeals court judge not appointed by Ducey heard the case.

In a case that raised the same issues, another judge Tuesday blocked three sections of another budget bill because they violated the single-subject rule. Judge John Hannah left the rest of the criminal justice budget bill intact.

The city of Phoenix brought that challenge, saying that provisions blocking a majority of civilians from serving on civilian police oversight boards violated both the title and single-subject rule. The city also challenged a provision in the same budget bill that allows any lawmaker to request an attorney general’s investigation into “any written policy, written rule or written regulation adopted by any agency, department or other entity of the county, city or town.”

Hannah wrote that the state constitution’s framers “knew that democratically elected legislatures sometime do not behave democratically,” so they included rules on legislative process in the constitution knowing the judiciary would be called upon to enforce them.

In their rulings, Cooper, the Maricopa County Superior Court judge, and the Supreme Court sided with education groups, including the Arizona School Boards Assn., which had argued that the bills were packed with policy items unrelated to the budget.

Cooper’s ruling cleared the way for K-12 public schools to continue requiring students to wear face masks to help slow the spread of the coronavirus. At least 29 of the state’s public school districts issued mask mandates before the laws were set to take effect, and some immediately extended them after Cooper’s ruling.

Arizona cities and counties were also able to enact mask requirements and other COVID-19 rules that would have been blocked by the budget bills.

Roopali Desai, the attorney for the school boards association, urged the high court to affirm Cooper’s ruling because the Legislature misled the public by not giving proper notice through the bill titles.

“You look to see whether or not the challenged provisions are adequately noticed in the title or whether the title is misleading,” Desai told the court. “In this case, both are true.”

In her court filings, Desai said Cooper “relied on well-settled precedent and properly ruled that each of the challenged laws was passed in violation of the constitution.”

Nothing in Tuesday’s rulings prevents the Legislature from trying to reenact the stricken laws in the next legislative session.