Twenty-two bar operators from around the state are asking the Arizona Supreme Court to rule that Gov. Doug Ducey does not have the constitutional authority to shut them or any other business down.
Attorney Ilan Wurman is not contending that there is not an emergency due to the COVID-19 outbreak.
But Wurman, an associate professor at Arizona State University, said the law that gives Ducey the unilateral power to do things like close down certain businesses “unconstitutionally delegates the legislative power of this state to the governor.
Among the owners he is representing is Charles Jenkins of the Office Sports Bar on Gilbert Road in Mesa. The only other East Valley plaintiff is Peter Sciacca, owner of Chandler’s QuartHaus.
Wurman wants the justices to not only void the law giving the governor those powers but also declare that any orders Ducey already has made under that law are illegal and cannot be enforced.
Meanwhile Ducey’s top aide, Chief of Staff Daniel Scarpinato, said last week that bars likely won’t reopen anytime soon.
The outcome of the legal fight would affect not just the owners of the 22 bars around the state challenging his authority but every other kind of business that Ducey has shuttered or curtailed.
And it also could affect the governor’s future ability to impose a new stay-at-home order as well as any directives he issues about when schools can and cannot open.
The action is the third challenging Ducey’s powers to close businesses.
A Maricopa County Superior Court judge earlier this month rejected a challenge by the Mountainside Fitness chain and last week a federal judge rebuffed a bid by EoS Fitness to reopen its 50 facilities.
“The court does not doubt the earnestness of plaintiffs’ desire to open their businesses, generate revenue, earn a living, and employ – and as importantly pay – others,’’ wrote U.S. Judge Diane Humetewa, adding that she recognizes “the economic and emotional hardships’’ that the closure orders can impose on people and individuals.
But Humetewa said she was powerless to simply void Ducey’s orders.
“In our constitutional republic, the decisions of whether, when, and how to exercise emergency powers amidst a global pandemic belong not to the unelected members of the federal judicial branch, but to the elected officials of the executive branch,’’ she wrote.
Humetewa said a crisis like that created by the coronavirus calls for “quick, decisive measures to save lives.’’
“Those measures can have extreme costs – costs that often are not borne evenly,’’ she said. “The decision to impose those costs rests with the political branches of government, in this case, Gov. Ducey.’’
Alex Weingarten, the attorney for Xponential, argued that other businesses that remain open would be more likely places where the virus could spread – a contention the judge called irrelevant.
“COVID-19 is highly contagious and continues to spread at alarming rates, requiring public officials to constantly evaluate the best methods by which to protect residents’ safety against the economy and a myriad of other concerns,’’ Humetewa said.
Xponential has franchise operations around the state operating around the state as Club Pilates, Stretch Lab, CycleBar, Pure Barre, Yoga Six, AKT, and Row House.
Central to the bars’ case is the law that both allows the governor to declare an emergency and then gives him “the right to exercise ... all police power vested in the state by the constitution and laws of this state’’ to deal with that emergency.
“Petitioners have suffered great harm from being unable to operate their businesses in pursuit of their lawful occupations and ordinary callings,’’ Wurman told the justices. “They have no idea when they will be able to reopen.’’
“The ‘police power’ of a state is, in effect, its legislative power: its power of the health, safety, welfare, and morals of the people,’’ he wrote.
The law that Ducey is using, Wurman said, is “a naked delegation of the state’s legislative power to the governor and is therefore unconstitutional.
“There are no standards whatsoever,’’ he said. “There is no sufficient basic standard, no definite policy and rule of action which will serve as a guide for the governor.
And what that means, Wurman told the court, is that the law gives Ducey unfettered authority.
He argues Ducey could order students to attend school only every third day.
“There is, in short, literally no standard by which to judge the governor’s actions under the statute, and it therefore must violate the nondelegation doctrine,’’ Wurman said.
Wurman also told the court that declaring the state’s general emergency powers statute unconstitutional would not leave Ducey or future governors without the power to deal with emergencies, including the pandemic.
He pointed out – and is not challenging – various other laws giving governors powers to deal with public health emergencies.
But those powers, Wurman said, are limited.
“Nothing in (health law) authorizes the governor to close down petitioners’ businesses,’’ he said.
The lawsuit also raises an equal protection argument, saying Ducey cannot decide that some businesses are permissible while other are not.
“If the purpose of the governor’s order is to mitigate the spread of a pandemic by ensuring that businesses follow particular sanitary measures, then the governor must permit all businesses to operate who can meet those standards,’’ he wrote.