Bar owners from across Arizona have filed a lawsuit that claims an Executive Order issued by Governor Doug Ducey to keep them closed is both unfair and unconstitutional. The twenty-six owners are taking the Governor to court over a mandate that will keep them closed through the end of July in an effort to stop the spread of COVID-19.
Ilan Wurman, a professor at ASU’s law school representing the Arizona business owners, filed a petition for special action in the Supreme Court of Arizona. This lawsuit comes on the heels of the Mountainside Fitness case in which Arizona gym owners brought claims against the actions of the Governor, forcing them to keep their doors closed. However, Wurman believes his pathway might yield a better result.
“First of all, many other cases have been filed in federal court under federal Fourteenth Amendment claims that just aren’t as meritorious. We’re making state constitutional law claims, and we’re aiming directly for the state supreme court. As for cases in other states, well, those would depend on their own state constitutions and the particular laws delegating authority to their governors.”
In his petition, Wurman offers the court several questions and arguments for the Court to consider. Fundamentally, he contends that it is up to the Legislature to craft policy and provide guidance to the Governor.
ASU professor Ilan Wurman speaks on the pushback from bars that were closed down by Gov. Doug Ducey https://t.co/lVb1LL7lg4
— James T Harris (@JamesTHarris) July 13, 2020
“Our principal argument is that these kinds of policies are up for the legislature to make, or, at least, the legislature has to give the Governor more guidance and standards by which to act. But even if the Governor has the authority, he can’t arbitrarily discriminate against similarly-situated businesses. The Court can rule on other questions, or both. But we want to emphasize that we’re not asking for a broad ruling. As we argue in the Petition, the Governor has ample authority to confront contagious diseases given in other parts of the Arizona Statutes.”
Representative Kelly Townsend, R-Mesa, has been a vocal advocate for a Special Session of the Arizona State legislature. Townsend, a champion for smaller government and a needed balance between the three branches, has been a reasoned critic of the “special powers” extended to the Governor.
“By excluding us from being at the table regarding decision making, he is acting unilaterally. While the public trusted in the beginning that he would do the right thing, I think everyone now realizes that it is time to restore the 3 branches of government and balance of power,” stated Townsend.
Townsend added, “Ultimately I do believe it is important for us to limit the length of time that he has this unilateral power to 30 days like many other States do. After those 30 days he needs to come back to the legislature to get our permission to extend for another 30 days.”
Governor Ducey, who has relied heavily on Arizona Revised Statute 26-303(E)(1), has issued the statement that “We’re making reasonable and responsible decisions in the best interest of public health. We’re following the law and the constitution.”
When asked how he feels Governor Ducey’s legal team might respond, Wurmer replied that the “Governor has raised defenses in other cases, but our case raises different arguments. I’m sure he’ll say 303(e) is consistent with nondelegation precedents. But I don’t think that’s right.”
But will he be successful? Wurman said it can only go one of two ways. He stressed how important it is for these small business owners to find answers sooner rather than later.
“If the Supreme Court accepts jurisdiction but rules against us, then that will likely end the case altogether. At least it will save everybody a lot of trouble and legal uncertainty. If the Supreme Court declines jurisdiction, then we have to go to the lower courts. But we think that will just delay these issues unnecessarily for several months. People need clarity now, and these issues matter to people urgently.”
Ilan Wurman teaches constitutional and administrative law at the Sandra Day O’Connor College of Law