Governor’s Lawyers Respond To Lawsuit Brought By Growing Number Of Bar Owners

Arizona State Courts Building. (Photo by Kevin Bondelli/Creative Commons)

On Wednesday, the Ducey administration filed its response to a lawsuit brought by 50 Arizona bar owners challenging his Stay-At-Home Executive Order. Through their attorney, ASU law Professor Ilan Wurman, the businesses argue that the governor had no right to shut down the state in response to the COVID-19 outbreak.

Wurman, who filed the petition for Special Action on July 9, is waiting to see if the Arizona Supreme Court will hear his petition, or if it will be sent back to the lower courts, as the attorneys for Governor Ducey have said it should be.

In the balance, hangs the fate of many small bar owners, which Wurman says require action now.

At the heart of the matter is whether bar owners should be able to remain open, as have other liquor license owners such as restaurants. Depending on the type of liquor license, some businesses have been allowed to remain open under the governor’s Executive Order, while other similar businesses have been forced to close their doors.

In the interview on KFYI’s James T. Harris show, Wurman addressed the sense of urgency his clients are experiencing.

Ducey’s attorneys refer to the Executive Order as a “temporary pause.” Yet on July 16, the governor said in his press conference, that this a “new normal.” With no end in sight, as Wurman said on the Conservative Circus, the hope is that the Supreme Court can provide some relief.

“Time is running out,” said Wurman referring to the Series 6 license holders, who are at a disadvantage under the governor’s Executive Order. While Ducey allows restaurants, tasting rooms, and breweries to remain open, bar owners cannot. Should they try to reopen, they would face a misdemeanor charge, or, as the governor has intimated, a possible loss of their license.

Conversely, says Wurman, remaining closed puts the small business owners one step closer to going out of business. In light of Ducey’s references to the “new normal” and claims that there may be “no end in sight,” Ducey has left the business owners dangling, as a result, Wurman believes getting the case in front of the Supreme Court is critical.

The governor’s attorneys argue that the Legislature provided statutory guidance on the scope and limitations of the Executive’s authority during an emergency. Arizona Revised Statute 26-303, E-1 has made clear the broad power Ducey can exercise given the COVID-19 pandemic.

Wurman makes the argument that in a representative government, his clients have a voice in the legislative process. “One person can’t decide,” says Wurman.

The governor’s response focuses on case law including the decision in Globe School District No. 1 v. Board of Health City of Globe. “We’ll address the Globe case in our Reply, but delegations of legislative power to municipal authorities, as in the Globe case, are different. It’s a vertical delegation of local legislative authority, not a horizontal delegation to the executive branch. And courts historically reviewed municipal exercises of delegated authority for reasonableness. Such delegations have nothing to do with this one.”

As for the “new normal” and “temporary pause” as cited by the Governor, Wurman was succinct, “This is no ordinary “temporary” authority. Such assertions fall flat in light of the Governor’s repeated claims that this is the new normal for the foreseeable future.”

Wurman will be responding to the Governor next week and hopes to have an answer as to whether the Arizona State Supreme Court will take up the Special Action the first week of August.

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Steve Rivera has covered Arizona men’s basketball for more than 25 years, most recently for and For two decades, he covered UA for the Tucson Citizen, who in 2000 basketball analyst Dick Vitale named Steve one of the top 16 college basketball writers in America in his first and only list. Rivera has covered 17 Final Fours, three NBA Finals and two Olympic Games. He’s a frequent guest on sports talk shows in Tucson and Phoenix.