Ducey Orders Arizona Open With Limitations Practically Intact

Governor Doug Ducey appears to enjoy signing an Executive Order

In the wake of Texas and Arkansas announcing the opening up of their economies, on Friday, Arizona Governor Doug Ducey issued a new Executive Order related to the COVID-19 pandemic. Critics say Ducey’s Order has the practical effect of keeping many businesses closed due to the fact that some severe restrictions remain intact.

Ilan Wurman, attorney for a group of bar owners and other small businesses that sued Ducey over what they claim are “draconian” measures, told the Arizona Daily Independent, that “Ducey is not opening up businesses. He has eliminated capacity restrictions, but those are totally unhelpful. The 6 feet distance requirement and the requirement that everyone must be in a seat are what actually limit capacity in practice. Lifting capacity doesn’t actually change anything for most people. It is just an attempt by the governor to make it look like he’s doing something when in fact he is doing almost nothing at all.”

Still, others like Rep. Bret Roberts are grateful for any movement by the governor.

For many of Wurman’s clients, the restrictions have resulted in disparate treatment and outcomes.

The Arizona Attorney General’s Office filed a brief in Wurman’s lawsuit advising the Court that the law “properly construed, does not authorize the continued disparate treatment of bars and restaurants, as contained in Executive Order 2020-43, seven months into this emergency.”

The Attorney General called on the Court to “conclude that EO 2020-43, as applied to Plaintiffs, exceeds the Governor’s statutory authority.”

The brief reads in part:

Three key facts have become clear from Thursday’s evidentiary hearing: 1) the Governor unquestionably used his “state of emergency” power to excuse restaurants from complying with a statutory requirement, specifically A.R.S. § 4-205.02(C), while at the same time discriminating in other respects against similarly situated bars; 2) there are no set criteria for ending this emergency, confirming that—seven months into it—the Governor has claimed for himself the indefinite power to act legislatively; and 3) if § 26-303(E)(1) really is as broad as the Governor claims, then it is unconstitutional, as the Michigan Supreme Court held just ten days ago when interpreting a similar statute. In re Certified Questions From U.S. Dist. Court, — N.W.2d —, 2020 WL 5877599, at *3 (Mich. Oct. 2, 2020) (The “act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution.”).

There is a better way—one that preserves the constitutionality of § 26-303(E)(1) and respects the separation of powers. This Court should conclude as a matter of statutory interpretation that § 26-303(E)(1) provides a much more temporally constrained power that must be exercised even-handedly to address the exigencies of the emergency. See AG’s 9/4/2020 Brief at 4-11. After adopting that construction, the Court should uphold the constitutionality of the Statute, but conclude that EO 2020-43, as applied to Plaintiffs, exceeds the Governor’s statutory authority. The Governor can call the Legislature into special session to address through legislation the secondary economic effects of the COVID-19 pandemic that his current EO attempts to address through executive fiat.

If a narrow construction of the Statute is not adopted, then it is likely subject to constitutional attack under the Arizona Constitution based on the non-delegation doctrine for the reasons set forth in In re Certified Questions.

Ducey’s announcement follows 7 weeks of declining cases in Arizona, and the distribution of more than 2 million vaccines.

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