The plaintiffs in a lawsuit which seeks to invalidate several provisions in four bills signed into law by Gov. Doug Ducey earlier this summer do not question the authority of state lawmakers to pass COVID-19 related legislation or legislation about what may occur in a classroom. Instead, they argue those provisions should never go into effect due to how the legislation was passed.
Judge Katherine Cooper of the Maricopa County Superior Court heard oral arguments Monday in a case filed last month by a number of plaintiffs, including Arizona School Boards Association, Inc., Children’s Action Alliance, Sen. Lela Alston (D-LD24), and Steve Gallardo of the Maricopa County Board of Supervisors.
Cooper’s decision could have statewide impact not only on COVID-19 prevention efforts, but also change the way Arizona’s Legislature passes laws in the future.
The legal challenge admits the governor and the legislature can pass legislation to set COVID-19 policies and to regulate what is taught in Arizona’s schools. What is not allowed, the plaintiffs contend, is to put substantive policy matters into budget reconciliation bills if the policy is not directly related to carrying out the adopted budget.
Attorneys for the State have argued that many of the 11 budget reconciliation bills signed by Ducey this year included some form of “policy” language, a common practice for the Arizona Legislature the last several years. There was also no intent to deceive anyone in how the bills were titled and the new laws should go into effect Sept. 29 as currently set, according to court filings on behalf of the State.
Cooper took the matter under advisement and has promised the parties will have her ruling by Sept. 20, giving the parties time for an appeal. In the meantime, Ducey, Senate President Karen Fann, and House Speaker Rusty Bowers submitted an amici curiae -friend of the court- brief for Cooper to consider as she rules on the case.
Among the provisions the plaintiffs hope to block is a prohibition on school districts and charter schools from mandating mask wearing for in-person attendance. That mask mandate ban is a provision of House Bill 2898, the K-12 budget reconciliation bill.
“Unless the laws challenged in this case are declared unconstitutional and enjoined, a great many children in Arizona will get COVID-19, they will get sick, they will suffer from long COVID, they will be hospitalized, and they may die,” an attorney for the plaintiffs argued in support of a permanent injunction on sections of HB2898, as well as SB1819, SB1824, and SB1825 which the plaintiffs contend violate the Arizona Constitution.
One provision of HB2898 ban all public and charter schools from requiring students and staff to wear masks in school to protect against the spread of COVID-19. Another provision prohibits the teaching of Critical Race Theory in K-12 schools, while another provision of the same budget bill authorizes the attorney general to investigate teachers who promote protests at school.
According to Article IV of the Arizona Constitution, bills passed by the Legislature must comply with what is commonly called the “single subject” or one subject restriction and the title of the bills must properly notice the subject matter. The Arizona Legislative Manual also describes budget reconciliation bills as bills used for “statutory adjustments that must be implemented to carry out the adopted budget.”
Alston and Gallardo are also members of the Phoenix Union High School Governing Board, both are named as plaintiffs in their individual capacity. Other plaintiffs include educators, parents, and medical professionals.