Judge Slaps Down Ducey’s Request For A Delay In Gym Openings

The only thing that this Court’s Order did was require a modicum of due process

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(Photo by Tim Evanson/Creative Commons)

PHOENIX — On Friday, Maricopa County Superior Court Judge Timothy J. Thomason slapped down Gov. Doug Ducey’s attempt to deny “a modicum of due process” to Arizona fitness center owners. Ducey had requested a hold be put on an earlier court ruling by Thomason that required his administration to create a process where the gym owners could apply to reopen.

Ducey and his attorneys have also appealed the order to the Arizona Court of Appeals.

“This Court upheld the Executive Orders. The Executive Orders are in full force and effect and there is nothing preventing the Executive Branch from enforcing those orders and preventing the spread of the coronavirus,” wrote Judge Thomason. “The only thing that this Court’s Order did was require a modicum of due process to aggrieved parties.”

In March, Arizona Supreme Court Chief Justice Robert M. Brutinel issued Administrative Order No. 2020 – 41, which ordered superior court judges to provide judicial review in any court in their respective counties of measures taken by public health agencies to prevent and control communicable or infectious diseases, including the CoVid-19 virus.

On March 19, 2020 the governor issued an Executive Order in response to the COVID-19 pandemic. The Order forced the closure of bars, movie theaters and gyms.

Judge Timothy J. Thomason’s August 7, 2020 ruling:

The Court has considered defendant’s Motion to Stay Enforcement of Preliminary Injunction and the Responses. For the reasons stated below, the Motion is denied. Rule 62(e) of the Arizona Rules of Civil Procedure provides that while an appeal is pending from an order granting injunctive relief the court may “suspend, modify, restore or grant an injunction on such terms for bond, security, or otherwise that preserve the adverse party’s rights.”

This Court upheld the Executive Orders. The Executive Orders are in full force and effect and there is nothing preventing the Executive Branch from enforcing those orders and preventing the spread of the coronavirus. The only thing that this Court’s Order did was require a modicum of due process to aggrieved parties.

This Court’s Order also took great measures to ensure that there was no undue burden on the Governor or ADHS. Indeed, this Court gave the Executive Branch broad discretion in coming up with a system for fitness centers to reapply for opening. Under EO 43, fitness centers were shut down for the second time. Plaintiffs have been mandatorily shutdown for well over one month without any opportunity to be heard. A stay would further delay and impair plaintiffs’ procedural due process rights for weeks and perhaps months. A stay could very well render the procedural due process issue moot. Citing a trial court decision, the Governor submits that the Court should consider four factors in determining whether to grant a stay. Although these factors are not in Rule 62, the Court will address each of the factors. Cimarron Foothills Cmty. Ass’n v. Kippen, 2003 WL 2577605 (Pima Cty. Super. Ct. Mar. 18, 2003)

STRONG SHOWING THAT THE APPELLANT IS LIKELY TO SUCCEED

Since it is this Court’s Order that is the subject of the appeal, this Court (rather obviously does not find that the Governor has made a strong showing that he is likely to succeed on appeal. A couple of points raised by the Governor need to be addressed.

The Governor expresses surprise that the Court ruled on procedural due process, apparently because plaintiffs called no witnesses on the subject. No witness could have offered any relevant information on due process. Rather, the record was clear that no due process would be provided until the shutdown orders ended. Procedural due process has been front and center throughout this case. In fact, the Governor has told this Court, the federal court in a related case and the Court of Appeals in the appeal of the July 6 Order that adequate procedural due process will be provided. This Court’s July 6 Order expressed extreme concern about procedural due process. In the related case in federal court Xponential Fitness v. State of Arizona, No. CV-20-01310-PHX-DJH, 2020 WL 3971908, *6 (D. Ariz. July 14, 2020), the court stated that the Governor’s failure to commence the waiver process was “suspect.”

In the Motion for Stay, the Governor claims that the Renewed Motions for TRO/Preliminary Injunction did “not once…claim that the reason for their request was an alleged violation of procedural due process.” This is incorrect.

The Renewed Motions filed by Mountainside and EOS were based specifically on the lack of procedural due process. In fact, both of the plaintiffs cited this Court’s language from the July 6 Order about the need for procedural due process here and claimed that that process had not been forthcoming. In Mountainside’s Supplemental Renewed Application, Mountainside specifically referred to this Court’s statement that plaintiffs were entitled to “real post deprivation process.”

Mountainside quoted the attestation form and argued that the form was “useless” because it provided no opportunity for attesting gyms to reopen during the shutdown.

This Court has not “flipped” some burden on to the Governor and somehow “forced” him to explain all of the nuances of why the Executive Orders are Constitutional. On the contrary, this Court deferred to the Executive Branch and upheld the Executive Orders. The Court has only required that some due process be provided to plaintiffs.

WILL THE GOVERNOR BE IRREPARABLY INJURED?

The Governor identifies no irreparable injury. The Court is very mindful of and deferential to the Governor’s efforts in keeping the citizens of this State safe. That is precisely why the Court upheld the Executive Orders and found only that post-deprivation procedural due process was not provided.

This Court’s August 4 Order does not order that any fitness center be opened.

The Court made it clear that it was not dictating what process had to be provided or how any application to reopen should be resolved.
Indeed, the Court expressly stated that the Governor and ADHS have reasonable discretion to deny applications.

Complying with this Court’s Order will cause no irreparable injury. The Governor claims only that ADHS will be inconvenienced by having to implement a process for applications to reopen. The Court is sensitive to the demands on the Governor and ADHS and stated that the process to be designed by the Governor and ADHS could be as “simple and straightforward as the Governor or ADHS want it to be.”

ADHS has already developed the process for applying to reopen after the shutdown orders end. No explanation is provided as to why developing a similar process before the shutdown orders end results in irreparable injury.

Mountainside’s public statements about reopening on August 11 have no basis in this Court’s August 4 Order.

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