A prominent Republican attorney plans to take Gov. Doug Ducey to court in an attempt to overturn the stay-at-home order he imposed to combat the COVID-19 outbreak, presuming that order is still in effect by the end of the week.
Kory Langhofer said he could file his lawsuit as early as Thursday. Ducey’s executive order closing many businesses expires on Friday, though he could extend it, in whole or in part, as he’s already done once. Langhofer said he’ll be watching for new developments, and that it’s “clear it’s going to keep getting extended.”
Langhofer is still seeking new clients to represent in the case and wouldn’t comment on the identity of the plaintiffs who are already on board. He said the plaintiffs will be people who have suffered real economic injuries due to the state-mandated lockdown. That could include people whose businesses must remain closed after Ducey lifted restrictions for retail establishments, restaurants and salons, or people who are already facing legal penalties for defying the governor’s order, such as a Native American art store owner in Winslow who was cited for keeping his business open, or a restaurant owner in Wickenburg whom the city recently cited.
“There are still people being criminally prosecuted for their conduct before these regulations were lifted. So, their concerns certainly haven’t gone away. And the governor’s been really clear: He thinks he’s clear to reimpose all of these draconian regulations whenever he wishes. And that’s not the case,” Langhofer told Arizona Mirror.
This won’t be the first lawsuit Ducey has faced over the Stay Home, Stay Healthy, Stay Connected order he enacted in late March. U.S. District Court Judge Murray Snow on Friday ruled against a Flagstaff man named Joseph McGhee who sued Ducey and Mayor Coral Evans after losing his job as chef at a restaurant. McGhee argued that Ducey’s order violated his rights to due process and state laws regarding quarantines. Snow rejected McGhee’s request for a temporary restraining order against the governor and said he’s unlikely to succeed at trial.
Langhofer said the lawsuit he’s bringing will be much different. McGhee, who represented himself, brought the wrong claims and did not file a thoughtful lawsuit, Langhofer said, adding that the judge rightly ruled against him.
Langhofer wouldn’t describe the exact claims he’ll make against Ducey, but suggested that the governor was violating the separation-of-powers provision in the Arizona Constitution by acting unilaterally to impose the lockdown restrictions, and that, even with legislative approval, some or all of those restrictions would still be unconstitutional.
“There has never been a moment in Arizona constitutional history when the people consented to be governed by one man’s whim when times got tough” Langhofer said. “Closing down restaurants? You really think that when people start getting sick he can just make a crime without any legislative consent? That’s the closest thing to a monarch you’ve ever seen in the United States.”
And though Ducey has lifted restrictions on some businesses, Langhofer noted that businesses like gyms are still shut down. And he said landlords are also suffering economically under a separate gubernatorial order that delays evictions for renters who are affected by the coronavirus.
Paul Bender, a constitutional law professor at Arizona State University, told the Mirror that any restriction of Arizonans’ constitutional rights is likely to face a “strict scrutiny” standard in court, meaning the state will have to show that it has a compelling interest in enacting its regulations and that those regulations are as narrowly-tailored as possible.
That will likely become a tougher argument in this situation if the restrictions are in place for more than a month, though he said Ducey may be on solid ground, given that he’s taken steps to make his stay-at-home-order less intrusive.
“If they’re going to do it over a long period of time, I think they’re going to have to prove that this is something that they really need, that there’s no way to do this that’s less interfering with people’s liberty,” Bender said.
Bender said the bigger legal issue will likely be whether Ducey’s extension of his stay-at-home order runs afoul of the state constitution’s separation-of-powers provision. While state law is clear in giving the governor emergency powers, he questioned whether Ducey could leave those restrictions in place indefinitely without legislative approval. And the fact that the legislature hasn’t used its authority to rescind the emergency declaration that allowed Ducey to impose his order doesn’t mean that lawmakers shouldn’t have a say.
“There comes a time when they should have to say yes rather than not say no,” Bender said.
As criticism of stay-at-home orders has mounted over the past several weeks, primarily from conservative and libertarian critics, states have faced a barrage of lawsuits seeking to force the reopening of parts or all of their economies. Businesses, churches, state legislators and others have brought suits in California, Illinois, Maryland, Michigan, Oregon, Washington and Wisconsin.
On April 27, a judge in Illinois ruled in favor of a Republican lawmaker who sued Gov. J.B. Pritzker on the grounds that state law only permitted him to impose his emergency order for 30 days, though the ruling only exempted that single plaintiff from the governor’s stay-at-home order. Two days later, a judge ruled that Michigan Gov. Gretchen Whitmer’s order did not infringe residents’ constitutional rights. A federal judge on May 8 ruled against two businesses that sued the city and county of St. Louis over its restrictions. Pritzker and Whitmer are facing other lawsuits over their lockdown orders.
Ducey’s office did not respond to a request for comment on the proposed lawsuit.
The governor ordered restaurants and bars closed on March 20, and enacted his stay-at-home order at the end of the month, shuttering non-essential businesses, barring large gatherings and loosely regulating when and why people could leave their homes. Ducey extended that order at the end of April, but lifted a ban on elective medical procedures and allowed non-essential retail businesses to open. Several days later he announced that salons and barbers would be permitted to reopen and allowed restaurants to resume dine-in service.