For the second time this month, the Senate has adjourned the 2020 legislative session. This time, it may stick.
Senate President Karen Fann, R-Prescott, had already decided not to hear two pieces of new legislation related to the COVID-19 crisis that the House of Representatives passed last week which would have provided new legal protections to businesses that reopen amid the pandemic and directed $88 million in federal funding to child care facilities. The only things on the agenda Tuesday were 28 mostly non-controversial bills that had already passed the House.
But before the Senate could take up any legislation, Sen. Rebecca Rios, D-Phoenix, motioned to adjourn sine die and end the legislative session. Republican Sens. Paul Boyer, Heather Carter and Kate Brophy McGee, a trio with a reputation for bucking their party, sided with the Democrats. The result was a 16-14 vote to adjourn.
There is little question that there will be at least one special session in the near future to address a budget deficit, as well as civil liability and perhaps other issues.
“I voted to sine die two weeks ago. I have not changed my position,” Brophy McGee, R-Phoenix, told Arizona Mirror. “We needed to get out of there.”
The Senate originally voted to adjourn sine die on May 8. House Speaker Rusty Bowers, R-Mesa, called off a similar plan in his chamber after most Republican members opposed it.
The House opted instead to come back last week to pass a number of bills that had been on hold since the legislature went on hiatus on March 23, in addition to the new bills on civil liability and child care funding, before adjourning on Thursday.
Rep. John Kavanagh, R-Fountain Hills, who sponsored the civil liability legislation, called the Senate’s failure to pass House Bill 2912 a “lost opportunity to give businesses, churches, schools, synagogues, etc., the peace of mind to get back to normal.”
“Obviously, it’ll be part of a special session, whenever that is. I’m not 100% sure why we couldn’t have dealt with it now,” Kavanagh said.
The legislation would have required anyone suing businesses, nonprofits, schools or religious institutions for COVID-related reasons to prove gross negligence, a high legal standard that would have shielded many from litigation. Gross negligence is defined as “a lack of care that demonstrates reckless disregard for the safety or lives of others, which is so great it appears to be a conscious violation of other people’s rights to safety,” according to Cornell Law School’s Legal Information Institute.
The bill also would have watered down the penalties for violating Gov. Doug Ducey’s expired stay-at-home orders and other executive orders issued in response to the pandemic. Violators currently face fines of up to $2,500 and up to six months in jail. HB2912 would have reduced violations from a Class 1 misdemeanor to a civil infraction punishable by no more than a $100 fine.
Whatever civil liability bill comes up in a special session may look different from the one touted by Kavanagh and Sen. Eddie Farnsworth, R-Gilbert.
Sen. Vince Leach, R-Tucson, is working on civil liability legislation that would add cities, counties and health care providers to the list of institutions receiving new protection from lawsuits, according to Garrick Taylor of the Arizona Chamber of Commerce and Industry, which is working on the legislation, as well. Taylor said he’s “fairly confident” that the bill wouldn’t include reduced penalties for violating Ducey’s executive orders.
“The Chamber wants to get Arizona back to work, but wants to do so in a safe, responsible way. There’s no desire here to adopt policies that would give any bad actor or anyone completely disregarding public health protocols in a cavalier manner any special protections. No one’s looking for a free pass here,” Taylor told the Mirror.
Taylor said there could be other changes before the legislation is introduced in a special session.
Boyer, R-Glendale, said he hasn’t seen Leach’s proposed bill, but from what he’s heard, he prefers it to HB2912.
“I’m expecting that we’ll go to a special session to hopefully pretty quickly address the liability issue,” he said.
Senate Minority Leader David Bradley, R-Tucson, said it was clear that the legislature couldn’t return to business as usual as the state grapples with the coronavirus pandemic.
“Our most important goal is a special session to pass legislation that will bring further aid and relief to Arizonans and small businesses during this pandemic, such as finding ways to help with health care expenses, help small businesses to stay afloat, and help workers weather the economic fallout of the pandemic,” Bradley said in a press statement.
Ducey thanked the legislature for the work it’s done regarding the COVID crisis, and said he looks forward “to continuing to work together in this spirit to address Arizona’s economic and budgetary needs, while protecting public health and all of our state’s citizens.”
Some Republicans were sharply critical of their colleagues who voted to end the legislative session, especially Boyer, Brophy McGee and Carter, who have a history of clashing with their fellow GOP lawmakers.
“Brophy McGee, Carter, and Boyer join the Dems and Vote to end session before even voting for a bill. Absolutely embarrassing. Bait? Yes, protecting small businesses and helping with child care costs is bait,” Rep. Leo Biasiucci, R-Lake Havasu City, wrote on Twitter.
In a tweet, Rep. Kelly Townsend, R-Mesa, wrote that Boyer, Brophy McGee and Carter “voted with the Democrats to Sine Die without doing the people’s important work. You know what to do.”
Carter faces a primary election against Rep. Nancy Barto, a Phoenix Republican. Neither Boyer nor Brophy McGee have GOP opposition in their re-election races, but both are in legislative districts that are prime targets for Democrats in November.
In addition to the civil liability protection, lawmakers will almost certainly have to address a budget crisis during a special session. Legislative budget analysts are projecting a deficit of $1.1 billion, give or take a half billion in either direction.