Court strikes down bans on mask mandates, critical race theory and more

By: - September 27, 2021 2:40 pm

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A Maricopa County judge struck down a ban on public schools imposing face mask mandates and a host of other policy changes that lawmakers inserted into the state budget, and with them, may have forced a fundamental change in the way the legislature does business when it passes its annual budget each year.

The ruling comes two days before the mask mandate prohibition and various other changes to state law were to go into effect. 

Along with the ban on face mask mandates, the ruling strikes down several other laws pertaining to COVID-19 mitigation measures and the operation of public schools. That includes laws banning “critical race theory” in K-12 schools, barring colleges and universities from requiring COVID-19 vaccinations or testing of students, prohibiting K-12 schools from requiring students to receive vaccines that have received emergency authorization from the U.S. Food and Drug Administration, and barring cities and counties from requiring “vaccine passports.”

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And Superior Court Judge Katherine Cooper struck down an entire budget bill that included wide-ranging measures on election integrity laws and pandemic-related business regulations. That bill would have established rules for unprecedented “fraud countermeasure” security features on ballots, stripped Secretary of State Katie Hobbs of her ability to defend election laws in court, created a special committee to review the results of the so-called “audit” that Senate President Karen Fann commissioned of the 2020 election, required extensive reviews of the state’s voter rolls and early voter lists, and imposed greater scrutiny of “federal only” voters who can’t provide proof of citizenship.

The lawsuit, filed by a coalition of left-leaning advocacy groups, education groups, Democratic political figures and others, argued that several budget bills passed by the legislature in the waning days of the 2021 session violated a provision of the Arizona Constitution known as the single-subject rule. That provision mandates that bills passed by the legislature embrace “one general subject,” and that that subject be clear in the title of the bill.

The laws that Cooper struck down were all included in budget reconciliation bills, which are pieces of legislation, usually covering broad subjects such as K-12 education, health, public safety and revenue, that implement the annual state budget. Those bills, often known by the shorthand BRBs, have long been used as a vehicle by lawmakers to include various policies in the budget each year. 

Cooper ruled that the face mask ban and several other COVID-related measures, along with the critical race theory ban, that were in the K-12, higher education and health violated the provision of the single-subject rule that prohibits misleading titles on legislation. 

And as for the “budget procedures” legislation that included the election, vaccine passport and other disputed laws, Cooper wrote that the entire bill is null and void. 

The state argued that health and education BRBs, for example, could encompass any policy involving health or education — and that budget bills need not comply with the single-subject requirement. 

Cooper rejected that position, and said it ignored the fact the bills were explicitly titled as budget reconciliation bills. 

“The Legislature cannot simply delete words from the title to justify non-budget reconciliation provisions. Nor can the Court,” Cooper wrote.

She also rejected the state’s argument that the plaintiffs lacked standing and that the issue was a political question not subject to judicial review. 

The state’s rationale for including those laws in the budget bills would redefine the term “single subject” to mean essentially anything it wanted, Cooper wrote. 

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“Going forward, the Legislature could add any policy or regulatory provision to a BRB, regardless of whether the measure was necessary to implement the budget, without notice to the public. The State’s idea of ‘subject’ is not and cannot be the law,” she said. 

The hodgepodge of weighty policy measures that Cooper struck down has its roots in the protracted budget fight that kept the legislature in session through the end of June.

Republicans have only a single-vote majority in each legislative chamber, meaning they can’t afford to lose a single GOP vote on any bill that doesn’t have any Democratic support, which the budget didn’t. Legislative leadership and Gov. Doug Ducey began approving a series of policy changes in the budget to bring holdouts back into the fold. 

Among the most notable of those measures was the ban on face mask requirements in public K-12 schools. Rep. Joseph Chaplik, R-Scottsdale, for example, publicly declared that he wouldn’t vote for the budget unless that policy was included. Other Republicans made similar statements.

Cooper noted that the single-subject rule was designed to prevent the practice of packaging unrelated measures together to force lawmakers to vote for something they oppose in order to pass something they support, a practice known as logrolling. That practice was apparent in Senate Bill 1819, the budget bill that Cooper struck down in its entirety.

“The bill is classic logrolling — a medley of special interests cobbled together to force a vote for all or none,” the judge wrote.

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Unlike SB1819, the other three budget bills will stay in place, except for the provisions that Cooper explicitly struck down, such as the face mask mandate prohibition. Cooper found that those laws violated the title requirement in the single-subject rule, whereas SB1819, a “budget procedures” BRB, failed as a whole because “there is no way for the Court to discern the dominant subject of the act.”

The Arizona Education Association, one of the organizations that sued to block the face mask law from going into effect, praised the ruling.

“Now, our communities and school boards can make their own decisions based on local conditions in determining whether to have a mask requirement in their schools,” AEA President Joe Thomas said in a press statement.

In a press statement, Gov. Doug Ducey’s office called Cooper a “rogue judge” and said the ruling will be appealed. 

“We are still reviewing the ruling, but this decision is clearly an example of judicial overreach,” said C.J. Karamargin, a spokesman for the governor. “Arizona’s state government operates with three branches, and it’s the duty and authority of only the legislative branch to organize itself and to make laws. Unfortunately, today’s decision is the result of a rogue judge interfering with the authority and processes of another branch of government.”

Attorney General Mark Brnovich also vowed to appeal.

“It’s unfortunate that left-wing groups want to undermine the legislative process and indoctrinate our children with critical race theory and force vaccines on those who don’t want them,” Brnovich said on Twitter

Cooper emphasized in her ruling that Ducey and the legislature ignored prior court precedent on the single-subject rule. 

In a 2003 ruling, the Arizona Supreme Court didn’t rule on whether a set of omnibus reconciliation bills — larger budget bills that preceded BRBs — violated the single-subject rule, but chastised the legislature for “failure to adhere” to the constitutional requirement. Lawmakers heeded the warning: The following year, the legislature scrapped the practice of passing a small number of omnibus reconciliation bills and replaced it with the current practice of using nine or 10 BRBs.

And Cooper noted that, in a 2018 ruling, the high court found that the single-subject rule applied to all bills passed by the legislature.

“Despite these warnings, the Legislature passed four budget reconciliation bills that fail to meet the constitutional requirements of Section 13 (of the Arizona Constitution),” Cooper wrote. 

A separate lawsuit brought by the City of Phoenix challenges a different budget bill on single-subject grounds. The city has asked a judge to overturn a provision of one of the budget bills that would gut its plans for civilian review of the Phoenix Police Department by requiring investigative or disciplinary boards for law enforcement officers to be composed of officers from the same department.

***UPDATED: This story has been updated to include additional information.

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Jeremy Duda
Jeremy Duda

Associate Editor Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”

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