Supreme Court unanimously strikes down mask mandate, ‘critical race theory’ bans

The Arizona Supreme Court found that several provisions of the 2022 budget, including a controversial ban on face mask mandates in K-12 schools, violate a provision of the state constitution requiring individual bills to encompass a single subject. 

The ruling will likely bring about a seismic shift in the way lawmakers craft future budgets. 

Less than two hours after it heard oral arguments in the case on Tuesday, the justices unanimously upheld a trial court ruling that several budget bills violated a section of the Arizona Constitution known as the “single-subject rule.” That rule mandates that legislation embrace “one general subject” and that the subject be clear in the title of the bill.

A group of Democratic elected officials, liberal advocacy groups and citizens filed a lawsuit after Republican lawmakers and Gov. Doug Ducey enacted a budget for the 2022 fiscal year that included numerous changes to the law that they violated the single-subject rule. 

Those provisions barred school districts and charter schools from imposing face mask requirements to curb the spread of COVID-19, prohibited the teaching of “critical race theory” in K-12 schools, barred colleges and universities from requiring COVID vaccines or testing of students, and prohibited cities and counties from requiring people to show “vaccine passports.”

The ruling also blocks several new laws unrelated to COVID or the ongoing pandemic. The budget bills would have established rules for anti-fraud countermeasures in ballots for counties that choose to use them, stripped Democratic Secretary of State Katie Hobbs of the authority to defend election laws in court, and enacted other so-called “election integrity” measures.  

Maricopa County Superior Court Judge Katherine Cooper ruled in September that the COVID-related measures and the critical race theory ban violated the provision of the single-subject rule that prohibits misleading titles. That part of her ruling affected only those individual laws. The election-related provisions were part of the “budget procedures” BRB, which Cooper struck down in its entirety as a violation of the single-subject rule.

The Supreme Court will issue a full opinion at a later date. That opinion will almost certainly change the practice, which has become increasingly common over the course of nearly 20 years, of packing budget bills full of a wide range of disparate policy changes. Exactly how far the court goes in restricting what the legislature can include in the budget remains to be seen.

State budgets consist of a main spending bill, known as a “feed bill,” and a handful of other bills intended to implement it through various changes to state statute. Those budget reconciliation bills, commonly called BRBs, were at the heart of the case.

Is the constitution ‘just a suggestion’ to lawmakers?

The justices questioned attorneys on both sides of the case about how far the courts can go in limiting what lawmakers can include in BRBs or whether the judiciary can impose any limits at all.

Assistant Attorney General Beau Roysden, who represented the state, said it’s up to the legislature and not the courts to determine whether a BRB’s title accurately reflects the contents of a bill, or whether its various provisions qualify as budget measures.

Many of the disputed laws were struck down on the grounds that the “budget reconciliation” title on the bills they’re in did not accurately reflect what was in those bills, a requirement that is intended to give people a reasonable idea about what a piece of legislation pertains to. However, Roysden said the term “budget reconciliation” in and of itself puts people on notice that a bill may include a wide range of policy changes. 

And Roysden said the face mask ban appropriately belonged in the budget reconciliation bill for K-12 education because the budget provides the funding for those schools and the legislature can impose conditions they must follow.

“It carries it out, because the legislature says we’re going to fund these schools, and as a condition of that funding the schools cannot do X, Y and Z. It’s the legislature’s decision how to carry it out. It’s not the court’s decision through judicial review to second-guess that,” he said.

Almost immediately, the justices expressed skepticism toward Roysden’s arguments, from his claims that the challenged laws pertain to the budget to his assertion that the judiciary lacks authority to dictate to the legislature what is and isn’t relevant to the budget.

For the Supreme Court to rule that provisions of the budget bills violate the single-subject rule would be an unprecedented expansion of the juridiary’s powers into the authority of the legislature, Roysden said.

“So, the single-subject rule’s just a suggestion?” Chief Justice Robert Brutinel asked.

Roysden said that’s not the case, but that it’s up to the discretion of the legislature to determine what’s interconnected with the budget — and what is therefore constitutional.

“So, you’re telling us that there is no way that we can apply a constitutional standard to a bill that tries to link dog racing with anti-fraud ballot paper?” Justice Bill Montgomery asked, referring to provisions of the budget procedures bill that Cooper struck down.

Roysden responded that the title of the bill informed people that provisions on both subjects could be included in its text. If the courts find that the title doesn’t cover those areas, he said, they can sever any offending provisions.

“What this court has not done in 110 years, and this would be the first case to do it, is to take onto itself this parliamentarian role,” Roysden said. “That is a terrible idea for this court to start down this path.”

A difference between relating to the budget and implementing the budget

Attorney Roopali Desai, who represents the plaintiffs, said Roysden’s argument that the legislature is the arbiter of constitutionality would effectively render the single-subject rule null and void.

Budget reconciliation bills are subject to the same limitations as any other piece of legislation, Desai said. She described budget reconciliation as a “term of art” with a clear purpose — to implement a state budget. While a ban on face mask mandates may be tied to K-12 schools that are funded by the budget, it isn’t necessary to implement the budget, she argued.

“They know what budget reconciliation means. And it doesn’t mean anything they want relating to the budget,” Desai said. “They don’t show you one single provision that has somehow held up the implementation or carrying out of the ‘feed bill,’ which is what a budget reconciliation provision is.”

Some of the justices questioned Desai on whether some funding could be made contingent on the lack of a face mask requirement in schools. Justice Clint Bolick noted that federal budgets have included provisions prohibiting the use of federal dollars to promote abortions. Justice Ann Timmer suggested that the legislature could include in the budget a condition that none of the money it provides to schools could be used to enforce a mask mandate.

Desai said that may be possible for smaller pots of money, rather than the K-12 budget as a whole. But she said the state’s argument was effectively that all policy is relevant to the budget because the budget funds the entirety of state government, an argument that she rejected. 

“The test is not whether it relates to the budget. The test is whether it’s a budget reconciliation provision. And as I said, budget reconciliation is a provision that is necessary to carry out and effectuate the budget,” Desai said.

Timmer said Roysden made a compelling argument about legislative authority.

“Don’t we need to defer to the legislature to determine what’s necessary to reconcile the budget?” she asked Desai.

Desai responded that such an interpretation of the single-subject rule could have problematic consequences.

“What’s to say that the legislature doesn’t say that about every act that they pass?” she said. 

The purpose of the single-subject rule is to prevent logrolling, a term to describe the practice of tying unrelated measures to force lawmakers to vote for something they oppose in order to pass something they support. 

Various provisions of the budget, including some that were struck down, were included to win the support of holdout legislators. Some GOP lawmakers said they wouldn’t vote for the budget unless it included the ban on face mask mandates in schools, for example. Several of the provisions were originally stand-alone bills that failed to win support.

House Minority Leader Reginald Bolding, D-Phoenix, said the court’s reversal of the ban on face mask mandates is a win for students and schools, while the ruling as a whole was a win for the legislative process.

“It was never appropriate for the Speaker and Senate President to load up the budget with un-related and controversial policy items to mollify certain extreme members and avoid negotiating a bi-partisan budget,” Bolding said in a press statement. “A unanimous ruling from a Ducey-appointed Supreme Court is as strong a rebuke as we can imagine.”

The Arizona Education Association, one of the organizations that sued over the budget bills, hailed the ruling for eliminating the ban on face mask mandates in schools.

“Today’s Arizona Supreme Court ruling is a victory for our students, educators, and parents,” AEA President Joe Thomas said in a press statement. “This ruling puts the power of local control and decision making back in the hands of our communities. Now, our elected school boards can make decisions based on local conditions in determining whether to have a mask requirement to keep their students and school staff safe.”

After she struck down the budget provisions in September, Ducey referred to Cooper as a “rogue judge.” Four of the seven justices who joined the unanimous ruling on Tuesday were appointed by Ducey. A fifth justice he appointed, Kathryn King, recused herself from the case.

The Ducey administration’s language toward the Supreme Court wasn’t as sharp. Ducey spokesman C.J. Karamargin said the administration was “extremely disappointed” in the court’s decision.

“There are threes eprate, co-equal branches of government, and we respect the role of the judiciary — but the court should give the same respect to the separate authority of the legislature,” Karamargin said.

As for the laws “protecting Arizonans from burdensome mandates,” Karamargin said every Arizonan should be able to “make their own health decisions with the guidance of their doctor, not because of some government mandate.”

***UPDATED: This story has been updated to include additional information and details from the court hearing, as well as responses to the ruling.