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Judge says law doesn’t yet block Phoenix Union mask mandate

By: - August 16, 2021 1:18 pm

Photo by izusek | Getty Images

Republican lawmakers can’t sidestep a provision of the Arizona Constitution that dictates when new laws go into effect by adding a retroactivity clause, a Maricopa County judge ruled in a case attempting to overturn Phoenix Union High School District’s new face mask mandate.

Judge Randall Warner rejected a PUHSD teacher’s request to block the mask requirement from going into effect on Monday. In his ruling, Warner said the mandate didn’t violate a recently passed state law barring school districts from imposing such rules because that law doesn’t go into effect until late September.

The Arizona Constitution stipulates that new laws can’t go into effect until 90 days after the end of the legislative session in which they were passed. The only way to implement a law sooner than that is if it passes with an emergency clause, which requires a two-thirds supermajority vote in both legislative chambers. 

For laws passed in the 2021 legislative session, which dragged on until the end of June, the effective date is Sept. 29. GOP lawmakers hoped to implement its ban on school districts and charter schools imposing mask mandates in time for the start of the school year, so in an attempt to circumvent the effective date, they added a clause stating that the prohibition is retroactive to June 30.

Warner wrote that the legislature appeared to be within its power to bar school districts from requiring that students and teachers wear face masks, noting that PUHSD didn’t put forward any argument that lawmakers lack the legal authority to impose such a limitation. However, he ruled that the retroactivity clause can’t change the effective date established by the state constitution.

“A retroactivity clause is not an emergency clause, and cannot be used to avoid the two-thirds vote requirement needed to make a statute immediately effective,” Warner wrote. 

Warner also rejected the claim by Douglas Hester, a teacher at Metro Tech High School, that the mask mandate was illegal even before the legislature’s ban went into effect. PUHSD enacted it as a response to rising COVID-19 infections in Arizona, which are being driven by the highly infectious Delta variant.

“Arizona law gives school boards the authority to protect students and ensure the orderly operation of schools, subject to statutory limitations imposed by the Legislature,” the judge said.

Though he rejected Hester’s request for a temporary restraining order barring the new mask mandate from going into effect, Warner denied the district’s motion to dismiss the case altogether, writing that he wouldn’t dismiss the case without first giving the plaintiff an opportunity to file an amended complaint. 

PUHSD praised Warner’s ruling, touting it as a win for the district’s commitment to “creating the safest in-person learning environment possible.”

“Today’s decision is much larger than (Phoenix Union High School District) – it has the potential to impact the 1.1 million students who call Arizona’s public schools home, as well as their families and the broader community. This decision will allow districts across the state to continue to prioritize the health, safety, and wellness of their staff, students, and families,” the district said in a press statement. 

Hester’s attorney, Alexander Kolodin, said he would have preferred to see the judge enforce the retroactivity clause. He also described the ruling as a win.

“I think the heart of the case is whether the legislature was within its authority to issue this statute and whether school districts have to follow state law or whether they can pick and choose to follow the feds. On that point, the judge seems to be inclined to our position, which I’m pretty happy to see,” Kolodin told the Arizona Mirror. “The 90-day rule is sort of a technical legislative issue.”

Kolodin said he has to confer with his client to determine their next steps and whether they’ll file an amended complaint aimed at challenging the law when the Sept. 29 effective date gets nearer.

PUHSD was the first school district in Arizona to defy the legislature and Gov. Doug Ducey by imposing a mask mandate for the new school year in an attempt to limit the spread of COVID-19. Since then, at least a dozen other districts have followed suit, according to Fox 10. Arizona’s universities and Maricopa County community colleges have also sought to sidestep state law by enacting new mask requirements.

A separate lawsuit filed last week challenges the legality of the mask mandate ban, along with several other new laws that were included in the state budget. The lawsuit alleges that the prohibition violates a provision of the Arizona Constitution known as the single-subject rule, which prohibits lawmakers from packaging laws on unrelated subjects into one bill.

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. 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.”