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Legally Speaking: Mountainside Fitness has good case against Ducey

(Facebook Photo/Mountainside Fitness)

It has happened. Someone has stepped up and filed a lawsuit against Gov. Doug Ducey regarding his executive orders related to COVID-19. It was only a matter of time before this happened.

Mountainside Fitness (“Mountainside”) decided to be the one to tackle the issue and filed a complaint in Superior Court for violations of substantive and procedural due process and equal protection.

It is asking for the court to stop the enforcement of Ducey’s latest Executive Order 2020-43, “Pausing of Arizona’s Reopening, Slowing the Spread of COVID-19” because it is arbitrary, random and irrational.

This week, Ducey held a press conference and announced Executive Order 2020-43 (“Order”) which essentially mandated the closing of indoor gyms, fitness clubs, bars, movie theaters, water parks and tubing operators. According to the Order, these facilities had to close within 5 hours of the press conference, by 8:00 p.m. on June 29, 2020.

There is no argument Ducey has the right to issue executive orders, this Order included. He is the CEO of our state and is charged with the overall protection and well being of Arizona. His executive orders are deemed law; however, just like the President’s executive orders, Ducey’s orders are subject to judicial review and can be challenged in court.

His orders must be clear, concise and have at least a rational basis to rest upon. Arbitrary, confusing or vague orders are inconsistent with our Constitution and are hard, if not impossible, to interpret and follow.

The essence of Mountainside’s complaint is the governor took away its right to do business without a rational basis and left it no opportunity to show it is safe and allowed to be open.

When the government takes away the rights of its citizens it must adhere to both substantive and procedural due process. That means it must give notice and a hearing either prior to taking those rights away, or, in some cases, within a reasonable amount of time after doing so.

Mountainside is claiming, rightfully so, that no prior notice was given to it and the other businesses subject to the Order that they would have to close their doors within 5 hours for at least a month or be subjected to citations and other punishments.

Granted, Ducey doesn’t have to give prior notice but he does have to give a chance for Mountainside to be heard within a reasonable amount of time after issuing the Order.

This is where it gets interesting.

The complaint explains Arizona is in “Phase 1” of the “Guidelines for Opening Up America Again” published by the Centers for Disease Control and the White House Coronavirus Task Force. These guidelines provide “gyms can open if they adhere to strict physical distancing and sanitation protocols.”

In addition, the Order allows gyms to receive authorization to reopen after submitting a form to the Arizona Department of Health Services (“ADHS”) showing they are in compliance with all safety guidelines.

On paper, both the Guidelines and the Order provide “due process.” But, in reality, that due process is not being carried out. The complaint alleges there is no such form to fill out; as such, Mountainside (or any other gym, bar, movie theater etc) is not being given any kind of due process.

It appears from reading the complaint Gov. Ducey issued the Order without checking off all the boxes required for due process. Maybe that is because he is dealing with a virus that is overtaking our beautiful state, or because there is so much pressure on him to make changes.

Either way, there are laws and constitutions that government actors must adhere too, including Ducey and including when we are in a pandemic.

Mountainside is asking the court to stop the enforcement of the Order until a full trial can be had on its validity. The Court will have to weigh the interests and hardships of Mountainside in having to close vs. the interests and hardships of Arizona in keeping it open.

COVID-19 and the closing/opening of our state is a polarizing issue. It is also very confusing. Unfortunately there is not always time to make the right decisions but Ducey would likely argue to the court he makes the best decisions he can at the time he has to make them – and that he has the best interests of Arizona at heart.

This isn’t a strong enough argument to circumvent the Arizona Constitution though it may go far in the court of public opinion. Bottom line, due process is required and I believe that is what the court will focus on.

Looking into my #LegallySpeaking crystal ball, I can see the court allowing Mountainside to remain open since, according to the complaint, it has adhered to all the strict guidelines for sanitization and protection.

I do not see the court stopping enforcement of the Order against all other entities. I anticipate the State will upload that form for Mountainside and other businesses to fill out and submit to the ADHS quickly, maybe even before this is posted.

If the state does so, and if Mountainside is granted permission to reopen, then it is possible the entire case will be moot and go away. At least until the next Executive Order is issued.

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