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Legally Speaking: Mountainside not throwing in towel on Ducey lawsuit

(AP Photo)

In the epic legal battle of Ducey v. Mountainside, all thought Gov. Doug Ducey had won when he played his ace and threw down a set of almost unattainable guidelines for gyms and other businesses to reopen.

But Mountainside is not done yet. Just Tuesday night it posted a message to its members that it had filed, or would be filing, a motion for contempt against Ducey.

“However, we have filed a ‘Motion of Contempt’ against the Governor and his actions which has included four (4) different versions of protocols since July 15th, including two (2) separate, increasingly more restrictive protocols after the August 4th and August 7th rulings against the Governor. We will continue our communication as we try to function in this ‘paused’ environment, and work tirelessly to re-open!!”

Mountainside will likely be making the argument that again, Ducey has no rational basis for creating the uber strict fourth set of protocols and did so in retaliation to Mountainside’s lawsuit and Judge Timothy Thomason’s rulings against Ducey.

Not a bad argument at all. At first glance it does appear Ducey did just that. However, if he has the experts to back him up, Mountainside is likely fighting a losing battle.

How did we get to this point? Good question.

Below, I will explain the legal side, along with a timeline, and will leave it to you to decide for yourself what each side’s true motivation is and whether gyms should be allowed to reopen.

June 29, 2020: Gov. Ducey issued Executive Order 2020-43 (EO 2020-43). Pursuant to this order, gyms and fitness clubs (such as Mountainside) were required to close by 8 p.m. that day and remain closed until July 27, 2020.

There was no advance notice. In EO 2020-43, the governor said gyms may be allowed to reopen if they “submit a form as prescribed by the (ADHS) that attests the entity is in compliance with guidance issued by ADHS.”

As of June 29, there was no such form. In fact, the form doesn’t show up until much, much later.

June 30: Due to the forced closure with little to zero notice, Mountainside filed a lawsuit against Ducey and asked the court to stop EO 2020-43 from taking affect against it. (Mountainside filed for a temporary restraining order and a preliminary injunction).

The EO was disappointing, frustrating and infuriating to many gyms across the Valley, most notably Mountainside Fitness.

As such, Mountainside decided to stay open in violation of Ducey’s order. Ducey obviously saw this as a direct affront to the law, his power and authority.

July 2: Mountainside’s blatant refusal to comply with Ducey’s order resulted in the Arizona Department of Health Services to give the gym one last chance.

It sent a “demand for compliance” letter and requested compliance with EO 2020-43 by July 3 or it threatened to sue Mountainside to force it to close.

July 6, 2020: All sides went to court and tried to convince Maricopa County Superior Court Judge Thomason to see things their way.

The judge found EO 2020-43 was constitutional, but ruled there must be some reasonable procedure in place for Mountainside to prove it could reopen safely.

After all, failure to put a procedure in place will be a deprivation of procedural due process.

July 22: After almost 2.5 weeks of waiting for the procedure to be put into place, Mountainside filed a “renewed” application for an injunction.

July 23: After almost a month, a draft of the form mentioned in EO 2020-43 was finally posted to the health department website (the final form was not posted until July 31).

Ducey crushed the hopes of Mountainside and other fitness centers when he issued EO 2020-52 and extended the date of closure for another two weeks.

Aug. 3: Mountainside was not happy and filed a renewed request for an injunction and the judge held a hearing.

By the way, judges do not like it when a party simply refuses to comply with their orders. It is seen as incredibly disrespectful and illegal.

Aug. 4: The judge rules that due process does not go away in times of hardship and the form and process is flawed and inadequate. EO 2020-43 violates due process.

The judge gives Ducey one week to put the process in place so Mountainside can apply for reopening. This is the judge’s way of saying he is not happy with Ducey’s actions, or lack thereof.

Aug. 5: Ducey files his Appeal to the Court of Appeals challenging Thomason’s decision ordering Ducey to put the process in place.

Ducey also asks the judge to hit the “pause” button on his order because in Ducey’s mind the judge made the wrong decision.

Aug. 7: Thomason shuts down Ducey’s “pause” request, explaining there is no reason to stay his previous order.

He previously upheld the constitutionality of Ducey’s executive order and ruled it was in “full force and effect and there is nothing preventing the Executive Brand from enforcing those orders and preventing the spread of the coronavirus. The only thing that this Court’s Order did was require a modicum of due process…” to Mountainside.

The judge explained the gyms have been shut down for well over a month without any opportunity to be heard.

If the judge allowed Ducey to drag his feet any longer on implementing the process to apply to reopen, then it would be even longer before the gyms get a chance to prove they can safely reopen. That would be unfair.

Aug. 10: After having a weekend to to stew on the judge shutting down Ducey, the governor comes back and throws down new guidelines for Mountainside and all gyms.

These guidelines, which are seemingly unattainable in the new future, sealed the deal.

Mountainside and gyms are not opening anytime soon. You can read the guidelines here.

As I said, Mountainside isn’t giving up. #Legallyspeaking it has had, and will continue to have, a very tough road ahead of it.

Mountainside is taking one for the team in that it is paying all the costs to try to get gyms and fitness centers open in our state.

That being said, I know a lot of Arizonans are on its side and, like Mountainside, are dying for gyms to be open again.

With experts on Ducey’s side, I don’t think Mountainside will win the war, even though it has won a couple battles.

The only thing certain in the uncertain world of COVID-19 is the uncertainty of the outcome of a legal lawsuit.

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