MONICA LINDSTROM

Legally Speaking: Why judge rejected Arizona ban on mask mandates

Sep 28, 2021, 2:00 PM | Updated: 2:10 pm
(File Photo by Matthew Hatcher/Getty Images)...
(File Photo by Matthew Hatcher/Getty Images)
(File Photo by Matthew Hatcher/Getty Images)

Unconstitutional. That is what Superior Court Judge Katherine Cooper decided regarding the “no mask mandates allowed” laws passed by the Arizona Legislature with the support of Gov. Doug Ducey. Due to this decision, schools are allowed to mandate the wearing of masks on school property, at least for now. The judge’s decision was not one based in morality, science or opinion; it was based on the Arizona Constitution and how the most recent “budget” laws were written. Let me explain.

A group of plaintiffs filed suit and asked the Superior Court to stop four laws from going into effect. These plaintiffs argued four bills recently enacted by the Legislature, HB2898, SB1824, SB1825 and SB1819, are invalid and unconstitutional because all four violate the title and single-subject requirements of Section 13 of the Arizona Constitution. It may seem a bit confusing, but the concept behind the arguments is pretty simple: You cannot try to stuff all kinds of subjects into one law and get away with it.

The above laws are all considered budget reconciliation bills. They are used to implement the terms of the state budget. Under the Arizona Constitution, substantive legislation is not allowed to be included in budget reconciliation bills. To support this, Arizona has requirements to help “safeguard the legislative process.” “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title.” This helps the public understand the proposed laws and allows them a fair chance to have a voice in the process. The court explained it best: “The title requirement ensures that the public has notice of proposed legislation and a fair opportunity to participate in the process. The single subject rule precludes legislators from combining unrelated provisions into one bill to garner votes for disfavored measures. Together these requirements promote transparency and the public’s access to information about legislative action.”

The court found the “Legislature inserted policy provisions – most of which relate to COVID-19 mitigation measures – into each bill under the title ‘budget reconciliation.’” A public citizen would not think to look in a budget bill for policy requirements. Second, the Legislature combined approximately 30 subjects into a single bill, SB1819. Because of this, Plaintiffs argued that the Legislature used budget-related bills to pass substantive legislation that has nothing to do with the budget. The court agreed.

#LegallySpeaking, it is simple. One subject per bill and the title must match. Since these concepts were violated, the laws are unconstitutional.

The court recognized the Legislature has the right, power and authority to create laws and create policy. However, the court pointed out that the process of doing so must be legal. Defendants tried to argue that by invaliding these laws, it is the court who is overreaching and creating policy. The court made quick work of that argument by pointing out it was the procedure (the how) and not the what (content/policy) that was the problem. You don’t need a law degree to see what the court did. Pull up the laws, read the title, then read the law. Does the law contain more than one subject? Does the subject (since there should only be one) flow with the title?

The first round in the courts has been finished, and the plaintiffs won; however, there will be an appeal and this will eventually be heard in the Arizona Supreme Court. For now, the “no mask mandates allowed” laws are gone. That being said, there is nothing to stop the Legislature from enacting laws that outlaw mask mandates, as long as the new laws have one subject per law and follow the title rule.

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Legally Speaking: Why judge rejected Arizona ban on mask mandates