Legally Speaking: Brnovich appeal to Arizona Supreme Court makes sense

Are the “no mask mandates allowed” laws unconstitutional or constitutional? That is what the Arizona attorney general is asking the highest court in Arizona to decide. Mark Brnovich wants the Supreme Court to take the case from the Court of Appeals and make the decision now, which is a smart move.

Just this week Superior Court Judge Katherine Cooper held the “no mask mandates allowed” laws passed by the Arizona Legislature, with the support of Gov. Doug Ducey, unconstitutional. Because of her decision, schools are allowed to mandate the wearing of masks. AG Brnovich, as the lead attorney for the state of Arizona (including the Legislature), says not so fast and has stepped in to defend the Legislature and the laws.

A group of plaintiffs, which includes parents and teachers, filed suit to stop four laws from going into effect. These plaintiffs argued HB2898, SB1824, SB1825 and SB1819 are invalid and unconstitutional because they all violate the title and single subject requirements of Section 13 of the Arizona Constitution. They claimed the substance of these laws does not relate to the title and contain more than the one subject that is allowed. The Superior Court judge agreed and invalidated the laws.

The court explained these 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 these budget reconciliation bills. To support this overriding rule, 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.”

It is simple: one subject per bill and the title must match. The court held that 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 and in line with current laws.

In his petition to the Supreme Court, Brnovich argues the trial court acted outside its authority and waded into the political question controversy, which courts are not allowed to do. Additionally, he argues the court did not need to invalidate all parts of the laws, it only needed to invalidate the particular provisions she claims were unconstitutional. Due to wiping out the laws in their entirety, the court created confusion and interfered with the functioning of the Legislature.

In his petition the AG attempts to persuade the Supreme Court to take the case now because time is of the essence. We are in a public health emergency and these laws deal with that and the budget; there is no need to wait for the Court of Appeals to decide. The supreme voice on Arizona law should ring out and give a decision; there is no need to involve the Court of Appeals when it is evident any decision will be appealed to our Supreme Court. He makes an excellent point. We are dealing with Arizona law, Arizona citizens and the Arizona Legislature — the Supreme Court should jump right in.

If it accepts the case, the Supreme Court, just like the trial court, will not be making a decision based in morality, science or religion. It will look at the Arizona Constitution and apply it to the laws above. Do the laws comply with the single subject and title requirements? If so then they stand, if not, then they are either in whole, or in part, unconstitutional.

#LegallySpeaking, I think it was a smart decision for the AG to ask the Supreme Court to jump right in. It will save the taxpayers and Arizona citizens time and money. Additionally, it can give guidance to the Legislature about the lawmaking process. A decision regarding mask mandates needs to be made. Arizona deserves an answer.

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