By Howard Fischer
Capitol Media Services
PHOENIX -- Attorneys for Gov. Doug Ducey go to court Friday to defend the legality of his stay-at-home order.
U.S. District Court Judge Murray Snow will hear arguments by Joseph McGhee that there was no legal basis for the governor on March 30 to tell Arizonans that they must remain at home except to participate in certain either essential or constitutionally protected activities. McGee, who is representing himself, said Ducey had access to enough scientific information at the time to prove that COVID-19 was no more deadly than a host of other diseases.
Ducey has since extended the order until May 15.
Brett Johnson, a private attorney hired by Ducey to defend the order, counters that there was a sufficient risk to justify the restriction. They also contend that McGhee, a political independent who said he was working at a Flagstaff restaurant until he was laid off due to Ducey's executive order closing restaurants to in-house dining, has no legal right to challenge the order because he did not spell out what activities that he, personally, would otherwise have done had the stay-at-home order not been in effect.
But McGhee told Capitol Media Services that's not the standard.
"The specific injury is the fact that, essentially, the entire state of Arizona is subject to a mass detention in their homes,'' he said. McGhee said the only exceptions Ducey permitted were to participate in activities and services the governor deemed "essential.''
"That's a deprivation of liberty,'' he said, telling people under what conditions they can leave their homes. "The freedom to leave your home and wander about without any specific purpose is a constitutionally protected freedom.''
Johnson, however, said the governor's order itself undermines McGhee's arguments. He pointed out it allows people to exercise constitutionally protected rights subject to "appropriate physical distancing to the extent feasible.''
"To the extend that freedom of movement and travel are constitutionally protected, they fall within this express authorization,'' Johnson wrote. And he said that the order spells out that individuals need not "provide documentation or proof of their activities to justify their activities under this order.''
McGhee, however, said that provides small comfort when the governor himself has repeatedly emphasized that violations of any of his emergency orders subject individuals to up to six months in jail and a $2,500 fine.
Much of the argument may come down to exactly how dangerous is COVID-19 and whether that is enough for the governor to declare an emergency and restrict activities. And that could turn on the definition of a "pandemic.''
The World Health Organization on March 11 did use that term to define the outbreak.
Ducey acted on March 19 to close restaurants in any county with a confirmed case of COVID-19, citing the WHO declaration, a decision by President Trump to declare a national emergency, and guidance from the federal Centers for Disease Control and Prevention.
The stay-at-home order followed on March 30.
McGhee said he isn't disputing the pandemic designation. But he said all that means is that something spreads easily.
What's lacking, McGhee contends, is scientific evidence of widespread risk of death.
He said a study from Stanford University -- one published in the peer-reviewed Journal of the American Medical Association -- found an overall mortality rate of from 0.12 percent to 0.2 percent. McGhee also quoted studies from the University of Southern California and another from researchers from the University of Bern in Switzerland with similarly low mortality rates, though one ran as high s 1.6 percent.
The bottom line, he said, is that the word "pandemic'' is being thrown around as something more than it is -- something that spreads quickly and easily -- and as an excuse for the governor's emergency orders.
He said there have been "pandemics'' before, including seasonal flu cases and even the 2009 H1N1 worldwide pandemic. And in none of those cases, McGhee said, were people subject to orders restricting their activities.
Johnson, however, said there is nothing in state statute that requires there be any specific threshold of deaths before Ducey can declare an emergency. But he said that using that 1.6 percent figure cited by McGhee, that would mean the death of about 116,500 Arizonans.
Even using the lowest figure cited in the study -- that 0.12 percent rate -- Johnson said that still translates out to 8,734 Arizonans, "which is still substantial.''
The most recent data reported Wednesday by the Department of Health Services showed 426 had died so far, though the state has now recorded two days in a row of more than 30 deaths.
And then there's the fact, Johnson said, that 17.5 percent of Arizonans -- about 1.27 million -- are 65 and older and in the highest risk group.
"Gov. Ducey had no obligation to wait for these risks to become reality before taking measures to slow COVID-19's spread,'' he wrote.
Johnson also told Snow that he has to judge Ducey's actions under the standard of whether it was "rationally related to a legitimate governmental interest.'' He said that the governor's orders easily pass that test.
"Protecting public health is a legitimate government interest,'' Johnson said. "This interest takes on particular significance in a pandemic, when hospitals and other medical resources are at risk of becoming overburdened.''
He also said the order is rationally related to slowing the person-to-person spread of the virus.
"Restricting large gatherings of people, including restaurants where people gather in groups in close proximity, is a logical way to address these transmission-related challenges,'' Johnson said.
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