By Howard Fischer
Capitol Media Services
PHOENIX -- Rebuffed by the Arizona Supreme Court, more than 100 bar owners are now taking their claims against Gov. Doug Ducey to a trial judge.
In a brief order, Chief Justice Robert Brutinel said the bar owners "did not provide a compelling reason as to why this matter could not be initiated in a lower court.'' Anyway, Brutinel said, having the case go to a trial court will flesh out the allegations by the bar owners that the action by the governor shutting them down violated their constitutional rights and denied them legally required due process.
In some ways the ruling is not a surprise. It is highly unusual for the state's high court to consider any issue that has not already been through the normal trial process.
But the ruling also does not end the dispute.
Attorney Ilan Wurman already has filed a new lawsuit in Maricopa County Superior Court alleging that Ducey does not have the constitutional authority to shut down bars -- or any other business for that matter.
In sending the case to a lower court, that raises the possibility that the Ducey-declared emergency could be over and business back to normal by the time there is a trial and then the likely appeals. Wurman said that is why he is asking Judge James Smith to grant a preliminary injunction to allow the bars to reopen while the case proceeds.
But even if that doesn't happen, Wurman told Capitol Media Services that the case still needs to proceed. He said Arizona courts need to spell out clearly what powers not only this governor but future governors have over businesses the next time there's an emergency.
"What happens when schools are back in session in September and U of A and ASU have been in session for a month and the (COVID infection) numbers go back up?'' he asked.
"Who are the first people going to be the scapegoats?'' Wurman continued. "The bars.''
And the new lawsuit has something not in the original version.
He is asking Smith to declare that Ducey, in shuttering the establishments, effectively took their property. And that, Wurman said, would require the state to pay compensation to the bar owners for what they lost while they were forced to close.
"But our objective is to get open,'' he said.
At least part of Wurman's arguments rest on his claim that the governor has unfairly and illegally singled out his clients for discriminatory treatment.
He points out that there are many different kinds of establishments that can legally serve alcoholic beverages. That includes places licensed as restaurants.
By contrast, his clients are licensed as bars.
The advantage is that they do not need to meet the same requirement as restaurants that at least 40 percent of their sales come from food. But Wurman said that, for all intents and purposes, the activities at restaurants, which can remain open -- albeit at reduced capacity -- are no different from those at places licensed as bars.
In fact, he said, some bars have spacious outdoor patios, table service and no dancing while some restaurants "often have cramped spaces, loud music, dancing, and no outdoor seating.''
No date has been set for a hearing.