By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona schools are free to require students and staff to wear masks on campus, at least for the time being.
But that power may disappear on Sept. 29.
In a ruling Monday, Maricopa County Superior Court Judge Randall Warner said the state law banning such mandates approved by the Republican-controlled legislature at the end of June is not yet in effect.
"Under Arizona law, new laws are effective 90 days after the legislative session ends, which is Sept. 29 this year.
Warner acknowledged that there is an exception for emergency measures. But he said this does not qualify.
"They require a two-thirds vote and this statute was not approved by a two-thirds majority,'' Warner wrote.
The judge also said a clause in the measure making it retroactive to July1 is legally meaningless.
"A retroactivity clause is not an emergency clause and cannot be used to avoid the two-thirds vote requirement needed to make a statute immediately effective.'' he said.
Warner was no more impressed by arguments by Alexander Kolodin, attorney for a teacher in the Phoenix Union High School district who is challenging the mask requirement, that HB 2898 which contains the ban on mask mandates is an appropriations measure. In general, such bills are immediately effective.
"This statute is not an appropriation measure,'' the judge wrote. "It is a regulation of school districts.''
And Warner said the fact that lawmakers tucked the language into a bill that also includes some appropriation of funds does not also convert this provision into an appropriation.
Monday's ruling most immediately keeps in place the requirement enacted by the Phoenix Union board earlier this month. Chad Getson, the district superintendent, said the goal was not to defy the state but instead to protect the 32,000 students and staff from COVID-19.
But while Warner's ruling sets no precedents, it gives added strength to similar restrictions imposed by Tucson Unified School District and other districts around the state that have decided, at least for the time being, to require those coming on campus to wear face coverings.
Monday's ruling, however, is far from the last word on the issue.
Warner emphasized that he is not making any decisions on the merits or even the legality of the law itself, but only its effective date. But the judge did tip his hand, at least a bit, suggesting that he believes that the restriction on mask policies enacted by lawmakers is valid -- or, at least will be when it takes effect.
"Phoenix Union High School District cites no legal authority that this statutes is beyond the legislature's powers,'' Warner wrote. "Indeed, Arizona law expressly limits school districts' authority to policies that are 'not inconsistent with law.”
In fact, the judge refused to dismiss Kolodin's entire lawsuit, essentially inviting the attorney to return to court if Phoenix Union intends to keep its policy in place.
"We are pleased the judge recognized that the legislature has the authority to prohibit schools from imposing mask mandates,'' Kolodin said.
There was no immediate response from the district or its attorney.
There is, however, another legal argument which could protect the mask mandates in the future.
In a separate lawsuit, attorney Roopali Desai contends that the anti-mask provision in HB 2898 was unconstitutionally enacted.
Desai, representing a coalition of educators, school boards, child advocates and others is not arguing that a ban on mask requirements, by itself, is illegal.
But what is illegal, she contends, is putting that prohibition into a 231-page bill simply labeled as "appropriating monies; relating to kindergarten through grade twelve budget reconciliation.
That Desai said, runs afoul of constitutional requirements that all bills contain but one subject and that the title must reflect what is in each bill.
No date has been set for a hearing on that lawsuit.