By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Supreme Court has agreed to hear arguments about whether the ban on mask mandates at public schools was legally enacted.
And the justices agreed to do it relatively quickly.
In a brief order, the court set a hearing for Nov. 2 on the bid by Attorney General Mark Brnovich to overturn a ruling this past week by Maricopa Couty Superior Court Judge Katherine Cooper that the provision in a new state law blocking schools from making these decisions was approved in an unconstitutional manner.
The move means that Brnovich won't have to first make his case to the Court of Appeals that Cooper's ruling, which could forever change how legislation is enacted, overstepped her authority. And the fact is that the case eventually would have wound up with the high court as whoever lost at the appellate level would have sought review.
But the expedited briefing schedule and the Nov. 2 hearing is a setback for attorney Roopali Desai who represents the education groups and their allies who first sued and got Cooper to rule in their favor. She had wanted more time to prepare her arguments for the justices, as whatever they rule will set new legal precedents and could change forever how legislation is adopted.
Instead, the justices told Brnovich to file his arguments by Tuesday, giving Desai a week after that to respond. And others who want to weigh in have to submit their briefs by Oct. 15.
In some ways the decision to expedite was expected.
The court previously has spurned Brnovich's arguments that, given the nature of the dispute and the effect on legislation, it should immediately put Cooper's ruling on hold. The Nov. 2 hearing date guarantees a decision by the high court by the time lawmakers reconvene in January.
Hanging in the balance is the future of the practice of lawmakers to put various apparently unrelated changes in state law into a package of what they call "budget reconciliation bills.''
Desai charged -- and Cooper agreed -- that the practice at the very least violates a constitutional requirement that the title of a measure reflect what is in it so as to inform not just lawmakers but the public.
The judge noted, for example, that a bill titled as dealing with budget reconciliation for K-12 education also included a restriction on how schools can teach about race and gender, authorized lawsuits against public employees for conduct related to public schools, as well as making it illegal for school boards to require students and staff to wear masks while on campus.
"What do these measures have to do with the budget?'' Cooper asked.
The judge also voided all or part of three other measures for similar reasons.
Assistant Attorney General Michael Catlett, arguing for Brnovich, contends that it is up to lawmakers to decide what is relevant to a bill. And he said that courts are powerless to tell a separate branch of government how to operate.
Cooper, however, said she is not telling lawmakers what to approve but instead determining if they acted in accord with the Arizona Constitution.
"Whether the legislature complied with the requirements of (the Constitution) and whether a provision is reasonably related to 'budget reconciliation' are questions property before the court,'' she wrote.
The reconciliation bills have often been used for "logrolling,'' putting unpopular changes in law into a single package that forces legislators who want another provision to have to support because of the take-it-or-leave-it nature.
That is precisely what happened earlier this year after lawmakers refused to approve a bill that proponents said prohibits the teaching of "critical race theory.''
For example, it would bar teaching that someone is inherently biased due to those their ethnicity, race or sex, or that an individual should feel discomfort, guilt or psychological stress because of any of the same factors.
But it became part of the larger K-12 budget reconciliation bill, a measure that, aside from the ban on mask mandates, also included changes in state aid formula for schools that many legislators support.
If the Supreme Court upholds Cooper's ruling, that practice would have to come to a halt.
It isn't just the Republican lawmakers who control the House and Senate who want the high court to void the decision. Her ruling also drew fire from Gov. Doug Ducey, who supported the changes like the ban on school mask mandates, who called Cooper a "rogue judge.''