By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Supreme Court refused Wednesday to let the state start enforcing its new ban on school mask mandates, at least for the time being.
In a brief order Wednesday, the justices rebuffed a bid by Attorney General Mark Brnovich to immediately suspend the Monday ruling by Maricopa County Superior Court Judge Katherine Cooper that provisions of four separate pieces of legislation were illegally enacted. She said lawmakers failed to comply with constitutional requirements that bills be limited to a single subject and that the title of each measure inform people of what it contains.
The justices, however, indicated a willingness to review her ruling on an expedited basis, setting a deadline of Friday for both sides of the dispute to file any paperwork. But none of that is a guarantee that they will buy arguments by Brnovich that Cooper exceeded her authority in invalidating the challenged provisions.
What's at stake is far more than the law, which was supposed to take effect Wednesday, prohibiting local school boards from requiring students and staff to wear masks while they are on campus.
Cooper, in an extensive ruling, also voided a host of other measures, including limits how schools can teach about race, ethnicity and gender, prohibiting universities and community colleges from requiring proof of vaccination or use of masks, limiting the powers of Secretary of State Katie Hobbs, and even establishing a special Senate committee to review the results of the just-completed audit.
Brnovich argued all that requires immediate attention of the justices.
"The trial court's ruling carries significant implications for the operation of state government,'' he said in his filings. "And the state will continue to suffer harm if the trial court's ruling is not swiftly overturned, allowing the challenged provisions to immediately go into effect.''
Gov. Doug Ducey separately said he is looking at challenging Cooper's ruling.
His worry is more practical: It could affect his ability to negotiate a budget with state lawmakers in future years if they cannot use the same practices to lump various issues -- unrelated according to the judge -- into a single bill. That is designed to corral votes by getting legislators who might oppose a specific provision to go along in order to get approval for the measures they want.
"The budgets that I've signed have had some customary practices,'' Ducey said. "And this was one of them.''
In the meantime, that ban on mask mandates remains a legal nullity. And several school districts that had been waiting for the ruling have since decided to keep their bans in place.
And Ducey is going to let that situation remain. The governor said Wednesday he does not intend to issue a new executive order prohibiting school boards from enacting or enforcing such rules.
"This is going to be decided in court,'' he said.
How quickly remains to be seen.
In seeking Supreme Court intervention, Brnovich argued that Cooper's order "constitutes irreparable harm to the state and the public interest.''
"It is well established that a state suffers irreparable injury whenever an enactment of its people or their representatives is enjoined,'' he wrote. "The (trial) court's ruling and judgment, which declares multiple provisions of duly-enacted state law unconstitutional, alters the delicate balance between the elected branches of government and the state.''
But it remains to be seen whether the justices agree with Cooper that the laws were not "duly enacted.''
It starts, she said, with the constitutional provision which says every legislative act "shall embrace but one subject and matters property connected therewith, which subject shall be expressed in the title.'' More to the point, Cooper noted that the constitution says anything in a bill that is not reflected in the title those provisions "shall be void.''
What lawmakers approved, she said, were four bills with general titles about appropriations and budget procedures.
"Their function was to enact laws to effectuate the budget,'' Cooper wrote. "It was not to enact laws prohibiting mask mandates, regulating school curriculum, or authorizing special interest projects unrelated to the budget or budget reconciliation.''
Brnovich, for his part, told the justices that Cooper is exceeding her authority to tell lawmakers what they can and cannot do.
"The court refused to recognize that the constitution does not define what is 'necessary' for inclusion in a 'budget reconciliation' bill,'' he said. And Brnovich argued that any effort by Cooper to decide that issue by looking into what is necessary to effectuate the budget -- the stated purpose of reconciliation bills -- "raise a political question that is left for the legislature to decide.''
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"There are strong prudential reasons why the judicial power does not extend to determining whether budgetary measures are sufficiently related or tied to budgeting, thereby rendering it an unreviewable political question.''
Cooper heard and dismissed that contention, saying it is precisely the role of courts to decide whether acts of other branches of government are constitutional.
If that argument doesn't work, Brnovich has others about why what is in each of the bills really does relate to the budget.
"These provisions address the operations of publicly funded schools, including whether public monies can be spent to teach critical race theory and whether publicly funded school can condition employment or attendance or wearing face coverings or obtaining COVID-19 vaccinations,'' he said.
Ditto, he said, to provisions in another bill relating to elections.
For example, he said the bill limits the use of budget funds to purchase specified ballot paper, bars local governments from using public funds to enforce mask mandates against public businesses, and decides that it should be his office -- and not the secretary of state -- that spends public money defending state election laws.
Cooper sniffed at that argument when it was presented to her.
"The state's view would allow the legislature to re-define 'budget reconciliation' to mean anything it chooses,'' she wrote. "Going forward, the legislature could add any policy or regulatory provision to a budget reconciliation bill, regardless of whether the measure was necessary to implement the budget (and) without notice to the public.''
Brnovich does have a fall-back position if the justices conclude that Cooper, in fact, was correct in concluding that legislators acted unconstitutionally.
He told the justices that they have never addressed this specific question of the scope of legislative power. And, given that, Brnovich believes that her ruling should instead be prospective only, allowing the challenged provisions to take effect this time but giving fair warning to future lawmakers that such maneuvers are no longer permissible.
