By Howard Fischer
Capitol Media Services
PHOENIX -- Bar owners from around the state are asking the Arizona Supreme Court to rule that Gov. Doug Ducey does not have the constitutional authority to shut them -- or any other business -- down.
Attorney Ilan Wurman is not contending that there is not an emergency due to the COVID-19 outbreak.
But Wurman, an associate professor at Arizona State University, said the law that gives Ducey the unilateral power to do things like close down certain businesses "unconstitutionally delegates the legislative power of this state to the governor. And he wants the justices to not only void the law giving the governor those powers but also declare that any orders Ducey already has made under that law are illegal and cannot be enforced.
The outcome of the legal fight would affect not just the owners of the 20 bars around the state who are challenging his authority over them but every other kind of business that Ducey has ordered shuttered or whose operations he has directed be curtailed. And it also could affect the governor's future ability to impose a new stay-at-home order as well as any directives he issues about when schools can and cannot open.
There was no immediate response from the governor's office.
Central to the case is the law that both allows the governor to declare an emergency and then gives him "the right to exercise ... all police power vested in the state by the constitution and laws of this state'' to deal with that emergency.
"Petitioners have suffered great harm from being unable to operate their businesses in pursuit of their lawful occupations and ordinary callings,'' Wurman told the justices. "They have no idea when they will be able to reopen.''
The problem with the governors action, he said, is that the law approved by the legislature which gave him that power is unconstitutional.
"The legislature may not delegate its legislative power to another,'' Wurman said. "Under the doctrine of 'separation of powers' the legislature alone possess lawmaking power,'' a power he said lawmakers "cannot completely delegate ... to any other body.''
At best, he said, lawmakers can allow another branch of government "to fill in the details of legislation already enacted.''
Here, Wurman said, the legislature went far beyond that in giving Ducey complete police powers.
"The 'police power' of a state is, in effect, its legislative power: its power of the health, safety, welfare, and morals of the people,'' he wrote.
The law that Ducey is using, Wurman said, is "a naked delegation of the state's legislative power to the governor and is therefore unconstitutional.
"There are no standards whatsoever,'' he said. "There is no sufficient basic standard, no definite policy and rule of action which will serve as a guide for the governor.
And what that means, Wurman told the court, is that the law gives Ducey unfettered authority.
"Can her permit only takeout? If he wants to,'' he said.
"Can he leave restaurants open but close down bars and gyms? If he wants to,'' Wurman continued. "Can he close down bars but not gyms, or gyms but not bars? If he wants to.''
And what that also means, he said, is that Ducey could order students to attend school only every third day.
"There is, in short, literally (ITALICS) no (ROMAN) standard by which to judge the governor's actions under the statute, and it therefore must violate the nondelegation doctrine,'' Wurman said.
He said none of his clients are arguing that government cannot close down their businesses in "appropriate circumstances.''
"The question is (ITALICS) who (ROMAN) within our constitutional system of government has that power,'' Wurman said.
"That person is not the governor,'' he continued. "The state legislators have that power,'' one Wurman said they cannot constitutionally delegate to the governor.
Wurman acknowledged that the laws allowing the governor to declare an emergency also give the legislature the authority, with a simple majority vote of each chamber, to declare it over. But he said that does not overcome the legal issue of lawmakers having given the chief executive unlimited police powers in the first place.
He also told the court that declaring the state's general emergency powers statute unconstitutional would not leave Ducey or future governors without the power to deal with emergencies, including the pandemic. He pointed out -- and is not challenging -- various other laws giving governors powers to deal with public health emergencies, laws that even allow a governor or the health department to quarantine people without court order, require vaccinations and even permit the use of the National Guard to enforce those orders.
But those powers, Wurman said, are limited.
"Nothing in (health law) authorizes the governor to close down petitioners' businesses,'' he said.
Wurman conceded that there is a section law that allows cities and counties -- but not the governor -- to close any business during a state of emergency. But even here, he said, that is only as necessary "to preserve the peace and order of the city, town or unincorporated areas of the county.''
The lawsuit also raises an equal protection argument, saying Ducey cannot decide that some businesses are permissible while other are not.
"If the purpose of the governor's order is to mitigate the spread of a pandemic by ensuring that businesses follow particular sanitary measures, then the governor must permit all businesses to operate who can meet those standards,'' he wrote.