By Howard Fischer
Capitol Media Services
PHOENIX -- The decision Tuesday by the Tucson council to enact a curfew despite a gubernatorial prohibition could pave the way for a legal fight with Gov. Doug Ducey.
And if Tucson gets away with its plan, it potentially could embolden other cities to defy the restrictions he placed on their powers this past March.
The ordinance which takes effect Friday bars people from being on public streets or spaces between 10 p.m. and 5 a.m. unless traveling to and from work or other essential activities. It exempts public safety personnel, health care professionals, essential workers and the homeless.
City Attorney Mike Rankin said that ordinance is justified and legal.
"This pandemic is an ongoing local emergency,'' he said. "Certain emergency measures which are reserved to the mayor and which flow from both the charter and state law need to be taken at this time in order to curb the spread and the surge of this infectious disease.''
But Ducey, when he declared his own statewide emergency in March, declared that no local government can issue "any order, rule or regulation that ... is in addition to the policy, directive or intent of this executive order.''
The governor has not imposed any sort of a curfew.
And in case there's any question of the breath of his prohibition, Ducey's order specifically says the preemption includes "any order restricting persons from leaving their home due to the COVID-19 public health emergency.''
In fact, it was that preemption that kept Tucson and other cities and counties from imposing their own mask mandates until Ducey relented -- at least partly -- and agreed to allow them to adopt policies about wearing face coverings.
Ducey at one time had a stay-at-home order in place, telling Arizonans they must "limit their time'' away from their homes or property except to participate in "essential activities.''
He allowed that and other restrictions to expire in May. That, in turn, resulted in a sharp hike in the number of people infected.
And while Ducey did reimpose some restrictions on bars, restaurants, gyms and movies, he never again sought to limit individual activity even as the rate of infections is again on the upswing. So Tucson Mayor Regina Romero decided the city should act on its own.
And what of the restrictions?
"The mayor and I and other city officials are well aware of what the governor has included in his executive order,'' Rankin said.
He said the law allowing Ducey to declare an emergency does give the governor certain powers.
"But it does not give him the authority to wipe away the legal authority of other officials who are also given emergency powers, including under the state statutes themselves
The mayor insisted she's not trying to pick a fight with Ducey.
"I did try and reach out to the governor,'' Romero said, through the weekend and even on Monday, seeking a conversation of no more than 10 minutes. She said that was to talk about the issue of a curfew and the need for statewide action.
"Unfortunately, the governor declined to speak with me,'' Romero said, saying that the response from the governor's office was that he was "very busy.''
And mayoral aide Myriam Cruz said that as recently as noon on Monday the mayor's staff was told that Ducey would not be available to speak with Romero.
But Daniel Scarpinato said while there were calls from the mayor's office, there was never a request to actually speak with Ducey.
And Scarpinato on Tuesday refused to comment about whether his boss believes that cities can, in fact, enact their own curfews or whether that runs afoul of the gubernatorial preemption.
"We haven't seen the specifics yet,'' he said. "So when we get the specifics we'll have our general counsel review it.''
Nor would he respond even to the generic idea of cities imposing travel restrictions.
Romero acknowledged that Tucson did not defy the governor earlier this year when, until June, he forbade local governments from imposing mask requirements. She had wanted to do that as far back as March but opted against it based on Rankin's advice.
"He felt at the time such a mask mandate related to public health would be much better put through by the county or the state,'' Romero said. It was only after seeing no action at the state level she said she began to pressure the governor for the exemption from his executive order.
Rankin, for his part, said there's no inconsistency between agreeing in March to live within the governor's constrains on masks and pushing ahead with a curfew now.
"We make different decisions at different times based on the needs of the community at that time,'' he said.
Rankin said the city has the same authority as the governor to impose penalties for those who violate emergency orders: a Class 1 misdemeanor with a possible $2,500 fine.
But he emphasized that the goal is education, with the plan saying that anyone who is found in violation first be given an opportunity to comply. And even if a citation is issued, Rankin said, his office, which would be in charge of prosecuting the case, would be offered a "diversion'' alternative, essentially an option to have the charge erased if the person doesn't reoffend.