As COVID-19 cases rise in the state, Arizona Gov. Doug Ducey issued an executive order closing bars throughout Arizona on June 29.
“It is necessary to impose additional measures to protect public health and safety and mitigate the strain on our health care providers by slowing the spread of COVID-19,” the governor’s order reads. “In taking such critical measures to protect public health there will be direct economic consequences for businesses across the state of Arizona that provide employment for many Arizonans, including bars and restaurants.”
On July 9, 26 bars throughout the state of Arizona sued the governor, arguing that he did not have the authority to issue such an order and bars should be allowed to remain open. The lawsuit alleges Ducey’s unilateral order violated the nondelegation doctrine by granting him powers reserved for the Arizona State Legislature, violated the privileges and immunities clause of the state constitution and deprived the owners of due process.
Two Sedona bars, Mooney’s Irish Pub and Vino di Sedona, were among those 26 throughout the state, joining with others in arguing that they should remain open.
“To paint us all with a nightclub brush, it’s not fair,” Mooney’s owner Ian Juul said, referring specifically to bars in Scottsdale that recently came under fire for not adhering to social distancing protocol. “Businesses are at stake. Employees are losing their income. We’re losing product. What’s next? We get to open in a month and then are forced to close again?”
“This case is about whether the citizens of Arizona are governed by laws or by the whims of one man,” the complaint reads. “Petitioners are small business owners all over Arizona whose businesses have been shut down by the governor’s recent executive orders, issued pursuant to a statute that purports to delegate to the governor the entire ‘police power’ of the state in the event of an emergency. Petitioners seek a declaration of their rights, as well as an order enjoining the governor from enforcing his executive orders against them.”
The lawsuit asks not which branch of government “can deal most expeditiously with the present crisis” but which has the authority vested by the constitution to do so.
— The lawsuit first argues that the Arizona State Legislature cannot delegate its legislative power to another, even in a crisis, and can only delegate powers already enacted under existing statute. The lawsuit points out that the legislature never gave Ducey any powers to regulate business operations that it governs.
The state’s effective power is legislation, as guided by police power doctrines, but the governor has no “sufficient basic standard” nor a “definite policy and rule of action which will serve as a guide” and is using his usurped police powers on whims, the lawsuit alleges, without any governing principle to restrain possible overreach.
The lawsuit claims that Title 36 of Arizona state statutes permits the governor and counties to protect public health to quarantine infected persons and that the state “may issue orders” that “mandate medical examinations for exposed persons,” “ration medicine and vaccines,” “provide for transportation of medical support personnel and ill and exposed persons” and “provide for procurement of medicines and vaccines,” but there is no provision in state law to close businesses arbitrarily.
— The suit also argues the governor’s actions violate the “privileges or immunities” of the state constitution and Article IV of the U.S. Constitution by granting some citizens the right of lawful occupation if they “engage in proper sanitary measures,” but deny the same right to other nearly identical businesses even if they comply.
Thus, if a restaurant that serves alcohol and a bar that serves food both mitigate the same health risks, both impose identical safety precautions, both maintain the same hours, then if one can remain open or be closed, then so should the other.
“We’ve been putting things in place to become a restaurant,” Juul said earlier this month. “What I’m struggling to understand is if you’re a restaurant with a No. 12 license, you can continue — there are no restrictions put on you. But if you have a No. 6 license and are serving the same amount of food, we weren’t even given a chance to show that we can comply.”
— The lawsuit also argues that Ducey’s closure order without discussion is a violation of due process. The personal liberty to run a business and operate private property are protected from government seizure without due process.
The suit argues that Ducey is either acting like a one-man legislature impermissibly exercising his power unconstitutionally or he is acting like a court and has denied due process.
“To be very clear: This case isn’t about the wisdom of the governor’s policy,” wrote Ilan Wurman, the lawyer hired by the plaintiffs in the case. “It’s about who gets to decide such questions in a government of laws. And the answer is — or at least should be — the state legislators.”
