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State’s universities side with Ducey on bar closures


The state university system is defending the broad executive powers being exercised by Gov. Doug Ducey arguing it will keep their students out of bars — at least for the time being.

“Bars such as those surrounding the universities are breeding grounds for COVID-19,” wrote a team of attorneys from two private law firms representing the Arizona Board of Regents.

The filing at the Arizona Supreme Court comes as the governor seeks to defend himself from a lawsuit filed by dozens of bar owners challenging his ability to use executive orders to close businesses, including their own. Their attorney, Ilan Wurman, charges that the law giving Ducey that authority is itself unconstitutional.

Ducey already has filed his own legal papers arguing that there’s nothing legally wrong with the statute.

Ilan Wurman

Ilan Wurman

And the governor has picked up support from other groups who have filed their own legal arguments telling the justices why they should throw out the challenge. These include state and local chambers of commerce, organizations representing hospitals, doctors and nurses, and Maricopa County.

The governor’s Department of Health Services even hired an outside attorney so Cara Christ, the agency’s director, could give the state’s high court her own arguments about the nature of COVID-19 and how guidance from federal, state and local health officials “supports (if not compels) Gov. Ducey’s decision to temporarily close bars in Arizona.”

In urging the justices to spurn the legal challenge, the attorneys for the universities detailed all the things they are doing to protect students. That includes promoting social distancing by offering more classes online, spreading out students attending courses in person, and moving things like counseling and academic advising online.

In fact, University of Arizona President Robert C. Robbins on Thursday warned students they could face suspension if they violate health safety rules during the pandemic. Those comments were specifically aimed at social media posts claiming intentions to have parties once classes resume Aug. 24.

The attorneys for the regents told the justices that allowing bars to reopen would undermine all those efforts, calling them “particularly risky.”

“They allow (and even invite) an environment that, in most respects, is exactly the opposite of the safe environment that public health officials recommend — and that the universities are diligently working to create,” the legal brief states.

Put simply, the lawyers say, the bars encourage “unhealthy personal behaviors.”

Consider the issue of masks.

“It is virtually impossible to wear a mask when drinking,” they argue.

“As people become intoxicated, they tend to talk louder, tell jokes or sing, which spreads more droplets,” the attorneys said, quoting newspaper articles. “In many bars, loud music or noisy crowds force you to move closer to hear.”

And then there’s the argument that alcohol compounds the risk.

Robert Robbins

Robert Robbins

“Alcohol of course can disinhibit people and perhaps promote even more breaches of social distance and sharing of drinks and food,” they argue.

To drive home their point, the attorneys counted the number of bars in the zip codes of each of the three universities.

For Northern Arizona University the tally is 31. It is 44 around the main campus of Arizona State University and 56 in the four zip codes around the University of Arizona. And that, they said, is not by accident, saying that bars market to university students, providing the justices with photos of ads placed by establishments near the schools.

“Similar advertisements fill student and local newspapers, student informational pamphlets, and local tourism guides,” the attorneys told the court.

More to the point, they said there’s a definite link between colleges and bars — and why the latter seek out the former.

“According to one study, the ‘wet’ alcohol environment around campuses — including lower sale prices, more promotions, and alcohol advertising at both on- and off-premises establishments — was correlated with higher binge drinking rates on the college campuses,” the brief states.

And what of the interests of the business owners?

The lawyers say the board “sympathizes” with them and their patrons. But they said the governor’s order “merely sets reasonable limitations as a result of this global pandemic.”

Anyway, they said, the restrictions are temporary — though the governor’s latest order issued just Thursday, extends the closure indefinitely, with a promise to review it every two weeks. And the attorneys said that bars can still provide pick-up, deliver and drive-thru services.

The attorneys do address the legal question at issue, but only briefly.

In challenging Ducey’s action, Wurman said the statute giving the governor broad police powers, including closing businesses, is an unconstitutional delegation of the legislature’s own power.

So the regents are telling the justices that if they find that Wurman’s arguments have legal merit, they should not simply overrule and void Ducey’s order. Instead, they said, the court should give the legislature “an opportunity to correct that purported issue.”

That assumes, however, that lawmakers, confronted with having to debate emergency powers, would give this governor — or any governor — the same sweeping authority.

There is sentiment among some Republicans that how those powers have been used goes beyond what the legislature was thinking when they adopted the law. And they want to revisit the issue, if not immediately, then once the emergency is over.

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