Court to hear arguments on Ducey’s order to close gyms

A judge has agreed to hear arguments by gyms that Gov. Doug Ducey has essentially moved the goalposts in what they need to do to reopen.

Maricopa County Superior Court Judge Timothy Thomason on Monday refused to immediately overturn his earlier ruling upholding the governor’s authority to order gyms and fitness centers to close back up. The judge said that Ducey has wide latitude in how he can deal with the COVID-19 pandemic.

But Thomason acknowledged that when he issued his first ruling three weeks ago, the governor’s attorney had represented there would be a set of protocols in place by now and that any of the facilities that could meet those standards would be allowed to reopen.

The Department of Health Services did, in fact, release those standards last week. But Ducey said the gyms and fitness centers still have to remain closed for another two weeks — if not longer.

Joel Sannes, attorney for Mountainside Fitness, said his client is ready to meet those standards and reopen. But now, he said, that’s not an option despite what the governor had promised.

“This fits the definition of arbitrary,” he told Thomason.

And Robert Zelms, who represents EoS Fitness, pointed out that Ducey’s decision to shutter gyms and fitness centers came at the same time the governor decided that bars are not safe.

“Only the state of Arizona … equates gyms to bars,” he said, saying California closed down restaurants before they closed gyms.

“My clients has implemented the highest and most stringent safety protocols they can possibly have for any type of indoor large facility,” Zelms said.

He specifically noted that the state already is taking steps to allow schools to reopen, evaluating the safety measures they are taking, like limited capacity and physical distancing. Yet gyms remain totally off limits, no matter what they can show they are doing.

And that, he told the judge, makes the process for gyms to follow to reopen “illusory.”

Thomason said he wants to hear more from both sides Aug. 3.

On one hand, the judge said, the governor is getting input from health professionals telling him to keep these facilities closed.

“The question is, does that satisfy ‘rational basis,’ ” the standard to determine whether Ducey’s actions are legally justifiable, Thomason said.

Central to the debate are the rights of fitness centers and gyms.

When Ducey issued his closure order in June for a month, he did leave room for extending it.

But that order also set up a procedure for them to reopen, requiring them to complete and submit a form, crafted by the health department “that attests the entity is in compliance with guidance issued by Arizona Department of Health Services related to COVID-19 business operations.”

That was issued late last week. But now it’s being called a “draft” document. And there is no process for the gyms to attest they are now operating in a safe fashion as Ducey simply extended the closure order for another two weeks.

On Monday, Brett Johnson, the private attorney hired by the governor, told the judge that the process outlined by the governor for reviewing the actions gyms and fitness centers have taken comes into play only after health officials decide that reopening them is appropriate.

In the interim, he said, the affected facilities get to review the draft standards and comment on them.

The problem with all that, said Sannes, is that fitness centers and gyms remain closed — all without the chance to appeal the governor’s edict. That, he told Thomason, makes him the legal remedy to ensure that the due process rights of gyms and fitness centers is being observed.

“There isn’t any other remedy available,” Sannes said.

“What is the governor’s rational basis for saying that fitness centers that will attest to their protocols cannot open because they are not safe?” he asked. And Sannes said there is nothing in the record from the governor saying that the standards do not protect public health.

“The governor simply can’t articulate a rational basis for saying that his own protocols are not safe,” he said.

Johnson disagreed, saying it’s a question of balancing the public good to protect health with the interests of the fitness centers.

“No one here that I’ve heard has disagreed that it’s a legitimate government interest to avoid death,” he told the judge. And Johnson said Ducey is being guided by not just federal recommendations but “the top medical minds in the state of Arizona that say, ‘Governor, this is what you need to do.”

On the other side, he said, are legal arguments.

“I haven’t seen anything, other than from a lawyer, that the governor is somehow acting irrationally or arbitrarily in his decision to follow the recommendations,” Johnson said.