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Ducey delays waterpark reopening with move to federal court

The attorney for a Mesa water park is accusing the governor of “playing games” in a bid to delay a ruling on whether it is the victim of illegal discrimination.

The accusation by Joel Sannes comes after Brett Johnson, the private attorney hired by Gov. Doug Ducey, had the lawsuit transferred to federal court. That comes just days before Maricopa County Superior Court Judge Janice Crawford had scheduled a hearing to hear the issue.

Sannes did not dispute the maneuver is legal.

The lawsuit on behalf of Mesa Golfland Sunsplash charges that Ducey is violating various state constitutional provisions in keeping the park closed while allowing virtually identical operations at resorts to be open. Those cases are normally tried in state court.

But Sannes also is alleging the governor has run afoul of a provision of the U.S. Constitution which requires equal protection under the law and due process. Johnson is using that as the reason to have it transferred to federal, though there is no legal prohibition against state judges deciding such issues.

“It’s another example of the state playing games with people who are being damaged by closures,” Sannes told Capitol Media Services.

“There was no need to remove to federal court except to try to delay Sunsplash’s (request for a) temporary restraining order,” he said, an order that asks “nothing more than it be able to do business in the same way hotel, resort and public water parks do.”

By moving the case to federal court, the process starts over again, with the governor now given until next week to respond.

Gubernatorial press aide Patrick Ptak downplayed the maneuver.

“Removal to federal court is standard procedure especially when federal claims are involved,” he said. “It’s simply procedural.”

But if Ducey was counting on a major delay, he may be disappointed.

U.S. District Court Judge John Tuchi, to whom the case was assigned, is not going to let it sit too long. He has scheduled a hearing on the issue for Aug. 28.

The maneuver by the Republican governor comes with another risk.

Crawford was a 2011 appointee of Republican Gov. Jan Brewer. By contrast, Tuchi was named to the federal bench in 2013 by President Barack Obama.

And whatever the outcome it would likely set a precedent that would affect all other freestanding water parks in the state.

Water parks and pools of all sorts were closed by the governor as part of his emergency orders to deal with the coronavirus.

They were allowed to reopen in May if they followed certain guidelines. But that lasted only until late June when, faced with a spike of new COVID-19 cases, the governor reversed course, closing many businesses again, including places like Sunsplash.

But here’s the thing: The order did not apply to “pools operated as part of a public accommodation, such as those at hotels,” though they were required to enforce certain rules like keeping groups larger than 10 from congregating in or near the pool.”

The initial argument was that resorts could better manage the crowds at their own pools as they were limited to those guests staying there. But that’s not true.

For example, the Arizona Grand Resort at the edge of Tempe and Phoenix is offering day passes for $65. That includes not just the pool but waterslides and a “windy lazy river” to float on.

Westin Kierland Resort & Spa has day passes starting at $35 for its amenities including its “adventure water park.” And there are $29 day passes at the Fairmont Scottsdale Princess.

“It looks to us like the governor’s picked winners and losers,” Sannes said. But, fairness aside, he contends the disparity also is illegal.

It starts, he said, with the decision to shutter Sunsplash without the Department of Health Services providing an opportunity to give it a chance to prove “operation of its facilities is not a threat to public health.” Sannes also said there is no “rational basis” to close Sunsplash — and other freestanding water parks — that observe the recommended protocols to prevent transmission of COVID-19.

And then there’s the discriminatory aspect of what Ducey has ordered, arguing that his orders “create an arbitrary classification between ‘water parks’ such as plaintiff’s facility, which is subject to closure, and other hotel and resort ‘pools’ that are as much a ‘water park’ as plaintiff’s facilities, but which are not subject to closure.”

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