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Judge refuses – for now – to grant TRO against Phoenix Union’s mask policy

Angela Black, right, with her brother Luke Black at their home, pose for a photo Tuesday, May 11, 2021, in Mesa, Ariz. The students, a third grader and kindergartner, attend a school where mask wearing is optional. (AP Photo/Ross D. Franklin)

Angela Black, right, with her brother Luke Black at their home, pose for a photo Tuesday, May 11, 2021, in Mesa, Ariz. The students, a third grader and kindergartner, attend a school where mask wearing is optional. (AP Photo/Ross D. Franklin)

A new mandate by Phoenix Union High School District that students and staff wear masks remains in effect, at least for the time being, as do similar policies being adopted by other districts.

That’s because Maricopa County Superior Court Judge Randall Warner declined Wednesday to issue a temporary restraining order after an attorney for the district told him that there’s no law being violated – at least not yet, if ever.

But that doesn’t end the fight.

Warner did not rule on the claim by a teacher at Phoenix Union that the law banning schools from imposing mask mandates is in effect. But he did not grant a request by Alexander Kolodin, the teacher’s attorney, for an immediate restraining order to bar the district from enforcing its new policy.

Warner wants to hear more evidence at a hearing set for Aug. 13.

At that time he could decide whether a retroactivity clause in the statute applies.

And even if he agrees that no one is violating the law as of right now, he still could bar future enforcement.

Mary O’Grady, who represents the district, does not dispute that a provision in the state budget makes it illegal for school governing boards to require the use of face coverings by students or staff during school hours and on school property. That same measure also prohibits city, town or county officials from enacting similar mandates for what happens on school property.

A separate provision says school district and charter schools cannot require a student or teacher to receive a vaccine for COVID-19 or wear a face covering to participate in in-person instruction.

But O’Grady told Warner that, at least for the moment, all that is irrelevant.

She noted that measures adopted by the Arizona Legislature, with only a few exceptions, do not take effect until 90 days after the end of the session. This year, that day falls on Sept. 29.

What that means, O’Grady said, is that there is no evidence that Phoenix Union did anything illegal this past Monday, when it adopted its policy of requiring masks indoors. More to the point, O’Grady said that leaves no basis for Warner to hear the lawsuit filed by Douglas Hester, a teacher in the district, asking that the policy be struck down as illegal.

“The law is not the law right now,’’ she said.

The issue, however, is not that simple.

While the statute is technically effective until Sept. 29, it also contains a provision making the ban on face coverings retroactive to July 1. And it will be up to Warner to decide whether that makes what Phoenix Union has done illegal.

The issue no longer is just about that one district. Governing boards of several others have followed suit, including a vote just Wednesday morning by Tucson Unified School District, effective immediately, to require masks.

Those actions pave the way for other possible lawsuits in front of different judges in different counties – and, potentially, conflicting rulings. And that, in turn, could mean there will be no final resolution until the issue is heard by the Arizona Supreme Court.

Kolodin, the attorney who represents Hester, is not conceding that the law is not yet, legally speaking, on the books.

“We respectfully disagree on that point,” he told the judge.

But when it became clear Wednesday that Warner would not issue an immediate restraining order, Kolodin said he has an alternative strategy: He will amend his complaint to argue that any policy in place as of Sept. 29 is illegal. And Kolodin is putting all his legal eggs in that basket, arguing that Warner has no choice but to conclude that Phoenix Union – and any other district with a similar policy – is breaking the law and has to be legally restrained.

“The real issue before the court is whether a creature of the state can defy a law of the state,” he told Warner, regardless of whether the ban on mask mandates is in effect now or on Sept. 29.

O’Grady, for her part, is not saying that her client would be violating the law once it is officially on the books.

She did not tip her hand during Wednesday’s hearing on what legal theories she might advance. But one potential legal argument has to do with how the law was enacted.

The Arizona Constitution says any legislation “shall embrace but one subject and matters properly connected therewith.”

The no-mask provision, however, is part of what was labeled “K-12 budget reconciliation,” a 231-page measure that also includes a litany of other issues ranging from state aid funding formulas and grants for alternative ways to get kids to school to changes in laws governing who is eligible for vouchers of state tax funds to attend private or parochial schools. It even has language about not teaching what has been dubbed “critical race theory.”

There has been no direct challenge – and no court ruling – on the scope on what has been called the “single subject rule.”

The closest came in 2003 when the Arizona Supreme Court weighed in on a dispute between the Legislature and then-Gov. Janet Napolitano, who had used her power of line-item veto on what were called “omnibus reconciliation bills.”

There, the justices said there was “an apparent non-adherence to the single subject rule in the legislative process.” But they sidestepped actually declaring the practice illegal, noting that also would require them to conclude that Napolitano had misused her veto power.

Kolodin, who is seeking the Republican nomination for a seat in the Arizona House representing the Scottsdale area, also has been involved in disputes over the 2020 election and the resulting audit. He has represented Cyber Ninjas, the firm hired by the Senate to conduct the audit, in several legal disputes.

He also represents Rep. Mark Finchem, R-Oro Valley, and former Rep. Anthony Kern, R-Glendale, in their defamation lawsuit against Rep. Charlene Fernandez, D-Yuma. That is based on her role in asking the U.S. Department of Justice to investigate the activities of the two men who were present at the Jan. 6 attack on the U.S. Capitol.

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