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Judge to hear arguments over legality of mask prohibition

mask-mandateA judge will hear arguments Sept. 13 over whether it is legal for state lawmakers and Gov. Doug Ducey to bar schools from requiring students and staff to wear masks.

The date set by Maricopa County Superior Court Judge Katherine Cooper is designed to give her not just a chance to rule but also time for whoever loses the legal fight to quickly seek Supreme Court review. That is important as, absent a court order, the new law takes effect on Sept. 29.

But much more than the question of masks in public schools is at issue.

The lawsuit filed by a coalition of school board members, educators, child welfare advocates and others contends that the same legal flaws in enacting the prohibition against masks also invalidates a host of other issues. These range from prohibiting schools from requiring vaccination against COVID-19 to banning the teaching of what has been labeled as “critical race theory.”

And that is why Senate President Karen Fann, R-Prescott, and House Speaker Rusty Bowers, R-Mesa, have hired attorney Kory Langhofer to add their voice to the arguments supporting the legality of these provisions being advanced by Patrick Irvine, who is defending the state.

But the stakes for the GOP leadership are even greater.

A ruling that the laws were improperly enacted would forever change the process now used to take otherwise disparate policy changes – some of which failed to get the necessary votes as separate legislation – and bundle them in to a take-it-or-leave-it budget package.

Indeed, at the heart of the fight is how the state budget is adopted.

There are two main bills – the “feed bill,” which appropriates money to run various state agencies, and a “capital outlay” bill for construction projects.

But there also are a series of “budget reconciliation bills,” designed to enact changes in state law and policy to conform with the spending plans.

The problem, according to attorney Roopali Desai, is that the Arizona Constitution says each piece of legislation “shall embrace but one subject and matters properly connected therewith.” And that same provision requires each element of what is in each bill to be laid out in the title.

Now Desai wants Cooper to void provisions in each of those bills that do not relate to the subject of the bill.

For example, the provision prohibiting schools from requiring masks is within the 231-page HB2898, which is about “appropriating monies, relating to kindergarten through grade twelve budget reconciliation.” Masks, she said, has nothing to do with any of that.

Ditto, she said, of another provision prohibiting teaching curriculum “that presents any form of blame or judgment on the basis of race, ethnicity or sex.” That includes concepts like saying a student “should feel discomfort, guilt, anguish, or any other form of psychological distress because of the individual’s race, ethnicity or sex” and even authorizes the state Board of Education to suspend or revoke an offending teacher’s certificate.

“The Legislature went out of its way to mislead people about what’s in the bills,” Desai is arguing to Cooper.

Her lawsuit cites problems in other bills.

There is SB1824, labeled as “appropriating monies; relating to health budget reconciliation.”

But it also says that students cannot be required to be immunized to attend school that has only been given “emergency use authorization” by the Food and Drug Administration. And it bars local governments from establishing a “vaccine passport” or requiring proof of vaccination to enter a business.

And SB1819, which is supposed to deal with “budget procedures,” also includes new requirements for “fraud countermeasures” for paper ballots.

It also strips power from Secretary of State Katie Hobbs to defend election law challenges and sets up a special committee to review the findings of the audit of the 2020 election. It includes changes to the governor’s emergency powers, investigating the practices of social medial platforms and even language about condominiums.

“None of these subjects have any logical connection to each other,” Desai said.

The reason these bills are chock full of issues, she said, is to bring in the votes of lawmakers who may be opposed to one or more provisions on its own but agree to support it because it also has something else they like.

In fact, she noted, the measure about teaching certain concepts about race, ethnicity and gender actually failed to get the necessary votes when offered as a separate bill. It was then tucked into that same K-12 education reconciliation bill to secure the votes of those who had previously opposed it.

A separate legal fight is playing out before Maricopa County Superior Court Judge Randall Warner. In that case, a teacher in the Phoenix Union High School District is challenging the mask mandate the governing board imposed.

Warner already ruled there is nothing for him to decide, at least for the moment, as the law does not take effect until Sept. 29. But the judge said he will hear arguments about whether the district is permitted to keep the requirement in place beyond that date.

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