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Brnovich says mask mandate ban not court’s business

Attorney General Mark Brnovich is making a last-ditch effort to tell Arizona courts they need to butt out of how the legislature conducts its business. 

In legal briefs filed with the state Supreme Court, Brnovich contends that the question of whether a ban on schools adopting mask mandates belongs in budget legislation is strictly a “political question” beyond the reach of judges. Ditto, he said, of other provisions put into budget bills, ranging from whether universities can require employees and students to be vaccinated to how subjects like race, ethnicity and gender can be taught in public schools. 

And if Brnovich can’t convince the justices, he has an alternate proposal: Let the controversial — and possibly illegal — provisions take effect this year, with a warning to lawmakers never to do that again. 

“And the legislature will adjust its practices accordingly,” he said. Brnovich said this would save not just all 58 provisions of the four challenged “budget reconciliation bills” adopted this session but ensure that similar measures from prior years that used the same procedure do not themselves face legal challenge. 

Anyway, he said, applying the ruling prospectively will accomplish one of the stated objections to the practice: Legislative leaders would forever be on notice they can no longer engage in “logrolling,” putting various popular and unpopular provisions into a single take-it-or-leave it measure. 

Hanging in the balance is a ruling last month by Maricopa County Superior Court Judge Katherine Cooper voiding a host of provisions in laws approved by the legislature and signed by Gov. Doug Ducey in the waning days of the session. They all were supposed to take effect Sept. 29. 

Aside from the language on masks and teaching what lawmakers call “critical race theory,” other would-be changes that Cooper rejected include barring cities from telling businesses they have to require customers to wear masks, stripping Secretary of State Katie Hobbs of her powers to defend state election laws, and allowing the attorney general to prosecute individuals who plan activities that impede a public school from operating. That last provision is seen as going after teachers who had organized a sick-out to protest the lack of masking requirements. 

Cooper, ruling on a challenge brought by education groups and their allies, did not find that any of these provisions, by themselves, is illegal. 

What is, she said, was piling them into just four separate so-called budget reconciliation’ bills, each with what she said are broad, generic titles that fail to inform voters of the changes they enact. 

And Cooper said there are separate constitutional requirements that legislation deal with only a single subject. 

“Together these requirements promote transparency and the public’s access to information about legislative action,” she wrote. 

Brnovich said none of that is her business — or the business of any judge, calling it an “unreviewable political question.” 

“Plaintiffs would have the courts, for the first time, superintend the state budget process by determining after the fact whether provisions contained in budget reconciliation bills are necessary to implement the budget,” his legal filing with the Supreme Court said. 

Brnovich said that, in deciding how to spend money, lawmakers frequently tie that to substantive changes in law. And that power, he contends, is broad. 

“There is no requirement that ties between funding and substantive rules be directly referenced in the law, and certainly no requirement that each budget reconciliation bill provision be linked to a line item in the budget,” he said. “Setting the budget and deciding what is necessary to implement it are uniquely legislative functions,’ which Brnovich said “are the exclusive prerogative of the legislature.’ 

But Cooper, in her ruling, said all she was doing is enforcing what already is in the Arizona Constitution, where the requirements for bills to have a title and deal with a single subject are located. 

“The issue here is not what the legislature decided but how it decided what it did,” she wrote. “Whether the legislature complied with the requirements of (the Arizona Constitution) and whether a provision is reasonably related to ‘budget reconciliation’ are questions properly before the court.” 

And in this case, Cooper made clear that each of the four measures were required to have a title “that it puts people on notice as to the contents of the bill.” 

“It should enable legislators and the public upon reading the title to know what to expect in the body of the act so that no one would be surprised as to the subjects dealt with by the act,” she said. 

These, she said, did not. 

For example, she cited the provision prohibiting schools from requiring students and staff to wear masks while on campus. It was enacted not as separate legislation but instead tucked into what was labeled “budget reconciliation for kindergarten through grade 12.” Ditto language forbidding schools from requiring proof of vaccines. 

Also in that same bill, she noted, was the restrictions on what can be in public school curriculum — the so-called ban on teaching critical race theory — as well as authorizing lawsuits against public employees for what she called “vaguely defined conduct related to public schools.” 

“What do these measures have to do with the budget?” Cooper asked. 

Brnovich, however, said no one is being fooled or misled. He said that, after years of using this procedure, people should be aware that the title “budget reconciliation” means it could contain any number of things. 

“(It) should put legislators and the public on notice that the bill’s contents could be broad,” he said, though limited to the general topic like K-12, higher education, health or budget procedures. 

“A title need not be a synopsis or complete index of an act, and any provision directly or indirectly related to the subject is proper,” Brnovich argued. “Applying that test, the challenged provisions of all the bills are valid.” 

Cooper, in her ruling, also addressed the idea that any relief should be prospective only. The judge said nothing in her ruling should come as a surprise to lawmakers. 

“The Arizona Supreme Court has made it clear that logrolling is unlawful,” she wrote, citing a 2003 ruling in a fight between the legislature and then-Gov. Janet Napolitano. And as recently as 2018, Cooper said, the justices said the whole purpose of a single subject rule is to prevent lawmakers from “combining different measures into one bill so that a legislature must approve a disfavored proposition to secure passage of a favored proposition.” 

The justices are set to hear the case on Nov. 2. 



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