With his legal challenges to vaccine and mask mandates rejected by a federal judge, Attorney General and U.S. Senate candidate Mark Brnovich now wants Gov. Doug Ducey to order lawmakers back to the Capitol in hopes of a legislative fix.
The attorney general wants a special legislative session to restore four statutes restricting the powers of local governments, public schools and universities to mandate that employees, staff and students be vaccinated against Covid or wear face coverings. In a letter to the governor, he called the situation “most pressing,” saying he has received complaints in particular from government workers who face the prospect of either submitting to a vaccine or being fired.
All those provisions had been approved earlier this year. But all were voided by a trial judge because they were packed into various unrelated “budget reconciliation” bills, a ruling ratified by the Arizona Supreme Court.
Brnovich, engaged in what could be a tight race in his bid to be the Republican nominee for U.S. Senate, also is pressuring Ducey to use what the attorney general contends are his powers to block what the schools and local governments are doing, even if the legislature cannot or will not.
“It is my opinion that your office has clear authority to stop such government mandates immediately by instructing the Department of Health Services to exercise its primary jurisdiction under (state health laws) and issue an emergency rule that implements the directives articulated in the struck-down laws, thereby preempting contrary requirements from political subdivisions,” Brnovich wrote to the governor in a letter he made public.
“Our constituents are expecting — and deserve — immediate attention to these substantial issues facing our state,” the attorney general told Ducey.
But the governor, just back from a European vacation, is not ready to be pushed into action by Brnovich on either front.
“We are reviewing the letter,” press aide C.J. Karamargin said Monday.
And Brnovich, despite his very public effort to force the governor’s hand, refused to answer questions from Capitol Media Services about the scope of the governor’s powers or even the possibility of a special session. Publicist Katie Conner said Monday he is “not available for an interview” despite the fact he has appeared on Fox News at least four times in the past seven days to criticize the Biden administration on the issue of vaccine mandates.
Brnovich, in writing the letter, may also need a political win.
Just last week U.S. District Court Judge Michael Liburdi refused Brnovich’s highly publicized bid to block the Biden administration from requiring federal employees and workers for entities with federal contracts to be vaccinated. The judge said Brnovich failed to show a legal basis for an injunction.
Meanwhile, the Supreme Court ruling has left the state without legal authority to enforce any of the prohibitions on vaccine and mask requirements that Republicans had previously approved.
The justices have yet to explain their decision. To this point, however, nothing in that court ruling bars lawmakers from dealing with these issues individually — and in a legal fashion.
But a special session before the legislature is set to reconvene in January could prove elusive.
Rounding up lawmakers during the holiday season has often proven difficult. And then there’s the fact that the resignation of Rep. Becky Nutt, R-Pearce, has left the House GOP short of the 31 votes it needs to approve anything.
And then there’s the fact that Ducey previously has indicated he will call lawmakers back to the Capitol early only if there already are the votes lined up for whatever is on the agenda.
“I’m pretty sure the governor will not call a special session unless he’s confident we have 16 (Senate
votes) and 31 (House votes) regardless of what the topic might be,” added Senate President Karen Fann, R-Prescott.
But not everyone believes the governor should wait that long.
“The people of this state deserve a chance to address this issue,” Sen. Michelle Ugenti-Rita, R-Scottsdale, told Capitol Media Services.
“Put it on the (voting) board and let the chips fall where they may,” she continued. “At least people will see we tried rather than bury our head in the sand.”
And Ugenti-Rita said the job that Ducey ran for and was elected is to act, “not to wait for laundry lists to be brought to him,” referring to the practice of bill sponsors to check off the names of those who have committed to vote for a particular issue.
What also remains in doubt are claims that the governor, who gave himself emergency powers in March 2020, actually has the power to preempt local decisions on masks and vaccines.
The issues have become Republican talking points. And Ducey and Brnovich, both Republicans, have previously tried to use that claim to get the city of Tucson to scrap its policy that employees be vaccinated unless they qualify for a medical or religious exemption.
So far, though, the city has refused to relent.
“The city’s mayor and council have express authority to adopt and implement measures that are necessary or convenient to prevent the spread of infectious disease in our community,” City Attorney Mike Rankin wrote late last month to Brnovich, citing the city’s charter. “In adopting the ordinance, the mayor and council made legislative finding citing to this authority, as well as to the city’s legal obligation as an employer to provide and maintain a safe and healthy workplace for its employees.”
And Rankin said that Ducey is without power, even with the emergency declaration still in place, to preclude or preempt local jurisdictions from adopting health and safety measures.
Brnovich’s latest letter to Ducey calling on him to act is separate from — but related to — a complaint filed with the attorney general’s office last month by Sen. Vince Leach, R-Tucson.
Leach contends the Tucson vaccine requirement is illegal, not because of the mandate itself but because the city does not grant exemptions to anyone who claims a “sincerely held religious belief” against being inoculated. The senator said such automatic approval is required under a provision of a law approved earlier this year.
That inquiry allows Brnovich, if he concludes the city is breaking the law, to order the state treasurer to withhold more than $100 million in state revenue sharing. And Rankin, while making legal arguments why Tucson is acting legally, also is preparing for that possibility.
“Attorney General Brnovich has made it very clear that he will oppose any attempt by any governmental agency to impose a COVID-19 vaccine ‘mandate,’ ” the city attorney wrote. “Given this, I believe that the result of this investigation may be influenced as much by politics as the law.”
Brnovich has to issue a finding before the end of the month.