The Arizona Supreme Court on Tuesday voided a ban on mask mandates in public schools and a host of other legislative changes, ruling it was illegal for lawmakers to pile them into a handful of budget bills.
Without comment, the judges rejected arguments by Assistant Attorney General Beau Roysden that there’s nothing inherently wrong with the process that lawmakers have used for years to put policy changes, like whether schools can mandate masks for staff and students, into bills that are labeled only as relating to the budget.
Also now voided are a host of other measures, ranging from a prohibition against colleges requiring vaccinations and how to teach about race in public schools to the kind of paper that counties must use for ballots and stripping Secretary of State Katie Hobbs of her powers to defend state election laws.
In upholding a lower court ruling, the justices also slapped down arguments by Roysden that the legislature alone decides whether what it puts in bills complies with the Arizona Constitution. Among those requirements is a mandate that all measures deal with only a single subject and that all bills have a title that informs the public of what changes they make.
During a hearing earlier in the day, Roysden, in essence, told the justices they should butt out of legislative business.
“It is not for the court to second guess that,” he argued.
That did not go over well.
“So the single subject rule is just a suggestion?” asked Chief Justice Robert Brutinel.
Justice William Montgomery got more specific, citing provisions in one challenged bill labeled only as dealing with “budget procedures.”
“So how does dog racing relate to budget procedures?” he asked.
“I think that’s the toughest question in this case,” Roysden conceded.
But he maintained that people, in reading the title “budget procedures,” are put on notice that there may be a grab-bag of individual items in there. And that, Roysden said, is all that’s constitutionally required.
With Tuesday’s order, the justices said that’s not the case. But they did not explain their decision, promising a full-blown ruling at some point in the future.
That will be crucial as lawmakers, now banned from using the reconciliation bills as catch-alls, now will be looking for guidance about what they can — and cannot — do in the future.
Senate President Karen Fann, R-Prescott, said the more immediate question is what to do about the now-voided provisions.
“We’re going to have to go through and get a list of what was affected and how it was affected,” she said.
One possibility, Fann said, would be a special legislative session. There, each of the provisions that the Supreme Court nullified could be reintroduced and brought up for a vote on an individual basis, avoiding the illegal practice of bunching them together.
But it remains unclear whether each could pass on its own.
For example, legislation spelling out how race, ethnicity and gender can be taught in public schools had failed on its own.
It was only when that language about what lawmakers called critical race theory, was put into a reconciliation bill that it passed. That forced foes to accept the all-or-nothing package to get other provisions they wanted.
That’s why House Minority Leader Reginald Bolding, D-Laveen, called the ruling “a win for the legislative process.”
“It was never appropriate for the (House) speaker and the Senate president to load up the budget with unrelated and controversial policy items to mollify certain extreme members and avoid negotiating a bipartisan budget.”
Tuesday’s ruling also is a setback for Gov. Doug Ducey who not only championed the ban on mask mandates but has denied some federal Covid relief dollars to schools that he said are not in compliance with state law. Now, with the law permanently struck, there is no excuse for him to withhold those funds.
Gubernatorial press aide C.J. Karamargin would not answer what Ducey intends to do next about schools that impose mask mandates, saying only that the governor believes that people should be able to make their own decisions with the guidance of their doctor, “not because of some government mandate.”
In fact, though, Tuesday’s ruling actually could cause some school districts who had balked at mask mandates because of the law to now rethink that position.
At stake were provisions of four measures lawmakers adopted earlier this year, all under the banner of “budget reconciliation.”
Maricopa County Superior Court Judge Katherine Cooper ruled earlier this year that none of the measures comply with that constitutional requirement that the title of each bill must reflect what changes it makes. And she said one of them — the one labeled only “budget procedures” — was so full of unrelated issues that it violated the separate requirement for all measures to deal with only a single subject.
Roysden drew the task of convincing the high court that Cooper got it wrong.
But it became clear, even before he said his first words, that the odds already were against him. Brutinel noted that the justices met earlier, behind closed doors, to discuss the issues.
“I think it’s fair to say there’s some consensus about whether the statutory provisions violate the single subject rule and the title requirements of the Arizona Constitution,” he said. “I think the consensus is that they do.”
All that left Roysden to argue that this is none of the court’s business.
“This would be uncharted territory,” he told them. “That is a terrible idea for the court to start down this path.”
But Montgomery said legal precedents going back more than two centuries spell out that it is precisely the role of the judiciary to judge — and strike down — actions by other branches of government that run afoul of the constitution. And Montgomery said there certainly are questions about whether lawmakers are in compliance.
Consider, he said, the measure labeled “K-12 budget reconciliation.” Among the provisions in that bill is that ban on schools mandating masks.
“So how does that relate to appropriation?” Montgomery asked.
“The legislature could say if we’re going to fund schools, we want kids to go to the schools and we think (a) mask mandate is going to deter attendance,” Roysden responded.
“We don’t want the schools that we fund to impose these types of mandates,” he continued. “That is within the power of the legislature.”
That line of thinking clearly didn’t convince the justices.
Anyway, Roysden argued, no one is fooled by the title. He told the court that anyone who cares about K-12 funding would look at the title and be on notice that there might be major policy changes — like that ban on mask mandates.
That drew a skeptical response from Brutinel.
“We’re all supposed to understand that ‘budget reconciliation’ means ‘anything we want’ ”? he asked.
Roysden said those in the know do understand.
“Anybody who reads the newspaper will know,” he said.
“I’m not going to a newspaper to decide a constitutional issue,” Montgomery shot back.
In striking down the laws, the justices sided with attorney Roopali Desai, representing the education groups and allies who challenged the four statutes. She warned the justices against accepting the arguments that lawmakers alone get to decide what can be in budget reconciliation bills and that the courts have no role in determining whether they are complying with constitutional requirements.
“That could lead to some very problematic results,” she said. “What’s to say that the legislature doesn’t say that about every act that they pass?”
In voiding the statutes, the justices also rejected Roysden’s backup argument that if they were going to find the practice of budget reconciliation bills illegal they should make their ruling prospective. He said there was no way for lawmakers to know that what they were doing was unconstitutional.
That would have allowed the challenged provisions to take effect.
But Desai countered — and the justices apparently agreed — that legislators have been on notice since at least 2003 when the Supreme Court found fault with a similar process
Editor’s note: This story has been revised to include comments from Senate President Karen Fann, Rep. Reginald Bolding, and Ducey spokesman C.J. Karamargin.