Arizona court ruling eliminated dozens of laws, but lawmakers hope to bring them back

Dozens of policies approved by Republican lawmakers died when the state Supreme Court ruled the way they were passed into law was unconstitutional. What will lawmakers do next?
Mary Jo Pitzl
Arizona Republic

Dozens of policies approved by Republican lawmakers died when the state Supreme Court ruled the way they were passed into law was unconstitutional.

That eliminated numerous policies intended to bar local governments, schools, colleges and universities from enacting their own COVID-19 mandates — most notably, a policy that barred school districts from imposing mask mandates.

Those institutions are now free to impose their own COVID-19 mandates, if they so wish.

The unanimous decision on Tuesday also deep-sixed more than 120 policies, ranging from what schools can't teach to a ban on the Arizona Lottery advertising at sporting events. At least for now.

Hope glimmers with some lawmakers, who hope to get back to work yet this fall in a special session to redo some of what the court ruling undid.

A win for Phoenix 

Meanwhile, Phoenix officials celebrated a related court ruling, which found lawmakers violated the state's single-subject rule for legislation by rolling disparate items into the appropriations bill for criminal justice. Chief among the city's complaints: a provision that handcuffed the city's ability to construct a citizens' police-review board. 

Maricopa County Superior Court Judge John Hannah found the way the policy was added to the budget bill ran afoul of the single-subject rule. It was similar to the Supreme Court's finding that another budget-related bill, Senate Bill 1819, also tried to do too much in one measure.

“It was a good day for the Constitution," said Jean-Jacques Cabou, the attorney who represented the city. 

The Attorney General's Office, which represented the state, said it has not yet decided whether to appeal Hannah's decision.

So for now, the restrictions on the oversight board membership are gone.

If lawmakers want to put restrictions on how the civilian oversight board is structured, Cabou said, "That’s a topic for another special session.”

Back to work at the Capitol?

A special session before lawmakers convene their regular session in January is high on the list of some Republicans.

Sen. Kelly Townsend, the newly appointed chairman of the Senate Government Committee, said one is needed ASAP.

"I'm ready to go," said Townsend, R-Mesa, adding that discussions have begun on which of the measures nullified by the court need immediate attention.

She ranks matters that deal with individual rights and people's livelihoods at the top of her list, which means restrictions on mask and vaccine mandates would be prime topics.

Her counterpart at the House, Rep. John Kavanagh, R-Fountain Hills, also is a fan of a special session.

“The issues are big," he said. "We’re talking about vaccine mandates, which many people feel is overreach.”

Both he and Townsend said it's important to do this in a special session this fall. That way, anything they pass would take effect in March at the latest, given bills become law 90 days after a session ends.

If lawmakers wait until their regular session, which typically ends in late spring, it could be August.

Court guidance needed

There's one big "if":  Gov. Doug Ducey. They need the Republican governor to call a special session, since the closely divided Legislature lacks the Democratic votes to meet the threshold for lawmakers to call themselves back to work.

Ducey is out of the country on an anniversary trip with his wife.

“I would be more than happy to fly to Europe to ask him," Kavanagh quipped.

Ducey's office is reviewing next steps, spokesman C.J. Karamargin said, which include the possibility of a special session as well as new executive orders.

“Our next steps will be informed by the details in the (Supreme Court) opinion," Karamargin said. "If they found the steps unconstitutional, it’s critical to know exactly what was said.” 

The court indicated Tuesday that a full opinion would be forthcoming, but gave no timeframe.

Potential obstacles

Support for a special session is not guaranteed. Currently, the House doesn't have enough members to constitute a quorum, but that will be remedied when a replacement is named for Rep. Becky Nutt, R-Clifton, who resigned as of Monday.

House Majority Leader Ben Toma, R-Peoria, said there are logistical questions, among them whether there is enough support — assuming Democrats would not be on board with revisiting issues they opposed just months ago — and timing. Many lawmakers, he said, are traveling and the holidays are approaching.

That said, many members want to act now, rather than waiting until January; policies that people were counting on, such as protections for condominium owners who want to sell their units, are now history, he said.

What's not happening

Here's a rundown of some of the key measures that are now off the books after the court's ruling:

  • A ban on school districts imposing mask mandates and vaccine requirements for employees. That means school districts can set their own policies. Whether that will happen is unclear. After a lower-court judge in September found the law unconstitutional, just a handful of school districts moved forward with mask mandates.
  • A ban on local governments' vaccine requirements for their employees. Tucson Mayor Regina Romero called the ban an obstruction to science-based public health measures. This means that Tucson's vaccine requirement for city workers is in force.
  • A prohibition on K-12 schools teaching any curriculum that would create a sense of blame or judgment on people due to their race, ethnicity or sex. This was widely viewed as a ban on so-called critical race theory and included financial penalties against schools if such lessons were taught.
  • Authorization for the state attorney general to levy penalties on anyone who uses public monies to disrupt or prevent a school from operating.
  • A ban on public community colleges and universities from requiring COVID-19 vaccines for students. Schools also were blocked from requiring face coverings or mandatory COVID-19 testing.
  • A requirement that people could refuse a mandatory vaccination based on personal beliefs. 
  • Cancellation of the creation of an advisory committee to explore whether to create a southern Arizona regional sports authority.
  • Creation of a state-funded Election Integrity Fund to help county elections officials pay for cybersecurity and other protection measures. This measure would have included $12 million in funding.
  • Authorization for an outside entity, appointed by the Legislature, to access the state voter-registration database to determine if the Secretary of State's Office is following proper procedures for registering people who only can vote in federal races. 
  • A policy that would have allowed the state Game and Fish Department to assist people applying for hunting and fishing licenses also to register to vote. 
  • A requirement that dog racing permits be converted to harness-racing permits by January 2023.

More details on items that were nullified by the court can be found on the legislative website at https://www.azleg.gov/legtext/55leg/1R/summary/H.SB1819_062821_TRANSMITTED.pdf.

Reach the reporter at maryjo.pitzl@arizonarepublic.com and follow her on Twitter @maryjpitzl.

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