Arizona high court upholds ruling blocking school mask bans, says Legislature violated single-subject rule on bills

Behind clear partitions for COVID-19 concerns, Yajaira Denisse Carmona Rojas, 11, does social studies work at Gateway Elementary School in Phoenix on March 18, 2021. Other than a brief return to in-person school in the fall, this was the first day the sixth graders were back in-person at the school since the COVID-19 pandemic began in March 2020.
Mary Jo Pitzl
Arizona Republic

It took the Arizona Supreme Court less than two hours Tuesday to agree that the Legislature's practice of stuffing policy matters into appropriations bills is unconstitutional.

The unanimous ruling means that myriad policies that were tucked into this year's budget-related bills do not have the force of law. That includes the widely debated policy banning school boards from imposing mask mandates, a blow to the policy wishes of Gov. Doug Ducey and legislative Republicans.

Ducey's office issued a statement saying he was "extremely disappointed" in the ruling, a sentiment Attorney General Mark Brnovich echoed. Brnovich's office defended the state's actions.

In his statement, Ducey reiterated his belief that government should not require mask mandates or other COVID-19 protocols, actions that lawmakers sought to block with the various bills. The GOP governor is in Europe on a private vacation.

Brnovich predicted the ruling would "create more confusion and uncertainty for Arizona families."

Democrats hailed the 7-0 ruling as a victory for students and voters, as it removes bans on various COVID-19 protocols, among many other changes.

"A unanimous ruling from a Ducey-appointed Supreme Court is as strong a rebuke as we can imagine," House Minority Leader Rep. Reginald Bolding, D-Laveen, said in a statement.

A three-line ruling

The court's swift ruling was not a surprise. During oral arguments Tuesday morning, Chief Justice Robert Brutinel opened the hearing by stating there is "a considerable degree of unanimity" in the case, which involves all or parts of four budget-related bills that a lower court ruled unconstitutional.

“I think it’s fair to say there’s some consensus about whether these statutory provisions violate the single-subject rule and other provisions of the Arizona constitution," Brutinel said, outlining the major issue in the case. "The consensus is that they do.”

In a three-sentence order, the Supreme Court said while it does not agree with all of the reasoning of lower-court judge Katherine Cooper, it agrees with her September ruling in Maricopa County Superior Court that parts of three budget-related bills are unconstitutional and that a fourth bill on "budget procedures" violates the single-subject rule for legislation.

The ruling means that school districts with mask mandates are free to continue them, and, more generally, school boards can create their own COVID-19 precautions.

Attorney Roopali Desai, who represented the Arizona School Boards Association and other education and civic groups in the case, said she was "stunned" but gratified by the court's quick action.

"We should all today as Arizonans feel really glad that we have a court that will uphold the provisions," she said.

Log-rolling not allowed

The Arizona School Boards Association and other education and civic groups sued in August, saying the practice makes it impossible to know, for example, how a bill titled "budget reconciliation, K-12" gives notice that it contains penalties for teaching critical race theory or that it bars school boards from certain COVID-19 precautions.

The groups also attacked the "log-rolling" in the budget-procedures bill, saying its title gave no indication of the numerous policies it contained, nor did it make it clear how the various policies are related.

Justice Bill Montgomery also was perplexed by the argument that Senate Bill 1819 meets the single-subject rule when it contains 114 different policies.

“Can you tell me how dog and harness racing relates to anti-fraud ballot paper?” Montgomery asked assistant attorney general Brunn "Beau" Roysden III, who was representing the state.

Roysden's response: That is a legislative determination, not one the courts should get involved in.

A second ruling on similar case

Hours after the Supreme Court's ruling, a Maricopa County Superior Court judge struck down provisions in another budget-related bill as unconstitutional. It was a win for the city of Phoenix, which had argued that lawmakers violated the single-subject rule by adding, among other things, a restriction on the composition of a civilian review board for the police.

Judge John Hannah found the provisions in the criminal-justice-related bill unconstitutional but let stand other parts of the bill that Phoenix did not challenge.

It was not immediately clear if the Attorney General's Office would appeal Hannah's ruling to the high court. But given the unanimous ruling in the school boards association case, it seems unlikely.

Will chaos reign?

The back-to-back rulings will have implications for how lawmakers compile future state budgets.

In the school boards association case, state attorneys wrote that an adverse ruling "would be nothing short of an asteroid crashing into the (state statutes) and causing a mass-extinction event of unknowable proportions."

But Desai rejected such dire predictions.

“I just don’t think this is some watershed moment," she said. That no one has challenged the budget practices before this year shows lawmakers know how to work within constitutional confines, Desai said.

"This is just an egregious case," she said.

This year, with legislative leaders eager to pass a historic income-tax cut, they needed to load up the budget with lawmakers' pet projects to get their vote on the overall budget, Democrats said.

"The process of how this past budget was passed flagrantly violated the constitution, all with the purpose of getting Republicans to support the budget, rather than working across the aisle to pass a budget that worked for all Arizonans," Senate Minority Leader Rebecca Rios said in a statement.

Guidance sought

Senate President Karen Fann, R-Prescott, said lawmakers need more than a three-sentence order to figure out how to navigate future budget work.

She questioned how lawmakers would deal with last-minute policy matters when the committee hearing process is over. Tacking these issues into the budget has been a remedy, but Fann wondered if that would continue.

“We still need more direction from the courts," she said. Bills for the 2022 session are currently being drafted, she said, adding that Tuesday's ruling might change the way lawmakers title bills since the current practice has been deemed unconstitutional.

Rep. Regina Cobb, chairwoman of the House Appropriations Committee, echoed those concerns, saying she needs a fuller explanation of the ruling to determine how to move forward with budget bills.

The court said it will issue a full opinion later.

Senate President Karen Fann:Retirement from Legislature announced after current term expires in January 2023

What's next

While legislative leaders say they need more direction from the Supreme Court, rank-and-file lawmakers are busy drafting bills for the session that begins in mid-January.

Fann said if there's any urgency to restore some of the now-unconstitutional provisions in a special session, it would revolve around the ban on school mask mandates and penalties for districts found to be teaching critical race theory, a topic that schools say they are not teaching.

Since the bills were first found unconstitutional in late September, freeing school boards to enact their own policies, only six school districts did so, according to the school-boards association. Most stuck with their existing protocols.

There are not enough votes for the Legislature to call itself into a special session, Fann said. It would take a two-thirds vote of the lawmakers to do so, and Democrats are unlikely to lend their support to reinstate laws they opposed in the first place.

Ducey's office did not answer when asked if the governor was interested in convening a special session. But currently, that would be impossible, regardless of the governor's stance. 

With a string of legislative retirements in recent months, the House lacks the required quorum (31 members) to meet and do business. That assumes the Democrats would not show up for a session that would seek to reinstate laws they oppose.

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