PHOENIX — A coalition of school board members, educators, child welfare advocates and others are asking a judge to void a host of changes in state law approved in the waning days of the legislative session.
Attorney Roopali Desai is not alleging any of these new laws, individually, is illegal. They range from whether schools and even universities can impose mask mandates and changes to election laws to banning the teaching of what legislators and Gov. Doug Ducey have incorrectly labeled “critical race theory.”
The legal problem, she said, is these were combined with other unrelated provisions into what lawmakers call “budget reconciliation bills,” essentially a grab-bag of issues.
That, said Desai, violates constitutional provisions that clearly state each piece of legislation “shall embrace but one subject and matters properly connected therewith.” And that same provision requires each element to be laid out in the title.
What that means, she is telling Maricopa County Superior Court Judge Katherine Cooper, is that each of the challenged provisions was illegally enacted — and cannot be enforced.
If Desai wins the case, the implications go beyond nullifying the challenged provisions and, most immediately, ending the legal risk that now exists for schools, colleges and universities that are requiring staff and students to wear masks while on campus. It also would force a major change in the long-standing practice of lawmakers doing what she called “horse-trading,” piling unrelated issued — many which had previously failed on their own — into a single package designed to corral the necessary votes.
Senate President Karen Fann, R-Prescott, said she could not comment until she reviews the lawsuit with attorneys. But C.J. Karamargin, press aide to Gov. Doug Ducey, said he is “confident the legislation we signed is constitutional.”
All this comes as the Arizona Department of Health Services, whose director Dr. Cara Christ has said she backs the decision by the governor and lawmakers to bar mandated mask use in schools, reported more than 3,000 new cases, a level that hasn’t been seen in six months.
At the same time, hospitals reported 1,590 in-patient beds — 18% of capacity — occupied by COVID patients. And 22% of intensive-care beds were being used by COVID patients.
The new lawsuit comes as the attorney for a Phoenix Union High School teacher asked Maricopa County Superior Court Judge Randall Warner on Friday to void a mask mandate enacted by the district’s governing board.
Alexander Kolodin said that act specifically runs afoul of a provision in one of those budget reconciliation bills now being challenged by Desai barring schools from imposing mask mandates. And he argued the district is powerless to ignore the statute.
But Mary O’Grady asked Warner to toss the lawsuit, saying that statutes, including the one Kolodin is using, are not effective until the 91st day after the end of the session. And this year, that is Sept. 29.
Kolodin, however, contends these are budget bills that take effect immediately.
But that whole argument of effective dates becomes moot if Desai wins her own lawsuit and the court voids not just the anti-mask language but everything else she argues was enacted unconstitutionally.
All that goes to the requirement limiting each measure to a single subject and having the title properly reflect what is in the bill.
It starts with House Bill 2898, which has the language banning not just school districts but also counties, cities and towns from requiring the use of face coverings or proof of vaccination against COVID-19 to participate in in-person instruction.
What’s also in the 231-page bill is a provision prohibiting teaching curriculum “that presents any form of blame or judgment on the basis of race, ethnicity or sex.” That includes concepts like saying a student “should feel discomfort, guilt, anguish, or any other form of psychological distress because of the individual’s race, ethnicity or sex” and even authorizes the state Board of Education to suspend or revoke an offending teacher’s certificate.
Only thing is, Desai said, HB 2898 is titled “appropriating monies, relating to kindergarten through grade twelve budget reconciliation.” The reality, she said, is the bill includes “substantive policies that have nothing to do with the budget.”
“It’s bad enough that the titles don’t describe what’s actually happening in these bills,” Desai told Capitol Media Services. “But the legislature went out of its way to mislead people about what’s in the bills.”
For example, Senate Bill 1824, dubbed as “appropriating monies; relating to health budget reconciliation,” says students cannot be required to be immunized to attend school using any vaccination that has only been given “emergency use authorization” by the Food and Drug Administration. That, for the moment, is the status of all COVID vaccines.
And another section bars local governments from establishing a “vaccine passport” or requiring proof of vaccination to enter a business.
Then there’s Senate Bill 1819 which, according to its title, deals with “budget procedures.” But that bill includes “fraud countermeasures” for paper ballots and strips power from Secretary of State Katie Hobbs to defend election law challenges. What’s also in that bill is setting up a special committee to review the findings of the audit of the 2020 election, changes to the governor’s emergency powers, investigating the practices of social medial platforms and even language about condominiums.
“None of these subjects have any logical connection to each other,” Desai said.
She argued this is more than just an academic discussion.
Desai said one purpose of the single-subject rule is to prevent “logrolling,” trying to pull together the support for a series of measures that would fail on their own by adding items designed convince foes of any particular provision to agree to support the whole package because it also contains something they want.
For example, she cited statements by Rep. Joseph Chaplik, R-Scottsdale, that he would not support the HB 2898 unless it also included a ban on mask mandates for students.
Desai also pointed out the measure about the teaching certain concepts about race, ethnicity and gender actually failed to get the necessary votes when offered as a separate bill. But it then was then tucked into that same K-12 education reconciliation bill to get the votes of those who had previously opposed it.
“Never before has the legislature so ignored the normal process and procedure for enacting laws as they did for this session,” Desai wrote. She said if the courts do not enforce the single-subject rule it would be “rendered wholly meaningless.”
In her filing, Desai said these are not simply academic and legal concepts.
She said if the provisions in the K-12 measure are not voided “public schools could be left powerless to protect their students and staff.” And she said teachers who are plaintiffs in the lawsuit could find themselves disciplined for violating a “vague prohibition” on what can be taught about race and gender.
No date has been set for a hearing on the new lawsuit. And Warner, handling the Phoenix Union case, has not said when he will decide whether to block the district’s mask policy.