PHOENIX — A new state law barring schools from imposing mask mandates on students and staff is unconstitutional, a judge ruled Monday.
In a broad decision, Maricopa County Superior Court Judge Katherine Cooper also voided a host of provisions in laws approved by the legislature and signed by Gov. Doug Ducey in the waning days of the session that all were supposed to take effect Wednesday. These range from requirements for anti-fraud measures for ballots and prohibitions against cities and towns from requiring face coverings or imposing curfews to banning proof of vaccination to attend universities or community colleges, and limits on teaching what lawmakers have incorrectly referred to as “critical race theory.’’
Cooper did not find any of these provisions, by themselves, illegal.
What is, she said, was piling them into just four separate so-called “budget reconciliation’’ bills, each with what she said are broad, generic titles that fail to inform voters of the changes they enact.
And Cooper said there are separate constitutional requirements that legislation deal with only a single subject.
“Together these requirements promote transparency and the public’s access to information about legislative action,’’ she wrote.
Ducey press aide C.J. Karamargin called the ruling “clearly an example of judicial overreach’’ and promised an appeal.
“It’s the duty and authority of only the legislative branch to organize itself and make laws,’’ he continued. “Unfortunately, today’s decision is the result of a rogue judge interfering with the authority and processes of another branch of government.’’
But Cooper addressed — and brushed aside — claims that how legislation is crafted is a “non-justiciable political question’’ beyond the reach of her and the courts to conclude whether lawmakers are exceeding their constitutional powers.
“The issue here is not what the legislature decided but how it decided what it did,’’ she wrote. “Whether the legislature complied with the requirements of (the Arizona Constitution) and whether a provision is reasonably related to ‘budget reconciliation’ are questions property before the court.’’
Attorney General Mark Brnovich, hoping to become the Republican nominee for U.S. Senate, also vowed an appeal.
“It’s unfortunate that left-wing groups want to undermine the legislative process and indoctrinate our children with critical race theory and force vaccines on those who don’t want them,’’ he said.
But the decision, particularly about masks, cheered state schools chief Kathy Hoffman.
“With this ruling, Arizona school leaders, educators and community members can come together to make the best decisions on public health, safety and education,’’ she said in a prepared statement. And Hoffman urged supporters of the ban not to appeal.
“Our school communities are tired of being political pawns in dangerous attempts to subvert democracy and ignore science,’’ she said.
Monday’s ruling does more than void the challenged sections of the laws. Unless overturned, it also quashes the practice lawmakers use of piling apparently unrelated issues into bills in an effort to corral the votes for the entire package.
“This is classic logrolling — a medley of special interests cobbled together to force a vote for all or none,’’ the judge said. And banning that could result in difficulty in getting approval of future controversial measures.
At the heart of the legal fight are “reconciliation’’ bills.
The Arizona Constitution prohibits policy changes from being included in the actual budget. So, for example, allocating a certain amount of money for school construction goes into the budget. Instructions on guidelines for giving out the cash, however, go into a reconciliation bill.
Cooper, however, said what’s in these bills hardly qualifies. And she cited that constitutional requirement for a bill’s official title reflect what is included.
Attorneys for the state argued that she should interpret that requirement broadly. So, in the case of a “health’’ budget reconciliation bill, they said that can include anything related to health.
“That is not correct,’’ Cooper wrote. “The legislature has discretion to title a bill but, having picked a title, it must confine the contents to measures that reasonably relate to the title and each other to form one general subject.
More to the point, Cooper said, the title of the bill “must be worded so that it puts people on notice as to the contents of the bill.’’
“It should enable legislators and the public upon the reading the title to know what to expect in the body of the act so that no one would be surprised as to the subjects dealt with by the act,’’ she said.
That, Cooper said, did not occur here.
Consider the provision prohibiting schools from requiring students and staff to wear masks while on campus. It was enacted not as separate legislation but instead tucked into what was labeled “budget reconciliation for kindergarten through grade 12.’’ Ditto language forbidding schools from requiring proof of vaccines.
Also in that same bill, she noted, was the restrictions on what can be in public school curriculum — the so-called ban on teaching critical race theory — as well as authorizing lawsuits against public employees for what she called “vaguely defined conduct related to public schools.’’
“What do these measures have to do with the budget?’’ Cooper asked.
And she took a particular slap at arguments that banning mask and vaccine mandates in public and charter schools is related to the budget because it may “potentially reduce overall enrollment and funding,’’ calling that “particularly disturbing’’ and unsupported by the legislative record.
“More concerning is the suggestion that the legislature would see this provision as a means to de-fund public and charter schools by discouraging staff and student attendance,’’ she continued. “There is no question that the bill’s title provide no notice of that policy measure.’’
But Cooper did leave intact other provisions of that bill that she concluded did meet the constitutional requirements for a single subject and proper title, such as a change in the formula for state aid to schools.
The judge was no more impressed by arguments defending the legality of a separate bill labeled as “relating to budget procedures.’’
Among its provisions are “fraud countermeasures’’ for paper ballots, stripping Secretary of State Katie Hobbs of her ability to defend challenges to state election laws, directing Hobbs to seek permission from the federal Election Assistance Commission to require proof of citizenship for those registering to vote only in federal elections, and even setting up a “special committee’’ to review the results of the audit of the 2020 election.
“So what do ‘fraud countermeasures’ in ballots have to do with a procedure for the budget?’’ Cooper said. “How does proof of citizenship on a federal form advance a budget procedure?’’
And that, she said, does not address the separate violation of the constitutional requirement that all bills be limited to a single subject.
The judge said nothing in her ruling should come as a surprise to lawmakers.
“The Arizona Supreme Court has made it clear that logrolling is unlawful,’’ she wrote, citing a 2003 ruling in a fight between the legislature and then-Gov. Janet Napolitano. And as recently as 2018, Cooper said, the justices said the whole purpose of a single subject rule is to prevent lawmakers from “combining different measures into one bill so that a legislature must approve a disfavored proposition to secure passage of a favored proposition.’’
In finding the method of enactment unconstitutional, Cooper said she does not need to rule on a separate argument that the ban on mask mandates at traditional public and charter schools violates constitutional requirements for equal protection because it does not apply to private and parochial schools.
SIGNAL PEAK — The greenhouse at Central Arizona College’s Signal Peak Campus sits on the far north of the site, nestled near the mountains and behind the new Drive48 training facility.
For a year and a half, during which CAC was closed to the public, the greenhouse lay dormant, growing weeds and attracting critters, until this summer, when an intensive cleanup effort began to prepare for the 2021-22 school year.
At last, on Monday, the greenhouse was reopened to students as part of a lecture in Ag Science 101 “The World of Plants.” Not even the tragic death of the greenhouse’s former caretaker, local nursery owner Phil Bond, was able to stop the garden from coming back to life.
“At the beginning of the summer, under those tables was nothing but weeds,” said Diana Hutchison, an agribusiness student at CAC who took a campus job with the Agriculture Department to help clean up the facilities. “The campus was closed for quite some time. Nothing was being watered so it was just struggling.”
Hutchison came to the greenhouse and the surrounding outdoor classroom areas three to four days a week beginning in June to tidy up and revive the plants. By that time, Bond was ill and could no longer regularly care for the plants there.
“This greenhouse is a project he put a lot of time and effort into,” Hutchison said of Bond. “A few weeks before he passed, Phil was up here with me and he was so thankful to have the help. He told me I was a ‘Godsend.’”
After aggressive maintenance, Hutchison said she was able to resuscitate roughly 70% of the plants in the greenhouse. Hutchison said that getting the weeds under control was the biggest challenge, as even outside the greenhouse, they’d grown knee to waist high, thriving under the monsoon rains.
Hutchison also found the school’s prickly pear garden plants dumped all over and had to replant them all. During that time, she discovered a family of javelinas living at the base of the mountain, as well as a host of more hostile desert dwellers like Gila monsters, scorpions and rattlesnakes.
For the javelinas, Hutchison leaves a few of the sprinklers on slightly so they have a few spots where they can drink or play in a mud hole.
“They need water too,” Hutchison said.
Despite the hard work, Hutchison said she enjoyed the responsibility. Hutchison grew up living in the country on a ranch and gardens as a hobby, so she was familiar with some of the challenges of horticulture. But many of the students in the AGS101 class, taught by Professor Deanna Diwan, are nearly as green as the plants they learn about.
During the class Monday morning, Diwan and Hutchison toured the students through the greenhouse, stopping briefly to identify succulents like the “devil’s backbone,” a Madagascar import with broad leaves lined with tiny plantlets that drop when the “mother” plant dies and then grow in the soil.
Diwan then had the students pick out seeds from among a number of plants including peppers, parsley, basil, lavender and zucchini and guided them through potting and planting procedures. Diwan will later guide the students through germination and seed thinning so the plants aren’t competing for resources.
“Most of these students are in other programs, just getting the ‘ag slant’,” Diwan said. “Our horticulture class has planted most of the landscaping along this path over the years.”
One student, 17-year-old Margaret George of Casa Grande, is taking the class with the goal of getting a certificate in agriculture. George said her brother runs a farm, and while she began in the fine arts, she eventually found herself more drawn to plants and animals.
“I’m just interested in learning more about how the plant cycle works,” George said. “I’m excited to keep going. The greenhouse was a bit unexpected, but I like it so far.”
Although only a few classes will take place in the greenhouse itself, the program staff is dedicated to maintaining the facility now. Diwan suggested the ag program may try and raise money for the CAC Foundation by having a plant sale at some point in the future.
“It makes me feel good that it’s coming together,” Hutchison said. “It’s looking so much better than it did when I took over. And it’s exciting to have classes in there again to use the facilities.”
LAS VEGAS — As Chad Taylor looked toward the Callville Bay Marina Lounge from a houseboat on Lake Mead, he reflected on a much different time.
In the mid-1990s, the building was right at the water’s edge. Today, it’s nearly a quarter-mile from the shoreline.
Taylor, whose father was then general manager of the marina, works as marketing director for Lake Mead Mohave Adventures, a boat rental and recreation company that sets customers up for getaways on Lake Mead and Lake Mohave.
Lake Mead, which is fed by the Colorado River, is at its lowest water level since Hoover Dam was completed and the reservoir filled in the 1930s.
The water level now is 1,067 feet above sea level, about 35% of capacity, according to the federal Bureau of Reclamation. A pronounced “bathtub ring” of mineral deposits shows the decrease since the lake level peaked at 1,225 feet in 1983.
At Callville Bay, the receding water recently revealed a small boat that once sank below the surface of the lake and has now reemerged.
“Who knows what history is in this boat,” Taylor said. “With the water levels going down, there’s new things and places to explore.”
After inspecting the boat, Taylor climbed onto a dock, which was being taken apart, piece by piece like a Lego set, so it can be moved farther into the lake. It’s a continuous process for a crew of several dock workers, some of whom were contracted by Lake Mead Mohave Adventures for the sole purpose of playing dock dominoes.
Part of the process involves lifting dock anchors with a crane on a boat. The anchors weigh thousands of pounds.
“Every one of the screws in these pieces of dock were put in by hand,” Taylor said. “I used to do that as a kid, all day, every day for months.”
Moving docks can get expensive for the company, but sales have increased since the onset of the coronavirus pandemic in early 2020, Taylor said.
“When COVID hit, people decided they wanted to get outside more. Groups started coming and they haven’t really stopped coming,” he said. “Our summer season last year, we ran that all the way into November because of demand.”
This year has been different because many families returned their children to traditional in-person schools, Taylor said. That has meant less time for outdoor adventures.
“From a business standpoint, we’re doing fantastic,” Taylor said. “We’re just having to work tirelessly to ensure access on a daily basis. What the water levels are doing, that’s a daily thought for us. We’ll work for the next six or eight months, a full-time crew of people, to move this dock.”
Lake Mead Mohave Adventures is not the only business that has had to adjust to lower water levels at Lake Mead and on the Colorado River.
In Laughlin, Bre Chiodini, owner of Laughlin River Tours and another business that rents out personal watercraft, said she’s had to reduce some operations because of river levels, which are controlled by the Bureau of Reclamation.
“If the water stops flowing, everything stops moving down here,” Chiodini said. “We’re completely dependent on the Colorado River. Most of our businesses, hotels, resorts, casinos, other businesses, they hinge on the river. It’s scary when you move, like we are now, from drought contingency plans to drought restriction plans.”
Chiodini runs her businesses with her husband, Trevor Chiodini. They’re keeping an eye on river levels, which can change daily, but are also investing in their businesses.
They recently paid more than $2 million for a new tour boat to replace their 112-passenger dinner cruise craft named Celebration. But their success depends on a thriving Colorado.
“It could get to the point where we can’t run our businesses,” Bre Chiodini said. “It’s scary to think about the future of the river. We’re supposed to take delivery of our new boat next year.”
Next year, the Bureau of Reclamation will reduce water deliveries to Nevada, Arizona and Mexico. That’s largely because a good chunk of the Western U.S. is in a 20-plus-year drought.
The topic of who gets water and how much is both heated and complicated, and that’s not expected to change anytime soon.
The Colorado River Basin, an area covering close to 250,000 square miles, provides drinking water and irrigation for millions of people in seven Western states: Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming.
According to bureau figures, the farmed acres fed by the Colorado’s waters are responsible for about 60% of the nation’s supply of vegetables and about 25% of the country’s fresh fruit and nut crops.
But the restrictions enacted in an effort to sustain the river will clamp down on how much water can be used.
“The reduced deliveries next year are expected to add about 3 feet of water to Lake Mead,” said Patti Aaron, a spokeswoman for the Bureau of Reclamation. “The snowpack in the Rocky Mountains serves as the primary source, 90% or more, of water for the Colorado River. Every drop of rain we get is great, but that does not make a big difference.”
With the unpredictable nature of how the continued effects of climate change will affect the Colorado River’s water sources, it’s a waiting game to see if the bureau enacts more restrictions.
“We’re now in our 22nd year of drought, and we don’t know when that’s going to end,” Aaron said. “Certainly, we hope that comes to an end. We hope to have a wetter period soon.”
At Desert Adventures, a Boulder City-based company that offers outdoor recreation packages like kayak tours on Lake Mead, Dominique Ianni said business had been steady, although some out-of-town groups have canceled in recent months because of worries about COVID-19.
“We’ve gotten a lot of people who wouldn’t normally be on the water,” Ianni said. “At times during the pandemic, it’s been very busy. Business has been up and down. The water level on the lake has been very noticeable, though. It’s very noticeable from even just a few months ago.”
Back at Callville Bay, Taylor, a self-described optimist, said he believes Mother Nature would allow Lake Mead to refill at some point.
If the lake keeps receding, though, Taylor said, Lake Mead Mohave Adventures will simply keep moving those pieces of dock.
“There are people making plans now at many different levels,” Taylor said. “Everybody is on the case now. We just don’t know what tomorrow will bring at this point. If you go out to the middle of that lake, there’s still a lot of water out there. We’re renting boats every day. As fast as they come back, they go right back out.”
PHOENIX — Supporters of Donald Trump are peppering Gov. Doug Ducey with demands that he decertify the election even though he says there’s no legal authority for him to do that.
Ducey press aide C.J. Karamargin reported that the governor got about 300 emails each day on Saturday and Sunday calling for him to act.
“It is more than we receive on vaccines, masks, border issues, refugees,’’ he said. “This tops the level of constituent interest those issues have.’’
And those demands come despite the governor’s statements, repeated most recently Friday following the release of findings from the Senate-ordered audit of the 2020 Maricopa County returns, that there is no way to do what they are demanding.
The move comes on the heels of a recount of Maricopa County ballots which showed that the results were accurate and the Democrat outpolled the incumbent Republican. In fact, the hand count actually increased Biden’s lead by a bit.
But Trump supporters are hanging on other conclusions by Doug Logan, the CEO of Cyber Ninjas, that there are discrepancies between other numbers the county reported and what the auditors were able to find. These range from 23,344 mail-in ballots received from someone at a prior address to 9,041 more ballots returned from voters than were received.
And, along with other questions raised, those raising objections point out that there are enough of these questionable votes to more than overcome the 45,109 margin of victory by Biden in the state’s largest county — and, by extension, overturning the 10,457 edge the Democrat had statewide.
Then there are questions of whether election files were deleted.
County officials provided a point-by-point rebuttal of the findings.
But this clearly isn’t over. And the main thrust has been to decertify the election.
Among the loudest voices is Rep. Mark Finchem, R-Oro Valley, who is running for secretary of state.
“We’ve got false numbers,’’ Finchem told Steve Bannon, a former Trump aide, in a televised interview. And that, he said, allows Arizona to “reclaim’’ its 11 electors.
“There is no law that allows for decertification,’’ Karamargin said. “It’s simply not possible.’’
Finchem, however, remains unconvinced
“I don’t think that Ducey knows what this document means,’’ Finchem said, holding up a pocket copy of the U.S. Constitution. And it starts, he said, with the Tenth Amendment which says that powers not delegated to the federal government are reserved to the states or the people.
“At the same time, there is a legal doctrine that says a right of action cannot arise out of fraud,’’ Finchem said. “Well, they signed a fraudulent document based on bad numbers,’’ he said, meaning the certification of the election signed Nov. 30 by Ducey, Secretary of State Katie Hobbs and Attorney General Mark Brnovich.
Nor is he swayed by the hand count which supports the official count, saying that is irrelevant if there were counterfeit ballots.
“And that’s exactly what happened here,’’ Finchem said.
He is not alone.
Sen. Sonny Borrelli, R-Lake Havasu City, is echoing the same sentiment.
And Sen. Wendy Rogers, R-Flagstaff, produced a memo from Matt DePerno, a Michigan attorney running for attorney general there, who said that the legislature has the authority to recall state electors or decertify a national election “upon proof of fraud.’’
“Importantly, this does not require proof of all of the fraud,’’ said DePerno, whose candidacy was just endorsed by Trump.
Others, including Seante President Karen Fann, R-Prescott, who hired Cyber Ninjas to review the election results, aren’t buying it.
“There’s really nothing in the Constitution that says we can decertify,’’ she said, though Fann conceded that won’t stop any legislator from proposing such a resolution.
“I mean, look at the legislation we do sometimes,’’ she noted.
But, legal issues aside, Fann said this just isn’t going to happen. And it starts with the fact that it would take 31 votes in the House and 16 in the Senate to approve such a measure — the exact bare margin that Republicans have in each chamber.
“And you and I both know we don’t have 31 and 16 votes for anything right now,’’ she said, with several Republican lawmakers already having disassociated themselves from the whole audit. That includes Sen. Michelle Ugenti-Rita, R-Scottsdale, who chairs the Government Committee, disavowing the whole audit after saying that Fann “botched’’ it.
Even among GOP lawmakers, Fann said some are likely to balk at such a move until “they are 100% sure that we have information that would have changed the results.’’ She said the only way that could happen is if Attorney General Mark Brnovich, to whom she has sent the audit report, verifying the audit report.
And even that might not be enough.
“There’s going to have to be a jury that rules or a court that rules,’’ and comes up with a finding that there were votes cast that affected the outcome of the election.
House Speaker Rusty Bowers, R-Mesa, reached a similar conclusion last year when he denied permission for Finchem to have a special hearing of his Committee on Federal Relations to see if the Republican-controlled House could overrule the public vote and choose its own electors to send to Washington, presumably supporting Trump. He said Arizona law is clear and that the electors are selected by the certified voter count, what occurred Nov. 30.
“What happened on the 30th was the culmination of a process,’’ Karamargin said. “And that process saw election results being certified in each of Arizona’s 15 counties,’’ many of which Karamargin pointed out are Republican counties.
There was a proposal earlier this year by Rep. Shawnna Bolick, R-Phoenix, to allow the legislature to override the popular vote and choose electors. But it failed to even get out of a single committee.
The push to decertify Arizona’s election results actually is part of a broader national strategy.
Denying Arizona’s 11 electoral votes to Biden, by itself, would not change the outcome of the November race. But Trump supporters are pushing similar audits — and decertification maneuvers — in Pennsylvania and Wisconsin, both states that went for Biden.
The aim is to reduce his electoral margin below the required 270, a move that would throw the vote for president into the U.S. House.
What makes that critical is that the vote in the Democrat-controlled House would not be by individual members.
Instead, each state delegation gets one vote. And that would give Republicans 26 votes
Potentially more interesting is that the Senate gets to select the vice president, with each senator getting one vote. With a 50-50 tie — and presumably Vice President Harris unable to cast the breaker — that leaves a deadlock if there is no deal to provide a majority to either.