Today, Governor Ducey declared a state of emergency throughout Arizona. He did this without consultation or prior communication with the mayors or police chiefs of Arizona’s major cities. Why? Likely, because those positions are largely filled with Democrats and their appointees, one imagines?
Tucson’s Mayor Regina Romero was not consulted:
We have less than 6 hrs to plan and have not seen the EO.
During times of emergency, it's critical that we have a strong line of communication.
— Regina Romero (@TucsonRomero) May 31, 2020
Nor does it seem that Phoenix Mayor Gallego was consulted or warned:
Gov @dougducey said the move came in response to requests from 'local leaders.' But mayors of Phoenix and Tucson (where bulk of protesting has happened the last few nights) said they didn't ask for curfew or know it was coming. https://t.co/ZyuLU0Wg0q
— Maria Polletta🌵 (@mpolletta) May 31, 2020
Perhaps Mayor Lane of Scottsdale was consulted, since a great deal of damage occured at the mall there? But from Mayor Lane’s own declaration of emergency and then immediate supplemental declaration following the Governor’s declaration, it doesn’t seem there was any coordination there either.
Nor did the Governor consult with the legislative minority prior to taking this step, apparently. Democratic Leader Representative Charlene Fernandez released the following statement on Gov. Ducey’s executive order:
“While we have serious concerns with the scope and practicality of the statewide curfew outlined in Governor Ducey’s executive order — and the fact that it does not mention or address the issue of police brutality — we urge Arizonans to comply.”
In relevant portion, this is Ducey’s declaration:
NOW, THEREFORE, I, Douglas A. Ducey, Governor of the State of Arizona, by virtue of the authority vested in me by the Constitution and laws of this State, including but not limited to, A.R.S. 26-303, hereby order as follows:
Declare that a State of Emergency exists in Arizona due to riots, effective Sunday, May 31, 2020 and continuing.
As part of the State of Emergency, a limited curfew is imposed for the entire State beginning at 8:00 p.m. on Sunday, May 31, 2020.
The curfew will be in place from 8:00 p.m. until 5:00 a.m. and shall expire on Monday, June 8, 2020 at 5:00 a.m. unless further extended.
During the hours of curfew, all persons are prohibited from using, standing, sitting, traveling or being present on any public street or in any public place, including for the purpose of travel, with the following exemptions:
All law enforcement, firefighters, paramedics or other medical personnel, National Guard, as well as any other emergency response personnel authorized by the State of Arizona, and credentialed members of the media.
Individuals traveling directly to and from work; attending religious services; commercial trucking and delivery services; obtaining food; caring for a family member, friend, or animal; patronizing or operating private businesses; seeking medical care or fleeing dangerous circumstances; and travel for any of the above services.
For purposes of this order, “travel” includes, without limitation, travel on foot, bicycle, skateboard, scooter, motorcycle, automobile, or public transit, or any other mode of transporting a person from one location to another.
For purposes of this order, “public place” means any place, whether on privately or publicly owned property, accessible to the general public, including but not limited to public streets and roads, alleys, highways, driveways, sidewalks, parks, vacant lots, and unsupervised property.
For purposes of this order, “exempt care” means necessary medical services for an individual’s self or family member.
Violation of this order is a Class 1 misdemeanor pursuant to A.R.S. § 26-317 and is punishable by up to six (6) months in jail and a fine of $2500 in addition to any other violation under Title 13.
The Governor invokes his emergency powers explicitly pursuant to ARS 26-303 for one week.
I believe from the context of the EO that what the governor is intending to invoke is a “state of emergency” per ARS 26-301(15):
15. “State of emergency” means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state caused by air pollution, fire, flood or floodwater, storm, epidemic, riot, earthquake or other causes, except those resulting in a state of war emergency, which are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county, city or town, and which require the combined efforts of the state and the political subdivision.
But, given that the Governor did not apparently coordinate with local heads of government in the most affected cities, how did he determine that the affected cities also felt that the demonstrations “are or are likely to be beyond the control” of their local services and personnel?
Answer? He apparently did not. He seems to have acted unilaterally, which is poor administration, although that does not invalidate his declaration.
What the Governor is empowered to do under a declared “state of emergency”, is laid out by ARS 26-303(D) & (E):
D. The governor may proclaim a state of emergency which shall take effect immediately in an area affected or likely to be affected if the governor finds that circumstances described in section 26-301, paragraph 15 exist.
E. During a state of emergency:
1. The governor shall have complete authority over all agencies of the state government and the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this chapter.
2. The governor may direct all agencies of the state government to utilize and employ state personnel, equipment and facilities for the performance of any and all activities designed to prevent or alleviate actual and threatened damage due to the emergency. The governor may direct such agencies to provide supplemental services and equipment to political subdivisions to restore any services in order to provide for the health and safety of the citizens of the affected area.
Note that this does NOT explicitly include declaring a curfew, although that is arguably included under “the right to exercise… all police power vested in the state by the constitution and laws”. Note also, there is no requirement that the Governor must consult with anyone to make his finding under 26-301(15).
What strikes me as odd, however, and likely an over-reach by the Governor, is that Ducey has declared an emergency OVER THE ENTIRE STATE, not just the areas that are arguably affected by ‘riot’, which seems to be the basis of his emergency declaration.
Reasonably, Ducey should have invoked an emergency in perhaps as broad an area as the whole of Maricopa and Pima counties, or as narrow as the cities of Phoenix, Scottsdale and Tucson, since those are the only ‘affected areas’. There is no evidence that any ‘riot’ or unrest has occurred outside these jurisdictions.
Further, the Governor, were he prudent, would have consulted extensively with the local authorities of the ‘affected areas’ to see if THEY actually felt incapable of controlling the ‘riot’ conditions in their own jurisdictions without state assistance.
The Governor has arguably been reckless, overbroad, and heedless of the local authorities in declaring this state of emergency. Perhaps that is some of the same mistakes he made in his pandemic-related EOs.
We’ll see if the AZGOP gives him the same sort of pushback for any perceived abuse of power that he got for his alleged overreaching in the pandemic-related EOs.
My guess is that Republicans will love the sight of the police stepping on the necks of those brown people and ‘librul elites’ and won’t make a fuss.
Anyone want to give me odds on it?