School Masks Are In: Judge Cooper Rules Republicans in the Arizona Legislature Violated the State Constitution

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This is a good day for Arizona schools and public health safety in the Grand Canyon state.

In a 17-page ruling, Maricopa County Superior Court Judge Katherine Cooper ruled several state laws unconstitutional, including laws that prohibited mask mandates in schools, took away power from the Secretary of State, banned “critical race theory” in classrooms, and halted local COVID 19 mandates.

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Victorious attorney Roopali Desai said, “That law has been declared unconstitutional; it won’t go into effect.”

Excerpts from today’s ruling. 

On the first page of her ruling, Judge Cooper wrote:

“Sections 12, 21, and 50 of HB2898; Sections 12 and 13 of SB1824; Section 2 ofSB1825; and SB1819 violate the title and/or subject matter requirements of the Arizona Constitution, Art. IV, pt. 2, §13 (hereinafter “Section 13”), and are therefore void and unenforceable.”

Further in the document, she relayed:

“In June 2021, the Legislature passed HB2898, SB1824, SB1825, and SB1819 as part of the 2021-2022 budget process. As BRBs, their function was to enact laws to effectuate the budget. It was not to enact laws prohibiting mask mandates, regulating school curriculum, or authorizing special interest projects unrelated to the budget or budget reconciliation.”

On the attempt to ban mask mandates, Judge Cooper determined:

“The Court finds that HB2898’s title does not provide notice that the bill would: (1) ban public schools from implementing mask mandates; (2) ban and penalize teaching certain curriculum, or (3) authorize lawsuits against state employees for vaguely-defined conduct related to public schools. None of these measures remotely pertains to the budget or budget reconciliation. Sections 12 and 21 would enact laws regulating public schools disguised as a budget measure. Section 50 would create a civil cause of action. What do these measures have to do with the budget? In addition, the State’s defense of Section 12 banning mask and vaccine mandates in public and charter schools is particularly disturbing. According to the State, this provision is necessary to reconcile the budget because it may “potentially [reduce] overall enrollment and funding.” (Response, p. 8) The State fails to present any information from the legislative record to support this argument. 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. There is no question that the bill’s title provided no notice of that policy measure.”

On the attempt to strip away the power of the Secretary of State and prohibit local governments from instituting COVID 19 public safety measures, Cooper ruled:

“The Court considers whether a BRB titled “relating to budget procedures” provides adequate notice of the challenged provisions.

The Court finds that it does not. “Budget procedures” is not defined in the record or the bill. However, looking at the plain meaning of the words, “budget” clearly refers to the 2021-2022 budget process, and the dictionary defines“procedure” as “a particular way of accomplishing something; a series of steps followed in a regular definite order.” www.merriam-webster.com. So what do “fraud countermeasures” in ballots (Section 5) have to do with a procedure for the budget? How does proof of citizenship on a federal form advance a budget procedure? These and the other challenged provisions have no relation to the budget and SB1819’s title does not provide any notice that they are included in the bill.”

Reaction to the Ruling

In comments to KTAR, Roopali Desai, the lead attorney for the plaintiffs against the state, offered:

“That law has been declared unconstitutional; it won’t go into effect…Most of the provisions that we’re talking about here were struck down because they violated that notice requirement, and then one of the bills that we challenged … was struck down because of the single-subject requirement.”

Other leading figures in the fight to protect school children and public safety offered their views on Judge Cooper’s ruling.

Examples of those are:

Arizona Superintendent of Public Instruction Kathy Hoffman posted.

Arizona Democratic Party Chairperson Raquel Teran also praised the ruling, posting:

Tucson Mayor Regina Romero, whose city has been in a legal tug of war with the Arizona Attorney Generals office over a vaccine mandate for city employees reacted by posting:

Phoenix Mayor Kate Gallego joined by posting:

The Arizona House Democrats issued a unified statement, praising Judge Cooper’s ruling.

Arizona Legislative District 18 State Representative and 2022 State Senate Candidate Mitzi Epstein posted:

The Arizona Education Association led by Joe Thomas released a statement shortly after the ruling which read:

“Today, Maricopa County Superior Court Judge Katherine Cooper found portions of the K-12 education budget – including bans on mask mandates, vaccines, and controversial topics in the classroom – passed by the Arizona Legislature and signed into law by Governor Ducey to be unconstitutional.

“We are pleased with today’s court ruling and believe it represents the independent spirit of Arizonans,” says AEA President Joe Thomas. “Now, our communities and school boards can make their own decisions based on local conditions in determining whether to have a mask requirement in their schools.”

The Arizona Education Association and a coalition of education organizations and supporters filed the lawsuit against the state over the constitutionality of the ban on mask mandates in our public schools.

When Governor Ducey signed the 200-page K-12 education budget it included new policy provisions for schools unrelated to the budget. These provisions included language prohibiting school districts from requiring face coverings and the COVID-19 vaccine for students and staff, and a teacher gag bill that prohibits teachers from discussing “controversial” topics in the classroom.

The court ruling agrees with the coalition’s claims that these laws are unconstitutional and violated the single subject and title requirements for legislation set forth in the Arizona Constitution.

“We know the majority of parents and our educators support our school leaders doing everything they can to keep our students and staff safe and healthy,” says Thomas. “We’re seeing more and more school districts taking steps to protect their students and communities. Today’s ruling ensures they won’t have to break the law to implement common-sense protections for our students. We urge lawmakers to listen to their constituents and make the right decision by accepting this ruling to ensure our classrooms and campuses are safe so we can keep our students learning in our classrooms.”

AEA and its 20,000 members are committed to our mission of Keeping the Promise of Quality Public Education. At the core of that promise is an unwavering commitment to the health and safety of our students and staff. We will advocate by all means necessary to deliver on that promise so that every student in the state has access to a quality public school. AEA is proud to stand alongside other public education champions in this effort.”

Rebecca Gau of Stand for Children wrote:

“This is great news for Arizona’s teachers and parents. The ruling against bans on mask mandates means districts will have the freedom to keep their students safe in the best way for their community. The ruling against the so called “anti-CRT” provisions means that kids will get a thorough, accurate, and fact-based history education in our state. We know teachers are being diligent and thoughtful as they teach students to reject racism and respect the equal value of every person.”

David Lujan, the head of the Children’s Action Alliance, offered:

“Governor Ducey and Republican lawmakers tried to bypass the normal legislative process and inserted dozens of bad policies in the budget bills at the last minute in order to buy votes for their tax cuts for the rich.  The trial court correctly ruled this is unconstitutional logrolling. It is a win for public health, a win for public schools, and a win for the legislative process and transparency.”

Arizona Democratic Secretary of State Candidate Adrian Fontes commented:

“The GOP is going to have to find a constitutional way to govern.”

Moving Forward: It is not over yet.

While the voices of reason and reality applauded Judge Cooper’s ruling, the echoes of sucking up to the science-denying whims of the extreme right verberated throughout the halls of Governor Ducey, Attorney General Brnovich, and Republicans’ legislators’ offices.

Accusing Judge Cooper, a Jan Brewer appointee, of demonstrating judicial overreach, representatives of the Governors, Attorney General’s, and Republican Legislative leaders offices have all threatened to launch appeals to higher courts.

This will probably go to the Arizona Supreme Court.

The next question will be whether or not the higher courts allow the Republican fringe measures to go into effect until they consider the appeals.

There is also the matter of school districts that, based on today’s ruling, decide, if the higher courts allow them, to adopt mask mandates for students and staff while having to face the bombastic Know-Nothing anti-mask mobs at district board meetings.

It is not over yet.

 

 

 

 

 

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3 thoughts on “School Masks Are In: Judge Cooper Rules Republicans in the Arizona Legislature Violated the State Constitution”

  1. Amanda Marcotte writes, “It’s time to start firing unvaccinated people: Trump fans are overdue for a lesson in consequences”, https://www.salon.com/2021/09/27/its-time-to-start-firing-unvaccinated-people-fans-are-overdue-for-a-lesson-in-consequences/

    “Staffing shortages are a minor issue compared to the damage being caused by the unchecked spread of COVID-19, which is increasingly due to one cause: right-wingers who have made refusal to get vaccinated a culture war and identity politics issue. Unless such folks start tasting real consequences for their behavior, the U.S. is going to see another dark winter, as the virus continues to wreak havoc on our economy and health care system. Putting up with staffing shortages is a small price to pay to make sure that Trumpers — a class of people clearly unused to the idea that actions have consequences — actually start feeling real pressure to get vaccinated.”

  2. Jeremy Duda makes an excellent point on Twitter, https://twitter.com/jeremyduda/status/1442607588550463488

    “One thing no one should expect for now is a special session on the budget. There are 4 vacant legislative seats, with a 5th one opening Thursday. That includes 2 GOP-held House seats in a 31-29 chamber. They don’t have the votes to pass anything without at least a couple Dems.”

    Any special session will have to wait until these vacancies are filled.

  3. Our lawless Republican-controlled state legislature and governor have been getting away with this shit for years, because we have been a Republican autocracy for so long. They have controlled every critical office of government, and they have been packing the courts with judges who allow them to get away with this shit. This case will be appealed and go to the Ducey-packed Arizona Supreme Court.

    See this hyperbolic campaign speech from our partisan hack attorney general, https://twitter.com/GeneralBrnovich/status/1442621882847485954

    “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.”

    What is the “legislative process” that this partisan hack wants to defend? What Judge Cooper found to be a violation of the Arizona Constitution.

    As I have explained before, “Because the budget is negotiated in secret between Republican legislative leaders and the governor, rather than hashed out in committee hearings, there is no public input into the budget and no transparency in the budget process. Republicans do not want the public to weigh in the budget, and have cut the public out of the process entirely (but stakeholders like the Arizona Chamber of Commerce and Industry corporate lobbyists are invited into these secret discussions).”

    This is what Brno wants to preserve. Unfortunately, the Ducey-packed Arizona Supreme Court is likely to give him what he wants, because they want to maintain the Republican autocracy in Arizona.

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