Update On State Lawsuits Over Anti-Mask Orders

In Florida, Bloomberg New reports, Florida’s DeSantis Nears Court Clash With Parents Over Mask Ban:

Florida Governor Ron “DeathSantis” will learn next week if he’ll have to face a lawsuit by parents challenging his executive order banning mask mandates in schools.

At a hearing on Friday, Judge John C. Cooper of Florida’s second judicial circuit said he’d hear arguments on Aug. 19 and rule the same day on the state’s upcoming motion to dismiss the suit. If he allows the case to proceed, Cooper said he’d hold a longer hearing the following week with testimony from health experts and other witnesses, including parents concerned about the spread of Covid in the schools, and issue a decision by Aug. 25.

“We are confident that the complaint will survive any attack under the forthcoming motion to dismiss,” Charles Gallagher, the parents’ lawyer, said in an email. “In reality, each passing day means more immediate peril and harm for those in school.”

In Texas, The Dallas Morning News reports, State appeals court upholds Dallas County Judge Clay Jenkins’ mask mandate:

The state 5th Court of Appeals handed Dallas County Judge Clay Jenkins a victory late Friday, upholding his order mandating masks in schools and businesses. The ruling is at least a temporary defeat for Republican Gov. Greg Abbott and indicted and under FBI investigation corrupt Texas Attorney General Ken Paxton, who immediately filed an appeal with the Texas Supreme Court.

All justices on the Texas Supreme Court are Republicans. The 5th court, based in Dallas, is a majority Democratic court that sided with Jenkins, who is also a Democrat.

Dallas County sought and won a temporary restraining order against Abbott’s executive order that prevents local governments, school districts and universities from adopting mask mandates. The governor has said that the time for government restrictions in the pandemic has passed, and that Texans should exercise personal responsibility in choosing to wear a mask or be vaccinated.

Under Jenkins’ order, all child care centers, pre-K through 12th-grade public schools, public colleges and universities, and businesses that provide services to the public are required to develop a health and safety policy that requires masks. The policy must be visibly posted near the door of a building so employees and visitors can see.

The opinion of the three-judge Dallas appeals panel found that the governor’s powers granted under the Texas Disaster Act to deal with emergencies do not include suspending the authority of mayors and county judges to declare and manage local disasters.

“I’m happy for now,” Jenkins said about the opinion. “It should be humans against the virus.”

[T]he 5th Court of Appeals ruling came just after the 4th Court of Appeals in San Antonio — another majority Democratic court — denied Abbott’s appeal of the Bexar County health authority mandating masks in public schools.

Cities, counties and school districts across Texas have defied Abbott’s order as COVID-19 cases and hospitalizations driven by the delta variant continue to mount.

A district judge in Austin on Friday granted temporary restraining orders to Harris County and several Rio Grande Valley school districts and Crowley ISD, keeping in place their recently enacted mask mandates.

The only court to rule against mask mandates was in Tarrant County, where a district judge granted a temporary restraining order Friday against Fort Worth ISD. The district’s mask requirements were challenged by parents in the district.

Abbott’s ban on mask mandates also drew fire from U.S. Education Secretary Miguel Cardona, who wrote Abbott and Texas Education Agency Commissioner Mike Morath on Friday, saying that attempts to bar district leaders from requiring masks “may infringe upon a school district’s authority to adopt policies to protect students and educators” as they develop instruction plans required under federal law.

A Southern Methodist University law professor said Jenkins might still win if the Texas Supreme Court refuses to hear the case until there is a final ruling.

“That would be a victory for Jenkins because all the while that is pending … you have a mask mandate in place,” said Dale Carpenter, an expert in constitutional law at SMU. “To the extent there are delays and courts refuse to hear cases, that’s a victory for Jenkins.

Here in Arizona, the Arizona Republic reports, Phoenix Union school district argues Arizona ban on mask mandates not yet in effect:

A Maricopa County Superior Court judge heard arguments in the case of a teacher suing Phoenix Union High School District because of its mask mandate, a policy that is contrary to an Arizona law that would prohibit requiring masks in schools.

A ruling was not read Friday but is expected soon.

Metro Tech High School teacher Douglas Hester filed suit against the district, its governing board and its superintendent earlier this month. He alleges that Phoenix Union’s governing board lacks the legal authority to require masks.

The district has said it stands behind its decision to require masks, saying it remains “steadfast in our commitment to do all we can to protect our staff, students, families, and broader community.”

The district’s lawyer, Mary O’Grady, argued in court Friday that the Arizona Legislature failed to follow the state’s Constitution when writing in a June 30 retroactivity clause for the mask-mandate ban. The policy aspect of budget bills is usually subject to a 90-day delay in its effective date, which O’Grady argued means the ban is not yet in place and can’t be enforced until Sept. 29.

“Using the retroactivity clause doesn’t bypass the constitutional requirements,” she said. “If you want something to take effect immediately, you’ve got to get the votes of an emergency clause and have a supermajority as the Constitution requires. You can’t put a retroactivity clause in and use that to try and circumvent the state Constitution on effective date rules.”

Absolutely correct!

Judge Randall Warner questioned the function of the retroactivity clause, saying that his interpretation of it has been that the law and the retroactivity clause will take effect after the 90-day period.

Trump “stop the steal” lawyer, Alexander Kolodin, who should be disbarred for filing frivolous lawsuits, argued “There’s a particular reason that (the Legislature) utilized a retroactivity clause,” he said. “It’s that an emergency clause is not required for an appropriations bill. … The retroactivity clause, the governor and members of the Legislature have all expressed their intent was for schools to not be able to do this after June 30 by putting in that retroactivity clause. That’s why constitutionality is not an appropriate defense.”

Well dumbass, you have another problem with that argument. The anti-mask provision is not a budget item, and should not have been in the state budget.

This is the subject of a separate lawsuit. Mask mandates, election changes don’t belong in budget bill, lawsuit claims:

Mask mandates, changes to how elections are run and limits on how racial issues can be discussed in Arizona classrooms all were stuffed into the state budget in June.

Now, a coalition of education and civic groups is challenging the long-standing legislative practice of adding policy to budget bills. It is asking a court to declare the practice unconstitutional and is seeking immediate relief to keep the policies contained in four of the 11 budget bills from becoming law.

If successful, it would overturn the mask mandates that are at the center of heated debates in school districts statewide, block a number of new election procedures and — more broadly — create pared-down budget bills.

“Never before has the legislature so ignored the normal process and procedure for enacting laws as they did this session,” the plaintiffs stated in the lawsuit, filed Thursday in Maricopa County Superior Court. “It is up to the courts to enforce the dictates of the Arizona Constitution.”

Another issue: The mask mandates in question apply to public district and charter schools but not private schools, violating equal-protection rights for students, the lawsuit said.

Pet policies added to budget bills

The lawsuit cites numerous examples of Republican lawmakers demanding that certain pet measures be included in the budget or they would withhold their votes, imperiling a $1.5 billion tax cut championed by Gov. Doug Ducey and many Republicans.

Key among the demands were mandates that barred school districts, cities and towns from imposing mask requirements, as well as limits on the ability of universities and community colleges to require vaccines and masks.

But the suit is much broader than a challenge to the policies related to COVID-19 mitigation, said David Lujan, president and CEO of the Children’s Action Alliance, one of the plaintiffs in the lawsuit.

“The mask issue at this moment is the most significant because we are seeing a crisis right now and our schools are feeling helpless,” Lujan said. “That issue was put in there to get a huge tax cut for the rich.”

But the bigger issue is lawmakers ignored constitutional requirements that bills stick to a single subject and that their title reflects what is in the bill. That happened not only with mask mandates, but with election procedures and limitations on instruction in critical race theory, the lawsuit stated.

With Republicans holding a one-vote margin in both the House and Senate, any defection by a Republican would derail the budget and its historic tax cut. That gave lawmakers outsize power to make demands in the closing days of the legislative session.

[T]he budget bills violated a constitutional requirement that their title reflect what is in them by adding unrelated policy, the lawsuit stated.

For example, Senate Bill 1819’s title said it appropriated money related to state government procedures.

But the bill also contained provisions that required the Secretary of State to hand over the statewide voter-registration list to any entity designated by the Legislature, outlined “fraud countermeasures” for paper ballots, and included measures for dog-racing permitting, among other things.

The bill also violates the single-subject rule of the state constitution by adding what the lawsuit calls a “hodgepodge” of policy issues into a budget bill.

Attorney Roopali Desai, who is representing the plaintiffs, said this last-minute practice deprives the public of knowing what is in a bill and hampers their ability to weigh in on it.

Note: 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).

“They pushed the envelope before,” she said of lawmakers, “but this is unprecedented. The courts have to weigh in, or there’s no telling what happens in the future.”

Why bother with public hearings and committee meetings, Desai asked, if a policy simply could be dropped into a budget bill in the final days of a legislative session?

Um, this is exactly what authoritarian Republicans have been doing for years.

Not every Republican is in lockstep with this GQP autocracy:

Sen. Paul Boyer, R-Glendale, questioned how the Legislature would defend itself when, in his view, the process so clearly violates the state Constitution.

“I’m not an attorney, but it seems cut and dried,” he said. “What I find especially egregious were all the bills that died and came back in the budget.”

Those bills, including mask mandates (many of which he supported) and penalties for curriculum that some deem teaches critical race theory, should be able to withstand the normal committee and public-hearing process, he said. If they can’t pass there, it’s not proper to slide them into the budget at the last minute, he said.

You are correct, sir!

The lawsuit was filed on behalf of the Arizona School Boards Association, which represents the governing boards of nearly all the school districts in the state; the Arizona Education Association, which represents teachers and other school workers; nonprofits Children’s Action Alliance and Arizona Advocacy Network; and 11 individuals. They include two members of the Phoenix Union High School District governing board, teachers, university instructors and parents.

The suit asks the court to declare four budget-related bills unconstitutional, and seeks an injunction blocking the four bills from becoming law.

The case has been assigned to Maricopa County Superior Court Judge Katherine Cooper. A hearing date has not yet been set.

Note: Judge Cooper was appointed to the bench by Governor Jan Brewer in 2011. Judge Cooper ruled in 2014 that Arizona had short-changed its schools by $317 million and must pay them back. This is what led to Gov. Ducey’s Prop 123 and the raiding of Arizona’s education  trust fund as a means of avoiding paying back the school districts for the legislatures theft of education funds. Unfortunately, the school districts went along with it, to their detriment.