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Az AG: Pima County's COVID mask mandate not lifted by Ducey's order

Brnovich: GOP governor cited different section of Arizona law in order claiming to preempt county authority

Pima County's requirement that people wear face coverings in public to stem the spread of COVID-19 remains in effect despite Gov. Doug Ducey's attempt to overrule it, the Arizona Attorney General's Office said Tuesday.

Because Ducey cited a different section of state law, in claiming the ability to preempt the county's ability to maintain its mask mandate, than the county did in declaring the requirement to wear face masks in public, his executive order on March 25 didn't nullify the Pima County order, said the AG's Office in a written analysis.

Ducey's order, which in part purported to block cities and counties from imposing mask orders, cited Title 26 of the Arizona Revised Statutes, which related to "Military Affairs and Emergency Management." But Pima County cited Title 36 of state law, which covers "Public Health and Safety," in imposing the mandate.

"Title 26 does not appear to allow the governor to use emergency orders to preempt county regulations issued pursuant to Title 36," wrote state Solictor General Beau Roysden, responding to a request for an opinion by a group of Republican state lawmakers about whether the county was breaking the law by continuing to assert that the mandate is in place.

The opinion, which Roysden called "informal" because a related case, about the county's COVID curfew, is still ongoing in court, did state that Ducey's administration yet has a path to block the county, but that it isn't the one he chose.

County officials welcomed the analysis from the office of Attorney General Mark Brnovich, but sounded a cautionary note.

"With the recent uptick in cases, now is not the time to relax our mitigation strategies," said county spokesman Mark Evans. "While the Attorney General's opinion leaves the door open for the governor to prevent the county from enforcing the mask mandate under Resolution 2020-96, we hope he chooses not to walk through it."

The issue is likely to end up in court — a process that some county officials have suggested could "buy time to save lives" while the mandate remains in place, even if it eventually is tossed out.

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The county has contended that Ducey has no power to block local public health measures via executive orders. The statute cited by Ducey "does not mean what the governor thinks it means," said a legal opinion by the Pima County Attorney's Office that was made public Tuesday.

"Most critically, it is inconceivable that 26-307 should be read to give the governor authority to nullify, by executive order, the county's statutory authority to enact reasonable public health measures," said the county document, which the Board of Supervisors voted to release on Tuesday.

"We'll have to see what the governor does," said county Chair Sharon Bronson. "We are protecting public health; we don't want another resurgence of the virus."

"This is the best way to accomplish it, following CDC guidelines and the president's recommendations," said the Democratic supervisor. "Now we'll see if the governor respects local jurisdictions and their attempts to protect public health."

Ducey's office did not immediately respond to a request for comment on the analysis from the Attorney General's Office on Tuesday afternoon.

The back-and-forth over the authority to require masks in public comes as health experts have issued strong warnings that Arizona is poised for a "forth wave" of COVID-19 cases, despite the pace of vaccinations. A new variant of the virus has cropped up in Arizona, along with other variants that have formed elsewhere and been carried to the state. Those variants are frequently more infectious than the earlier strains of the virus that spread here, and Pima officials have said they're in an "arms race" to get more people vaccinated before there is another large spike in cases.

Tuesday, another 570 new coronavirus infections were reported in Arizona, and 6 additional deaths were added to the year-long toll.

More than 845,000 state residents have contracted the virus, with 16,996 Arizonans dead from COVID-19. In Pima County, there have been 113,000 reported infected cases, with 2,359 deaths from the virus. 69 new cases were reported Tuesday.

While the opinion from the state AG's Office suggested that Ducey "likely" could have the Arizona Department of Health Services issue a regulation barring cities, towns and counties from imposing mask orders, the PCAO's legal advice cited a previous ruling by the Arizona Supreme Court that "the authority of county health departments is coextensive with that of (ADHS) and recognized that counties may enact public health measures 'equal to or more restrictive'" than those put in place by the state.

"It is the Legislature, not the governor, that decide what authority it wants to delegate to counties," said the PCAO advice to the county board, which was written by Deputy County Attorney Jonathan Pinkney.

That stance was echoed Tuesday by Supervisor Matt Heinz, who is also a medical doctor at a local hospital. "Executive orders cannot overrule statutes that have been approved by the Legislature and signed into law by the governor," he said after the state AG's opinion was released.

The opinion from Brnovich's office was in response to a March 30 request for an opinion made by state Sens. Michelle Ugenti-Rita and Vince Leach, and state Rep. Bret Roberts, all Republicans.

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Paul Ingram/TucsonSentinel.com

Pima County Health Director Dr. Theresa Cullen during a Dec. 4 meeting.

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