Ducey illegally ruling by 'executive fiat' to fight COVID-19, AG argues

Gov. Doug Ducey is unconstitutionally shutting down bars and ignoring other state laws through "executive fiat" during the coronavirus pandemic, Arizona Attorney General Mark Brnovich argued Friday in a court filing.

"Nearly six months into the declared emergency, it is long past time for the Governor to follow the constitution and convene the Legislature rather than contravene lawful statutes through executive fiat," Brnovich wrote in a brief in a lawsuit challenging Ducey closing down bars.

Brnovich's scathing assessment of Ducey's governing during the COVID-19 pandemic puts him on the same side as a coalition of bar owners who are suing the governor, alleging that his executive orders shutting them down but letting restaurants continue to serve alcohol to customers are illegal.

Brnovich called Ducey's distinction between bars and restaurants based on the different liquor licenses they hold — restaurant licences require certain levels of food sales be met — are "fundamentally arbitrary and discriminatory" against the bars, which have been barred from serving customers since the governor issued an executive order on June 29.

The emergency powers granted to governors in state law aren’t limitless, Brnovich told the court. If Arizona was in a “state of war emergency,” a governor is authorized to suspend state laws and agency rules — but he can’t do so in a general “state of emergency,” like the one Ducey declared in March.

As it relates to bars and restaurants that serve liquor, that means his executive orders can’t run contrary to state laws governing liquor sales — something Brnovich says is the case by letting restaurants remain open for both on-site and off-site liquor sales but restricting bars to only sales for off-site consumption.

And the notion that bars are somehow more dangerous than restaurants during the pandemic isn't proven, Brnovich added, noting that state law prohibits both types of establishments from serving patrons to the point of intoxication. 

Making the "discriminatory treatment" even worse, Brnovich said, is that Ducey has used his emergency powers for nearly six months without calling the legislature into "extraordinary session" to address laws that must be changed so he can manage the coronavirus emergency.

"Early on in an emergency, when there are still many unknown unknowns, it may be permissible for the Governor to make judgment calls that appear arbitrary in hindsight," Brnovich wrote. "But those are not the present circumstances. Nearly six months into this emergency, there is simply no sufficient basis to justify the continued differential and preferential treatment here."

In a statement, a Ducey spokesman told Arizona Mirror that Ducey "has had to make tough decisions to protect public health," and has done so in consultation with the White House Coronavirus Task Force and in accordance with state law.

"These executive authorities exist to protect public health, and the mitigation strategies set forward in the governor's executive order have clearly made a positive impact in combating COVID-19," spokesman Ben Petersen said. "We will continue to prioritize protecting public health while following the constitution and state law."