The Cobra Arcade bar and entertainment space, 63 E. Congress St., is one of the more than 100 bars suing the governor for keeping them closed during the pandemic.

 Mike Christy / Arizona Daily Star 2018

PHOENIX — Rebuffed by the Arizona Supreme Court, more than 100 bar owners are now taking their claims against Gov. Doug Ducey to a trial judge.

In a brief order, Chief Justice Robert Brutinel said the bar owners “did not provide a compelling reason as to why this matter could not be initiated in a lower court.”

Having the case go to a trial court, Brutinel said, will flesh out the allegations by the bar owners that the governor’s action shutting them down violated their constitutional rights and denied them due process.

In some ways the ruling is not a surprise. It is highly unusual for the state’s high court to consider any issue that has not already been through the normal trial process.

A new lawsuit has already been filed in Maricopa County Superior Court alleging that Ducey does not have the constitutional authority to shut down bars, or any other business.

There is the possibility that the Ducey-declared COVID-19 emergency could be over and business back to normal by the time there is a trial and then the likely appeals. Attorney for the bars Ilan Wurman said that is why he is asking Judge James Smith to grant a preliminary injunction to allow the bars to reopen while the case proceeds.

But even if that doesn’t happen, Wurman said the case needs to proceed. He said Arizona courts need to spell out clearly what powers not only this governor but future governors have over businesses the next time there’s an emergency.

“What happens when schools are back in session in September and U of A and ASU have been in session for a month and the (COVID-19) numbers go back up?” he asked.

“Who are the first people going to be the scapegoats?” Wurman continued. “The bars.”

The new lawsuit includes something not in the original version.

It asks Smith to declare that Ducey, in shuttering the establishments, effectively took their property. That would require the state to pay compensation to the bar owners for what they lost while they were forced to close, Wurman said.

“But our objective is to get open,” he said.

The lawsuit claims Ducey has unfairly and illegally singled out bars for discriminatory treatment, while other businesses that legally serve alcohol, including restaurants, are allowed to open if they meet pandemic safety requirements.

No date has been set for a hearing.

Become a #ThisIsTucson member! Your contribution helps our team bring you stories that keep you connected to the community. Become a member today.