PHOENIX — Arizonans who assemble to worship or protest don’t have to keep 6 feet between them to avoid violating the governor’s executive order and subjecting themselves to arrest and jail, Attorney General Mark Brnovich said Thursday.
In a formal legal opinion, Brnovich pointed out that Gov. Doug Ducey’s order specifically permits people to engage in “constitutionally protected activity,” including religion and speech. It said these are allowed if “conducted in a manner that provides appropriate physical distancing to the extent feasible.”
State Rep. Kelly Townsend, R-Mesa, who requested the attorney general’s opinion, noted that Ducey, in other parts of his executive order, specifically required separation of 6 feet.
So she asked Brnovich whether that would put parishioners and others in legal jeopardy — and subject them to the $600 fine and six months in jail that Ducey said is the enforcement provision of his order — if they were closer to each other.
Brnovich said no.
He pointed out there’s no specific distance requirement when things like church services and rallies are at issue, with Ducey instead relying on words like “appropriate” and “feasible.”
“This flexible language recognizes that what may be appropriate or feasible in one context may not be appropriate or feasible in another context,” Brnovich wrote.
Separately Thursday, Townsend and state Sen. David Farnsworth, R-Mesa, are moving to try to trim Ducey’s emergency authority.
The two said they are reviewing the laws that gave Ducey the right to declare an emergency in the first place, the precursor to his executive orders.
Those laws spell out that gubernatorial-declared emergencies terminate on proclamation of the governor. But Townsend, seeking a quick end, also noted termination can also be “by concurrent resolution of the Legislature declaring it at an end.”
She isn’t alone in that sentiment.
“I’m asking my colleagues in the legislature to join me in overturning the arbitrary extension of the state-at-home order,” wrote House Majority Leader Warren Petersen, R-Gilbert, on his Facebook page.
He urged followers to call on their own legislators to back a repeal.
But neither Townsend nor Petersen will get a chance for a vote on that any time soon as the legislative session remains in limbo.
On Thursday, legislative leaders decided not to reconvene Friday, May 1, as had been planned. It is unclear when they will return and whether that will be to take up legislative business or simply to formally shut down the session until January.
Farnsworth questions whether the laws giving Ducey such power in the first place are constitutional.
“I believed that the executive order, from the beginning, is a mistake and that he is exercising tyranny over our state,” Farnsworth said.
Ducey said Wednesday he is extending his stay-home order until at least May 15. It spells out that individuals can leave only to participate in “essential” activities, whether that involves their work, shopping or outdoor recreation.
Separate orders that were updated Wednesday further define the scope of what is essential. And they take steps to allow some stores that he ordered shuttered in March to begin selling certain items again next week, at first through drive-up and delivery services and, later, allowing customers in the door.
But Ducey is keeping in place his ban on those shops providing services. So a beauty salon could sell shampoo but could not do a perm.
The massage parlors and tattoo shops that Ducey ordered closed on April 1 will still not be taking customers.
The governor also said he envisions restaurants again providing dine-in services as early as May 12, though the details of how that would work are still being worked out.
The bottom line, Ducey said, is that the steps he took curbed the spread of COVID-19 and ensured that the state did not run out of hospital beds or ventilators. But he said there is no “trend” that makes him feel comfortable enough to lift the rest of the restrictions.
Townsend said that claim is hollow. “If you went back to Jan. 1 or whenever this hit and the numbers they told us (it could hit), the numbers we’re at now would be the down trend,” she said.
In late March, state Health Director Dr. Cara Christ said the state’s 15,000 hospital beds and 1,500 beds in intensive-care units would not be enough.
But the most recent data from her department found 755 people hospitalized with positive or suspected COVID-19 diagnoses.
“We are not at the high-water mark,” Townsend said. “We never even got in the river.”
She said it’s “unrealistic” to wait for whatever the state determines is a down trend.
“And you’re hurting this economy,” Townsend said.
She was alarmed, she said, by Ducey’s repeated assertion on Wednesday that there would be penalties for those who opted to go out for nonessential activities and for business owners who decided to open their doors without his permission.
“I just heard the governor of the state of Arizona tell the people of his state that he would jail them if they didn’t obey his decree,” Townsend said.
“We are not a monarchy,” she said. “And the people of this state should not be threatened to be put in jail for trying to make a living in a situation where the numbers that they talk about are nowhere close to what they told us they would be when they did this.”