PHOENIX — An attorney representing state lawmakers told a Maricopa County judge Thursday that she has no right to decide whether legislators broke the law in prohibiting schools from requiring students and staff to wear masks.
Ditto, said Patrick Irvine, of new legislation covering everything from investigations of social media platforms to the teaching of what has incorrectly been labeled “critical race theory.”
Instead, Irvine wants Judge Katherine Cooper to conclude that how the Legislature crafts bills — and what it puts in them — is a question beyond her legal reach.
“There are strong prudential reasons why the judicial power does not extend to determining whether budgetary measures are sufficiently related or tied to budgeting, thereby rendering it an unreviewable political question,” he wrote.
But if Cooper doesn’t buy that theory, Irvine has others.
He contends that the education groups and their allies have no legal standing to challenge some of the provisions of various “budget reconciliation bills” enacted by lawmakers that contain a laundry list of policy changes. Irvine said none of the organizations have shown any direct harm to themselves if the bill becomes law.
And if that argument fails, Irvine is urging Cooper to read the words that require all bills to deal only with one “subject” in its broadest possible sense — broad enough so that all the challenged provisions will be upheld.
Hanging in the balance is more than whether schools will have to abandon all mask mandates when that law takes effect as scheduled Sept. 29.
There’s also whether colleges and universities can condition attendance or employment on wearing face coverings, obtaining a vaccination or undergoing testing for COVID-19. Another provision strips Secretary of State Katie Hobbs of her ability to defend state election laws.
And then there’s language to prohibit teaching curriculum “that presents any form of blame or judgment on the basis of race, ethnicity or sex.” That includes concepts like saying students “should feel discomfort, guilt, anguish, or any other form of psychological distress because of the individual’s race, ethnicity or sex.”
In filing suit, attorney Roopali Desai is not saying that the individual provisions, by themselves, are illegal.
The problem, she said, is that these were combined with other unrelated provisions into what lawmakers call “budget reconciliation bills,” essentially a grab bag of issues.
Desai said that violates constitutional provisions that clearly state that each piece of legislation “shall embrace but one subject and matters properly connected therewith.” And that same provision requires each element to be laid out in the title.
But the bills were titled with relatively innocuous — and potentially meaningless — names like “appropriating monies, relating to kindergarten through grade twelve budget reconciliation.” So Desai wants Cooper to declare the challenged provisions illegally enacted and unenforceable.
Irvine, for his part, asks Cooper to see it through a different lens.
“Courts should liberally construe the word ‘subject’ so as to allow the Legislature full scope to include in one act all matters having a logical or natural connection,” he argued. And Irvine contends there’s nothing wrong with multiple topics in a single bill as long as there is a “common purpose or relationship” between them.
Take, for example, that K-12 measure.
It is true, he said, that it does ban mask mandates and limits what can be taught. Irvine said, though, that both fall under the umbrella of lawmakers deciding how public money can be spent.
He makes the same argument on a bill simply labeled “budget procedures.”
Among the challenged provisions is one that includes new requirements for “fraud countermeasures” for paper ballots. It also includes changes to the governor’s emergency powers, investigations of the practices of social media platforms, and even language about condominiums.
“None of these subjects have any logical connection to each other,” Desai said.
Irvine, again, urged Cooper to take a broader view.
“Each of the challenged provisions regulate how state monies are spent and how state officers conduct their business,” he said.
And there’s another argument that falls into the category of “we’ve always done it that way.”
“A bill entitled ‘budget procedures’ for budget reconciliation has been part of the annual budget process for many years,” Irvine said.
That, in turn, goes to his ultimate fall-back argument. He said if Cooper rules that individual items in the reconciliation bills actually needed to be be tied to specific provisions in the budget, then she should make her ruling prospective only. That would allow the challenged provisions to take effect this year and effectively sending a message to lawmakers that they can’t do this again.
Cooper has set a hearing for Sept. 13 on the issue.
