Opponent of Arizona's ban on school mask mandate tells judge 'children … may die'

PHOENIX — The attorney for a coalition of educators, school board members, child-welfare advocates and others warned a judge Monday that children could die if she does not void a legislative ban on schools requiring students to be masked.

“Unless the laws challenged in this case are declared unconstitutional and enjoined, a great many children in Arizona will get COVID-19, they will get sick, they will suffer from long COVID, they will be hospitalized, and they may die,” attorney Roopali Desai told Maricopa County Superior Court Judge Katherine Cooper.

She said that is backed by evidence that shows an increasing number of cases among children — now one out of every four new COVID cases in Maricopa County — and also that schools with mask mandates have a lower rate of infections than those without.

Desai told the judge she is not making that claim out of hyperbole. She pointed out that anyone seeking to enjoin enforcement of a new law, as she is doing here, must prove there will be “irreparable harm’’ if it is allowed to take effect.

She said the larger — and legally binding — reason Cooper should declare the provision banning mask mandates illegal is that it was tucked into a bill simply labeled as “budget reconciliation’’ legislation. That means it violates a constitutional requirement that the title of a bill must reflect what’s in it, she said.

Other provisions Desai’s coalition are challenging were also improperly tucked into various measures, she said, including those that bar colleges and universities from imposing vaccine requirements as a condition to attend classes, prohibit the establishment of a “vaccine passport,’’ and bar the teaching of anything in public schools “that presents any form of blame or judgment on the basis of race, ethnicity or sex.’’

“The challenged provisions … have nothing to do with budget reconciliation,’’ which are supposed to be provisions putting into effect the changes made in spending bills, she said.

So, for example, Desai said it’s OK — if the budget allocates money for new school construction — for a reconciliation bill to spell out how many square feet of space is required for students.

But the types of provisions she is challenging here “don’t effectuate the budget,’’ Desai said. “They don’t tell you how to distribute or calculate a pot of money that’s appropriated.’’

In defending the laws on behalf of the state, attorney Patrick Irvine argued that the Legislature has used this budget reconciliation bills for years. He said there really is no definition of a “reconciliation’’ bill.

“It is not strictly applied,’’ he argued. “The Legislature is given a lot of discretion, a lot of wiggle room.’’

He also said the constitutional requirement of what is and isn’t required to be in the title of a bill is not for Cooper — or any judge — to decide.

“To the extent a budget reconciliation bill is necessary to implement the budget, that is something that the Legislature gets to decide,’’ Irvine said.

He made the same argument about a separate challenge to a measure titled as “relating to budget procedures.’’

Provisions in that measure range from being able to register to vote while getting a hunting and fishing license; to limiting the power of Secretary of State Katie Hobbs; to creating ballot fraud countermeasures; to establishing a special Senate committee to review the audit that chambered ordered of the 2020 election returns from Maricopa County.

Desai said that measure runs afoul of another constitutional provision limiting all bills to just one subject. And much of what’s in there, she said, “has nothing to do with budget procedures.’’

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Irvine, however, told Cooper she can’t decide these provisions are not “necessary’’ for the budget.

“It’s up to the Legislature to decide,’’ he said. “And the courts are generally going to be deferential to (legislators).’’

Cooper promised to rule before the laws are set to take effect on Sept. 29. But she may decide even quicker, given that she knows whoever loses is going to seek Supreme Court review.

What is clear — and what the judge could void — is it has been the practice of lawmakers for years, for political reasons, to pile various issues into end-of-legislative-session “reconciliation’’ bills.

Consider the 2021 bill to prohibit what has been called “critical race theory,’’ having to do with how teachers can deal with issues of race, sex or ethnicity.

It failed to get the necessary votes when it was considered as a separate measure. But then it was inserted into a reconciliation bill along with other items on the wish lists of various other legislators, enough Republican votes were cobbled together to pass it.

Desai argued that is illegal because it does not meet the constitutional requirement that the public be informed of what is included in a bill.

She also said it forces a legislator “to make a Hobson’s choice between accepting the entire bill, including measures she opposes, or voting ‘no’ on the entire measure, including measures she supports.’’

“That’s exactly what happened this session,’’ Desai said.

She cited a text message from Senate President Karen Fann, R-Prescott, who sought to explain how one bill managed to get all 16 Republicans to go along, including Sen. Paul Boyer, R-Glendale.

“It was a budget bill, and we had to give him some really crappy things to get him on board,’’ Fann wrote. “Talk about blackmail...’’

Desai argued to Cooper that there are implications to agreeing with Irvine that the question of what can and cannot be in a bill is strictly up to lawmakers.

“If the court were to follow the logic the state is advancing, the Legislature could eviscerate (the Arizona Constitution) by putting everything in a budget reconciliation bill and then saying to the court, ‘You can’t look at it, you can’t analyze it,’ ‘’ she said.

Irvine told the judge that if she agrees with Desai that this year’s budget bills violate constitutional provisions on title and subject, she should make her ruling prospective, applying it only in future years. That would leave intact the provisions challenged by Desai and her clients, which he argued is appropriate because of the way lawmakers have done things for years.

But Desai said this is hardly a new issue, and legislators have been on notice for years of the requirements for the title of bills to reflect what is in them, and that bills can’t be unrelated issues thrown together.