Kimmyz

Two dozen bars around the state are asking the Arizona Supreme Court to rule that Gov. Doug Ducey does not have the constitutional authority to shut them or any other business down.

Javier Aguila, owner of Aguila’s Hidaway bars in Avondale and Buckeye; Kimberly O’Donnell, owner of Kimmyz on Greenway in Glendale; and Mitchell and Lucie Stevens, owners of Sage and Sand Bar in Glendale, joined the suit.

Attorney Ilan Wurman is not contending that there is not an emergency due to the COVID-19 outbreak. 

But Wurman, an associate professor at Arizona State University, said the law that gives Ducey the unilateral power to do things like close down certain businesses “unconstitutionally delegates the legislative power of this state to the governor.” 

Wurman wants the justices to not only void the law giving the governor those powers but also declare that any orders Ducey already has made under that law are illegal and cannot be enforced.

The outcome of the legal fight would affect not just the owners of the 20 bars around the state who are challenging his authority over them but every other kind of business that Ducey has ordered shuttered or whose operations he has directed be curtailed. 

And it also could affect the governor’s future ability to impose a new stay-at-home order as well as any directives he issues about when schools can and cannot open.

The action is the third challenging Ducey’s powers to close businesses.

A Maricopa County Superior Court judge earlier this month rejected a challenge by the Mountainside Fitness chain and last week a federal judge rebuffed a bid by Xponential Fitness to allow it to reopen its 50 facilities around the state.

“The court does not doubt the earnestness of plaintiffs’ desire to open their businesses, generate revenue, earn a living and employ—and as importantly pay—others,’’ wrote U.S. Judge Diane Humetewa, adding that she recognizes “the economic and emotional hardships’’ that the closure orders can impose on people and individuals.

But Humetewa said she was powerless to simply void Ducey’s orders.

“In our constitutional republic, the decisions of whether, when, and how to exercise emergency powers amidst a global pandemic belong not to the unelected members of the federal judicial branch, but to the elected officials of the executive branch,’’ she wrote.

Humetewa said a crisis like that created by the coronavirus calls for “quick, decisive measures to save lives.’’

Central to the bars’ case is the law that both allows the governor to declare an emergency and then gives him “the right to exercise ... all police power vested in the state by the constitution and laws of this state’’ to deal with that emergency.

“Petitioners have suffered great harm from being unable to operate their businesses in pursuit of their lawful occupations and ordinary callings,’’ Wurman told the justices. “They have no idea when they will be able to reopen.

“The ‘police power’ of a state is, in effect, its legislative power: its power of the health, safety, welfare, and morals of the people,’’ he wrote.

The law that Ducey is using, Wurman said, is “a naked delegation of the state’s legislative power to the governor and is therefore unconstitutional.”