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Attorneys For Phoenix Union Argue State's Ban On Mask Mandates Isn't Yet The Law

Published: Friday, August 13, 2021 - 3:36pm

An attorney for the Phoenix Union High School District told a judge that the district’s mask mandate can’t violate a law that hasn’t yet taken effect.

At issue are mask requirements for students and staff being adopted at Arizona public schools, as classes resume amid a surge in COVID-19 cases.

Gov. Doug Ducey and Republican lawmakers argue they adopted a ban on mask mandates — a policy included in the state budget at the end of June — with a clause to apply the law retroactively, to July 1.

Mary O’Grady, an attorney for the Phoenix Union High School District governing board, told a Maricopa County Superior Court judge that lawmakers have a misunderstanding of how retroactivity works. She said declaring a law retroactive to a certain date doesn’t bypass a rule in the Arizona Constitution, which states that laws don’t take effect until 90 days after the end of a legislative session.

That means the ban on mask mandates can’t be enforced, even retroactively, until September 29, O’Grady said.

“The retroactivity clause takes effect 90 days after the session adjourns just like the rest of the bill takes effect,” she said at a hearing Friday morning. “It has no impact on when the bill becomes effective.”

Maricopa County Superior Court Judge Randall Warner seemed to agree.

“I would interpret a retroactivity clause to mean, the statute goes into effect on Sept. 29. And at that moment, it's retroactive,” Warner said at the hearing.

If lawmakers had wanted the ban on mask mandates to take effect immediately, they needed to adopt the policy with an emergency clause, O’Grady said. But that takes a two-thirds majority vote of lawmakers in the House and Senate, and most budget bills were adopted by Republicans on simple majority, party line votes in the narrowly divided Arizona Legislature.

Alexander Kolodin, an attorney for a biology teacher challenging the school district’s mask policy, told Warner that the 90-day rule doesn’t apply to the mask mandate ban because it was adopted as part of the state budget. Laws that direct how the state spends or raises revenue are exempt from that constitutional provision, he argued.

Kolodin said that exemption would extend to, say, lawmakers declaring that money won’t be assigned to schools that violate the law against mask mandates.

“(Some Republican lawmakers) wanted to make sure that they could go to their constituents and say, we’re not going to use your money for this,” Kolodin said.

But O’Grady says there’s nothing in the budget bill that includes such a penalty for violating the mask mandate ban, or anything else about the specific policy that ties it to the purpose of the budget: The support and maintenance of state government operations.

Warner did not immediately issue a ruling on whether the school district policy violates state law.

A separate case challenging the constitutionality of the ban on mask mandates was filed late Thursday.

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