Arizona judge hears arguments on whether anti-mask mandates, other measures can be part of state budget

Mary Jo Pitzl
Arizona Republic

A host of new laws ranging from a ban on mask mandates at schools to ballot fraud prevention measures are set to take effect at the end of September, but whether that actually happens is in the hands of a Maricopa County Superior Court judge.

Judge Katherine Cooper on Monday said she will make a decision before Sept. 29, the date when legislative bills are scheduled to become law.

At issue is the Legislature's practice of adding policy measures to the state's budget, a process that advocates representing education and civic interests argue is unconstitutional. They are seeking a ruling from Cooper, as well as a preliminary injunction, to block parts of four budget-related bills from taking effect.

In all, there were 11 bills related to the budget, many of them written in the waning days of the legislative session with little opportunity for public scrutiny. They contained policies that lawmakers couldn't get passed as stand-alone bills, as well as issues that cropped up too late for the traditional bill process.

The consequences of this practice are wide-ranging and serious, attorney Roopali Desai said at an hour-long hearing. One provision in the K-12 budget-related bill bars school districts from imposing mask mandates, a topic of heated public debate ever since school started in Arizona last month.

Desai said if that provision becomes law, children will suffer.

"A great many children in Arizona will get COVID-19, they will get long COVID, they will be hospitalized and they will die," she said. "That is not hyperbole.”

Attorneys for the state countered that the complaint is baseless, and said the decision to add the policy to the budget through a process called budget reconciliation is a political decision best left to the Legislature.

Otherwise, attorney Patrick Irvine argued for the state, the courts could be involved in every legislative session, trying to divine which policies are directly related to the money issues in the budget and which are not. 

Irvine said the practice dates from the mid-2000s. 

"The Legislature (and the governor through the veto power) is given unfettered discretion in this area," Irvine wrote in arguments presented to the court. There is no constitutional requirement for budget-reconciliation bills, he said.

Related reading:Mask mandates, election changes don't belong in budget bill, lawsuit claims

Do bills pass constitutional muster?

But Desai said the actual titles that lawmakers put on bills have constitutional requirements. Specifically, that they must properly capture what is contained in the bill, she said. 

In papers filed with the court, she argued that is impossible to do with Senate Bill 1819, which deals with state budget procedures.

"Does a bill titled 'Relating to State Budget Procedures' give notice that it includes new, substantive legislation covering everything from the definition of 'newspaper' to condominium termination requirements, and from investigation of social media platforms to dog racing permitting?" she wrote. "Of course not."

She is asking the court to find that SB 1819 not only violates the title requirements of the state Constitution but that it also violates the single-subject rule for legislation. The bill, she said, contains a "hodgepodge" of unrelated matters.

In the case of the other three bills, Desai is seeking a finding that their titles do not give the public a clear idea of what is in them. She is asking that the court bar specific sections of those bills from taking effect.

They are:

  • House Bill 2898, involving K-12 schools. The complaint argues its title does not convey that the bill bars school districts from imposing mask mandates; bars public schools from specific teachings about "race, ethnicity and sex"; and allows the attorney general to fine any public employee or official who organizes or takes part in protests that could disrupt schools.

    The plaintiffs also argue the bill violates the equal protection provisions of the Constitution by preventing certain COVID-19 protocols for public schools while remaining silent about private schools
  • Senate Bill 1825, regarding higher education. Its title ("relating to budget reconciliation for higher education") does not make it clear that the bill bars universities and community colleges from requiring COVID-19 vaccinations as a condition for attending classes or other campus activities.
  • Senate Bill 1824, the health bill. Its title does not disclose that it bars local governments from imposing "vaccine passports," as well as prohibiting businesses from requiring patrons show proof of vaccination, the plaintiffs argue.

    The bill also prevents schools from requiring immunizations for attendance unless ordered by the director of the state Department of Health Services and prevents any vaccine that has not received full FDA authorization from use as an attendance requirement. 

The lawsuit was filed last month by the Arizona School Boards Association, The Children's Action Alliance of Arizona, the Arizona Education Association, the Arizona Advocacy Network (which focuses in part on election procedures) and various education supporters.

A separate lawsuit filed by the city of Phoenix also takes aim at the Legislature's budget procedures. It focuses on another bill, related to criminal justice, and argues that it violates the state's single-subject rule. It is set for a Sept. 24 hearing in Maricopa County Superior Court.

Reach the reporter at and follow her on Twitter @maryjpitzl.

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