Friday, May 8, 2020

BREAKING UPDATE: Arizona's Stay-At-Home Orders Withstand Constitutionality Challenge

4:45pm: Arizona's Stay-At-Home Orders Withstand Constitutionality Challenge
In an 11-page Order late Friday afternoon, U.S. District Court Judge G. Murray Snow refused to issue a Temporary Restraining Order placing an immediate hold on Arizona's stay-at-home orders in light of the coronavirus pandemic.

As to whether Governor Doug Ducey had the right to declare the emergency, Judge Snow stated:

"COVID-19 was present and rising in Arizona, and had been identified as a public health emergency by both the WHO and HHS. the Court simply does not possess the authority to second-guess Governor Ducey’s decision to declare a state of emergency, in accordance with Arizona law, where there was some evidence, upon which he relied3, to support the existence of a public health emergency. Of course the governor’s power “to declare an emergency and thus eliminate the constraints of the due process clause is not without bounds.”  However, to evade the deferential review given to emergency decisions, a plaintiff must show “the [state] official[] kn[e]w no emergency exist[ed], or [acted] with reckless disregard of the actual circumstances.” In light of the multiple publications declaring COVID-19 a public health emergency, and Plaintiff’s own admission that COVID-19 is highly contagious and present in all 50 states, Plaintiff has not and is not likely able to make this showing. As a result, Plaintiff will not likely succeed on the merits of this claim. Nor does the Court find that Plaintiff has raised serious questions as to its merits."
Similarly, Judge Snow disagreed with Mr. McGhee's claims that the Executive Orders violated either his rights to procedural or substantive due process.

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10am: Federal Judge Hears Arguments On Constitutionality Of Arizona's Stay-At-Home Orders, Will Rule Later Today
The constitutionality of Arizona's Stay-At-Home Orders was argued in federal court this morning, and District Judge G. Murray Snow will issue a decision on this "important issue" by the end of the day.

The case was brought in early April by furloughed Flagstaff restaurant worker Joseph McGhee. He represented himself today, and argued that Arizona's Executive Orders amounted to a "mass quarantine" that infringes on well individuals' constitutional liberty rights, without providing due process.

Both Judge Murray Snow and attorney Brett Johnson acknowledged the efforts made by Mr. McGhee's. In the 50-minute long telephone hearing, the judge led him through some of the arguments and complimented him on his "turn of phrase" in suggesting that the Executive Order unconstitutionally restricts his right to "aimlessly wander. Johnson noted that "we all recognize that in his initial pleadings, Mr. McGhee raises important issues.



***(Previous article, below)

The  question of whether Arizona Governor Doug Ducey's "Stay Home" Executive Orders are unconstitutional will be the primary issue Friday morning during argument before a U.S. District Court Judge. A furloughed Flagstaff restaurant worker* filed the case more than a month ago against Mayor Coral Evans and Governor Doug Ducey.

Flagstaff took the case out of Coconino County Superior Court and brought it the federal court in Phoenix, and the Governor's attorneys today filed a raft of pleadings blasting Plaintiff Joseph McGhee's lawsuit. "Plaintiffs (sic**) relies on vague and plainly erroneous contentions that the executive order prevents him from leaving his home. Further, while Plaintiff appears to argue that COVID-19 poses no meaningful health risk to him, he provides no reason why this Court should ignore the well-being of the many persons for whom COVID-19 does pose grave danger."

The Governor's pleadings include the gradual steps towards re-opening non-essential businesses which have been taken during the past few days, perhaps highlighting the apparent reasonableness in Arizona's approach. The upcoming hearing coincides with a movement by some on the right to protest that the state is not reopening fast enough. Another example is the recall petition taken out on Friday charging that the Governor's Executive Orders have been unconstitutional.

The oral arguments on McGhee's Motion for a Temporary Restraining Order against the Governor
will take place by telephone in front of Judge G. Murray Snow. McGhee is representing himself, and the Governor has retained the prominent Phoenix law firm of Snell & Wilmer. Flagstaff this afternoon filed a simple "me, too" in joining with Ducey.

McGhee argues that the "mass quarantine" violates Arizonans' constitutional rights without providing due process. He also claims that the scientific evidence shows the Covid-19 death rate is lower than widely believed, meaning that the state is not in the "extreme peril" required for such emergency measures. "(T)he fear and panic gripping the world is wholly unjustified."

Ducey's attorneys also filed today a Motion For Judicial Notice, which lays out a valuable timeline of government statistics and actions.

8 comments:

  1. This was a TRO/PI hearing where the TRO/PI were denied. Nowhere did the judge state the executive orders are definitively constitutional. In fact, the judge hinted that he was open to the idea the orders are overly broad.

    Shame on you for this false analysis.

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  2. The judge was playing it safe and covering his own rear. He did not actually rule on whether Ducey has the authority to supercede constitutional law. Which he clearly does not. The constitution is very clear about those rights not being overruled or suspended for ANY reason by ANY federal, state or local authority.

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    Replies
    1. Incorrect Unknown. Those rights CAN be overrruled or suspended. How the hell do you think criminals go to prison if their rights cannot be curtailed?

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    2. Ding ding ding, we have a winner here. They're talking about overruling the rights of a person that has not committed a crime. Not a criminal that has to give up his rights because he committed a crime. You are incorrect.

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  3. only a supreme court justice can make a ruling against the constitution. i have a feeling that, ducey wont be a governor for another term.

    ReplyDelete
    Replies
    1. He is term limited after this term. Whether he will run for Senate in two years is an open question. Isn't this judge part of the 9th circuit? If so, that is all you need to know.

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  4. Heres what is not being addressed: COVID-19 was present and rising in Arizona, and had been identified as a public health emergency by both the WHO and HHS.
    Who authorized the who the centers for disease control etc to mandate anything on the citizens of the united states? Why isnt that being addressed by anyone?

    ReplyDelete
    Replies
    1. If the flu has killed more people than the virus why hasn't there been a stay at home order every year till the flu season is over. In my opinion they are trying to see how much they can get away with so when it happens again we won't have any rights to come back to. People are losing their jobs and before you know it we will become a socialist/communist country

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