Thursday, August 6, 2020

BREAKING: PLEASE Keep Gyms Closed "In the Midst of the Unprecedented COVID-19 Pandemic"! Governor Ducey Appeals To A Higher Court (READ pleadings)

Don't let gyms reopen next week! That is the Arizona Governor Doug Ducey's battle cry in today's appeal to both the Arizona Court of Appeals and the Superior Court Judge who ruled against him on Tuesday.

Finding that the Governor's Executive Orders re-closing gyms in June, and keeping them closed for the foreseeable future, Judge Timothy Thomason found that Ducey had violated the fitness centers' right to procedural due process (although complying with substantive due process). He said that they must have a "prompt opportunity to file for reopening" by next Tuesday.

Ducey asked Thomason to put that ruling on hold while he takes the issue to the Arizona Court of Appeals. The Special Action was filed either late yesterday or early today. As put in that pleading, the Governor "seeks immediate, emergency relief to avoid the harmful public-health consequences of reopening gyms—against the advice of medical experts—in the midst of the unprecedented COVID-19 pandemic."*

Ducey's Communications Director, Patrick Ptak, tells Arizona's Law that "as we continue to work with these industries on when and how these reopenings should occur, our top priority will remain to protect and defend public health."

In the suits brought by both Mountainside Fitness and eOS Fitness, Judge Thomason had suggested in early July that the Governor and the Department of Health Services needed to come up with some process for the gyms to show that they were ready to safely reopen. He was not impressed with AZDHS's clever process, quietly posting an "attestation" form for gyms to complete. That form would not permit them to reopen so long as the Governor kept a "mandatory" closure in place. And, that is exactly what Ducey did in his July 23 Executive Order.

Thomason held a hearing on Monday, and issued his stern 24-page decision the following day.

(As a side note, Mountainside and eOS had appealed the judge's earlier ruling, so the Court of Appeals now effectively has a both-sides-of-the-coin appeal.)

Given that, it is questionable whether Judge Thomason will grant Ducey a stay pending the appeal.

(UPDATED, 8/7/20, to include response from Governor's Office.)

*It could be noted that this dire warning to the Court came while the Governor was in Washington exchanging praise with President Donald Trump over Arizona's handling of the pandemic.

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