Gov. Doug Ducey

Gov. Doug Ducey, seen with former state health director Dr. Cara Christ, opposes mask mandates.

A judge’s ruling last week that the state ban on mask mandates is unconstitutional apparently won’t affect the optional policy on masks adopted by Mesa Public Schools.

Asked if the Mesa Public Schools district is planning any action following Maricopa County Superior Court Judge Katherine Cooper’s Sept. 27 decision, the district kept mum and no mention of the ruling was made at the Governing Board meeting the next day.

MPS began the school year with masks encouraged, but optional. After the first few weeks of school, COVID cases rose, so it made masks mandatory on buses and in classrooms that had "outbreaks." 

According to the MPS COVID dashboard, Friday saw 248 active student and 62 staff COVID cases. With a student-staff population of 64,890, that translates to 477 cases per 100,000, nearly double this week's county average of 250 cases per 100,000.  

Asked if the Mesa Public Schools district is planning any action following the court ruling, MPS Superintendent Dr. Andi Fourlis said, "The Sept. 27 Superior Court ruling on school face-mask bans did not impact Mesa Public Schools mitigation strategies. The district continues to work with county and state health officials on our mitigation strategies. These include the use of masks as a mitigation measure when needed."

As of Friday, six MPS classes are listed on the district's COVID dashboard as in "quarantine," though Forlis noted, "If we see elevated case counts in a classroom, we require masking for 10 days to try to avoid quarantining the class. 

"If 3 percent or more of a school's population (students and staff) are reported positive for COVID-19, we will require masking for the entire school," Fourlis said.

County health department data released last Thursday show the district’s virus transmission level rising, with cases per 100,000 going from 240 to 262 and positive new test results climbing from 15 percent to 17 percent.

According to a CDC press release last week, three separate studies “found that school districts without a universal masking policy in place were more likely to have COVID-19 outbreaks.”

And, the CDC noted "schools in two of the state’s most populous counties (Maricopa and Pima) were 3.5 times more likely to have COVID-19 outbreaks if they did not have a mask requirement at the start of school."

Cooper voided other measures that the Republican majority in the Legislature tacked onto the state budget bill without hearings in the waning days of the session.

They range from requirements for anti-fraud measures for ballots to banning proof of vaccination to attend universities or community colleges and limits on teaching what lawmakers have incorrectly referred to as “critical race theory.’’

Cooper did not find that any of these provisions, by themselves, is illegal.

What is, she said, was piling them into just four separate so-called “budget reconciliation’’ bills, each with what she said are broad, generic titles that fail to inform voters of the changes they enact.

The Legislature filed an emergency repeal with the state Supreme Court on Sept. 28 but lost its bid for a stay on Cooper’s ruling. Cooper also said she would issue additional orders if lawmakers attempted to get around her opinion.

The justices indicated a willingness to review her ruling on an expedited basis, setting a deadline of last Friday for both sides of the dispute to file any paperwork.

But none of that is a guarantee that they will buy arguments by Attorney General Mark Brnovich's argument that Cooper exceeded her authority in invalidating the challenged provisions.

Cooper said there are separate constitutional requirements that legislation deal with only a single subject. “Together these requirements promote transparency and the public’s access to information 

Cooper’s ruling, particularly about masks, cheered state schools chief Kathy Hoffman.

“With this ruling, Arizona school leaders, educators and community members can come together to make the best decisions on public health, safety and education,’’ she said. “Our school communities are tired of being political pawns in dangerous attempts to subvert democracy and ignore science.”

Ducey spokesman C.J. Karamargin called the ruling “clearly an example of judicial overreach.’’

“It’s the duty and authority of only the legislative branch to organize itself and make laws,’’ Karamargin said. “Unfortunately, today’s decision is the result of a rogue judge interfering with the authority and processes of another branch of government.’’

But Cooper addressed – and brushed aside – claims that how legislation is crafted is a “non-justiciable political question’’ beyond the reach of her and the courts to conclude whether lawmakers are exceeding their constitutional powers.

“The issue here is not what the Legislature decided but how (it decided what it did,’’ she wrote. “Whether the Legislature complied with the requirements of (the Arizona Constitution) and whether a provision is reasonably related to ‘budget reconciliation’ are questions properly before the court.’’

Last Monday’s ruling does more than void the challenged sections of the laws. Unless overturned, it also quashes the practice that lawmakers use of piling apparently unrelated issues into bills in an effort to corral the votes for the entire package.

“This is classic logrolling -- a medley of special interests cobbled together to force a vote for all or none,’’ the judge said. And banning that could result in difficulty in getting approval of future controversial measures.

The judge said nothing in her ruling should come as a surprise to lawmakers.

“The Arizona Supreme Court has made it clear that logrolling is unlawful,’’ she wrote, citing a 2003 ruling in a fight between the Legislature and then-Gov. Janet Napolitano. 

And as recently as 2018, Cooper said, the justices said the whole purpose of a single subject rule is to prevent lawmakers from “combining different measures into one bill so that a Legislature must approve a disfavored proposition to secure passage of a favored proposition.’’

The Arizona Constitution prohibits policy changes from being included in the actual budget. So, for example, allocating a certain amount of money for school construction goes into the budget. Instructions on guidelines for giving out the cash, however, go into a reconciliation bill.

Cooper, however, said what’s in these bills hardly qualifies. And she cited that constitutional requirement for a bill’s official title reflects what is included.

Attorneys for the state argued that the judge should interpret that requirement broadly. So, in the case of a “health’’ budget reconciliation bill, they said that can include anything related to health.

“That is not correct,’’ Cooper wrote. “The Legislature has discretion to title a bill but having picked a title, it must confine the contents to measures that reasonably relate to the title and each other to form one general subject.

More to the point, Cooper said, the

title of the bill “must be worded so that it puts people on notice as to the contents of the bill.’’

“It should enable legislators and the public upon the reading the title to know what to expect in the body of the act so that no one would be surprised as to the subjects dealt with by the act,’’ she said.

That, Cooper said, did not occur here.

Consider the provision prohibiting schools from requiring students and staff to wear masks while on campus. 

It was enacted not as separate legislation but instead tucked into what was labeled “budget reconciliation for kindergarten through grade 12.’’ 

Ditto language forbidding schools from requiring proof of vaccines.

She took a particular slap at arguments that banning mask and vaccine mandates in public and charter schools is related to the budget because it may “potentially reduce overall enrollment and funding,’’ calling that “particularly disturbing’’ and unsupported by the legislative record. 

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