PHOENIX — With his legal challenges to vaccine and mask mandates rejected by a federal judge, Attorney General Mark Brnovich now wants Gov. Doug Ducey to order lawmakers back to the Capitol.
Brnovich, a U.S. Senate candidate, wants Ducey to call a special legislative session to restore four laws barring local governments, public schools and universities from mandating that employees, staff and students be vaccinated against COVID-19 or wear face coverings.
Those bans were approved by the Republican-controlled Legislature earlier this year. But all were voided by a trial judge because they were packed into various unrelated “budget reconciliation’’ bills, a ruling ratified by the Arizona Supreme Court.
In a letter to Ducey, Brnovich called the situation “most pressing,’’ saying he has received complaints in particular from government workers who face the prospect of either submitting to a vaccine or being fired.
Brnovich, engaged in what could be a tight race in his bid to be the Republican nominee for U.S. Senate, also is pressuring Ducey to use what the attorney general contends are his powers to block what schools and local governments are doing, even if the Legislature cannot or will not.
“It is my opinion that your office has clear authority to stop such government mandates immediately by instructing the Department of Health Services to exercise its primary jurisdiction under (state health laws) and issue an emergency rule that implements the directives articulated in the struck-down laws, thereby preempting contrary requirements from political subdivisions,’’ Brnovich wrote to the Republican governor in a letter he made public.
“Our constituents are expecting — and deserve — immediate attention to these substantial issues facing our state,’’ the attorney general told Ducey.
“We are reviewing the letter,’’ Ducey’s press aide C.J. Karamargin said Monday, declining further comment.
Brnovich refused to answer questions from Capitol Media Services about the scope of the governor’s powers or even the possibility of a special session.
His publicist Katie Conner said Monday he is “not available for an interview’’ despite the fact he has appeared on Fox News at least four times in the past seven days to criticize the Biden administration on the issue of vaccine mandates.
Brnovich may need a political win. Just last week U.S. District Court Judge Michael Liburdi refused Brnovich’s highly publicized bid to block the Biden administration from requiring federal employees and workers for federal contractors to be vaccinated. The judge said Brnovich failed to show a legal basis for an injunction.
Meanwhile, the Arizona Supreme Court ruling has left the state without legal authority to enforce any of the prohibitions on vaccine and mask requirements that Republican legislators previously approved.
The justices have yet to explain their decision. To this point, however, nothing in that court ruling bars lawmakers from dealing with these issues individually, as long as they do so in a legal fashion.
But a special session before the Legislature is set to reconvene in January could prove elusive. Rounding up lawmakers during the holiday season has often proven difficult. Also, the resignation of Rep. Becky Nutt, R-Pearce, has left the House GOP leadership short of the 31 votes it needs to approve anything.
There’s also the fact that Ducey previously indicated he will call lawmakers back to the Capitol early only if the votes are already lined up for whatever is on the agenda.
“I’m pretty sure the governor will not call a special session unless he’s confident we have 16 (Senate votes) and 31 (House votes), regardless of what the topic might be,’’ said Senate President Karen Fann, R-Prescott.
Not everyone believes Ducey should wait that long. “The people of this state deserve a chance to address this issue,’’ Sen. Michelle Ugenti-Rita, R-Scottsdale, told Capitol Media Services.
“Put it on the (voting) board and let the chips fall where they may,’’ said Ugenti-Rita, who is running for secretary of state. “At least people will see we tried rather than bury our head in the sand.’’
What also remains in doubt are claims that the governor, who gave himself emergency powers in March 2020, actually has the power to preempt local decisions on masks and vaccines.
The issues have become Republican talking points. Ducey and Brnovich have previously tried to get the city of Tucson to scrap its policy that employees be vaccinated unless they qualify for a medical or religious exemption.
So far, though, Tucson has refused to relent.
“The city’s mayor and council have express authority to adopt and implement measures that are necessary or convenient to prevent the spread of infectious disease in our community,’’ Tucson City Attorney Mike Rankin wrote late last month to Brnovich, citing the city’s charter.
“In adopting the ordinance, the mayor and council made legislative finding citing to this authority, as well as to the city’s legal obligation as an employer to provide and maintain a safe and healthy workplace for its employees,’’ Rankin wrote.
Rankin said Ducey is without power, even with the emergency declaration still in place, to preclude or preempt local jurisdictions from adopting health and safety measures.
While Ducey is silent on a special session, that isn’t the case in Florida where Ron DeSantis, also a Republican, brought lawmakers back to Tallahassee on Monday. His agenda includes a ban on educational institutions requiring students to be vaccinated and a ban on face masks in schools. Also outlawed would be a ban on vaccine mandates for all government employees.
On the business side, DeSantis wants a requirement on private businesses that have vaccine policies to allow workers to choose periodic testing for COVID as an alternative.
Brnovich’s latest letter to Ducey calling on him to act is separate from, but related to, a complaint filed with the Attorney General’s Office last month by Sen. Vince Leach, R-Tucson.
Leach contends the Tucson vaccine requirement is illegal, not because of the mandate itself but because the city does not grant exemptions to anyone who claims a “sincerely held religious belief’’ against being inoculated. The senator said such automatic approval is required under a provision of a law approved earlier this year.
That inquiry allows Brnovich, if he concludes the city is breaking the law, to order the state treasurer to withhold more than $100 million in state revenue sharing. Rankin, while arguing Tucson is acting legally, also is preparing for that possibility.
“Attorney General Brnovich has made it very clear that he will oppose any attempt by any governmental agency to impose a COVID-19 vaccine ‘mandate,’ ‘’ the city attorney wrote. “Given this, I believe that the result of this investigation may be influenced as much by politics as the law.’’
Brnovich has to issue a finding before the end of the month.