PHOENIX — A federal judge Friday rejected a bid by a Flagstaff resident to block the stay-home order issued by Gov. Doug Ducey.
Judge Murray Snow said Ducey’s order “has at least some real or substantial relation” to the public health crisis resulting from the pandemic. The judge said plaintiff Joseph McGhee “cannot show (the order) is beyond all question, a plain, palpable invasion of his fundamental rights.”
Snow also rejected McGhee’s contention that he was subject to an illegal quarantine order.
“As an initial matter, (the order) does not prohibit any person from leaving their home,” the judge noted.
Snow pointed out that it explicitly exempts “constitutionally protected activities as well as outdoor exercises.
“Moreover (the order) explicitly states that all persons will not be required to provide proof to justify their activities,” the judge said. “Thus, contrary to plaintiff’s assertion, he or anyone else, may, in many circumstances, leave their home and wander about, in compliance with physical distance guidelines, without risk of violating the order.”
Strictly speaking, Friday’s order does not quash the entire case. It simply says that McGhee failed to present enough evidence to convince Snow to block the order’s enforcement without a full-blown trial.
But for all intents and purposes, it likely kills the lawsuit.
In denying the injunction, Snow wrote that he believes that McGee is unlikely to be able to prove his claims even after a trial.
More practically, any trial would likely not occur until after the stay-home order goes away. In fact, it is set to end Friday, May 15, unless Ducey extends it.
And Snow specifically said it is beyond his power to block the governor from future orders.
McGhee originally filed suit against Flagstaff Mayor Coral Evans earlier this year after he lost his job as a chef at a restaurant when she issued orders closing these facilities for eat-in dining. But that order was effectively superseded by Ducey’s own ban on restaurant dining.
In filing suit, McGhee argued that the virus is nowhere near as deadly as once thought and said the stay-home order — and the potential penalty of six months in jail and a $2,500 fine — were both unnecessary and illegal.
Governor has right to declare emergengy
Snow said state law gives the governor the authority to decide when an emergency exists. And he said that judges do not get to second-guess those decisions.
“Of course the governor’s power to declare an emergency and thus eliminate the constraints of due process is not without bounds,” the judge wrote.
But he said that requires anyone challenging these orders to show that the governor was aware that no emergency existed 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,” Snow wrote.
Finally, the judge said that the right of individual freedom “does not import an absolute right in each person to be, at all times and in all circumstances, wholly free of restraint.”
Snow said the order has at least some real or substantial relation to the public health crisis.
“And just as plaintiff cannot show (the order) is arbitrary, he cannot show it is beyond all question, a plain, palpable invasion of his fundamental rights.”
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