AG Brnovich: Worship, protests not violation of Gov. Ducey’s orders

Rep. Kelly Townsend and Sen. David Farnsworth at an April 20, 2020, rally at the Capitol protesting the governor’s stay-at-home and essential services orders. (Howard Fischer, Capitol Media Services/Courtesy)

Rep. Kelly Townsend and Sen. David Farnsworth at an April 20, 2020, rally at the Capitol protesting the governor’s stay-at-home and essential services orders. (Howard Fischer, Capitol Media Services/Courtesy)

PHOENIX — Arizonans who assemble to worship or attend protests don’t necessarily have to keep six feet between them to avoid violating the governor’s executive order and subjecting themselves to arrest and jail, Attorney General Mark Brnovich said Thursday, April 30.

In a formal legal opinion, Brnovich pointed out that Gov. Doug Ducey, in his order, specifically permits people to engage in “constitutionally protected activity, including religion and speech. But that order said these are allowed only to the extent they are “conducted in a manner that provides appropriate physical distancing to the extent feasible.’’

Rep. Kelly Townsend, R-Mesa, who requested the opinion, noted that Ducey, in other parts of his executive order, specifically required separation of six feet.

So she asked Brnovich whether that would put parishioners and others in legal jeopardy — and subject them to the $600 fine and six months in jail that Ducey said is the enforcement provision of his orders — if they were closer than that.

Brnovich, in essence, said no. He pointed out that there’s no specific distance requirement when things like church services — and even rallies — are at issue, with Ducey instead relying on words like “appropriate’’ and “feasible.’’

“This flexible language recognizes that what may be appropriate or feasible in one context may not be appropriate or feasible in another context,’’ he wrote.

Separately Thursday, Townsend and Sen. David Farnsworth, R-Mesa, are moving to try to trim his emergency authority.

The pair told Capitol Media Services they are reviewing the laws that gave Ducey the right to declare an emergency in the first place, the precursor to his executive orders.

Those laws spell out that gubernatorial-declared emergencies terminate on proclamation of the governor. But Townsend, seeking a quick end, also noted that can also be done “by concurrent resolution of the legislature declaring it at an end.’’

She isn’t alone in that sentiment.

“I’m asking my colleagues in the legislature to join me in overturning the arbitrary extension of the state-at-home order,’’ wrote House Majority Leader Warren Petersen, R-Gilbert, on his Facebook page.

He urged followers to call on their legislators to back a repeal. And he dismissed the argument that the order protects people.

“In case you didn’t know, anyone can stay at home,’’ he wrote.

But neither Townsend nor Petersen will get a chance for a vote on that any time soon as the legislative session remains in limbo.

On Thursday, legislative leaders decided not to reconvene Friday, May 1, as they had been planned. But it remains unclear not only when they will return but whether that will be to take up legislative business or simply to formally shut down the session until January 2021.

Farnsworth, for his part, questions whether those same laws giving Ducey that power in the first place are constitutional.

“I believed that the executive order, from the beginning, is a mistake and that he is exercising tyranny over our state,’’ he said.

All this comes as Ducey on Wednesday said he is extending his stay-at-home order until at least May 15. That spells out that individuals can leave only to participate in “essential’’ activities, whether that involves their work or even going out shopping or outdoor recreation.

Separate orders that were updated Wednesday further define the scope of what is essential. And they take the first steps to ease the ability of some stores that he ordered shut in March to begin selling certain items again, at first through drive-up and delivery services and, later, allowing customers actually in the door.

But the governor is keeping in place his ban on those shops actually providing services.

So a beauty salon could sell shampoo but could not do a perm. And that also means that the massage parlors and tattoo shops that Ducey finally ordered closed on April 1 will still not be taking customers.

The governor also said he envisions restaurants again providing dine-in services as early as May 12, though the details of how that would work are still being worked out.

The bottom line, the governor said, is that the steps he took curbed the spread of the virus and ensured that the state did not run out of hospital beds or ventilators. But he said that there is no “trend’’ that makes him feel comfortable enough to lift the rest of the restrictions.

Townsend said that claim is hollow.

“If you went back to Jan. 1 or whenever this hit and the numbers they told us (it could hit), the numbers we’re at now would be the down trend,’’ she said.

In late March, state Health Director Cara Christ said the state’s 15,000 hospital beds and 1,500 beds in intensive-care units would not be enough. But the most recent data from her agency found just 755 people hospitalized with positive or suspected COVID-19 diagnoses.

“We are not at the high-water mark,’’ Townsend said. “We never even got in the river.’’

What that means, she said, is that it’s “unrealistic’’ to wait for whatever the state determines is a down trend.

“And you’re hurting this economy,’’ Townsend said.

More alarming, she said, was Ducey’s repeated assertion on Wednesday that there would be penalties for those who opted to go out for non-essential activities and for those business owners who decided to open their doors. “I just heard the governor of the state of Arizona tell the people of his state that he would jail them if they didn’t obey his decree,’’ Townsend said.

“We are not a monarchy,’’ she said. “And the people of this state should not be threatened to be put in jail for trying to make a living in a situation where the numbers that they talk about are nowhere close to what they told us they would be when they did this.’’

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