SUPREME COURT

STATE OF ARIZONA

MICHAEL BEAVER, et al., Supreme Court

No. CV-20-0190-SA
Petitioners,

v.

DOUGLAS A. DUCEY, in his official

capacity as the Governor of the State of
Arizona,

Respondent.

BRIEF OF AMICUS CURIAE MARICOPA COUNTY

IN SUPPORT OF RESPONDENT

ALLISTER ADEL
Maricopa County Attorney

Thomas P. Liddy (No. 019384) Joseph J. Branco (No. 031474)

Division Chief
Civil Services Division
Emily Craiger (No. 021728)
Assistant Division Chief
Civil Services Division
Joseph E. La Rue (No. 031348)
Deputy County Attorneys
MCAO Firm No. 00032000
Maricopa County Attorney’s Office
Civil Services Division
225 W. Madison
Phoenix, Arizona 85003
Telephone: (602) 506-3411
ca-civilmailbox@mcao.maricopa.gov

Attorneys for Amicus Curiae Maricopa County

 Table of Contents

Introduction ................................................................................................................3
Interest of Amicus Curiae ..........................................................................................3
Argument....................................................................................................................4
I. The Arizona legislature properly empowered the Governor to
coordinate and regulate the emergency response of the State and
political subdivisions. ............................................................................4
II. Petitioner’s proposed interpretation of the relationship between Title 36
and Title 26 would limit the ability of political subdivisions to respond
to public health emergencies. ................................................................6
Conclusion .................................................................................................................8

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 Table of Authorities

Cases
Maricopa Cnty. Health Dep’t v. Harmon,
156 Ariz. 161 (App. 1987) ................................................................................7, 8
Marsoner v. Pima Cnty.,
166 Ariz. 486 (1991) .........................................................................................7, 8
State v. Kelsall,
22 Ariz. App. 97 (1974) ........................................................................................7
Statutes
A.R.S. § 26-301(15) ...................................................................................................5
A.R.S. § 26-303(E) ....................................................................................................6
A.R.S. § 26-307..........................................................................................................4
A.R.S. § 26-307(A) ................................................................................................5, 6
A.R.S. § 26-307(B) ....................................................................................................5
A.R.S. § 26-307(D) ....................................................................................................4
A.R.S. § 26-308..........................................................................................................4
A.R.S. § 26-309(B) ....................................................................................................4
A.R.S. § 26-311..........................................................................................................4
A.R.S. § 26-311(A) ....................................................................................................5
A.R.S. § 26-311(B) ....................................................................................................5
A.R.S. § 26-311(D) ....................................................................................................4
Rules
ARCAP 16(b)(1)(B)...................................................................................................3

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 Introduction

In Titles 26 and 36, the Arizona legislature provided the State of Arizona—

acting through its Governor—and its political subdivisions with necessary tools to

address public health emergencies. By granting the Governor power to coordinate

and regulate emergency responses, the legislature recognized that a patchwork of

emergency measures from State agencies and political subdivisions would be

insufficient to address emergencies that have no respect for jurisdictional

boundaries. It also implicitly recognized that it is unrealistic to expect the State

legislature—two deliberative bodies—to provide uniform guidance and

coordination needed during an evolving state-wide crisis.

During a global pandemic, Petitioners challenge the role the Arizona

legislature crafted for the Governor in this hierarchical system of emergency

management. The legislature created a system where government entities work

together to plan for and respond to emergencies, supported by the Governor’s

emergency powers during a crisis. Accepting Petitioners’ arguments would result in

dangerous consequences for Arizona’s political subdivisions and their residents.

This Court should exercise its discretion to reject the Petition.

Interest of Amicus Curiae

Maricopa County files this brief consistent with Arizona Rule of Civil

Appellate Procedure 16(b)(1)(B). Like other Arizona political subdivisions,

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Maricopa County has experienced the devastating effects of the novel coronavirus.

Maricopa County has broad authority to address public health emergencies under

A.R.S. §§ 26-307 and -311. In March 2020, the Chairman of the Maricopa County

Board of Supervisors proclaimed a local emergency in response to the COVID-19

pandemic. Fundamentally, Petitioners propose an untenable interpretation of

statutory emergency and public health powers that would severely limit Maricopa

County’s continued efforts to respond to and mitigate the effects of COVID-19. This

Court should exercise its discretion to deny the Petition.

Argument

I. The Arizona legislature properly empowered the Governor to coordinate

and regulate the emergency response of the State and political subdivisions.

The Arizona legislature has enacted a hierarchical structure of emergency

management that authorizes the State and political subdivisions to plan for and

respond to emergencies. Before an emergency occurs, Title 26, Chapter 2, Article 1

promotes emergency planning by the State and political subdivisions. See, e.g.,

A.R.S. § 26-308; A.R.S. § 26-309(B). The statutory scheme also recognizes the

limits of planning. See, e.g., A.R.S. § 26-307(D) (“In the absence of specific

authority in state emergency plans and programs, the governing body of each county,

city and town of the state shall take emergency measures as deemed necessary to

carry out the provisions of this chapter.”); A.R.S. § 26-311(D) (permitting state to

provide “mutual aid . . . at the direction of the governor” instead of “in accordance

4
with emergency plans”).

Toward that end, during an emergency political subdivisions have authority

to enact temporary measures to meet contingencies they could not properly

appreciate when planning. Political subdivisions can “make, amend and rescind

orders, rules and regulations necessary for emergency functions,” and those

measures temporarily override “conflict[ing]” “[e]xisting laws, ordinances, orders,

rules and regulations.” A.R.S. § 26-307(A), (B). Additionally, “the mayor or

chairman of the board of supervisors” has authority to proclaim “an emergency or a

local emergency,” and “[d]uring such emergency” the mayor or chairman may

“govern by proclamation” and has “authority to impose all necessary regulations to

preserve the peace” including the power to “[o]rder[] the closing of any business.”

A.R.S. § 26-311(A), (B).

But the legislature also recognized that political subdivisions will face

emergencies beyond their capacity to address. See A.R.S. § 26-301(15) (defining

“[s]tate of emergency” as “the duly proclaimed existence of conditions of disaster

or of extreme peril to the safety of persons or property within the state caused by . .

. epidemic . . . which are or are likely to be beyond the control of the services,

personnel, equipment and facilities of any single county, city or town, and which

require the combined efforts of the state and the political subdivision”).

As a result, the Arizona legislature properly situated the power to coordinate

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and regulate emergency responses—particularly during state-wide emergencies—

with the Governor. See A.R.S. § 26-303(E). The Governor can ensure that a political

subdivision enacting emergency measures does not inadvertently undermine the

response of the State or another political subdivision. See, e.g., A.R.S. § 26-307(A)

(establishing that emergency measures enacted by political subdivisions “shall not

be inconsistent with orders, rules and regulations promulgated by the governor”).

Further, as a practical matter, the legislature properly situated that power with

the Governor because the Governor can react more quickly than the legislature in

response to changing circumstances, supporting the needs of political subdivisions

in an emergency. It is simply unrealistic to expect the State legislature to provide the

uniform guidance and coordination needed during a state-wide crisis like the

COVID-19 pandemic. Further, without the Governor’s authority to coordinate and

regulate emergency response, at best political subdivisions could enact a patchwork

of emergency measures insufficient to address emergencies that have no respect for

jurisdictional boundaries.

II. Petitioner’s proposed interpretation of the relationship between Title 36

and Title 26 would limit the ability of political subdivisions to respond to public
health emergencies.

Petitioners propose to “save” the Governor’s role in responding to the

COVID-19 pandemic by reading the public health powers in Title 36 to limit the

Governor’s emergency powers in Title 26. (Pet. at 15–22). Nonsense. State and local

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public health authorities have coextensive authority to “adopt reasonably necessary

measures to prevent and control communicable diseases.” Maricopa Cnty. Health

Dep’t v. Harmon, 156 Ariz. 161, 165 (App. 1987). Accordingly, Petitioners’

incorrect reading of the relationship between Title 36 and Title 26 would also limit

the ability of local public health authorities to respond to COVID-19.

As a preliminary matter, Petitioners do not explain why the Arizona

legislature would intend public health emergency powers in Title 36 to limit

emergency powers in Title 26. Instead, a fair reading of both statutory schemes

indicates that the Arizona legislature intended Title 26 to temporarily augment

government power when it is most needed—during an emergency.

Further, Petitioners’ proposed interpretation runs counter to decades of

appellate case law interpreting the powers of local public health authorities to

mitigate the spread of disease. See Marsoner v. Pima Cnty., 166 Ariz. 486, 489

(1991) (“It is difficult to imagine a more express direction from the legislature to the

county boards of supervisors that they may adopt rules and regulations to protect and

preserve public health . . . .”). Local public health authorities have relied on their

powers under Title 36 to prohibit “the maintaining of pigs within 300 feet of an

inhabited house” to “control communicable diseases from animals to man,” State v.

Kelsall, 22 Ariz. App. 97, 98, 101 (1974), to regulate conditions in “adult amusement

establishments” to mitigate the spread of HIV, Marsoner, 166 Ariz. at 487, and to

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exclude unvaccinated children from school to contain a measles outbreak, Harmon,

156 Ariz. at 163–65. Arizona’s appellate courts upheld each of those regulations as

necessary and consistent with the power to enact public health regulations.

Now, in the middle of a global pandemic, Petitioners ask this Court to limit

the power of public health authorities to enact measures to mitigate the spread of a

lethal disease. This Court should reject the Petition.

Conclusion

For these reasons, this Court should reject Petitioners’ dangerous efforts to

limit the ability of the State of Arizona and its political subdivisions to respond to

the COVID-19 pandemic. This Court should deny the Petition.

RESPECTFULLY SUBMITTED this 23rd day of July 2020.

ALLISTER ADEL
Maricopa County Attorney

By: /s/ Allister Adel

Thomas P. Liddy (No. 019384) Joseph J. Branco (No. 031474)

Division Chief Joseph E. La Rue (No. 031348)
Civil Services Division Deputy County Attorneys
Emily Craiger (No. 021728)
Assistant Division Chief MCAO Firm No. 00032000
Civil Services Division Maricopa County Attorney’s Office
Civil Services Division
225 W. Madison
Phoenix, Arizona 85003
Telephone: (602) 506-3411
ca-civilmailbox@mcao.maricopa.gov

Attorneys for Amicus Curiae Maricopa County