PHOENIX 鈥 Gov. Doug Ducey cannot use his emergency powers to preclude counties from enacting their own mask mandates, Attorney General Mark Brnovich said Tuesday.
In an informal legal opinion, Brnovich acknowledged that when the governor declares an emergency he assumes broad powers to enact laws and regulations. So too, for that matter, do local governments.
The attorney general noted those statutes in the Emergency Management Code say that local laws 鈥渟hall not be inconsistent with orders, rules and regulations promulgated by the governor.鈥 And that would normally allow gubernatorial preemption.
But Brnovich said counties also have separate powers under another section of the law dealing with public health. And those, he said, are not subject to gubernatorial review 鈥 or veto.
Mask mandates by cities in 蜜柚直播, like 蜜柚直播, were not addressed in the opinion.
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The opinion is most immediately a victory for Pima County which has ignored Ducey鈥檚 March 26 order abolishing not only the mandates he had imposed on patrons and workers of certain businesses to wear masks but rescinding his June edict permitting local governments to have their own mask mandates. Ducey said the powers that cities and counties have is superseded by his emergency authority.
Brnovich, however, said the governor is missing a crucial legal point: that independent statutory power of counties to regulate health.
It starts, he said, with the fact the Public Health and Safety Code allows counties to 鈥渁dopt provisions necessary to preserve the health of the county.鈥
Brnovich said counties are specifically required to 鈥渋nvestigate all nuisances, source of filth and causes of sickness and make regulations necessary for the public health and safety of the inhabitants.鈥 And that, he said, is not subject to the governor鈥檚 emergency powers.
Tuesday鈥檚 opinion, however, does not leave the governor totally powerless.
The attorney general said that Public Health and Safety Code also allows the state Health Department to implement its own policies during a public health emergency. And Brnovich said the agency could set its own statewide policies on things like masks by enacting rules or regulations that could preempt local ordinances.
Sen. Michelle Ugenti-Rita, R-Scottsdale, a foe of the local mask mandate and one of the three legislators who asked for the legal opinion, said that鈥檚 a good sign.
She said that would allow Ducey to pursue his legal fight with Pima County by working with his health department to enact a new rule. And Ugenti-Rita said she believes the formal rule-making process, which can often take months, can be expedited.
But the governor isn鈥檛 interested.
鈥淕iven local government inability, ineffectiveness and unwillingness to enforce mask ordinances when they were most necessary, we believe it is largely inconsequential,鈥 said gubernatorial press aide C.J. Karamargin.
The opinion also was requested by two other Republican state legislators who questioned the decision by Pima County to keep its mask mandate: Sens. Vince Leach of 蜜柚直播 and Rep. Bret Roberts of Maricopa. Roberts had no immediate comment; Leach did not respond to a message.
