Idle Correspondence

Phoenix, 4/23/20

Dear Goldwater Institute Attorneys:

You need to pick your battles, of course.

I expect most of the requests with which you have been inundated are seeking a naïve “personal freedom” attack on state action which, viewed constitutionally and assuming power is exercised within an appropriate statutory framework and without violating the separation of powers, would fall squarely in the heart of the traditional police powers of the sovereign. Such an attack should fail. A better approach would be to focus on the stay-at-home order as lying beyond the scope of authority granted to DHS and the governor under Ch. 6, Art. 9 of A.R.S. Title 36, A.R.S. §§ 36-781 through 790.  Authority to “isolate and quarantine persons” is plainly distinguishable from purported authority to impose restrictions (which amount to neither isolation nor quarantine) on the populace as a whole – especially since a decree of the latter type is irreconcilable with the [due process] requirements of A.R.S. § 36-789.

The best posture would be that of defending someone against whom a governmental authority is seeking to enforce the stay-at-home order, but I think the governor and co. are fighting shy of undertaking any such effort. Fortunately, a declaratory judgment action against the governor should work, too. I’m sure you wouldn’t have any problem finding a plaintiff or two. Victory in one such action is all that would be needed, and I expect it would substantially boost the Institute’s standing with a certain segment of the public.

(The governor would have been on firmer ground trying to get the county health departments to impose “sanitary measures” under A.R.S. § 36-624.)

If you get any requests from landlords whom the governor’s decree has deprived of the enjoyment of their property – has robbed, in other words, of the pursuit of happiness – would it be possible for you to give them my contact information?

Regards,

Brian K. Stanley

Post Scriptum, 4/29/20: In my opinion, the lawsuit I have suggested would be a "slam dunk," though perhaps not 'till pushed to the level of our intermediate appellate court. To the best of my knowledge neither the Goldwater Institute nor any of the other intrepid freedom fighters with whom Arizona is so richly endowed has initiated such an effort. My guess is it's because they're not sure the boost with a certain segment of the public would outweigh the obloquy if their triumph resulted in an obvious surge of COVID-19 cases.