Lewis Roca Blog

Since March 19, 2020 Governor Ducey has issued Executive Orders to address the growing public health emergency arising from the COVID-19 virus. These orders cover a broad range of topics aimed to address the needs faced by those who live and work in Arizona. The orders direct us to stay at home, to practice safe distancing, and identify essential activities, services and businesses. Taken together, the orders are intended to promote the continued availability and accessibility of the core and fundamental services needed to keep us strong, resilient and prepared to meet the challenges that lie ahead.

Separately, local governments throughout the State of Arizona have issued orders or have contemplated their issuance. Because of this, Attorney General Mark Brnovich issued an Opinion on March 31, 2020 that provides guidance about the authority to enforce orders issued by local governments. In his Opinion, the Attorney General was asked if a city or county issues a lawful emergency declaration, what authority do local law enforcement and county sheriffs have to enforce such a declaration. In response, the Attorney General stated in summary that:

Local law enforcement officials and county sheriffs have authority under A.R.S. §26-316 to enforce lawful emergency declarations issued by cities and towns. In exercising such authority, law enforcement officials must continue to be mindful of constitutional rights and should execute their duties in a manner that promotes justice.

Attorney General Op. No. I20-006 at p. 1. The Attorney General’s Opinion does not address the question of how to resolve conflicts that may arise between orders issued by local government and those issued by the Governor. Nevertheless, the Opinion raises several points likely to be important to any effort to settle questions about whether orders [MW1] can be enforced and who can enforce those orders. In his Opinion, the Arizona Attorney General advised that local law enforcement officials have authority to issue emergency orders and to enforce those orders. Although the Opinion did not address specific questions about whether any particular local emergency declaration conflicts with any order issued by the governor, the Opinion can be read to establish several caveats:

• • The local declarations cannot be inconsistent with orders, rules and regulations promulgated by the governor. Attorney General Op. No. I20-006 at 2 (citing A.R.S. §§ 26-303(D) and (E) and 26-307(A)).
  • The local declarations must be lawful and establish the “least restrictive means necessary to protect public health”. Attorney General Op. No. I20-006 at 2 (citing A.R.S. §§ A.R.S. § 36–788(B)(1), (2); see also A.R.S. § 36–788(D))
  • The “local emergency orders of cities and towns must take care to maintain constitutional safeguards that exist to protect individual rights and fundamental liberties and continue to enforce the law in a manner that promotes justice.” Attorney General Op. No. I20-006 at 3.

Lewis Roca Rothgerber Christie is continuing to monitor developments in this area. If we can be of assistance to answer questions about your specific business and the impact of orders issued by Governor Ducey or by local officials, we are here to help. Please contact Greg Harris at gharris@lrrc.com, Steven Moortel at smoortel@lrrc.com, Ed Barkel at ebarkel@lrrc.com or visit www.lrrc.com.

This material has been prepared by Lewis Roca Rothgerber Christie LLP for informational purposes only and is not legal advice. Specific issues dealing with COVID-19 are fluid and this alert is intended to provide information as it is currently available. Readers should not act upon any information without seeking professional legal advice. Any communication you may have with a Lewis Roca Rothgerber Christie LLP attorney, through this announcement or otherwise, should not be understood by you to be attorney-client communication unless and until you and the firm agree to enter into an attorney-client relationship.