Governor’s Emergency Order Stands (for now)

On July 7, 2020, Maricopa County Superior Court Judge Timothy Thomason issued his ruling in Mountainside Fitness Acquisitions, LLC v. Douglas A. Ducey on Mountainside Fitness’s application for a Temporary Restraining Order against Governor Ducey’s Executive Order 2020-43. Mountainside sought relief from the Executive Order mandating closure of all workout facilities through July 27, 2020. Although the Court denied Mountainside’s request for injunctive relief, this ruling does not conclude the litigation over the constitutionality of the Governor’s Executive Order 2020-43.

The Court’s denial of Mountainside Fitness’ application for a temporary restraining order is unsurprising: the applicant seeking a Temporary Restraining Order has heavy burden of proof. Under Arizona law, Mountainside Fitness had the burden of proving (1) there is a real threat of irreparable harm that cannot be cured by monetary damages, (2) the harm to Mountainside Fitness outweighs the actual injury to the Governor’s Office, (3) the Mountainside Fitness was likely to succeed on the merits and (4) public policy favored Mountainside Fitness. Ultimately the Court found Mountainside failed to carry its heavy burden of showing Governor Ducey’s order exceeded his authority under the emergency management powers granted by A.R.S. § 26-301 et seq., and Mountainside Fitness failed to establish the temporary closure order caused anything other than monetary damages.

As noted by Judge Thomason, the United States Supreme Court’s ruling in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) and its progeny has afforded Federal, State and local government wide – but not infinite – latitude in protecting the health and safety of its citizens during a pandemic and other emergencies. In 1902, in response to a Smallpox outbreak, the City of Cambridge Massachusetts ordered all inhabitants to be vaccinated. A resident of Cambridge, Henning Jacobson, refused vaccination and argued the City’s ordinance was “unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best…” Jacobson, 197 U.S. at 26.

The U.S. Supreme Court rejected this reasoning, stating that although our Constitution has protections for individual rights, the government may also implement laws, which restrict an individual’s freedom to protect society as a whole. The Court unequivocally stated, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id., at 27. The Supreme Court created a very narrow rule limiting government authority in the face of a health crisis: “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge…” Id., at 31. The Supreme Court’s ruling in Jacobson created case law that gives Governor Ducey wide latitude in protecting its citizenry during a health crisis. As noted by Judge Thomason, the cases interpreting Jacobson all continued to afford the government wide latitude in protecting its citizens.

The government’s actions are not always correct or with full authority. The attorneys at Jennings, Haug & Cunningham LLP represent clients challenging the state’s, city’s or county’s authority to grant or deny rights afforded to other businesses or persons. If you would like to meet with one of the Firm’s litigation attorneys to discuss representation against government agencies, visit for more information.