Informal opinion: Counties may implement mask mandates

By Howard Fischer | Capitol Media Services  

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 “shall not be inconsistent with orders, rules and regulations promulgated by the governor.” And that would normally allow gubernatorial pre-emption.

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 — or veto.

The opinion is most immediately a victory for Pima County which has ignored Ducey’s March 26 order abolishing not only the mandates he had imposed on patrons and staff 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 Ducey said the powers that cities and counties have is superseded by his emergency authority.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.

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