Documenting America’s Path to Recovery: September 10, 2020

Welcome to Documenting America’s Path to Recovery, where we track the status of reopening in all 50 states. Today we look at Louisiana’s next phase of reopening, a California coronavirus bill providing paid sick leave, an update to a lawsuit over Arizona’s bar closure, and more. Want to know what happened yesterday? Click here.

Since our last edition

What is open in each state? For a continually updated article on reopening status in all 50 states, click here.

  • California (Democratic trifecta): Gov. Gavin Newsom (D) signedAB 1867, which requires paid sick days for any employee who has been exposed to or tests positive for coronavirus.
  • Louisiana (divided government): Gov. John Bel Edwards (D) announced the state will enter a modified Phase 3 of reopening, starting Sept. 11. Bel Edwards said final details will not be available until Sept. 11. The state entered Phase 2 on June 5.
  • Maryland (divided government): Gov. Larry Hogan (R) announced the state acquired 250,000 rapid antigen tests, becoming the first member of the 10-state testing compact partnering with the Rockefeller Foundation to acquire rapid tests. The 10-state group has a stated goal to acquire five million rapid antigen tests.
  • Michigan (divided government): On Sept. 9, the Michigan Occupational Safety and Health Administration (MIOSHA) released reopening guidelines for gyms, bowling alleys, swimming pools, and other similar businesses. Those businesses were permitted to reopen on Sept. 9 per an executive order from Gov. Gretchen Whitmer (D). The guidelines state that those businesses can reopen at 25% capacity.
  • Nebraska (Republican trifecta): Gov. Pete Ricketts (R) announced that all counties except Lancaster County would enter Phase Four of reopening on Sept. 14. Currently, there are 27 counties in Phase Four.

Daily feature: Featured lawsuit

Once a week, we take a closer look at a noteworthy lawsuit involving governmental responses to the COVID-19 outbreak in the United States. We define a noteworthy lawsuit as one that has garnered significant media attention, involves major advocacy groups, or deals with unique legal questions. This week, we look at a lawsuit involving COVID-19 restrictions in Arizona.

Aguila v. Ducey

On Sept. 8, Maricopa County Superior Court Judge Pamela Gates declined to block Arizona Gov. Doug Ducey’s (R) COVID-19 business restrictions, which close bars while allowing restaurants to remain open and serve alcohol.

What is at issue?

In their complaint, which was originally filed in the state supreme court, a group of Arizona bar owners argued they were discriminated against because of their on their liquor license series. They said bars with “series 6 or 7 liquor licenses are subject to closure orders in Executive Order 2020-43,” while roughly 5,000 restaurant bars, hotel bars, microbreweries, wineries, private clubs, distilleries, tasting rooms, which have different series liquor licenses, remained open. They said Ducey’s restrictions were an unconstitutional delegation of authority; exceeded statutory rulemaking authority granted by Arizona law; arbitrarily discriminated against plaintiffs and deprive them of their property, in violation of the state constitution; and violated the Equal Protection and Takings Clauses of the U.S. Constitution.

How did the court rule?

Citing the “unrelenting spread of the novel coronavirus,” Gates found that “the public interest is overwhelmingly in favor of the continuation of” Ducey’s orders. Gates ruled there is “no inherent right in a citizen to … sell intoxicating liquors by retail,” and further, the governor’s restrictions “are rationally related to expert data and guidance on minimizing the spread of COVID-19.”

What are the reactions, and what comes next?

Attorney Ilan Wurman, representing the bar owners, acknowledged the likelihood of failure on the merits, saying he hoped to “get a summary judgment ruling quickly and just move on to the appeal.”