Mesa Golfland Limited v. Ducey

• Court: District Court, D. Arizona
• Decided: September 21, 2020
• Docket: 2:20-cv-01616
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mesa Golfland, Limited, No. CV-20-01616-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Douglas A. Ducey,

13 Defendant. 14 15 At issue is Plaintiff Mesa Golfland, Ltd.’s Verified Application for Temporary 16 Restraining Order (“TRO”) with Notice and Motion for Preliminary and Permanent 17 Injunction (Doc. 3, TRO Applic.), to which Defendant Governor Ducey filed a Response 18 (Doc. 14, Resp.) and Plaintiff filed a Reply (Doc. 19, Reply). The Court held a hearing on 19 Plaintiff’s TRO Application on August 28, 2020. (Doc. 26; Doc. 34 (“Tr.”).) Concurrently 20 with his Response to Plaintiff’s TRO Application, Governor Ducey filed a Motion to 21 Dismiss, which the Court will resolve once briefing on that Motion is complete. The Court 22 will grant Governor Ducey’s Motion for Judicial Notice (Doc. 13) and Motion to 23 Supplement Motion for Judicial Notice (Doc. 25), both of which Plaintiff did not oppose, 24 and will take judicial notice of the facts identified in those two Motions. 25 I. BACKGROUND 26 In response to the ongoing COVID-19 pandemic, Defendant Douglas A. Ducey, 27 Governor of Arizona, exercised the state-of-emergency powers delegated to him in A.R.S. 28 § 26-303(E) and entered a series of Executive Orders (EOs) regarding among other things 1 the conduct of business in the state to attempt to mitigate the emergency caused by the 2 pandemic. Initially, in March 2020, Governor Ducey entered EOs aimed at encouraging 3 physical distancing to prevent the transmission of COVID-19 by restricting certain 4 business activities and keeping individuals at home except when engaging in essential 5 activities. On May 12, Governor Ducey entered EO 2020-36, which rescinded many of the 6 prior restrictions on business operations. Soon after, the number of COVID-19 cases in the 7 state skyrocketed, increasing from 193 new cases on June 1 to 4,877 new cases on July 1. 8 (Doc. 14-1, Decl. of Cara Christ (“Christ Decl.”) ¶ 25.) 9 On June 29, 2020, Governor Ducey issued EO 2020-43, “Pausing of Arizona’s 10 Reopening—Slowing the Spread of COVID-19.” EO 2020-43 contains provisions 11 prohibiting unapproved organized events with over 50 individuals and “pausing” the 12 operations of businesses deemed high-risk for the transmission of COVID-19, including 13 bars, indoor gyms and fitness clubs, indoor movie theaters, and water parks and tubing 14 operations. EO 2020-43 states that swimming pools operating as part of a public 15 accommodation such as a hotel can continue to operate so long as groups of more than 10 16 individuals are prohibited from congregating in or near the pool. EO 2020-43 “allows law 17 enforcement and any regulatory agency, pursuant to their regulatory authority, to take 18 immediate enforcement action against any business that fails to follow” the requirements 19 of the EO. Plaintiff Mesa Golfland, Ltd. operates the Sunsplash Water Park in Mesa, 20 Arizona, and was required to pause its operations under EO 2020-43. On July 23, 2020, 21 Governor Ducey issued EO 2020-52, which extends EO 2020-43 with review for repeal or 22 revision every two weeks. 23 Dr. Cara Christ is the Director of the Arizona Department of Health Services 24 (“ADHS”). She avers that the decision 25 to recommend temporary closure of water parks can be supported by the following factors: [1] Water parks primarily involve large groups of younger 26 patrons engaging in physical activity in close proximity. Physical activity 27 results in more exerted breathing, which increases the output of viral respiratory droplets. [2] Engaging in activities that usually occur in a water 28 park setting—swimming, arcade gaming, etc.—may make wearing masks difficult. [3] The wearing of a mask in the water is unlikely. [4] Even if masks 1 are worn, they would quickly become wet, reducing their prevention benefits 2 and making it difficult to breathe. [5] Due to the size of the crowds—a mass of people—six feet of physical distance is not likely to be maintained. [6] 3 There is a tendency to regularly go to different areas of the facility, use 4 multiple areas of physical contact (attractions, railing, concession areas, arcade, mini-golf areas, etc.), enter and exit locker rooms/restrooms, and 5 travel to and from water fountains throughout a visit. [7] Water parks cannot 6 easily be compared to retail, food, or general park environments because of the fundamentally different activities that take place there. 7 8 (Christ Decl. ¶ 32.) 9 On August 10, 2020, Plaintiff filed a Complaint against Governor Ducey in Arizona 10 state court alleging that, while Plaintiff was required to close Sunsplash under EO 2020-43, 11 certain hotels, resorts, and municipalities continue to operate not just pools but water parks. 12 (Doc. 1-2, Compl.) Plaintiff contends that drawing a distinction between stand-alone water 13 parks like Sunsplash and water parks at hotels, resorts, and municipal parks is 14 unconstitutionally arbitrary. Plaintiff raises four claims against Governor Ducey: (1) a 15 procedural due process violation under Art. 2, § 4 of the Arizona Constitution; (2) a 16 substantive due process violation under Art. 2, § 4 of the Arizona Constitution; (3) an equal 17 protection violation under Art. 2, § 13 of the Arizona Constitution; and (4) equal protection 18 and substantive due process violations under the 14th Amendment to the United States 19 Constitution. Plaintiff seeks preliminary and permanent injunctive relief, damages, and 20 attorneys’ fees. Governor Ducey timely removed the action to this Court on August 17, 21 2020. 22 On the same day as Plaintiff filed its Complaint—August 10, 2020—ADHS issued 23 Emergency Measure (“EM”) 2020-02, which sets forth the benchmarks and requirements 24 that businesses that were required to close must meet to safely re-open. On August 19, 25 Plaintiff filed an Application for Reopening with ADHS under EM 2020-02. Moreover, 26 when a county in Arizona hits certain metrics in lowering the numbers of new COVID-19 27 cases—from, for example, “substantial risk” to “moderate risk” of transmission—ADHS 28 has in place an attestation process by which businesses in that county can begin to reopen 1 by completing and posting an Attestation. Maricopa County, in which Plaintiff is located, 2 moved from the substantial risk to moderate risk level on August 27, allowing certain 3 businesses to reopen under the attestation process, at least in part. On the evening of 4 August 28, after the TRO hearing, Plaintiff completed the ADHS Attestation so that it 5 could reopen. (Doc. 33, Status Update Regarding ADHS Attestation at 1.) Plaintiff stated 6 both in its Reply and at the TRO hearing that it maintains and reserves its objection to being 7 required to complete the Attestation and follow the associated ADHS requirements, for the 8 same reasons it has filed this lawsuit and seeks injunctive relief. (Doc. 33 at 2.) 9 II. LEGAL STANDARD 10 To obtain a temporary restraining order or preliminary injunction, a plaintiff must 11 show that “(1) [it] is likely to succeed on the merits, (2) [it] is likely to suffer irreparable 12 harm in the absence of preliminary relief, (3) the balance of equities tips in [its] favor, and 13 (4) an injunction is in the public interest.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th 14 Cir. 2015) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The Ninth 15 Circuit Court of Appeals, employing a sliding scale analysis, has also stated that “‘serious 16 questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff 17 can support issuance of an injunction, assuming the other two elements of the Winter test 18 are also met.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1078 (9th Cir. 2013) cert. 19 denied, 134 S. Ct. 2877 (2014) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 20 1127, 1132 (9th Cir. 2011)). 21 III. ANALYSIS 22 The Court’s analysis begins and ends with the first element of the Winter test, 23 namely, Plaintiffs’ likelihood of success on the merits of their claims. Plaintiff seeks 24 injunctive relief under its equal protection and substantive due process claims, which 25 Plaintiff concedes are subject to the same analytical framework. (TRO Applic. at 8 n.3.) 26 That is, under both the Arizona and United States Constitutions, Governor Ducey’s alleged 27 distinction in EO 2020-43 between stand-alone water parks and water parks at hotels, 28 resorts, and municipal parks need have only a rational basis. (TRO Applic. at 8 (citing 1 Angelotti Chiropractic, Inc. v. Baker, 791 F.3d 1075, 1085 (9th Cir. 2015); Coleman v. 2 City of Mesa, 284 P.3d 863, 873 (Ariz. 2012)).) But “[t]he State may not rely on a 3 classification whose relationship to an asserted goal is so attenuated as to render the 4 distinction arbitrary or irrational.” City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 5 432, 446 (1985). 6 A. Facial Challenge to EO 2020-43 7 The parties do not dispute that Governor Ducey had the authority under A.R.S. § 26- 8 303(E) to enter Executive Orders in the face of the state of emergency caused by the 9 COVID-19 pandemic. However, the parties do dispute what is essentially the basis of 10 Plaintiff’s facial challenge to EO 2020-43, that is, that Governor Ducey drew a distinction 11 between stand-alone water parks and those at hotels, resorts, and municipal parks. 12 Governor Ducey points to the plain language of EO 2020-43, which distinguishes between 13 water parks and pools, and argues that his Order requiring business closure applied to all 14 water parks, whether they are stand-alone or located at a hotel, resort, or municipal park. 15 In other words, pools at hotels, resorts, and municipal parks could remain open under 16 certain conditions; water parks could not. 17 Plaintiff asks the Court not to accept Governor Ducey’s present statements of the 18 intent of EO 2020-43 as applied to water parks, which Plaintiff characterizes as post hoc 19 rationalization. To support its argument, Plaintiff points to public statements Governor 20 Ducey and Dr. Christ made. But the Court agrees with Governor Ducey that the statements 21 Plaintiff cites do not contradict Governor Ducey’s present position as to the intent of EO 22 2020-43. For example, Plaintiff makes much of Governor Ducey’s statement at a press 23 conference, in response to a reporter’s question about the difference between water parks 24 at resorts and stand-alone water parks like Sunsplash, that it was “seen as a loophole.” (Tr. 25 at 64.) Plaintiff interprets that statement as an admission that Governor Ducey intended to 26 create a loophole for resorts. But in the context of the press conference, it appears that 27 Governor Ducey was saying that resorts saw it as a loophole, not him. Indeed, immediately 28 after his statement, Dr. Christ indicated her agency was investigating the identified hotels 1 and resorts and said, “when we found out that there were hotels that were operating water 2 parks that were allowing the general public to attend, we have reached and started doing 3 an investigation to see how they are managing crowds, if they are bringing in outside of, 4 like, their reserved guests in there. And we will be working with them to bring them into 5 compliance.” (Tr. at 64.) Even if Dr. Christ’s statement was focused on crowd control 6 instead of the water park/pool distinction, the Court disagrees with Plaintiff that this 7 evidence leads to the conclusion that Governor Ducey intended to distinguish between 8 stand-alone water parks and water parks at resorts in issuing EO 2020-43. 9 Likewise, Plaintiff’s evidence that Governor Ducey’s counsel stated she would look 10 into the fact that hotels are operating water parks is actually consistent with Governor 11 Ducey’s proffered original intent of EO 2020-43. (Tr. at 9-10.) Plaintiff also points to 12 Dr. Christ’s statements in an interview with the news affiliate KTAR that hotels should be 13 limiting attendance at water parks to their guests. (Tr. at 17.) While the terms “water park” 14 and “pool” may have been conflated at times in statements to the press—indeed, “water 15 park” is never defined in the EOs—there is nothing in the language of EO 2020-43 itself 16 to support Plaintiff’s position that Governor Ducey intended to distinguish between stand- 17 alone water parks and those at hotels, resorts, and municipal parks. The administration’s 18 subsequent statements do not convince the Court otherwise. 19 With that finding in mind, Plaintiff cannot meet its burden to show a likelihood of 20 success on the merits, or even serious questions going to the merits, of its facial challenge 21 to EO 2020-43. Dr. Christ’s Declaration provides ample evidence of a rational basis to 22 distinguish between activity at water parks, which draw masses of people in queues and 23 close proximity who move frequently between various attractions, as opposed to pools at 24 hotels, resorts, and municipal parks, all of which were charged with keeping groups of 25 people in or near the pool to 10 or less. (See Christ Decl. ¶ 32.) Because Plaintiff has not 26 demonstrated either a likelihood of success or serious questions going to the merits of its 27 facial challenge to EO 2020-43, Plaintiff is not entitled to preliminary injunctive relief. See 28 DISH Network Corp. v. F.C.C., 653 F.3d 771, 776 (9th Cir. 2011) (stating when “a plaintiff 1 has failed to show the likelihood of success on the merits, we need not consider the 2 remaining three” Winter elements for obtaining preliminary injunctive relief); Garcia, 786 3 F.3d at 740. 4 B. As-Applied Challenge to EO 2020-43 5 Plaintiff also contends that Governor Ducey had the direct authority to enforce 6 EO 2020-43 and the closure of stand-alone water parks and continued operation of water 7 parks at hotels, resorts, and municipal parks was arbitrary and irrational. For his part, 8 Governor Ducey argues that EO 2020-43 explicitly gave regulatory and enforcement 9 authority to the applicable agency—here, principally ADHS. Indeed, Governor Ducey 10 relatedly argues that (1) Plaintiff’s claim is barred by the Eleventh Amendment because 11 Plaintiff sued him in his official capacity and he lacks the direct duty of enforcement 12 required under Ex Parte Young, 209 U.S. 123, 161 (1908); (2) Plaintiff lacks standing 13 because its alleged injury is not fairly traceable to Governor Ducey’s conduct, since he did 14 not have the regulatory and enforcement duties under EO 2020-43; and (3) Plaintiff failed 15 to join ADHS and/or local law enforcement as an indispensable party as required under 16 Federal Rule of Civil Procedure 19(a)(1)(A). (Resp. at 9-11.) In essence, Governor Ducey 17 argues that he “is dealing with [the COVID-19 pandemic] at the 30,000-foot level. That’s 18 how the government works. Then the Governor provides, in this case, the quasi-legislation 19 for agencies to act. [EO 2020-43] specifically talks about the regulatory—that the agencies 20 are going to operate under their existing regulatory authority.” (Tr. at 44.) 21 The Court agrees with Governor Ducey that EO 2020-43 was quasi-legislative under 22 A.R.S. § 26-303(E) and explicitly provides, in paragraph 7, that it will be enforced pursuant 23 to the regulatory authority of individual agencies and law enforcement, and not directly by 24 Governor Ducey. As a result, Plaintiff cannot bring an as-applied claim against Governor 25 Ducey. (Tr. at 63); see, e.g., Confed. Tribes & Bands of the Yakama Indian Nation v. Locke, 26 176 F.3d 467, 469-70 (9th Cir. 1999) (concluding the plaintiff could not bring claim against 27 the governor to challenge actions of the state lottery where the governor was not directly 28 charged with operating the lottery). 1 IT IS THEREFORE ORDERED denying Plaintiff's Verified Application for 2|| Temporary Restraining Order with Notice and Motion for Preliminary and Permanent || Injunction (Doc. 3). 4 IT IS FURTHER ORDERED granting Defendant’s Motion for Judicial Notice 5|| (Doc. 13) and Motion to Supplement Motion for Judicial Notice (Doc. 25). 6 Dated this 21st day of September, 2020. CN iy. 8 efholee— United StatesDistrict Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-8-