Ducey has until Tuesday to come up with criteria for gyms re-opening, judge rules

PHOENIX - Gov. Doug Ducey isn't going to get additional time to fight a judge's order that he have a process in place by Tuesday to allow gyms and fitness centers to seek to reopen.

Maricopa County Superior Court Judge Timothy Thomason on Friday rebuffed a bid by Ducey to delay his order while the governor seeks to have it reviewed by the state Court of Appeals. Thomason said that Ducey presented no evidence that the state would be irreparably harmed if these facilities are given a chance to show they can safely operate.

By contrast, the judge said, attorneys for Mountainside Fitness and EoS Fitness made a compelling case for how their clients -- and, by extension, other gyms and fitness centers -- were suffering because Ducey and state Health Director Cara Christ have concluded that they won't even consider reopening requests because they believe there is no safe way they can operate, no matter what measures they implement.

Thomason pointed out that the governor's executive orders have shuttered the doors of these facilities for the better part of the past four or five months.

"The injuries to these businesses have to be staggering,'' the judge wrote.

"The shutdown has put hundreds of good people out of work,'' he continued. "The court's order ensures that their constitutional due process rights are respected.''

Anyway, Thomason said, all his order does is gives them a chance to apply for reopening.

Nothing in Friday's order precludes Ducey from asking the Court of Appeals to review and overturn Thomason's ruling.

That court, however, is not set to consider the issue until Aug. 28 -- long after the Tuesday deadline set by Thomason earlier this week for the state to allow gyms and fitness centers to apply to reopen.

And absent some immediate intervention by a higher court, the failure of Ducey and Christ to set up the process that Thomason ordered could subject them to civil contempt charges.

There was no clear statement of whether the governor will comply.

"We are working with our legal team and the Department of Health Services on next steps,'' said gubernatorial press aide Patrick Ptak. "We will keep you updated.''

None of what Thomason did Friday actually guarantees that Arizonans will once again go to gyms and fitness centers this coming week -- or at any particular time.

In his order, Thomason reminded all the parties that he was not voiding Ducey's executive order which closed these facilities. What the judge said he is mandating is "a modicum of due process to the aggrieved parties.''

"The order only gives the gyms a chance to apply for reopening,'' Thomason wrote. "It does not order that any fitness center be opened or that anyone be immediately put back to work.''

But the judge brushed aside claims the state health department would be "inconvenienced'' by having to implement a process for gyms and fitness centers to apply to reopen.

Thomason said whatever process is designed to review requests can be as "simple and straightforward as the governor or Arizona Department of Health Services want it to be.''

Anyway, Thomason said, the health department actually already had created a process for these facilities to apply to reopen whenever Ducey lifts his closure order.

That agency has drafted an extensive list of requirements for gyms and fitness centers. These range from the use of face masks and separating people by at least six feet to monitoring for sickness and operating at a capacity of no more than 25 percent.

In fact, there already is a form on the health department web site where facility operators can attest that they are complying with the requirements, a form that presumably was designed for whenever Ducey lifts his closure order.

"No explanation is provided (by the governor) as to why developing a similar process before the shutdown orders end results in irreparable injury,'' Thomason wrote.

The judge also made sure to express that he was being deferential to the powers and duties of the governor to protect public health and safety.

"It is not the function of the judiciary to second-guess policy decisions on matters of public safety,'' Thomason said.

"It is, however, the duty of the judiciary to ensure that constitutional safeguards are honored,'' he continued. "The public has a compelling interest in ensuring that adversely impacted parties have a meaningful opportunity to be heard.''

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