Ducey seeks to void ruling that would let Arizona gyms reopen

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PHOENIX — Gov. Doug Ducey is moving to deny gyms and fitness centers the right to reopen despite a court order to the contrary.

In new legal briefs, the governor wants the state Court of Appeals to void Tuesday’s ruling by Maricopa County Superior Court Judge Timothy Thomason ordering him to provide them a chance to prove they can operate safely. Ducey is arguing that forcing the state to let gyms reopen before he and health officials believe it is appropriate could result in “death, serious physical illness, and a lack of hospital beds.”

And if that message is lost on the appellate judges, the private attorneys hired by the governor warned of dire consequences if they do not intercede. They said that Thomason’s legal conclusions will “open the floodgates” for others to challenge Ducey’s orders, “which will hamper the governor’s ability to focus on the pressing battle against the pandemic.”

“Put simply, the Superior Court’s ruling threatens the lives of Arizona citizens and should be reversed immediately,” they wrote.

More immediately, the governor wants Thomason to stay his own order requiring him and state Health Director Cara Christ to have the rules in place by this coming Tuesday telling gyms and fitness centers exactly what they need to do and allowing them to open their doors if they attest they will comply with those requirements.

The stay that Ducey wants would be for a week after either the Court of Appeals refuses to consider the appeal or rules on it. And, if granted, it means that plans by Mountainside Fitness and other facilities to open next week would be shelved.

In filing the appeal, the governor’s attorneys cited a series of what they claim were errors that Thomason made in concluding it was wrong for the governor to shutter the gyms and fitness centers with no opportunity to show that they pose no more danger than other businesses the governor has allowed to open, from grocery stores to restaurants. And they said the trial judge ignored the principle that the Constitution “principally entrusts the safety and health of the people to politically accountable officials of the states to guard and protect.”

Attorney Joel Sannes, representing Mountainside Fitness, said the governor’s legal bid is not unexpected. But he said he ultimately expects it to fail, even with the claim that people will die.

“On this issue, the governor bears a high burden of proof,” Sannes said. “The governor actually needs to show evidence that there is a risk that people will die. And that is where the governor has really fallen short.”

In essence, Sannes said, Ducey is claiming only that he has a “rational basis” for his conclusions that it would be unsafe to allow gyms and fitness centers to reopen, even if they follow the protocols crafted by his own health department.

Those protocols include everything from mask and cleaning requirements to limiting the number of people who can be on site at any one time.

“Their testimony at the hearing established that there are no contact-traced infections related to fitness centers,” Sannes said. “That is true both locally and nationwide.”

Nor, he said, was there evidence of any significant outbreak linked to fitness centers “unlike the very persuasive evidence of serious outbreaks associated with bars and nightclubs.”

Sannes said his most immediate goal will be to convince Thomason not to grant Ducey’s motion to stay his original order requiring a system in place by Tuesday allowing these facilities to show they can reopen safely.

That would not void Ducey’s plea to the Court of Appeals.

But if Thomason denies the request for a stay, the governor and health department would have to start the appeals process.

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