PHOENIX — The state's top lawyer is telling a federal judge that there may be legitimate claims that Gov. Doug Ducey has exceeded his legal authority in closing certain businesses.

And he's urging her to take a closer look.

In a new filing Wednesday, Attorney General Mark Brnovich said the claims by Xponential Fitness against the governor "raise serious issues of first impression involving executive authority in an emergency.'' He said these "deserve close and careful consideration by the court.''

 Brnovich does not want to be involved in the dispute that will play out before Judge Diane Humetewa.

He pointed out that attorneys for the chain of fitness centers sued not just Ducey over the legality of his order but also the state. And Brnovich is required to defend the state.

The attorney general says the state has "sovereign immunity'' from these kinds of federal court lawsuits.

"Indeed, the Supreme Court has consistently held that an unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state,'' he said. And in this case, Brnovich said, "the state has taken no steps to waive immunity here or otherwise invoke the jurisdiction of a federal court here.''

If Brnovich — and the state — are out of the lawsuit, that leaves it strictly up to Ducey to defend his actions.

The claim by Xponential Fitness in this case is in some ways similar to the effort in Maricopa County Superior Court by Mountainside Fitness to void the governor's mandate that gyms and fitness centers, which he allowed to reopen in May, once again have to shut their doors. That move was in response to a sharp spike in the number of COVID-19 infections in Arizona.

Attorney Joel Sannes, representing Mountainside, argued that his client's due process rights were violated with the summary closure.

Judge Timothy Thomason refused to block Ducey from enforcing that order while the case makes its way through court.

But in this case, attorney Alex Weingarten contends that the governor's actions actually are violations of the U.S. Constitution.

What it comes down to, the lawsuit says, is Ducey singling out indoor gyms and fitness centers "while inexplicably allowing most businesses in Arizona to continue operating without additional restrictions.'' Weingarten said the governor's decision to do that without giving affected businesses a chance to be heard "can only be described as irrational and arbitrary.''

This goes to the governor's authority not only to act but to do so unilaterally, with no notice, no hearings — and no chance for affected businesses to challenge the order.

Brnovich, in his filing with the federal court, said Ducey never consulted with him in crafting and implementing his executive orders. That, the attorney general said, means he "takes no position on the underlying merits of the plaintiffs' claims'' — other than saying they raise serious issues about the governor's authority in emergencies that have never been addressed and need the court's "close and careful consideration.''

Ducey, in his own motion filed Wednesday, told Humetewa she should toss the claims against him.

Brett Johnson, the governor's attorney, said that businesses had no right to be consulted before Ducey ordered them to shut down. He said that's not required in an emergency situation.

Johnson said there's no basis for Xponential to claim that gyms and fitness centers were being unfairly singled out while other businesses were allowed to remain open.

He cited a federal appellate court ruling that said it is reasonable for a governor to conclude that "heavy breathing and sweating in an enclosed space containing many shared surfaces creates conditions likely to spread the virus.'' Johnson told Humetewa all she needs to decide is that Ducey had a "rational basis'' for his decision.

"Gov. Ducey need not show that gyms are more dangerous than other types of businesses that are currently allowed to remain open,'' Johnson wrote.

Humetewa has scheduled a hearing next week.

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