The attorney for Mesa Golfland Sunsplash urged a federal judge on Friday to conclude that it's just not credible to believe claims by Gov. Doug Ducey about that he didn't know resorts were operating their water parks.
Joel Sannes told Judge John Tuchi that there is plenty of evidence to show that the governor knew not only that water parks run by resorts were open despite his June 29 closure order but also that they were taking outside guests even as Sunsplash was shuttered. That includes the governor's comments when asked about the disparity by Capitol Media Services earlier this month, that it "was seen as a loophole.''
And Sannes pointed out that Health Director Cara Christ said, in the governor's presence that same day, that her agency was looking at the issue but that there were circumstances where resorts could operate their water parks, even with outside guests.
Only now, with the Mesa facility Sannes represents accusing the governor of selective enforcement, is Brett Johnson, the governor's attorney, saying that Ducey had no idea the water parks operated by resorts were open and operating. And he said it was always Ducey's intent to close down all water parks.
As to that "loophole'' comment from the Aug. 20 press conference, Johnson said that the governor was not conceding there was a loophole in his executive order. And regarding what Christ said at the same event about resort water parks, Johnson told the judge he needs to understand the nature of press conferences.
"Sometimes your words get jumbled,'' he said.
But Sannes presented other evidence he said proves it was obvious that both Ducey and Christ knew resorts were operating their water parks. That included videos taken at resorts and even newspaper stories about which resorts were allowing day visitors.
What makes all this relevant is that Sannes is arguing that Ducey knew what was happening, making him guilty of having and enforcing a policy when there was no "rational basis'' for the distinction between Sunsplash and the resorts.
"I don't think it's under dispute that after executive order 43 was enacted on June 29, other water parks have been allowed to be open,'' he told Tuchi.
"It is difficult to give credibility to the governor's argument that the governor did not know that other water parks were open,'' Sannes said. "These water parks had advertisements.''
And he said that someone from Sunsplash told Anni Foster, the governor's on-staff general counsel, on June 30 that hotel and resort water parks were still open. Yet there was no enforcement action taken against any of these resorts.
"That goes to the argument of whether or not your honor believes the governor's interpretation,'' Sannes said.
He told Tuchi that requires him to declare the governor's executive order "facially invalid'' because there is no reason for distinguishing between both freestanding water parks and those at resorts or elsewhere. And that, in turn, would allow all of them to operate under the same rules.
At least some of what Sannes wants — voiding the order to allow Sunsplash to immediately reopen — could be legally moot.
As of Thursday, most Arizona counties reached the point where they were listed as having a "moderate'' risk of spread of COVID-19. That allows all water parks to open once they attest they will follow certain rules, including operating at 50 percent capacity.
But Sannes said that's not enough.
He said that attestation form would require his clients to agree, in writing, to re-close if there is a new outbreak of the virus. And that, Sannes said, would become a binding contract, even as the state has turned a blind eye to resort-operated water parks.
And even Johnson said there was no evidence that these resorts have signed such attestations.
That goes back to the equal protection argument.
Beyond that, Sannes said Sunsplash has been closed since June 29 in accordance with the governor's directive even as the water parks at resorts have remained open. He said his client already has lost $3 million.
And Sannes said the financial losses do not stop there, even if Sunsplash does get to reopen now.
He told Tuchi that all of the customers who would have gone to the Mesa facility instead would up at one of the open resorts. And Sannes said that will make it difficult to get them back in the future.
The judge promised an order as soon as possible.