KOLODIN LAW GROUP PLLC ‘ene SS om HH 8 ‘Alexander Kolodin (SBN 030826) (Christopher Viskovie (SBN 035860) KOLODIN LAW GROUP PLLC 3443 N. Central Ave, Ste 1009) Phoenix, AZ 85012 ‘Telephone: (602) 730-2985 Facsimile: (602) 801-2539 Email: os i eae Admin@KolodinLaw.com (file copies) Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF ARIZONA DOUGLAS HESTER, a teacher in the y 2021 Phoenix Union High School Distt; Case nde \ Plaintiff, PHOENIX UNION HIGH SCHOOL | VERIFIED COMPLAINT FOR A DISTRICT; LELA ALSTON, STANFORD SPECIAL ACTION PRESCOTT, NAKETA ROSS, STEPHANIE PARRA, LAURA PASTOR, STEVE| (Order o Show Cause Requested) GALLARDO, and AARON MARQUZ, jn their official capacities as members of the| (Oral Argument Request) Phoenix Union High School District Governing Board; CHAD GESTSON, i official capacity ‘as Superintendent of the Phoenix Union High School District; DOES F- % Plaintiff, for his complaint against the Phoenix Union High School District, the members of its goveming board, and its superintendent ("Defendants"), alleges as follows:"DocuSign Ena > THBSBUCH-AADA ACEO ADFF-1409FCOREOT 1 PARTIES, JURISDICTION. AND VENUE, 2| 1, Plaintit Doulas Hester is a teacher in the Phoenix Union High School Distt 3 | 2. ThePhoenix Union High Scho! District "PUHSD" is a pubic body. 4] 3. Defendants Alston, Prescott, Ross, Parra, Pastor, Gallardo, and Marquez are the s ‘members of PUHSD's governing board. They are being sued in their official 6] capacity only. 7| 4. Defendant Gestion is PUHSD's superintendent. He is being sued in his efit 8 ‘capacity only. 9 | 5. Does 1X are other persons who may be responsible, in whole oa prt, fr the 10 | sets and omissions complained of herein. go | Atcsienity a oe tn sn ig wi votes Bu t 2 ‘Complaint occurred in Maricopa County, Arizona. 5 a 13] 7, Pursuant to ARS. § 12-401(16) an action agnins public offices shall be brought cit 4 in the county in which the officer, or one of serveral officers holds office. al 15 | 8, Plains may proceed by special action where there is no equally “psi, seat zi ‘~ 6 and adequate remedy” available. A.RS. §§ 12-2001, 12-2021, Rules of Procedure $7] ir] tor Speci Actions CRPSA') 1, For the reeons set forth blow, thei no =" ‘equally plain, speedy, and adequate remedy available. 19] 9. A special action may be insuted wit or without an application for order to show 20 cause why the requested relief should not be granted. RPSA 4(c). Where a show- 21] cause procedure is used the court must set 2 speedy remm. 1d. Given the 22 | imminent implemcattion of Defendants’ unlawl policy, father dicased 23 | below, Pais see an order to show cause 24 | 10.4 special action may be brought inthe superior court forthe county that isthe 25 principal place of business for the public officer or body being sued. RPSA 4(b).‘Oni nal 3 76 EROCEORDA 4620107 40FECOFEOT 1] 11.This Court has jurisdiction to hear this matter and venue is proper pursuant to ARS. §§ 12-2001, 12-2021,! the Uniform Declaratory Judgments Act and other states governing the isuance of declaratory judgments, the Arizona Rules of Procedure for Special Actions (“ARPSA") 1-4, and other applicable law. GENERAL ALLEGATIONS |12.Plaintiff incorporates by reference the preceding allegations. 13.0n June 30", 2021, Governor Doug Ducey signed HB 2898 into law. Exhibit A. 14 cluded within HB 2898 was a new statute, AIRS. §15-342.05, 15.A.RS. § 15-342.05 provides as follows: 0 a. "Notwithstanding any otker law or order, « county, city, town, schoo! 0 district governing board or charter school governing body may not require 2 the use of face coverings by students or staff during school hours and on B school propery." 4 b. “A school district or charter school may not require a student or teacher to receive a vaccine for COVID-19 oF to wear a face covering to participate 17 | 16.8 2898 was an omnibus bill, the various portions of which have different KOLODIN LAW GROUP PLLC “phan cI ek a 8-207 8 affective dates. 19] 17.Section 119(A) of the bill provides as follows: “Section 15-342.05, Arizona 2» Revised Statutes, as added by this act, applies retroactively to from and afer June 21 30,2021. Exhibit A p 160. 2%] 18.0nJuly 30, 2021, the PUHSD posted the following announcement on is website: 2 Our current Board-adopted policies still require masks when indoors in the u presence of others. However, this past month, we did align our masking practices 25 Usrictswide withthe current prokibition of mask mandates. Recently, we have 2% feard from our staf, students, and families that they want us (0 realign our ai an any tat Pi expres ered ts ne, nha inthis aeons payer fora ito 2g | panda ois eaten under tb RPSA. The speci acon no encorpasesspicaton fr wri of ‘manda. RPSA Ye).Dechy rele 0 TRBRECEAADK ACEO SOFT EFCCOFSO? KOLODIN LAW GROUP PLLC Tene a EB Rs pa 299 mitigation practices with the guidelines and recommendations of national and local health agencies. In an effort to protect our staf, students, and community, PXU has a good fatth belle tha following guidance from the CDC and other health agencies regarding Imitgation strategies is imperative. Therefore, Phoenix Union will begin the school year on August 2 enforcing our existing Board-adopted mask requirement of universal indoor masking only, regardless of vaccination status. This masking requirement is forall staf, students, and visitors.? 19.The same day, the Arizona Republic eported as follows: “Phoenix Union High School District will require masks to be worn indoors when students head back to schoo! next week — despite an Arizona law tha Bans mask mandates. In a statement, Gov. Doug Ducey’s office said Phoenix Union's policy is not allowed under Arizona law, calling the district's move ‘unenforceable.’ At a news conférence on Friday, Phoenic Union Superintendent Chad Gestson repeatedly declined to comment on whether the district was following state law. ‘He said he has been in talks with his legal team about the mandate but reiterated ‘hat his job was about the heath and safety of schools."* 20.Twelve News reported more filly on Governor Ducey’s July 30" statement “A spokesman for Gov. Doug Ducey, a fierce opponent of any COVID-related ‘mandates, issued a statement that declared the district was breaking the law:DocuSlon Erle ID TEBBABCNOK-ACESSOFF.AA09FCCOFSOT KOLODIN LAW GROUP PLLC ‘ie ‘Gov. Ducey believes the decision by Phoenix Union requiring masks has no teeth. snot allowed under Arizona law. It's unenforceable. Arizona is not anti-mask, we're anti-mask mandate. AS the governor has often said, mask usage is up to parents School administrators should be doing everything they can to encourage eligible students and staf to get vaccinated, not break state law," But Ducey didn't indicate that he would try to Block he district's mandate.* 21.tus three days prior, Govemor Ducey had released a statement reading, in pertinent part: “Arizona does not allow mask mandates, vaccine mandates, vaccine passports or Jiscriminaton in schools based on whois or isn't vaccinated. We've passed allo ‘his into law, and it wil not change." 22.The mask mandate applies to students, faculty, and staff.® 23.PUHSD's first day of school is August 2%, 20217 24, Necordngly, Plaintiff has no equally pai, speedy, and adequate remedy at law. 25.0n March 11, 2020, Governor Doug Ducey issued a Declaration of Public Health State of Emergency pursuant to A.R.S. §§ 26-303 and 36-787, 26, Accordingly, “coordination ofall mater pertaining to COVID-19 are of statewide concer rather than local concern unless otherwise determined by the director of the Arizona Department of Health Servies."* 27.The Public Health Emergency remains in effectKOLODIN LAW GROUP PLLC “Teper BE Pa 8-08 28, Plaintiff incorporates by reference the preceding allegations. 29.Special action relief is available where a Plaintiff seeks relief against a pablic body, officer, or person. RPSA 1(@). 30. Special actions are especially appropriate when they are brought regarding subject ‘matter of statewide concern, 31.Applications for writs of mandamus pursuant to ARS. § 12-2021 are appropriately brought as special actions. RPSA 1(a-b, 32. RPSA 3(@) provides that the question of “[w]hether the defendant has failed to ‘exercise discretion which he has a duty to exercise; or to perform a duty required by law as (0 which he has no discretion” may be raised by special ction, 33. ARS. Title 15, Chapter 3, Article 3 is entitled “Powers and Duties of School District Governing Boards[_]” 34.Pursuant to that article, a school district's governing board has the duty to “Prescribe and enforce policies and procedures forthe governance of the schools that are not inconsistent with law.J" ARS. § 15-341(AY(). 35. The policies and procedures put in place by Defendants include an illegal mandate requiring students and staff to wear masks. 36. Therefore, Defendants have failed to perform their duty to presribe policies and procedures that are not inconsistent with law. 37.RPSA. 3(b) provides that the question of “[wJhether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority” may be raised by special action, 38. Defendant lack the legal authority to mandate that students and staff wear masks. 39. Nonetheless, Defendants have stated thet they will impose such a mandate when school begins.‘ech Emp 1 BGH8C8. ADLER SOFFUnNFCCOFROT KOLODIN LAW GROUP PLLC Taian SEE Freee. a8 40. Therefore, Defendants are threatening to proceed without or in excess of their jurisdiction or legal authority. WHEREFORE Plaintiff prays: ‘A. That this Court accept special action jurisdiction, issue an Order to Show ‘Cause, and se a speedy retum. For a declaration that Defendants’ mask mandate is contrary to law. For preliminary and permanent injunctive relief requiring Defendants to {ull their legal duty to “Prescribe and enforce policies and procedures for the governance of the schools that are not inconsistent with law” by ‘promulgating policies and procedures for the new school year, and for subsequent school years, that do not include the mask mandate D. For attomeys’ fees and costs pursuant to ARS. §§ 12-2030, 12-348, ‘common law doctrine, and other applicable law. E. Forsuch other reliefas this Court deems just and proper, ° Respectfully submitted this 2% day of August, 2021 By Alexander Kolodin ‘Alexander Kaladin Kolodin Law Grouo PLLC 3443 N. Central Ave. Ste 1009 ‘Phoenix. AZ 85012 Attorneys for PlaintiftDosis Ent TRBEECHONOA-CHE SOF eOOFSCOFIT ‘VERIFICATION "declare under penalty of perjury that, to the best of my knowledge, the facts set forth above are true and accurate. Signature Dowel amma Printed Nong STEP pester Date, #72021 Tone a9 KOLODIN LAW GROUP PLLC