How much power does the Arizona Legislature have to limit a Governor's emergency declaration, and what can counties and cities do during an emergency?

Plain-English summary

Almost a year into the COVID emergency, Representative John Kavanagh asked the Attorney General for guidance on the scope of emergency powers under Arizona law: what could the Legislature do about Governor Doug Ducey's continuing emergency declaration, what could the Governor do if the Legislature tried to terminate it, and what room did counties and cities have to act on their own?

Attorney General Mark Brnovich gave a detailed answer:

Legislative side.

1. The Legislature can only terminate, not modify or condition, a state of emergency. A.R.S. § 26-303(F) gives the Legislature exactly one statutory tool: a concurrent resolution declaring the emergency at an end. The text does not authorize the Legislature to scale the Governor's actions back, expand them, or attach conditions through a concurrent resolution. To change what the Governor can do, the Legislature would have to pass new legislation (subject to gubernatorial presentment under Ariz. Const. art. IV, pt. 2, § 12).

Governor's side.

2. Termination doesn't disarm the Governor. Even if the Legislature ends the emergency, the Governor can declare a new state of emergency the next day so long as the conditions in A.R.S. § 26-301(15) are satisfied (disaster or extreme peril from epidemic, fire, flood, riot, etc.). The Legislature does not have to reconvene to permit re-declaration.

3. Three ways to end a re-declared emergency. Governor proclamation; Legislature's concurrent resolution; or a court order finding the conditions for emergency are absent or have ceased.

Counties and cities.

4. Local emergency powers under § 26-307(A) are narrower than the Governor's. Counties, cities, and towns can make rules "necessary for emergency functions," but only for the statutorily defined "emergency functions" in § 26-301(5). The Governor's police power under § 26-303(E)(1) is much broader.

5. Local emergency powers exist independent of the Governor. Even without a state-level declaration, counties, cities, and towns can declare local emergencies under § 26-311(A) and respond by proclamation under § 26-311(B). City charters may also be a source of mayoral emergency authority (e.g., Phoenix Charter Ch. V, § 4(A)).

6. No state emergency plans grant additional authority to local jurisdictions. The AG reviewed the Arizona State Emergency Response and Recovery Plan, the Arizona DHS Public Health Emergency Declaration Playbook, and the Arizona DHS Infectious Diseases of High Consequence Plan. None give counties or cities powers beyond what statutes already provide.

7. City rules win over conflicting county rules within city limits; county rules apply in unincorporated areas. A.R.S. § 26-311 and § 11-251.05(D) reflect the standard hierarchy.

The opinion treats § 26-303(F)'s constitutionality as a question for another day. It also expressly does not address the scope of § 26-303(E) (the Governor's police power), since that issue was pending before the Arizona Supreme Court in Aguila v. Ducey. The AG had filed amicus briefs in that case, and confined this opinion to the framework around the emergency declaration itself.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical context: what the opinion meant in 2021

For state legislators

The opinion confirmed the Legislature had no statutory shortcut to micromanage the Governor's emergency. Concurrent resolution was an all-or-nothing tool. Modifying the executive orders required new legislation passed and presented to the Governor (who could veto). This pushed lawmakers toward considering statutory amendments to the underlying emergency-management framework, not piecemeal concurrent resolutions.

For Governor Ducey

The opinion reinforced his ability to keep declaring emergencies as long as the underlying conditions persisted. Even if the Legislature passed a concurrent resolution ending the COVID emergency, he could re-declare hours later with the same effect. This made the Legislature's concurrent-resolution tool much less powerful than its proponents had suggested.

For county supervisors and mayors

The opinion gave them a clearer map. They had two independent power tracks:
- Pre-emergency rule-making for "emergency functions" under § 26-307(A), narrowly defined.
- Independent emergency declaration under § 26-311 with broader response authority.

Both tracks operate without the Governor's say-so, but neither can conflict with state law or the Constitution.

For public health officials at the county level

A.R.S. § 36-136(J) lets county health departments issue more restrictive rules than ADHS. The opinion confirmed Maricopa Cty. Health Dep't v. Harmon, 156 Ariz. 161 (App. 1987), as good law: a county can issue an emergency rule excluding unimmunized children from day-care during an outbreak, even if the state hasn't done so.

For constitutional lawyers

The opinion assumes (without deciding) that § 26-303(F)'s concurrent resolution mechanism is constitutional. That's a notable hedge. Arizona's constitution requires every "measure" to be presented to the Governor (Article IV, Part 2, § 12). A concurrent resolution that effectively legislates by ending statutory authority might be challenged as a presentment violation. The AG reserved judgment.

Common questions

Q: How does the Legislature end a Governor's state of emergency?
A: By concurrent resolution under A.R.S. § 26-303(F). That is the only statutory mechanism. The Legislature cannot modify, condition, or scale back the Governor's emergency powers through a concurrent resolution.

Q: Can the Governor immediately declare a new emergency after the Legislature ends one?
A: Yes, so long as the conditions for an emergency under § 26-301(15) exist. The opinion stresses that "the current statutory framework does not condition a declaration of a state of emergency on the lack of a prior declaration of emergency terminated by the Legislature."

Q: Are city emergency powers and county emergency powers the same?
A: No, they're parallel. Cities and counties both have authority under § 26-307(A) for "emergency functions" (defined narrowly). Both can also declare independent local emergencies under § 26-311. Within a city's boundaries, the city's rules govern over conflicting county rules; in unincorporated areas, the county's rules apply.

Q: What counts as an "emergency function" under § 26-307(A)?
A: A defined list in § 26-301(5): warning and communications, relocation from stricken areas, radiological defense, temporary utility restoration, plant protection, transportation, welfare, public works, search and rescue, health and medical services, law enforcement, fire fighting, mass care, resource support, urban search and rescue, hazardous materials, food, energy information and planning, and other necessary or incidental activities.

Q: How does the Governor's authority during an emergency compare to a county's?
A: Much broader. Under § 26-303(E)(1), the Governor has "complete authority over all agencies of the state government and the right to exercise … all police power vested in the state by the constitution and laws of this state" within the emergency area. Counties and cities are limited to "emergency functions" and to actions that don't conflict with the Governor's orders.

Q: Can a court end a state of emergency?
A: Yes, in a third path: a court can rule that the conditions required for an emergency under § 26-303(F) didn't exist when declared or have ceased to exist. The opinion treats this as a real (though rarely used) check.

Q: What about religious worship during an emergency?
A: The opinion cross-references Op. Ariz. Att'y Gen. No. I20-008 (2020), which concluded the Governor cannot prevent religious worship via executive order. That earlier opinion remains the AG's stance.

Background and statutory framework

Arizona's emergency-management statutes (Title 26, Chapter 1) date to 1971. The structure:

• Definitions (§ 26-301): "Emergency functions," "local emergency," "state of emergency."
• Governor's powers (§ 26-303): declares and terminates emergencies; broad police power; State Emergency Council role.
• Local emergency rules (§ 26-307): counties, cities, and towns may make emergency-function rules but cannot conflict with the Governor's orders.
• Local emergency declarations (§ 26-311): mayor or chairman of board of supervisors may declare a local emergency by proclamation.

The COVID context: Governor Ducey declared a state of emergency on March 11, 2020, and issued ~57 executive orders. Some were challenged in court (Aguila v. Ducey; Mountainside Fitness; Mesa Golfland). The AG had filed amicus briefs taking the position that the Governor's police-power authority is not unlimited and must comply with existing statutes.

The opinion's structural choice: limit itself to the procedural framework (declaration, modification, termination) and avoid opining on the substantive scope of executive-order authority while Aguila was pending. That keeps the AG out of an active litigation theater on the merits.

The constitutional framework:

• Ariz. Const. art. III: separation of powers. The Governor declares emergencies under statutory authority; the Legislature retains the power to amend that authority.
• Ariz. Const. art. IV, pt. 2, § 12: every "measure" must be presented to the Governor for approval or veto. This is why the Legislature can't simply legislate-by-concurrent-resolution.
• Ariz. Const. art. II, § 1: security of individual rights through "frequent recurrence to fundamental principles."

Citations and references

Constitutional provisions:
- Ariz. Const. art. II, § 1
- Ariz. Const. art. III (separation of powers)
- Ariz. Const. art. IV, pt. 2, § 12 (presentment)
- Ariz. Const. art. XIII, § 2 (city charters)

Statutes:
- A.R.S. § 26-301 (definitions)
- A.R.S. § 26-303 (Governor's emergency powers; declaration, scope, termination)
- A.R.S. § 26-307 (county/municipal emergency authority)
- A.R.S. § 26-311 (local emergency declarations)
- A.R.S. § 36-136(J) (county health rules)
- A.R.S. § 11-251.05(D) (county ordinance hierarchy)

Cases:
- Maricopa Cty. Health Dep't v. Harmon, 156 Ariz. 161 (App. 1987), county health authority to exclude unimmunized children
- State ex rel. Brnovich v. City of Tucson, 242 Ariz. 588 (2017), state law prevails over conflicting local law in matters of statewide concern
- Associated Dairy Prods. Co. v. Page, 68 Ariz. 393 (1949), county supervisors lack implied power where Legislature has occupied the field

Source

• Landing page: https://www.azag.gov/opinions/i21-001-r20-017
• Original PDF: https://www.azag.gov/sites/default/files/2025-06/I21-001.pdf

Original opinion text

To:

John Kavanagh, Representative

Arizona House of Representatives

Questions Presented

When the Governor declares a state of emergency, other than a state of war emergency, the emergency can be ended "by concurrent resolution of the legislature declaring it at an end," as per A.R.S. § 26-303(F). Is the Legislature's only option to end the emergency and consequently terminate all of the Governor's actions related to the emergency or could the Legislature:

Modify the Governor's actions by either scaling them back or expanding them under the authority of A.R.S. § 26-303(F) or any other law?

Make the application of the Governor's emergency powers contingent upon the existence of specified conditions, such as in the case of an epidemic, infection levels and hospital ICU bed or ventilator availability, under which the Governor's authority would both end and even later be automatically revived based upon ongoing changes in the conditional metrics?

If the Legislature terminates a state of emergency declared by the Governor, thereby terminating all of the Governor's emergency actions, can the Governor:

Immediately declare a new state of emergency and reinstitute some or all of the previous actions? If so, would the Legislature have to reconvene to end the reinstated actions, would the actions have no force because they are illegal or would a court have to issue an order ending the Governor's reinstated actions?

Later in time, unilaterally declare another state of emergency in response to the same epidemic incident, if conditions worsened, or would the Legislature have to reconvene to allow such reinstatement of previously terminated gubernatorial action?

A.R.S. § 26-307(A) gives counties, cities and towns the power to "make, amend and rescind orders, rules and regulations necessary for emergency functions but such shall not be inconsistent with orders, rules and regulations promulgated by the governor."

Does this section of law give these local government bodies the same emergency powers that state law gives the Governor to deal with states of emergency, other than a state of war emergency, so long as they do not conflict with an order, rule or regulation issued by the Governor, pursuant to his or her emergency powers?

Are the emergency powers of counties and municipalities only available during times that the Governor has declared a state of emergency or can these local governments declare their own state of emergency and then enact emergency measures to deal with such emergency?

A.R.S. § 26-307(D) states, "In the absence of specific authority in state emergency plans and programs, the governing body of each county, city and town of the state shall take emergency measures as deemed necessary to carry out the provisions of this chapter." Does such "specific authority" exist in any "state emergency plans and programs" and, more importantly, are there any provisions in any "state emergency plans and programs" that would limit county and municipal action?

If an emergency situation existed and the Governor did not declare a state of emergency, declared one but then rescinded it or the Legislature voted to terminate a state of emergency declared by the Governor, would that leave the counties, cities and towns free to issue orders, rules and regulations to deal with the emergency within the parameters permitted by A.R.S. § 26-307(A) as they so choose (assuming no § 26-307(D) constraints) because they would not be constrained by the legal limitation of not acting "inconsistent" with a gubernatorial order, rule or regulation?

Since both counties and municipalities within counties can "make, amend and rescind orders, rules and regulations necessary for emergency functions but such shall not be inconsistent with orders, rules and regulations promulgated by the governor," which local government entity is supreme? If there is inconsistency between county and municipal actions or if the county implements an action that a municipality has not enacted or even voted not to enact, which government's action prevails within that particular municipal boundary – the county or municipality emergency measure?

Summary Answers

Under the current statutory framework, the Legislature can only terminate or modify a duly-declared state of emergency "by [a] concurrent resolution" under A.R.S. § 26-303(F).

Even if the Legislature terminates a declared state of emergency, the Governor may declare a new state of emergency and re-institute prior measures so long as the conditions for the existence of a state of emergency under A.R.S. § 26-301(15) are satisfied. If the Governor were to do so, the state of emergency would terminate upon (1) a proclamation by the Governor declaring the emergency terminated, (2) a concurrent resolution of the Legislature declaring the emergency terminated, or (3) a court order finding that the conditions for a state of emergency did not exist at the time of declaration or have since ceased to exist.

Regarding the emergency powers of local jurisdictions: (1) the powers granted to counties and municipalities under A.R.S. § 26-307(A) are not equivalent in scope to the Governor's powers under A.R.S. § 26-303(E); (2) local jurisdictions have statutory emergency powers independent of the Governor; (3) to the Attorney General's knowledge, there are no state emergency plans or programs granting local jurisdictions specific emergency powers; (4) local jurisdictions have independent power to declare local emergencies under A.R.S. § 26-311(A); and (5) if there is a conflict between a county and municipal rule, the municipal rule applies within the municipality and the county rule applies in unincorporated areas of the county.

Background

The coronavirus disease ("COVID-19") prompted the U.S. Department of Health and Human Services to declare a Public Health Emergency on January 31, 2020, and the World Health Organization to declare a pandemic on March 11, 2020. On March 11, 2020, Governor Ducey declared a state of emergency under Arizona law due to COVID-19.

Since then, the Governor has issued approximately 57 executive orders, many impacting the individual liberties of Arizonans and the economic sustainability of their businesses. For example, the Governor ordered the closing of certain businesses until specific public health metrics were met and the businesses complied with guidance issued by the Arizona Department of Health Services. The Governor issued orders prohibiting public gatherings of more than 50 people without permission, and postponed most eviction enforcement actions for months. The Governor also issued orders allowing restaurants to sell alcohol for off-premises consumption, extending the legislative termination dates for several state agencies, programs, and funds, and changing the training requirements to be certified as an assisted living facility caregiver.

Striking the proper balance between public health and individual liberties is a shared responsibility among the branches of government. See Ariz. Const. art. II, § 1; id. art. III. To strike the proper balance in protecting the public while respecting the rule of law, the democratic process must be utilized during times of crisis, including the current pandemic.

The Governor has not convened the State Emergency Council or sought recommendations from it regarding orders, rules, policies or procedures, or regarding whether or when the declared state of emergency should be terminated. See A.R.S. § 26-304(B)(1), (C). Arizonans and their elected representatives, therefore, have had to rely on the judiciary, and at times, the Attorney General, to opine on the limits of the Governor's authority and other aspects of his executive orders.

The legality of some of the Governor's executive orders has been the subject of litigation. See, e.g., Aguila v. Ducey, No. CV-20-0335-PR (Ariz. Sup. Ct.); Mountainside Fitness Acquisitions LLC v. Ducey, CV2020-093916 (Maricopa Cty. Super. Ct.); Mesa Golfland Ltd. v. Ducey, 2:20-CV-01616 (D. Ariz.).

Similarly, lawmakers have asked the Attorney General's Office whether the Governor can prevent religious worship (he cannot), Op. Ariz. Att'y Gen. No. I20-008 (2020), the extent to which a governmental entity must withhold information from the public related to employees and students who test positive for COVID-19, Op. Ariz. Att'y Gen. No. I20-005 (2020), and which agencies enforce certain aspects of the Governor's executive orders, Op. Ariz. Att'y Gen. No. I20-006 (2020).

In litigation, the Attorney General has defended claims asserted against the State of Arizona as a result of the Governor's executive orders, successfully taking the position that the State of Arizona is not a proper party to such actions. The Attorney General has also weighed in, as amicus, on the authority of the Governor to shut down some bars and restaurants based largely on the type of liquor license they hold. The Attorney General explained that even during a state of emergency, "the governor's exercise of the 'police power' under § 26-303(E)(1) cannot be used to override state statutes or existing agency rules." The Governor, therefore, does not have "the power to issue orders that are 'arbitrary, unreasonable and discriminatory.'"

In determining whether the Governor's restrictions on Arizona businesses have been appropriate, the Attorney General has urged the courts to consider: "(1) the severity of the emergency, (2) the duration of the executive action without legislative oversight, (3) the geographical scope of the executive action, and (4) the consistency with which emergency measures are ordered." This will help ensure that executive authority is not exercised arbitrarily.

On December 26, 2020, the AGO received this opinion request (the "Request") from Representative Kavanagh asking the Attorney General to provide additional guidance on the scope of emergency powers under Arizona law possessed by the Governor, counties, and municipalities. The following analysis is informed by the background outlined above, as the questions posed can only be answered when considering the context and history in which they have been asked.

Analysis

This Opinion first addresses the relationship between the Legislature and the Governor with respect to terminating a state of emergency under existing Arizona law. The Opinion then addresses whether the Governor may declare a new state of emergency after the Legislature has terminated a prior state of emergency and how such a new emergency (in essence, a re-declared emergency) can be terminated. Finally, the Opinion addresses the powers of counties and municipalities relating to "emergency functions."

I. The Only Statutory Mechanism For Legislative Modification Of A State Of Emergency Is Termination Under A.R.S. § 26-303(F).

The Arizona Legislature has the statutory power to declare a "state of emergency" at an end through a concurrent resolution declaring the emergency at an end. A.R.S. § 26-303(F). The current statutory framework does not contain any other method for the Legislature to terminate, modify, or condition the existence of a state of emergency.

In 1971, the Legislature passed a series of statutes addressing emergency management powers. Those statutes define a "state of emergency," in relevant part, as "the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons or property within the state caused by . . . epidemic[.]" A.R.S. § 26-301(15). The statutes provide that "[t]he Governor may proclaim a state of emergency which shall take effect immediately in an area affected or likely to be affected if the Governor finds that circumstances described in § 26-301, paragraph 15 exist." Id. § 26-303(D). Once the Governor declares a state of emergency, "[t]he Governor shall have complete authority over all agencies of the state government and the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this chapter." Id. § 26-303(E)(1). The statutes also provide two mechanisms for terminating a state of emergency and the powers that arise therefrom: "[A] state of emergency shall terminate when the state of emergency has been terminated by proclamation of the governor or by concurrent resolution of the legislature declaring it at an end." Id. § 26-303(F). Thus, the Legislature has the statutory power to end a state of emergency through a concurrent resolution.

Whether the Legislature may use the authority contained in § 26-303(F) to modify the Governor's emergency management powers or to make the exercise of those powers contingent upon the existence of specified conditions is an issue of statutory interpretation.

Here, the statutory language is clear: the Governor, and not the Legislature, is granted the statutory power to declare a "state of emergency." See A.R.S. § 26-303(D). The statutory framework also sets forth the conditions upon which the Governor may declare a "state of emergency" and the powers he obtains once doing so. Having passed a statute containing a definition of a "state of emergency" and setting forth the conditions upon which the Governor may declare a state of emergency, the Legislature may not later amend that statute through concurrent resolution to add conditions on when such a declaration may issue (of course, the Legislature could do so through new legislation). See Ariz. Const. art. IV, pt. 2, § 12 (requiring "[e]very measure" to be presented to the Governor for his "approval or disapproval"). Similarly, the statutory framework sets forth the powers the Governor obtains after declaring a state of emergency, and while § 26-303(F) grants the Legislature the authority to end such a declaration through concurrent resolution, that provision does not currently grant the Legislature the power to restrict or expand the Governor's actions after a state of emergency has been declared. As currently composed, § 26-303(F) leaves the Legislature with only one option for modifying the Governor's exercise of emergency powers: the Legislature may terminate those powers through concurrent resolution by declaring the state of emergency at an end.

II. The Governor May Declare A New State Of Emergency Even After Legislative Termination Under A.R.S. § 26-303(F).

The Governor's ability to declare a state of emergency is not impacted by a legislative termination of a prior state of emergency. Instead, the current statutory framework conditions the Governor's declaration of a state of emergency on the existence of certain conditions within the state. In other words, the current statutory framework does not condition a declaration of a state of emergency on the lack of a prior declaration of emergency terminated by the Legislature. Thus, even if the Legislature terminated a declaration of emergency through concurrent resolution—thereby terminating the powers granted the Governor in connection with that declaration—the Governor is not legally restricted from declaring a new state of emergency. If the Governor declared a new state of emergency, he would re-obtain the powers granted him under § 26-303(E) and could reinstitute some or all of the actions instituted under the prior declaration. And there is no requirement in the statute that the Legislature reconvene to allow reinstatement of a previously terminated state of emergency.

If the Governor issued a new declaration and re-instituted previous actions, the new declaration could be terminated in three ways. First, the Governor could later terminate the new state of emergency through proclamation. Second, the Legislature could terminate the new state of emergency through concurrent resolution. Third, a court could issue a ruling stating that the Governor declared the new state of emergency in the absence of one or more of the conditions required by § 26-303(F) or that one or more of those conditions had since ceased to exist.

III. Counties And Municipalities Have Independent Emergency Powers, But Those Powers Granted To Them Under The Emergency Management Statutes Are Not Equivalent In Scope To The Powers Granted To The Governor.

A. The Powers Granted To Counties And Municipalities Under A.R.S. § 26-307(A) Are Not Equivalent In Scope To The Powers Granted The Governor Under A.R.S. § 26-303(E).

The powers granted the Governor upon declaration of a state of emergency are broader than the powers granted to counties and municipalities under A.R.S. § 26-307(A).

Under A.R.S. § 26-303(E)(1), the Governor has "the right to exercise, within the area designated, all police power vested in the state by the constitution and laws of this state in order to effectuate the purposes of this chapter."

In contrast, under § 26-307(A), counties, cities and towns have the power to "make, amend and rescind orders, rules and regulations necessary for emergency functions but such shall not be inconsistent with orders, rules and regulations promulgated by the governor." Thus, this provision grants counties, cities, and towns the power to make rules, but only so long as they are "necessary for emergency functions."

B. Local Jurisdictions Have Statutory Emergency Powers Independent Of The Governor.

The Legislature has granted local jurisdictions independent statutory authority to declare emergencies. In addition to the authority in § 26-307(A) discussed above, counties, cities, and towns—under state law and individual subdivisions' respective charters and local ordinances—have independent power to respond to local emergencies, including, under certain circumstances, the power to issue orders and for the chairman of the board of supervisors of a county or mayor of a city or town to govern by proclamation. These powers exist both as part of the general emergency powers and—when responding to a health emergency such as infectious disease outbreak within that local jurisdiction—in the public health and safety provisions of Arizona law. See, e.g., A.R.S. § 26-311(A); Maricopa Cty. Health Dep't v. Harmon, 156 Ariz. 161, 163 (App. 1987).

"In addition to the powers granted by other provisions of the law or charter," the chairman of the board of supervisors for counties or mayor of cities and towns may respond to emergencies caused by natural disasters, civil unrest, or "any other natural or man-made calamity" by issuing a proclamation "if authorized by ordinance or resolution … declar[ing] an emergency or a local emergency to exist." A.R.S. § 26-311(A).

Municipal charters may also be a potential source of emergency powers. See Ariz. Const. art. XIII, § 2; see, e.g., Phoenix City Charter, Ch. V, § 4(A) ("The Mayor shall govern the City during times of great emergency and shall make proclamations necessary rising out of that emergency.").

Under no circumstances, however, can local orders, rules, regulations, or ordinances, even in the case of a public emergency, conflict with any state statute or the Arizona Constitution.

C. To AGO's Knowledge, There Are No State Emergency Plans Or Programs Granting Local Jurisdictions Specific Emergency Powers.

The emergency management statutes, at A.R.S. § 26-307(D), provide that "[i]n the absence of specific authority in state emergency plans and programs, the governing body of each county, city and town of the state shall take emergency measures as deemed necessary to carry out the provisions of this chapter." The Request asks whether any such "specific authority in state emergency plans and programs" exists. AGO has not located any state emergency plans or programs granting local jurisdictions additional emergency powers.

AGO reviewed (1) the Arizona State Emergency Response and Recovery Plan, (2) the Arizona Department of Health Services Public Health Emergency Declaration Playbook, and (3) the Arizona Department of Health Services Infectious Diseases of High Consequence (IDHC) Plan. Those plans and playbooks do not appear to grant authority to counties, cities, or towns beyond that already granted by state statute. On the other hand, they also do not appear to limit the statutory power of local jurisdictions to address emergencies. Given the current absence of additional authority in emergency plans and programs, A.R.S. § 26-307(D) only provides local jurisdictions with authority to carry out those statutory powers that Title 26 grants to local jurisdictions.

D. Local Jurisdictions Have Independent Power To Declare Local Emergencies Under A.R.S. § 26-311(A).

As explained above, the Legislature has granted local jurisdictions power to declare by proclamation local emergencies upon the occurrence of certain events. See A.R.S. § 26-311(A). Upon such a proclamation, local jurisdictions, through the mayor or chairman of the board of supervisors, may "impose all necessary regulations to preserve the peace and order" of the local jurisdiction. Id. § 26-311(B). These powers are distinct from the power granted in A.R.S. § 26-307(A) to "make, amend and rescind orders, rules and regulations necessary for emergency functions," which appears to relate to the power of local jurisdictions to prepare for emergencies. Thus, in the absence of an existing state of emergency declared by the Governor, local jurisdictions may independently declare local emergencies pursuant to § 26-311 and then issue orders, but only when necessary to "preserve the peace and order."

E. In The Event Of A Conflict Between A County And Municipal Rule, The Municipal Rule Should Apply Within The Municipality And the County Rule Should Apply Within Unincorporated Areas Of The County.

A.R.S. § 26-307(A) does not specify, in the event of a conflict, which state government subdivisions' rules relating to "emergency functions" are supreme. Other sections of state law provide guidance about the hierarchy of emergency management measures in the event of a conflict.

Therefore, where a conflict exists between a city or town's emergency rule or regulation and a county's emergency rule or regulation, the city or town's rule or regulation governs within its borders.

Conclusion

Under the current statutory framework, the Legislature cannot terminate or modify a duly-declared state of emergency other than through termination through a concurrent resolution under A.R.S. § 26-303(F). Even if the Legislature terminates a state of emergency, the Governor may re-declare a state of emergency and re-institute prior measures so long as the conditions for the existence of a state of emergency under A.R.S. § 26-301(15) are satisfied. If the Governor does so, the state of emergency would terminate upon (1) a proclamation by the Governor declaring the emergency terminated, (2) a concurrent resolution of the Legislature declaring the emergency terminated, or (3) a court order finding that the conditions for a state of emergency did not exist at the time of declaration or have since ceased existing.

Regarding the emergency powers of local jurisdictions: (1) the powers granted to counties and municipalities under A.R.S. § 26-307(A) are not equivalent in scope to the powers granted the Governor under A.R.S. § 26-303(E); (2) local jurisdictions have statutory emergency powers independent of the Governor; (3) to AGO's knowledge, there are no state emergency plans or programs granting local jurisdictions specific emergency powers; (4) local jurisdictions have independent power to declare local emergencies under A.R.S. § 26-311(A); and (5) if there is a conflict between a county and municipal rule, the municipal rule applies within the municipality and the county rule applies within unincorporated areas of the county.

Mark Brnovich

Attorney General