State Ex Rel Brnovich v. City of tucson/dewit ( 2017 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA, EX REL. MARK BRNOVICH, ATTORNEY GENERAL,
Petitioner,
v.
CITY OF TUCSON, ARIZONA
Respondent,
JEFF DEWIT, IN HIS OFFICIAL CAPACITY
AS STATE TREASURER,
Nominal Respondent.
No. CV-16-0301-SA
Filed August 17, 2017
AMENDED BY ORDER FILED AUGUST 17, 2017
Special Action
JURISDICTION ACCEPTED; RELIEF GRANTED IN PART
COUNSEL:
Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Paula S. Bickett, Chief Counsel, Civil Appeals Section, Paul N.
Watkins (argued), Brunn (Beau) W. Roysden III, Oramel H. (O.H.) Skinner,
Evan G. Daniels, John Heyhoe-Griffiths, Aaron M. Duell, Assistant
Attorneys General, Phoenix, Attorneys for State of Arizona
Richard M. Rollman (argued), Richard A. Brown, Bossé Rollman PC,
Tucson, Attorneys for City of Tucson
Dennis I. Wilenchik, John D. Wilenchik, Wilenchik & Bartness, P.C.,
Phoenix, Attorneys for Jeff DeWit
Paul F. Eckstein (argued), Jean-Jacques Cabou, Perkins Coie LLP, Phoenix,
Attorneys for Amicus Curiae League of Arizona Cities and Towns and
Carol McMillan; Brad Holm, City Attorney, Thomas G. Stack, Assistant
STATE V. CITY OF TUCSON
Opinion of the Court
City Attorney, Phoenix, Attorneys for City of Phoenix; and Richard W.
Files, City Attorney, Rodney C. Short, Assistant City Attorney, Yuma,
Attorneys for City of Yuma
Michael J. Rusing, J. William Brammer, Jr., Rusing, Lopez & Lizardi, PLLC,
Tucson; and David H. Thompson, Peter A. Patterson, John D. Ohlendorf,
Cooper & Kirk, PLLC, Washington, D.C., Attorneys for Amicus Curiae
National Rifle Association of America, Inc.
VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in
which CHIEF JUSTICE BALES and JUSTICES BRUTINEL and TIMMER
joined. JUSTICE BOLICK concurred in part and in the result. JUSTICE
GOULD, joined by JUSTICES BOLICK and LOPEZ, concurred in part and
in the result.
VICE CHIEF JUSTICE PELANDER, opinion of the Court:
¶1 The primary issue we address here is whether the state may
constitutionally prohibit a city’s practice, prescribed by local ordinance, of
destroying firearms that the city obtains through forfeiture or as unclaimed
property. We conclude that a generally applicable state statute on this
subject controls over a conflicting municipal ordinance, that the legislature
may require the Attorney General to investigate and file a special action in
this Court regarding alleged violations of the state law, and that this Court
has mandatory jurisdiction to resolve whether the allegedly conflicting
ordinance violates state law. Applying those principles here, we accept
jurisdiction of the State’s special action and hold, in accordance with article
13, section 2 of the Arizona Constitution, that A.R.S. §§ 12-945(B) and
13-3108(F) supersede Tucson Code § 2-142.
BACKGROUND
¶2 In 2000, the Arizona Legislature passed House Bill 2095,
which declared:
It is the intent of the legislature to clarify existing law relating
to the state’s preemption of firearms regulation in this state.
Firearms regulation is of statewide concern. Therefore, the
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STATE V. CITY OF TUCSON
Opinion of the Court
legislature intends to limit the ability of any political
subdivision of this state to regulate firearms and ammunition.
This act applies to any ordinance enacted before or after the
effective date of this act.
2000 Ariz. Sess. Laws, ch. 376, § 4 (2d Reg. Sess.). That legislation also
amended A.R.S. § 13-3108(A) to provide: “[A] political subdivision of this
state shall not enact any ordinance, rule or tax relating to the transportation,
possession, carrying, sale, transfer, purchase, acquisition, gift, devise,
storage, licensing, registration, discharge or use of firearms or ammunition
. . . in this state.” Id. § 2 (codified as amended at A.R.S. § 13-3108(A)).
¶3 In 2005, the City of Tucson passed Ordinance No. 10146 (the
“Ordinance”), which enacted Tucson Code §§ 2-140 to -142. Section 2-142
governs the “[d]isposition of unclaimed and forfeited firearms by the
[Tucson] police department.” Tucson Code § 2-142. The Tucson Code
permits the Tucson Police Department to keep a forfeited firearm for its
own purposes or to lend or transfer it to another law enforcement agency
or museum; otherwise, the Code states that the police “shall dispose” of
unclaimed and forfeited firearms “by destroying” them. Id.
¶4 In 2013, the legislature amended two statutes governing the
destruction of firearms. Section 13-3108 was revised to add new subsection
(F), which provides: “[A]ny agency or political subdivision of this state and
any law enforcement agency in this state shall not facilitate the destruction
of a firearm . . . .” 2013 Ariz. Sess. Laws, ch. 145, § 6 (1st Reg. Sess.) (codified
as amended at A.R.S. § 13-3108(F)). And § 12-945(B), contained in an article
that governs the disposal of “unclaimed property in [the] hands of [a]
public agency,” was amended to state:
[I]f the property is a firearm, the agency shall sell the firearm
to any business that is authorized to receive and dispose of
the firearm under federal and state law and that shall sell the
firearm to the public according to federal and state law, unless
the firearm is otherwise prohibited from being sold under
federal and state law.
2013 Ariz. Sess. Laws, ch. 145, § 5 (1st Reg. Sess.) (codified as amended at
A.R.S. § 12-945(B)). Also enacted by the legislature in 2013, A.R.S. § 12-943
provides that certain specified property, including firearms, “in the
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STATE V. CITY OF TUCSON
Opinion of the Court
possession of a . . . city . . . may only be disposed of pursuant to this article.”
2013 Ariz. Sess. Laws, ch. 145, § 3 (1st Reg. Sess.).
¶5 Pursuant to the Ordinance, between 2013 and October 2016,
the City of Tucson destroyed approximately 4,800 unclaimed or forfeited
firearms. In March 2016, the legislature passed Senate Bill 1487, codified
primarily in A.R.S. § 41-194.01.1 2016 Ariz. Sess. Laws, ch. 35, § 1 (2d Reg.
Sess.). It establishes a framework under which, “[a]t the request of one or
more members of the legislature, the attorney general shall investigate any
ordinance, regulation, order or other official action adopted or taken by the
governing body of a county, city or town that the member alleges violates
state law or the Constitution of Arizona.” A.R.S. § 41-194.01(A). The statute
gives the Attorney General thirty days to investigate and provide a “written
report of findings and conclusions.” Id. § 41-194.01(B).
¶6 If the Attorney General concludes that the regulation or
ordinance at issue affirmatively “[v]iolates any provision of state law, . . .
the attorney general shall provide notice to the county, city or town . . . of
the violation, [and the local government] has thirty days to resolve the
violation.” A.R.S. § 41-194.01(B)(1). If the Attorney General concludes that
the matter has not been resolved in that time frame, he “shall . . . [n]otify
the state treasurer who shall withhold [from the offending entity] and
redistribute state shared monies” until the “offending ordinance . . . is
repealed or the violation is otherwise resolved.” A.R.S.
§ 41-194.01(B)(1)(a)–(b).
¶7 If the Attorney General concludes that the regulation or
ordinance at issue “[m]ay violate a provision of state law, . . . [he] shall file
a special action in [the] supreme court to resolve the issue, and the supreme
court shall give the action precedence over all other cases.”
A.R.S. § 41-194.01(B)(2). And “[t]he court shall require the county, city or
town to post a bond equal to the amount of state shared revenue paid to the
county, city or town pursuant to §[§] 42-5029 and 43-206 in the preceding
six months.” Id.
¶8 In October 2016, Representative Mark Finchem asked the
1 S.B. 1487 is also codified in A.R.S. §§ 42-5029(L) and 43-206(F), which
direct the State Treasurer to implement monetary penalties imposed by
A.R.S. § 41-194.01. 2016 Ariz. Sess. Laws, ch. 35, §§ 2–3 (2d Reg. Sess.).
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STATE V. CITY OF TUCSON
Opinion of the Court
Attorney General’s Office to investigate whether the Ordinance violates
state law. The Office investigated, and the City provided public records
and a written response. The City contended that the Ordinance was a valid
exercise of the City’s “organic law” as a charter city, see Ariz. Const. art. 13,
§ 2, and that the state’s firearms statutes “have no application to the City.”
¶9 In November 2016, the Attorney General issued his report,
concluding that the Ordinance “may violate one or more provisions of state
law” because it requires the destruction of firearms, conflicting with A.R.S.
§ 13-3108(F), which prohibits any “political subdivision” from
“facilitat[ing] the destruction of a firearm.” The Attorney General rejected
Tucson’s charter city argument.
¶10 After the Attorney General’s Office sent its report to the City,
the Tucson City Council met in December and refused to repeal or
otherwise change the Ordinance. The City did, however, “suspend the
implementation of gun destruction required by [the Ordinance] until the
issue is adjudicated.” That same day the Attorney General’s Office filed
this special action pursuant to § 41-194.01(B)(2).
¶11 Several days later, the City filed a complaint in Pima County
Superior Court, seeking an injunction against implementation of
§ 41-194.01 and a declaration that the statute is unconstitutional. The City
responded in this Court to the State’s special action petition and also moved
to dismiss it, arguing that the State’s allegations are covered by
§ 41-194.01(B)(1), not (B)(2), that the State sought relief not provided for in
(B)(2), and that dismissal would “allow full consideration of the issues
raised in the [City’s] superior court action.” Earlier this year, we ordered
the parties to brief several discrete issues raised in this special action and
held oral argument, without prejudice to the parties continuing to litigate
the superior court action.
DISCUSSION
I. Separation of Powers Challenge to S.B. 1487
¶12 This litigation was prompted by a single state legislator’s
request for the Attorney General to investigate, as required under S.B. 1487
and codified in A.R.S. § 41-194.01(A), whether the City’s Ordinance violates
state law. Based on the Attorney General’s investigation and conclusion
that the Ordinance may violate state statutes, and the City’s refusal to repeal
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STATE V. CITY OF TUCSON
Opinion of the Court
or otherwise change the Ordinance, the State filed this special action
pursuant to § 41-194.01(B)(2).
¶13 As it has in its pending superior court action, the City raises a
host of constitutional challenges to S.B. 1487, but we address only those
portions of the law that are directly implicated here. The City contends that
S.B. 1487 violates the separation of powers doctrine, see Ariz. Const. art. 3,
§ 1, by directing the Attorney General to investigate alleged violations upon
a single legislator’s request and, if the Attorney General concludes that a
local ordinance “may violate” state law, requiring him to file a special
action in this Court “to resolve the issue.” § 41-194.01(A), (B)(2). These
statutory procedural mandates, the City asserts, unconstitutionally infringe
on both executive and judicial powers. We reject these arguments.
¶14 In determining whether a statute violates separation of
powers, we examine: (1) the essential nature of the power being exercised;
(2) the legislature’s degree of control in the exercise of that power; (3) the
legislature’s objective; and (4) the practical consequences of the action. State
ex rel. Woods v. Block, 189 Ariz. 269, 276 (1997). As for the first factor,
implementing the law, disbursing appropriations, and enforcing legislative
conditions on appropriations are essentially executive functions. See id. at
277 (stating that “acts necessary to carry out the legislative policies and
purposes already declared by [the Legislature] are administrative” and,
thus, “executive function[s]” (first alteration in original) (internal quotation
marks omitted) (quoting Pioneer Trust Co. v. Pima Cty., 168 Ariz. 61, 65
(1991)). Under S.B. 1487, the executive branch exercises those powers.
¶15 Regarding the second factor, neither the requesting
legislator(s) nor the legislature as a whole controls the “exercise” of the
executive branch’s investigative and enforcement power under S.B. 1487.
In fact, the legislature has no role beyond initiating Attorney General
review. The Attorney General retains his discretion to apply independent
legal analysis and judgment when opining whether a municipal action
violates state law. He also retains discretion to choose the legal positions
he will advance should he file a special action under § 41-194.01(B)(2). A
legislator does not control the investigation itself, decision-making related
to the investigation, or any action taken upon a determination under
§ 41-194.01. Cf. McDonald v. Thomas, 202 Ariz. 35, 41 ¶ 17 (2002) (upholding
legislative enactments that increased the power of clemency board
recommendations and imposed time limitations on the Governor’s power
to act on those recommendations because “the governor—and the governor
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STATE V. CITY OF TUCSON
Opinion of the Court
alone—has the final word with regard to whether clemency is granted”).
But cf. Woods, 189 Ariz. at 276–78 (holding that the legislatively created
Constitutional Defense Council, the controlling members of which were
appointed by the legislature, violated separation of powers because it
“create[d] conflict between an executive agency and a legislative agency
performing an executive function”).
¶16 Nor does the third or fourth factor support a finding that S.B.
1487 violates separation-of-powers principles. The enactment itself
suggests that the legislature’s apparent objective in S.B. 1487 was not to
usurp executive or judicial authority but rather to require and incentivize
political subdivisions to comply with state law. Likewise, the practical
consequence of S.B. 1487 is to encourage compliance with state law, not to
coerce, control, or interfere with executive powers or prerogatives.
¶17 S.B. 1487 permits a single legislator to initiate and require an
investigation by the Attorney General’s Office. See § 41-194.01(A). But
other statutes similarly allow or direct the initiation of an investigation or
issuance of an opinion upon legislative request. See A.R.S. §§ 32-3246(D),
41-193(A)(7). We do not view S.B. 1487 as materially different for
separation-of-powers purposes, and the City cites no authority for finding
it unconstitutional.
¶18 The Attorney General’s duties are “prescribed by law,”
Ariz. Const. art. 5, § 9, and through S.B. 1487 the legislature has validly
established that a single legislator may compel an Attorney General
investigation and opinion (and nothing more) regarding whether a local
ordinance violates state law. That this procedure may cause the Attorney
General’s Office to focus and expend resources to identify possibly
conflicting local laws and to resolve any related issues in this Court does
not offend separation-of-powers principles. The procedure authorized by
§ 41-194.01(A) is very different from a legislative attempt to direct the
exercise of prosecutorial discretion in a criminal case or civil enforcement
action.
¶19 Upon the Attorney General’s determination that a local law
“[m]ay violate a provision of state law,” S.B. 1487 also requires the Attorney
General to file a special action “to resolve the issue” in this Court, which
shall prioritize the action “over all other cases.” § 41-194.01(B)(2). Those
provisions do not unconstitutionally infringe on judicial power. The
Attorney General is not exercising a judicial function in determining
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STATE V. CITY OF TUCSON
Opinion of the Court
whether an action may violate state law. Rather, such determinations are
legal opinions, which the Attorney General routinely and permissibly
issues in other contexts. See § 41-193(A)(7) (stating that “[u]pon demand by
the legislature, or either house or any member thereof,” the Attorney
General’s Office shall “render a written opinion upon any question of law
relating to their offices”); cf. A.R.S. § 41-1481(B) (requiring, at any citizen’s
request, the Attorney General’s Civil Rights Division to investigate
complaints of employment discrimination); id. § 41-1491.09 (providing the
same for Fair Housing complaints).
¶20 Moreover, as this case illustrates, judicial review is available
when the Attorney General determines that a local ordinance “may violate”
state law. And even if the Attorney General were to conclude under
§ 41-194.01(B)(1) that a local law violates state law, the offending
municipality has a cure period and (as the State concedes) may file an action
challenging the conclusion and any withholding of funds.2 See, e.g., Ariz.
R.P. Spec. Actions 1(a). In either case, the Court must decide, or at least
retains discretion to decide, the issue. Because S.B. 1487 “leaves the
judiciary free to make its own determination based on the particular facts
of a case,” it “comports with separation of powers.” State v. Rios, 225 Ariz.
292, 299 ¶ 22 (App. 2010); cf. Cactus Wren Partners v. Ariz. Dep’t of Bldg. &
Fire Safety, 177 Ariz. 559, 563 (App. 1993) (concluding that because a statute
did not “constitute[] a ‘coercive influence’ upon the judiciary,” it did not
unconstitutionally usurp judicial power).
II. Jurisdiction
¶21 We next address whether this Court’s special action
jurisdiction under § 41-194.01(B)(2) is mandatory, as the State contends, or
discretionary, as the City asserts. Based on the statute’s text, its underlying
legislative intent, and the legislature’s constitutional authority to prescribe
this Court’s jurisdiction, we conclude that our jurisdiction in this matter is
mandatory.
2 Because § 41-194.01(B)(1) is not at issue here and does not directly impact
the questions before us, we express no opinion on the constitutionality of
that subsection, including its provision permitting the Attorney General to
unilaterally decide whether appropriated monies should be withheld by
the State Treasurer from the offending political subdivision and
redistributed.
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Opinion of the Court
¶22 When, as here, the Attorney General determines that a
municipal ordinance or regulation “may violate” state law and then files a
“special action” in this Court pursuant to § 41-194.01(B)(2)’s mandate, the
statute compels us “to resolve the issue” and “give the action precedence
over all other cases.” As long as it comports with the Arizona Constitution,
that language quite clearly makes our jurisdiction mandatory. See Litgo N.J.
Inc. v. Comm’r N.J. Dep’t of Envtl. Prot., 725 F.3d 369, 394–95 (3d Cir. 2013)
(characterizing as “a mandate” Congress’s statement that a particular claim
“shall be brought” in a “district court”).
¶23 Our state constitution identifies the various components of
this Court’s subject matter jurisdiction and, in a catch-all provision, vests
the Court with “[s]uch other jurisdiction as may be provided by law.” Ariz.
Const. art. 6, § 5(6); see also A.R.S. § 12-102(A) (“The supreme court shall
discharge the duties imposed and exercise the jurisdiction conferred by the
constitution and by law.”). Under that authority, the legislature may
expand, but not contract, this Court’s original jurisdiction as long as doing
so does not otherwise violate the constitution. That is precisely what the
legislature did by enacting § 41-194.01(B)(2). No constitutional impediment
prevents or nullifies that action.
¶24 Section 41-194.01(B)(2) provides “mandatory” jurisdiction for
this Court in the sense that this is a statutory special action rather than a
“discretionary” special action. (The latter reflects the Court’s constitutional
authority to issue extraordinary writs under article 6, section 5(1), which
historically were a form of discretionary relief, see Dobson v. State, 233 Ariz.
119, 121 ¶ 6 (2013).) “[S]tatutory special actions ‘are not at all
discretionary.’” Circle K Convenience Stores, Inc. v. City of Phoenix, 178 Ariz.
102, 103 (App. 1993) (quoting Ariz. R.P. Spec. Action 1 state bar committee’s
note to subsec. (b)); accord Book Cellar, Inc. v. City of Phoenix, 139 Ariz. 332,
336 (App. 1983). By requiring the Attorney General to file “a special action”
in this Court if he determines that a local ordinance “may violate” state law,
and by directing the Court “to resolve the issue” and “give the action
precedence over all other cases,” § 41-194.01(B)(2), the legislature clearly
intended for us to have mandatory jurisdiction.
¶25 The City contends that § 41-194.01(B)(2) is inapplicable and
thus cannot support jurisdiction here because the State asserts in its special
action briefs that Tucson Code § 2-142 “does in fact violate,” not merely that
it “may violate,” state law. “Under § 41-194.01(B)(1),” the City argues, “the
Attorney General’s finding that a local ordinance ‘does’ violate state law
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Opinion of the Court
triggers a different path—administrative action by the Attorney General
and Treasurer—not a special action under (B)(2).” But the City
misapprehends the relationship between (B)(1) and (B)(2). The latter
recognizes that there might be circumstances, as this case illustrates, when
a local ordinance arguably violates state law, but the issue is not settled by
existing case law. In light of (B)(2), the most reasonable interpretation of
(B)(1) is that it allows a “does violate” determination only when existing
law clearly and unambiguously compels that conclusion. Otherwise, it is
this Court’s responsibility “to resolve the issue” via a process that, as the
State notes, is “akin to a standard declaratory judgment action.”
§ 41-194.01(B)(2); see also A.R.S. § 12-1831 to -1846; cf. Ariz. Indep.
Redistricting Comm’n v. Brewer, 229 Ariz. 347, 354–55 ¶¶ 33–34 (2012) (stating
that this Court is authorized and obligated “to interpret and apply
constitutional law,” that is, “to say what the law is” (quoting Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803)).
¶26 Finally, we reject the City’s contention that
“§ 41-194.01(B)(2)’s purported mandatory jurisdiction unconstitutionally
invades the Court’s rule making authority” concerning “procedural”
matters. See Ariz. Const. art. 6, §§ 1, 5(5). Because article 6, section 5(6) of
the Arizona Constitution expressly authorizes the legislature to expand this
Court’s original jurisdiction, it arguably does not matter whether S.B. 1487’s
grant of such jurisdiction is “procedural” or “substantive.” Even if that
distinction were pertinent here, however, the City’s contention is without
merit.
¶27 Although “the legislature and this Court both have
rulemaking power, . . . in the event of irreconcilable conflict between a
procedural statute and a rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz.
85, 89 ¶ 8 (2009). But because “the legislature has plenary power to deal
with any topic unless otherwise restrained by the Constitution,” if a “statute
conflicting with a court-promulgated rule is ‘substantive,’ the statute must
prevail.” Id. at 92 ¶ 26 (citations omitted). “[T]he precise dividing line
between substance and procedure” is at best elusive. Id. at 92 ¶ 29.
¶28 Even assuming that subsection (B)(2)’s vesting of mandatory
jurisdiction in this Court is purely procedural, we find no “irreconcilable
conflict” between that provision and our procedural rules. Id. at 89 ¶ 8.
And pursuant to its plenary constitutional and statutory authority, see Ariz.
Const. art. 6, § 5(6); A.R.S. § 12-102(A), in other contexts the legislature has
vested this Court with mandatory jurisdiction when doing so did not
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conflict with court rules. See, e.g., A.R.S. § 16-351(A) (providing that
superior court rulings on nominating petitions “shall be appealable only to
the supreme court”); id. § 13-4031 (providing that criminal actions in which
a death sentence is imposed “may only be appealed to the supreme court”);
cf. Fleischman v. Protect Our City, 214 Ariz. 406, 408–09 ¶ 12 (2007)
(identifying areas in which the legislature has vested exclusive jurisdiction
in this Court). In addition, as it has in § 41-194.01(B)(2), the legislature has
required this Court to give precedence to certain other actions. See A.R.S.
§ 48-3706(C) (requiring this Court to “give[] precedence” to special actions
from water conservation district orders).
¶29 In short, § 41-194.01(B)(2)’s mandatory jurisdiction and
procedural framework do not run afoul of this Court’s rule-making
authority. And, as the State has acknowledged, the “mandatory”
jurisdiction under (B)(2) would not require the Court to decide a case that
is moot or otherwise nonjusticiable. Accordingly, we exercise the
jurisdiction established by subsection (B)(2) and deny the City’s motion to
dismiss the special action.
III. Bond Requirement
¶30 Section 41-194.01(B)(2) provides that “[t]he court shall require
the county, city or town to post a bond equal to the amount of state shared
revenue [(“SSR”)] paid to the county, city or town pursuant to §[§] 42-5029
and 43-206 in the preceding six months.” In an uncontested declaration
filed in this Court, the City states that its SSR for the 2016–2017 fiscal year
is approximately $115 million or 23.5% of the City’s budget. Similarly, in
its pending superior court action, the City alleged that during the six-month
period between June and November 2016, “the City received SSR under
§§ 42-5029 and 43-206 in the aggregate amount of $55,639,999.37,” and that
the City could not post a bond at or near that amount as it would “exceed[]
the sum total of the City’s available reserves by nearly $5 million.” The
State has not requested — and this Court has not ordered — posting of a
bond in this action. Whether the statute requires the Court to order a bond
even absent any request is not before us.
¶31 The State contends that S.B. 1487 makes the (B)(2) bond
mandatory but that this Court has authority to reduce or waive the bond in
certain circumstances, for example, when requiring the bond would lead to
absurd or impossible results or cause a “severe financial hardship.” The
City acknowledges (B)(2)’s mandatory wording (“shall”), but argues we
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Opinion of the Court
should interpret the bond provision “as directory, and therefore
discretionary,” because otherwise it poses “an unconstitutional financial
blockade to judicial access.” See Ariz. Downs v. Ariz. Horsemen’s Found., 130
Ariz. 550, 554–55 (1981) (interpreting “shall” as permissive rather than
mandatory to preserve a statute’s constitutionality).
¶32 We agree with the State that the bond provision is mandatory,
but we share the City’s concerns regarding the bond’s purpose, basis,
practical application, and constitutionality. See Ariz. Const. art. 3, § 1
(“Distribution of Powers”); id. art. 6, § 1 (“Judicial power; courts”), § 5(5)
(vesting the Supreme Court with “[p]ower to make rules relative to all
procedural matters in any court”); cf. Eastin v. Broomfield, 116 Ariz. 576, 586
(1977) (finding a non-waivable cost bond requirement in medical
malpractice cases unconstitutional under article 2, section 13 of Arizona
Constitution, “by denying access to the courts”); New v. Ariz. Bd. of Regents,
127 Ariz. 68, 70 (App. 1980) (finding a bond requirement in negligence
actions against the state unconstitutional as “a monetary blockade to access
to the courts”).
¶33 The statute does not identify the purpose of a large bond, the
practical application or enforcement of the bond requirement, or the
disposition of the bond proceeds upon the conclusion of the special action;
nor does it provide that posting the bond is, or is not, a precondition for a
political subdivision to defend its position or for this Court to address and
rule on the merits. But even assuming that failure to comply with the bond
requirement would not bar a city from challenging a (B)(2) action, that
requirement, if enforced, would likely dissuade if not absolutely deter a city
from disputing the Attorney General’s opinion of a local law’s
constitutional validity. Such acquiescence, in turn, would displace this
Court from its constitutionally assigned role under article 6 of interpreting
Arizona’s constitution and laws — effectively preventing final judicial
resolution of the issue on which the Attorney General has specifically
requested a ruling pursuant to § 41-194.01(B)(2). Cf. Forty-Seventh
Legislature v. Napolitano, 213 Ariz. 482, 485 ¶ 8 (2006) (“To determine
whether a branch of state government has exceeded the powers granted by
the Arizona Constitution requires that we construe the language of the
constitution and declare what the constitution requires.”). In effect, the
bond requirement problematically instructs us to charge a substantial fee —
unrelated to securing a monetary judgment or costs for a non-appealing
party — if a political subdivision defends on constitutional grounds a local
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Opinion of the Court
ordinance the Attorney General challenges in an original action filed in our
Court.
¶34 In any event, although the purpose, practical application, and
ramifications of the bond requirement are unclear, the State asserts that if it
is meant to ensure that a city “does not benefit from receiving SSR while
possibly violating state law, then an agreement to cease the violating action
(and enforcement thereof) is likely to fulfill that purpose in the same way
as a bond.” Because that is the situation here (inasmuch as the City
voluntarily agreed to suspend Tucson Code § 2-142 pending this litigation),
the State sees no reason to impose the bond requirement against the City.
In addition, assuming the bond requirement is unconstitutional, the State
asserts that it can be severed because, “[e]ven without the bond provision,
the statute would achieve the Legislature’s purpose—incentivizing
state-law compliance and quickly resolving whether a subdivision is
violating state law.” See State Comp. Fund v. Symington, 174 Ariz. 188, 195-96
(1993) (setting forth requirements for finding severability).
¶35 In his concurrence, Justice Gould declares the bond provision
“unenforceable because it is incomplete and unintelligible.” Infra ¶ 85
(Gould, J., concurring in part and in the result). Neither party made this
argument. And given the procedural posture of this case, there is no reason
to address the enforceability of (B)(2)’s bond provision. Whether the bond
requirement may, as written, be constitutionally enforced, or ignored under
the novel theory advanced by Justice Gould, can be addressed in future
cases where that issue is specifically raised and we have the benefit of full
briefing on that particular point. Here, we instead turn to the issue raised
by the special action petition — whether the Ordinance conflicts with and
violates state law. Cf. Slayton v. Shumway, 166 Ariz. 87, 92 (1990) (we
generally seek to avoid constitutional issues when interpreting and
applying statutes).
IV. Validity of Tucson Code § 2-142 under State Law
¶36 With certain exceptions, Tucson’s Ordinance provides that
the City’s police department “shall dispose” of unclaimed and forfeited
firearms “by destroying” them. Tucson Code § 2-142. State law, in contrast,
specifically prohibits any political subdivision or law enforcement agency
from “facilitat[ing] the destruction of a firearm,” A.R.S. § 13-3108(F), and
instead, with certain exceptions, requires public agencies to “sell the
firearm to any business that is authorized to receive and dispose of the
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STATE V. CITY OF TUCSON
Opinion of the Court
firearm under federal and state law,” A.R.S. § 12-945(B); see also id. § 12-943
(providing that certain specified property, including firearms, “that is in the
possession of a . . . city . . . may only be disposed of pursuant to this
article”). Thus, the Tucson Code unquestionably conflicts with Arizona law
on this subject.
¶37 Under state law, a political subdivision may not “enact any
ordinance . . . relating to,” among other things, the possession, sale,
transfer, purchase, acquisition, or use of firearms in Arizona. A.R.S.
§ 13-3108(A). In no uncertain terms, the Arizona Legislature has declared
that “[f]irearms regulation is of statewide concern” and has expressed its
intent to preempt “firearms regulation in this state” and thereby “limit the
ability of any political subdivision of this state to regulate firearms.” 2000
Ariz. Sess. Laws, ch. 376, § 4 (2d Reg. Sess.). We of course respect the
legislature’s statements, but “whether state law prevails over conflicting
charter provisions under Article 13, Section 2 is a question of constitutional
interpretation.” City of Tucson v. State (Tucson II), 229 Ariz. 172, 178 ¶ 34
(2012); cf. Clayton v. State, 38 Ariz. 135, 145 (1931) (subject to judicial review,
the state legislature, not a city, determines whether a particular subject “is
of general statewide concern or of purely municipal concern”). Thus,
pursuant to § 41-194.01(B)(2), the Attorney General properly asked this
Court to resolve that legal issue.
¶38 Despite the legislature’s broad pronouncements regarding
firearms, the City argues that Tucson Code § 2-142 does not violate state
law because it is authorized and protected by article 13, section 2 of the
Arizona Constitution. The clear conflict between its Code and state law, the
City asserts, “does not require the repeal of [the Ordinance] because as a
charter city it is authorized to determine matters of local concern free from
the Legislature’s interference.” According to the City, “[d]isposition of the
City’s own property—even firearms—is solely a matter of local concern,”
and therefore Tucson Code § 2-142 “supersedes A.R.S. §§ 12-945(B) and
13-3108(F)” under article 13, section 2. The State counters that its
applicable, firearms-related statutes implicate several matters of statewide,
not merely local, concern and therefore govern over the conflicting
municipal Ordinance. We agree with the State.
¶39 Our analysis begins with the “home rule charter” provision in
Arizona’s Constitution, which from statehood has provided that any city
with a population of more than 3,500 “may frame a charter for its own
government consistent with, and subject to, the Constitution and the laws
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STATE V. CITY OF TUCSON
Opinion of the Court
of the state.” Ariz. Const. art. 13, § 2. Once adopted and approved, a city’s
charter is, “effectively, a local constitution.” Tucson II, 229 Ariz. at 174 ¶ 10.
By statute, the roots of which also trace back to statehood, see Rev. Stat. of
Ariz., Civ. Code, tit. 7, ch. 16, ¶¶ 2033, 2036 (1913), the charter “shall
prevail” over any conflicting law relating to charter cities in force when the
charter was adopted and approved. A.R.S. § 9-284(A) (also stating that the
charter “shall operate as a repeal or suspension of the law to the extent of
conflict, and the law shall not thereafter be operative as to such conflict”).
“The charter,” however, “shall be consistent with and subject to the state
constitution, and not in conflict with . . . general laws of the state not
relating to cities.” A.R.S. § 9-284(B); see City of Tucson v. Ariz. Alpha of Sigma
Alpha Epsilon (Arizona ASAE), 67 Ariz. 330, 335 (1948) (noting that § 9-284’s
predecessor statute “supplements” article 13, section 2 of the Arizona
Constitution).
¶40 “The purpose of the home rule charter provision of the
Constitution was to render the cities adopting such charter provisions as
nearly independent of state legislation as was possible.” City of Tucson v.
Walker, 60 Ariz. 232, 239 (1943) (internal quotation mark omitted) (quoting
Axberg v. City of Lincoln, 2 N.W.2d 613, 614 (Neb. 1942)). Consistent with
that purpose, we have articulated the following rule:
Where the legislature has enacted a law affecting municipal
affairs, but which is also of state concern, the law takes
precedence over any municipal action taken under the home
rule charter. But where the legislative act deals with a strictly
local municipal concern, it can have no application to a city
which has adopted a home rule charter. Whether or not an
act of the legislature pertains to a matter of local or state-wide
concern becomes a question for the courts when a conflict of
authority rises.
Id.; see also Tucson II, 229 Ariz. at 174 ¶ 10 (“[A] home rule city deriving its
powers from the Constitution is independent of the state Legislature as to
all subjects of strictly local municipal concern.”) (internal quotation marks
omitted) (quoting City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1,
8–9 (1945)); Luhrs v. City of Phoenix, 52 Ariz. 438, 442–43 (1938); Clayton, 38
Ariz. at 144–45; id. at 468 (on denial of motion for rehearing in Clayton).
¶41 Tucson has been a charter city pursuant to article 13, section 2
since 1929. See Tucson II, 229 Ariz. at 173 ¶ 1. Its charter broadly states that
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STATE V. CITY OF TUCSON
Opinion of the Court
the City has the “power . . . [t]o purchase, receive, have, take, hold, lease,
use and enjoy property of every kind and description, both within and
without the limits of said city, and control and dispose of the same for the
common benefit.” Tucson City Charter, ch. 4, § 1(4). Based on that
authority, in 2005 the City passed the Ordinance in which Tucson Code
§ 2-142 was enacted.
¶42 Under this state’s well-established jurisprudence, whether the
City’s Code controls over the conflicting state laws essentially hinges “on
whether the subject matter is characterized as of statewide or purely local
interest.” Tucson II, 229 Ariz. at 176 ¶ 20 (citing Strode v. Sullivan, 72 Ariz.
360, 365 (1951)). We acknowledge that the extensive Arizona case law in
this area is muddled. As we noted in Tucson II, “[m]any municipal issues
will be of both local and state concern,” and thus differentiation is
“problematic in application” because it “often involves case-specific line
drawing,” and “[t]he concepts of ‘local’ versus ‘statewide’ interest do not
have self-evident definitions.” 229 Ariz. at 176 ¶ 20; see also Luhrs, 52 Ariz.
at 442–43 (to same effect); John D. Leshy, The Arizona State Constitution
334 (2d ed. 2013) (observing that “the numerous court decisions addressing
issues of charter city power show considerable variation in the flexibility
with which they construe charters”); cf. Strode, 72 Ariz. at 366 (noting the
“difference of opinion” in case law “as to what activities of a charter city are
of local interest or concern and therefore free from legislative interference”).
¶43 Our concurring colleague, Justice Bolick, faults Strode as
setting Arizona courts on a wayward path that is untethered to article 13,
section 2, asserts that Strode and similar cases should be overruled, and
disavows as irrelevant in cases like this any distinction between matters of
statewide interest and those of purely local concern. Infra ¶¶ 76–78, 80
(Bolick, J., concurring in part and in the result). Notably, well before Strode,
this Court in several cases (including Clayton, which Justice Bolick
applauds, infra ¶ 73–74) recognized as significant the distinction that he
deems immaterial. See, e.g., Clayton, 38 Ariz. at 468 (on motion for
rehearing) (stating that where “the subject is of state-wide concern, and the
legislature has appropriated the field and declared the rule, its declaration
is binding throughout the state” and controls over conflicting local laws);
Luhrs, 52 Ariz. at 442 (same, and recognizing this as “the general rule”);
Walker, 60 Ariz. at 239 (quoting Axberg, 2 N.W.2d at 614) (noting that if a
state statute addresses a matter of purely local concern it does not apply to
a charter city’s law on that subject).
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STATE V. CITY OF TUCSON
Opinion of the Court
¶44 The unarticulated but obvious take away from Justice Bolick’s
concurrence is this: assuming it is constitutional, a state statute on any
particular topic will always trump and invalidate a political subdivision’s
conflicting ordinance, even if the topic indisputably is solely and purely one
of local concern. Under that view, one must wonder what is left of charter
cities’ authority under article 13, section 2.
¶45 While thought-provoking, Justice Bolick’s concurrence is
puzzling not because of its content but rather because of its gratuitous
nature. No party or amicus has briefed or argued that Strode was wrongly
decided, that its analysis conflicts with the constitution, or that it or any
other case should be overruled. We generally do not reach out to decide
important constitutional issues or to upset established precedent when no
party has raised or argued such issues. See, e.g., State v. Valenzuela, 239 Ariz.
299, 306 ¶ 21 (2016) (declining to address issues “[t]he parties did not
brief”); State v. Martinez, 230 Ariz. 208, 212 ¶ 10 n.2 (2012) (refusing to
address Arizona constitutional issues “not separately argued”). But cf.
Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 319–21 & 320
n.6, 349–50 (1971) (overruling a prior case when the federal government,
appearing as amicus curiae, urged that result and the parties addressed the
issue at oral argument). Exercising judicial restraint, we therefore decline
to sua sponte address further the points that only Justice Bolick makes.
¶46 In the end, we find no need here to overhaul our longstanding
analytical approach to resolving conflicts between state and local laws. This
case does not fall within the “doubtful or twilight zone separating those
matters that are clearly of municipal concern from those that are not.”
Clayton, 38 Ariz. at 148; see also Ariz. ASAE, 67 Ariz. at 336 (also referring to
“a twilight zone” in which it is difficult to clearly discern whether
legislation is of general or rather merely local concern). The State identifies
several matters of alleged statewide concern implicated by its statutes and
on which Tucson Code § 2-142 encroaches: regulating firearms under the
state’s police powers; regulating police departments (and other
government agencies) handling forfeited or unclaimed property; protecting
the constitutional right to bear arms; and regulating city budgets and
finances. To varying degrees, we are persuaded that at least some of those
asserted state interests exist and prevail over the Ordinance.
¶47 Unlike municipalities, which have “no inherent police
power,” the state has broad police power, including “[t]he protection of life,
liberty, and property, and the preservation of the public peace and order,
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STATE V. CITY OF TUCSON
Opinion of the Court
in every part, division, and subdivision of the state.” Luhrs, 52 Ariz. at 444
(internal quotation marks omitted) (quoting Kansas City v. J.I. Case Threshing
Mach. Co., 87 S.W.2d 195, 202 (Mo. 1935)); see also State v. Jaastad, 43 Ariz.
458, 463 (1934) (“The police power inheres in the state and not in its
municipalities.” (quoting Clayton, 38 Ariz. at 145)). Matters involving the
police power generally are of statewide concern. See Associated Dairy Prods.
v. Page, 68 Ariz. 393, 396–97, 400–01 (1949) (noting “concern of the state in
the exercise of its police powers” and holding that regulation of milk
products was within scope of statewide concern for public health); see also
City of Scottsdale v. State, 237 Ariz. 467, 471 ¶17 (App. 2015) (“Arizona courts
have rejected municipal ordinances that conflict with state statutes . . .,
particularly when such ordinances involve the police powers of the state.”).
¶48 The laws at issue here implicate the state’s police power in
several respects: the disposition of forfeited or unclaimed property, the
conduct of law enforcement officers, including their handling of unclaimed
property, and the regulation of firearms.
¶49 The Tucson Police Department’s disposition of property
(whether forfeited or unclaimed) is an exercise of police power granted by
the state. See A.R.S. §§ 12-940 to -945 (relating to disposition of unclaimed
property); A.R.S. §§ 13-4301 to -4315 (forfeiture); see also Van Oster v. Kansas,
272 U.S. 465, 467 (1926) (“[A] state in the exercise of its police power may
forfeit property . . . .”). Thus, the state’s authority validly extends over the
possession and disposition of the firearms. See McMann v. City of Tucson,
202 Ariz. 468, 472 ¶ 9 (App. 2002) (“In general, when a city acts ‘as an agent
of the state,’ the subject upon which it acts is not of solely local concern.”
(quoting Luhrs, 52 Ariz. at 443)).
¶50 Relatedly, regulating police departments’ conduct, including
their handling of unclaimed property, is also a matter of statewide concern.
See A.R.S. §§ 12-940 to -945. Arizona case law recognizes the statewide
interest in subjects even tangentially connected to the work of public safety
officers and criminal justice. See Jett v. City of Tucson, 180 Ariz. 115, 121
(1994) (removal of city magistrates from office); Walker, 60 Ariz. at 237
(police pensions); Luhrs, 52 Ariz. at 448 (police and firefighter minimum
wage); Prendergast v. City of Tempe, 143 Ariz. 14, 17–18 (App. 1984) (pay for
police officers’ lunch hour). “[A] policeman . . . in the regular line of duty
is performing a governmental function . . . .” Luhrs, 52 Ariz. at 446; see also
id. at 444 (“Certain functions have . . . definitely been determined
governmental, the control of which remains in the state.”). And the
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STATE V. CITY OF TUCSON
Opinion of the Court
Ordinance relates to the day-to-day work of police as much as the matters
addressed in the above-cited cases.
¶51 Regulation of firearms, including their preservation or
destruction, also involves the state’s police power and is of statewide
concern. See Dano v. Collins, 166 Ariz. 322, 324 (App. 1990) (compiling cases
from other jurisdictions where firearm regulations were upheld as valid
exercises of police power); State v. Beadle, 84 Ariz. 217, 221–22 (1958) (“The
purpose of an Act, promulgated under the State’s police power, is to protect
the public health, safety or welfare.”). The legislature has indicated that the
disposal of firearms by government agencies is itself a component of
firearm regulation by specifically including the disposal restrictions within
a comprehensive statutory firearms regulation scheme. See A.R.S.
§ 13-3108; cf. Tucson Sunshine Climate Club, 64 Ariz. at 8 (requiring
municipalities to participate in a general advertising plan would show the
matter is of statewide concern). Because both Tucson Code § 2-142 and the
state laws with which it conflicts involve the state’s police power and
matters “that the entire state is interested in,” the matters at issue here “are
proper subjects for general laws.” Luhrs, 52 Ariz. at 448 (holding that “the
matter of pensioning policemen, as also the matter of fixing a minimum
wage for policemen and firemen, is of state-wide concern”). Accordingly,
although the state laws in question undoubtedly “affect[] municipal
affairs,” they are also of “state concern” and therefore “take[] precedence”
over the City’s conflicting Ordinance. Walker, 60 Ariz. at 239.
¶52 The City points to the lack of any evidence “of a gun shortage
in Tucson, leaving Tucsonans or visitors without access to firearms in the
City,” or any evidence “that the ordinance impacts anyone or anything
outside of Tucson.” But as the State observes, “[t]he number of firearms
affected by [Code § 2-142] has nothing to do with the nature of the regulated
subject matter. As this Court has explained, ‘whether general state laws
displace charter provisions depends on whether the subject matter is
characterized as of statewide or purely local interest.’” (citing Tucson II, 229
Ariz. at 176 ¶ 20).
¶53 The State and amicus National Rifle Association argue that
preserving the right to bear arms under the federal and state constitutions
is also a subject of state concern. See U.S. Const. amend. II; Ariz. Const. art.
2, § 26; see also McDonald v. City of Chicago, 561 U.S. 742, 767 (2010)
(describing the right to bear arms as “fundamental to our scheme of ordered
liberty” and “deeply rooted in this Nation’s history and tradition” (internal
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STATE V. CITY OF TUCSON
Opinion of the Court
quotation marks omitted) (first citing Duncan v. Louisiana, 391 U.S. 145, 149
(1968); and then quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997));
District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (noting that the people
“elevate[d] above all other interests the right of law-abiding, responsible
citizens to use arms in defense of hearth and home”). We agree with that
proposition, but even assuming that the Ordinance somehow implicates
that right, we need not address this argument inasmuch as the superiority
of state law over the Ordinance is clearly established based on the state’s
asserted police powers discussed above.
¶54 The confluence of the state’s broad police powers, Arizona’s
comprehensive statutory and regulatory schemes regarding firearms and
unclaimed or forfeited property, and the state’s interests in regulating law
enforcement agencies’ handling of such property, all lead to one conclusion:
the pertinent state statutes, §§ 12-943, -945(B), and 13-3108(F), embrace a
topic of statewide interest and concern and, conversely, the Ordinance does
not address a matter of purely local concern. Therefore, the Ordinance
cannot legally coexist with the applicable and controlling state law.
¶55 The City’s contrary arguments are not persuasive. Relying on
article 13, section 2 of the Arizona Constitution and a handful of Arizona
cases, the City contends that it “has charter authority to dispose of property
it owns,” including firearms. Because the state statutes address matters of
statewide interest, however, whatever powers the City seeks to exercise
under its home-rule charter authority and related ordinances must be
“consistent with, and subject to, the Constitution and laws of the state.”
Ariz. Const., art. 13, § 2; accord A.R.S. § 9-284(B). Our cases have
consistently recognized this significant constitutional restraint on charter
cities’ powers. See, e.g., Tucson II, 229 Ariz. at 174 ¶ 9; Strode, 72 Ariz. at 364
(observing that a charter city does not have “carte blanche authority or
plenary power to adopt any legislation that it might desire”); Tucson
Sunshine Climate Club, 64 Ariz. at 4, 6 (a charter city’s powers extend “not
only in matters of local concern, but also in matters of state-wide concern,
within its territorial limits, unless the Legislature has appropriated the field,
and directly or by necessary implication established a rule, beyond which
the city may not go”); Luhrs, 52 Ariz. at 442 (recognizing the “general rule”
that when “the subject is of statewide concern, and the Legislature has
appropriated the field and declared the rule, its declaration is binding
throughout the state” (quoting Clayton, 38 Ariz. at 468)).
¶56 This Court has narrowly limited the concept of “purely
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STATE V. CITY OF TUCSON
Opinion of the Court
municipal affairs,” or “local interest or concern,” see Strode, 72 Ariz. at
365-66, restricting the extent to which charter city ordinances can prevail
over state law. In only two areas have we upheld a municipal ordinance
that directly conflicts with state law. First, we have held that the “method
and manner of conducting elections in the city . . . is peculiarly the subject
of local interest and is not a matter of statewide concern.” Strode, 72 Ariz.
at 368; see also Tucson II, 229 Ariz. at 177 ¶¶ 30–31 (concluding that
“Tucson’s manner of electing its city council members supersedes the
conflicting provisions of [state law],” and observing that “[i]f the ‘home
rule’ provisions of Article 13, Section 2 are to have effect, they must at the
least afford charter cities autonomy in choosing how to elect their
governing officers”). These cases are inapposite and unhelpful to the City,
inasmuch as the conflict here does not involve municipal elections or “the
authority of charter cities to structure how their governing officers are
elected.” City of Tucson v. State (Tucson III), 235 Ariz. 434, 435 ¶ 2 (App.
2014).
¶57 Second, this Court has held that “the manner and method of
disposal of real estate of a city is not a matter of state-wide public concern.”
Arizona ASAE, 67 Ariz. at 336; see also McMann, 202 Ariz. at 470 ¶ 1, 472
¶¶ 10–11, 474 ¶ 18 (upholding city ordinance requiring lessees of city-
owned real property to perform “instant background checks for
prospective gun purchasers during gun shows held at the [City’s
convention center]” because “the use permit” is “essentially a lease” and
thus “a disposition of property,” a city was “engaging in business
activities,” and “the legislature did not clearly intend to preempt the City
from requiring [such] background checks”). These cases likewise do not
support the City’s position here.
¶58 Unlike this case, neither Arizona ASAE nor McMann involved
a clear conflict between a municipal law or action and a state law of general
application and concern. In Arizona ASAE, for example, this Court
determined that the state law at issue clearly “ha[d] no application to
charter cities” and observed that other Arizona cities and towns have “no
interest” in what Tucson’s charter provides regarding “the manner and
method of disposal of [a city’s] real estate.” 67 Ariz. at 335, 336. And in
McMann, the state had not attempted to regulate (as an exercise of its police
power) the leasing of city property. See McMann, 202 Ariz. at 473 ¶ 14
(noting that “the context of [the subject statute] in the entire [state]
legislative scheme does not establish a clear legislative intent to preempt
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Opinion of the Court
the City’s ordinance”); cf. City of Scottsdale, 237 Ariz. at 471 ¶ 16, 472 ¶ 23
(distinguishing Arizona ASAE and McMann because “selling and leasing
property owned by a municipality do not implicate the police powers of the
state,” and holding that a state statute “preempts local ordinances that
impose a blanket prohibition on sign walkers conducting business on
public sidewalks”). Because the statutes here involve matters of “state-
wide concern” and “the legislature has appropriated the field” regarding
governmental entities’ destruction or disposal of firearms, “its declarations
are binding throughout the state, and all cities and municipalities, including
charter cities, are precluded” from directly contravening the statutes
through local laws. Arizona ASAE, 67 Ariz. at 336.
¶59 Other arguments presented by the City and amicus the
League of Arizona Cities and Towns are also unpersuasive. Relying on
Luhrs, the League asserts that “whether the property at issue is real or
personal, guns or butter, if it is owned by a charter city, its use or disposition
is a matter in which the Legislature is constitutionally proscribed from
interfering.” See Luhrs, 52 Ariz. at 442–43 (noting that when the particular
activity “is exercised by the city in its proprietary capacity, it is a power
incident to home rule”); see also Tucson Sunshine Climate Club, 64 Ariz. at 8
(observing that in advertising its advantages, city was “acting in its
proprietary rather than its governmental capacity” and “not acting as the
agent of the state”); cf. Ariz. Const. art. 13, § 5 (“Every municipal
corporation within this State shall have the right to engage in any business
or enterprise which may be engaged in by a person, firm, or corporation by
virtue of a franchise from said municipal corporation.”).
¶60 This argument, however, skirts the pivotal inquiry in cases
like this: “whether the subject matter is characterized as of statewide or
purely local interest.” Tucson II, 229 Ariz. at 176 ¶ 20. Thus, even if relevant,
the City’s ownership interest or proprietary capacity is not determinative.
In addition, the City does not destroy firearms in a proprietary capacity
(and the City does not specifically argue otherwise). Cf. City of Scottsdale v.
Mun. Court, 90 Ariz. 393, 398–99 (1962) (a city’s operation of a sewage plant
is a governmental function); Jones v. City of Phoenix, 29 Ariz. 181, 181-82
(1925) (a city’s disposal of garbage is a governmental function). Just as a
city’s wastewater management and disposal are governmental functions,
so too is the City’s destruction of firearms.
¶61 Notably, over the past seventy years only a few of the many
Arizona cases addressing city/state conflicts under article 13, section 2 have
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Opinion of the Court
cited, let alone based the decision on, a proprietary/governmental
distinction that originated from dicta in Luhrs, 52 Ariz. at 443 (stating that
if a municipality’s activity “is carried on . . . as an agent of the state[,] . . . it
is of general or public concern,” but “[i]f it is exercised by the city in its
proprietary capacity, it is a power incidental to home rule”). See Tucson
Sunshine Climate Club, 64 Ariz. at 8 (same); McMann, 202 Ariz. at 472 ¶ 11
(noting that Tucson’s “[o]peration of a convention center is a
constitutionally permitted business activity”); Shaffer v. Allt, 25 Ariz. App.
565, 569–70 (1976) (referring to a city’s “proprietary powers” and holding
that local ordinance allowing city to purchase liquor license and sell
alcoholic beverages at city recreation facility was not inconsistent with the
Arizona Constitution or “any general law of the state”). Because the
proprietary/governmental distinction is murky and unhelpful in resolving
disputes of this kind, we do not view it as an appropriate factor in
determining whether a state law relates to a matter of “statewide or purely
local interest.” Tucson II, 229 Ariz. at 176 ¶ 20; cf. Ryan v. State, 134 Ariz.
308, 310 (1982) (abolishing as an unnecessary, “speculative exercise” the
“public/private duty doctrine” in determining governmental immunity
issues).
¶62 The City also proposes a balancing test, under which courts
would balance the competing state and municipal interests to determine if
the asserted statewide interest is “sufficiently concrete and identifiable to
outweigh the local interest of home rule cities in municipal
self-government.” In support of that concept, the City cites Johnson v.
Bradley, in which the California Supreme Court stated that “as a condition of
state legislative supremacy,” the state must show “a dimension demonstrably
transcending identifiable municipal interests,” so that the phrase “statewide
interest” does not invade areas of intramural concern only, thereby
preserving core values of charter city government. 841 P.2d 990, 996 (Cal.
1992). Under California law, if a statewide concern is established, a charter
city’s contrary law is preempted only if the state law is “reasonably related”
to resolving the state’s interest and “narrowly tailored” to limit incursion
into legitimate municipal interests. Id. at 999–1000 (citation and internal
quotation marks omitted). Johnson was based on California’s constitution,
which exempts from the control of state law “all ordinances and regulations
in respect to municipal affairs.” Cal. Const. art. XI, § 5(a). Arizona has no
counterpart, but instead requires a city charter to be consistent with “the
laws of the state.” Ariz. Const. art. 13, § 2.
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STATE V. CITY OF TUCSON
Opinion of the Court
¶63 We reject the California approach and the City’s proposed
balancing test. It would not aid courts in determining if a particular subject
is of statewide interest or rather purely local concern. We therefore decline
to follow Johnson and cases from other states that embrace a balancing
approach. See U.S. Elevator Corp. v. City of Tulsa, 610 P.2d 791 (Okla. 1980);
Madison Teachers, Inc. v. Walker, 851 N.W.2d 337 (Wis. 2014).
¶64 In addition, a balancing test finds only limited, marginal
support in Arizona. In Tucson I, without citing any Arizona authority, the
court of appeals found “a balancing test” appropriate in determining
whether local or statewide interests were “paramount.” 191 Ariz. at 439.
More recently, however, the court of appeals correctly found that a trial
court erred in applying a balancing test to resolve a city/state dispute, aptly
noting that this Court has never used or approved such a test in this context.
Tucson III, 235 Ariz. at 439 ¶ 16 n.6 (App. 2014). We agree and therefore
disapprove Tucson I’s use of a balancing test in its analysis. In short, we
find such a test is neither helpful nor appropriate, and instead would
potentially cause confusion and inconsistent results, in resolving issues
under article 13, section 2.
V. Conclusion
¶65 The state laws here, A.R.S. §§ 12-945(B) and 13-3108(F),
involve matters of statewide, not purely local, interest and thus displace the
City’s inconsistent Ordinance, Tucson Code § 2-142, regarding destruction
of firearms. Having decided the legal issue presented under A.R.S.
§ 41-194.01(B)(2), we do not address other issues pertaining to S.B. 1487.
The State is awarded its reasonable attorney fees under A.R.S. § 12-348.01,
upon its compliance with ARCAP 21.
24
STATE V. CITY OF TUCSON
JUSTICE BOLICK, Concurring in Part and in the Result
JUSTICE BOLICK, concurring in part and in the result:
¶66 The Court does a fine job harmonizing and applying what it
aptly refers to as the “muddled” jurisprudence governing conflicts between
city charters and state law and it reaches the correct result. Although I join
fully in Parts I, II, and V of the Court’s opinion, I write separately to address
erroneous prior decisions that produced the jurisprudential muddle, from
which we can extricate ourselves by aligning our case law with
constitutional text.
¶67 The Court describes this as a “gratuitous” endeavor.
Respectfully, it is not. Although the parties may determine what issues are
placed before us, they cannot constrain our analysis when a law’s
constitutionality is questioned. In every instance, that analysis should
begin with the Constitution’s text. Such analysis consists not merely of
recitation but application. “We look first to the language of the provision,
for if the constitutional language is clear, judicial construction is neither
required nor proper.” Perini Land & Dev. Co. v. Pima Cty., 170 Ariz. 380, 383
(1992); Jett v. City of Tucson, 180 Ariz. 115, 119 (1994) (“If the language is
clear and unambiguous, we generally must follow the text of the provision
as written.”). Resort to the Constitution’s plain meaning is especially
essential where, as the Court freely acknowledges, the state of the law is
disarray. See, e.g., ¶ 46 (noting that the Court has at least twice described
our jurisprudence as creating a “twilight zone”). In such instances, our
fidelity should be to the Constitution rather than to the disarray. See, e.g.,
McDonald v. City of Chicago, 561 U.S. 742, 805-06 (2010) (Thomas, J.,
concurring in part and concurring in the judgment) (agreeing that the
Second Amendment is applicable to the states, but urging the Court to
abandon a “well-settled” but misguided test in favor of “a more
straightforward path to this conclusion, one that is more faithful to the
Fourteenth Amendment’s text and history”).
¶68 Article 13, section 2, of the Arizona Constitution possesses the
virtue of great clarity. It provides cities that meet certain criteria with a
mechanism to secure greater self-governance. That section includes two
provisions that squarely address the issue presented here. An eligible city
“may frame a charter for its own government consistent with, and subject to,
the Constitution and the laws of the state.” Ariz. Const. art. 13, § 2 (emphasis
added). Upon approval, the “charter shall become the organic law of such
city and supersede any charter then existing . . . and all ordinances inconsistent
with said new charter.” Id. (emphasis added).
25
STATE V. CITY OF TUCSON
JUSTICE BOLICK, Concurring in Part and in the Result
¶69 That clear language renders simple the dispute here. As the
Court amply demonstrates, Tucson’s charter provision conflicts with state
law regarding the disposition of seized firearms. Tucson’s charter is subject
to that law and does not supersede it.
¶70 Were we construing and applying only the constitutional text
as written, we would have no jurisprudential muddle. Charter cities and
the state would understand their respective boundaries and taxpayers
could save the cost of unnecessary litigation. But the tendency of the law
toward complexity over clarity often seems irresistible.
¶71 As the Court observes, the law governing conflicts between
state and charter cities did not end with the Constitution. Shortly after the
Constitution’s ratification, the legislature passed an emergency statute
presently codified as A.R.S. § 9-284 (the “charter statute”). Section 9-284(A)
provides that where charter provisions “are in conflict with any law”
relating to cities eligible for charter status “in force at the time of the
adoption and approval of the charter, the provisions of the charter shall
prevail notwithstanding the conflict.” Section 9-284(B) provides, “The
charter shall be consistent with and subject to the state constitution, and not
in conflict with the constitution and . . . general laws of the state not relating
to cities.”
¶72 Two observations about the charter statute are pertinent.
First, it established that charter provisions would prevail only as to
conflicting statutes “relating to” charter-eligible cities “in force at the time
of the adoption and approval of the charter.” Thus, the charter statute does
not apply here because Tucson’s charter was adopted long before the
conflicting statute. Second, if article 13, section 2, of the Arizona
Constitution itself established supremacy of charters over certain
conflicting state statutes, there would have been no need to enact that status
through legislation, much less on an emergency basis. The statute’s
enactment thus implied the legislature’s recognition that article 13, section
2 did not, by its own terms, elevate charters over statutes.
¶73 Early cases harmonized the charter statute with the
Constitution. In Clayton v. State, 38 Ariz. 135 (1931), the Court invalidated
local highway laws that conflicted with state statutes. The Court posed the
question of who determines whether a matter is of “general statewide
concern or of purely municipal concern? Shall the city be permitted to
determine this question, or shall the state?” Id. at 145. Applying the
26
STATE V. CITY OF TUCSON
JUSTICE BOLICK, Concurring in Part and in the Result
Constitution, the Court’s answer was unequivocal: the state. Id. (quoting
State v. Thompson, 137 N.W. 20, 31 (Wis. 1912)) (even where the Constitution
divides powers between the state and cities, the state alone determines
what is a municipal concern). Quoting the Oklahoma Supreme Court, the
Court observed that the Constitution “in no way limited or abridged the
supreme sovereign control over such municipality, but only guarantees to
such municipality the right of municipal government subject to the
Constitution and laws of the state.” Id. at 143 (quoting City of Sapulpa v.
Land, 223 P. 640, 646 (Okla. 1924)). If charter powers were not “subject to
the supreme powers of the Legislature[,] . . . then we have the inevitable
result that the framers of the Constitution authorized the establishment of
independent petty states within this state.” Id. (quoting City of Sapulpa, 223
P. at 646).
¶74 The Clayton Court continued its analysis, however, by noting
that article 13, section 2 was supplemented by statute. Id. at 146. The Court
explained that under the statute, where a conflict exists between preexisting
state laws and charter provisions, the latter shall prevail except as to general
laws of the state not relating to cities. Id. The Court went on to conclude
that the law at issue was a general law not relating to cities, thus it prevailed
over the conflicting charter provision. Id. at 146-49. The Court made clear
that it was the statute (which is not at issue here), not the Constitution, that
allowed charter provisions to prevail over conflicting state laws in limited
circumstances. Id.; see also ¶ 39 (acknowledging that the statute, not the
Constitution, established charter cities’ primacy over state laws in certain
circumstances).
¶75 In Mayor & Common Council of City of Prescott v. Randall, 67
Ariz. 369 (1948), the Court struck down a charter city’s alcohol regulations
that conflicted with state law. The Court cited numerous cases to the effect
that “a charter city is sovereign in all of its ‘municipal affairs’ where the
power attempted to be exercised has been specifically or by implication
granted in its charter.” Id. at 371. However, the Court noted that in
“practically all of the foregoing cases the effect of section 16-303
[predecessor to § 9-284] . . . has been directly or indirectly considered by
this court” as supplementing charter powers conferred by the Constitution.
Id.; see also City of Tucson v. Ariz. Alpha of Sigma Alpha Epsilon (AASAE), 67
Ariz. 330, 335 (1948) (resolving conflict between state and charter city laws
pursuant to charter statute).
¶76 But only three years later, those statutory considerations
27
STATE V. CITY OF TUCSON
JUSTICE BOLICK, Concurring in Part and in the Result
vanished from the Court’s analysis and the charter statute was grafted onto
article 13, section 2. In Strode v. Sullivan, 72 Ariz. 360 (1951), the Court held
that a charter city’s election laws superseded conflicting state law. The
Court selectively quoted article 13, section 2, placing emphasis on a city
forming a charter “for its own government” and omitting any reference to
charters superseding inconsistent local laws but not state laws. Id. at 364.
¶77 Without any overt indication that it was doing so, the Court
substituted the charter statute language for the constitutional text. The
difference between the constitutional rule announced in Strode and the
actual constitutional text is so stark that it invites direct comparison:
Article 13, section 2:
Eligible city “may frame a charter for its own
government consistent with, and subject to, the
Constitution and the laws of the state . . . . [S]aid
charter shall become the organic law of such city
and supersede any charter then existing . . . and all
ordinances inconsistent with said new charter.
Ariz. Const. art. 13, § 2 (emphasis added).
Strode Rule:
[A] city charter . . . becomes the organic law of
the city and the provisions of the charter supersede
all laws of the state in conflict with such charter
provisions insofar as such laws relate to purely
municipal affairs.
72 Ariz. at 365 (emphasis added).
¶78 The Court in Strode literally rewrote the constitutional
provision at issue, which of course it had no power to do. It thus replaced
the Constitution’s bright line with a judicially manufactured line of
constitutional demarcation between matters of statewide concern, over
which the state prevails, and matters of purely local concern, over which
charter cities have hegemony. That blurry line is entirely the cause of our
muddled jurisprudence over the past two-thirds of a century.
¶79 So the question presents itself: should we hew to the
28
STATE V. CITY OF TUCSON
JUSTICE BOLICK, Concurring in Part and in the Result
Constitution or to our prior decisions? The judicially created doctrine of
stare decisis instructs that the rule of law requires stability and continuity,
and therefore we should generally follow precedent. Galloway v.
Vanderpool, 205 Ariz. 252, 256 ¶ 16 (2003). But as judges, we take an oath to
the Constitution, not to the stare decisis doctrine. Thus, “[w]hile, under our
judicial system, all courts have a strong respect for precedent, this respect
is a reasonable one which balks at the perpetuation of error, and the
doctrine of stare decisis should not prevail when a departure therefrom is
necessary to avoid the perpetuation of pernicious error.” State ex rel. La
Prade v. Cox, 43 Ariz. 174, 183 (1934). “Stare decisis is ‘at its weakest when
we interpret the Constitution because our interpretation can be altered only
by constitutional amendment or by overruling our prior decisions.’”
Mitchell v. United States, 526 U.S. 314, 343 (1999) (Thomas, J., dissenting)
(quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)); see also Galloway, 205
Ariz. at 256 ¶ 16 (stare decisis “is strongest when prior decisions construe a
statute”). “The Court has therefore adhered to the rule that stare decisis is
not rigidly applied in cases involving constitutional issues, and has not
hesitated to overrule decisions, or even whole lines of cases, where
experience, scholarship, and reflection demonstrated that their
fundamental premises were not to be found in the Constitution.”
Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 787
(1986) (White, J., dissenting) (internal citation omitted), overruled on other
grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); see also
id. at 787–88.
¶80 Given that Strode departed so sharply from constitutional text
and has spawned constant litigation to ascertain its contours, I would
overturn it along with other decisions holding that charter enactments
superseded conflicting state laws. See, e.g., City of Tucson v. State, 229 Ariz.
172 (2012); City of Tucson v. State, 235 Ariz. 434 (App. 2014); McMann v. City
of Tucson, 202 Ariz. 468 (App. 2002). Instead, I would adhere to the
Constitution’s rule that city charters do not supersede conflicting state
laws.3
3 Applying the constitutional rule would preserve judicial analysis of
whether the state’s statute occupies the field of regulation and conflicts with
the charter city provision. If it does not, the city’s provision should stand.
See, e.g., Babe’s Cabaret v. City of Scottsdale, 197 Ariz. 98, 103–04 ¶¶ 18–19
29
STATE V. CITY OF TUCSON
JUSTICE BOLICK, Concurring in Part and in the Result
¶81 The City protests that such a construction would render
charters meaningless. Not at all. As the Court observed in AASAE, “Cities
and towns, regardless of how organized, have only such powers as are
expressly or by implication conferred upon them.” 67 Ariz. at 334–35. “A
municipality has no inherent powers, but only such powers as are expressly
conferred by statute or are implied as necessary in aid of those powers
which are expressly conferred.” 1 McQuillan Mun. Corp. § 2:10 (3d ed.).
By contrast, “[a] presumption exists that the exercise of power by a home
rule municipal corporation is valid if no restriction is found in the
constitution, the charter itself, or the acts of the general assembly.” 2A
McQuillan Mun. Corp. § 10:16 (3d ed.). In other words, a non-charter
municipality generally may do only what the state expressly authorizes; a
charter city generally may do anything that the state does not expressly
forbid. That is a significant difference in authority. At the same time, it is
unsurprising that a subdivision of the state would not have the power to
override the powers of the state itself.
¶82 The Court today performs a salutary service by clarifying the
law as much as the Strode construct permits. The Court reaffirms, for
instance, that the state retains all police powers to the exclusion of charter
cities. Likewise, it usefully disavows the distinction between governmental
and proprietary functions, whose foundation is completely lacking in the
relevant constitutional text.
¶83 The Court also observes that the subject matter at issue here
is addressed by our state’s constitutional protection of the right to keep and
bear arms in article 2, section 26 of the Arizona Constitution. In my view,
that necessarily elevates the subject matter to statewide concern. Tucson
contends that its regulation does not limit the constitutional right to “bear
arms.” Ariz. Const. art. 2, § 26. The inquiry under current precedents is not
whether the charter enactment implicates a constitutional right, but
whether it implicates a matter of statewide concern. The state may
reasonably determine that destroying firearms limits the quantity of
firearms in the market, so that its statute addresses a matter of statewide
concern not only pursuant to the state’s police powers but its power to
enforce the right to bear arms. Cf. City of Scottsdale v. State, 237 Ariz. 467,
472 ¶¶ 20–21 (App. 2015) (state is authorized to protect free speech rights,
(App. 1999); City of Tucson v. Rineer, 193 Ariz. 160, 163 ¶¶ 7–9, 164 ¶ 11
(App. 1998).
30
STATE V. CITY OF TUCSON
JUSTICE BOLICK, Concurring in Part and in the Result
which prevails over conflicting charter enactment).
¶84 Although the Court draws the correct lines here, the
Constitution makes that exercise unnecessary and improper. I look
forward to the day when we no longer have to draw lines between such
conflicting enactments, because we finally accept that our Constitution has
drawn that line for us.
31
STATE V. CITY OF TUCSON
JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ,
Concurring in Part and in the Result
JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ,
concurring in part and in the result.
¶85 I concur in Parts I, II, IV, and V of the majority opinion. 4 I
also agree with Part III to the extent the majority concludes we do not have
to impose a bond pursuant to A.R.S. § 41-194.01(B)(2). However, I disagree
with the majority’s reasoning that imposing the bond “would displace this
Court from its constitutionally assigned role under article 6.” Supra, ¶ 33.
Rather, I conclude the bond provision is unenforceable because it is
incomplete and unintelligible.
¶86 I also disagree with the majority’s suggestion that we should
defer ruling on the bond provision until there is a case “where that issue is
specifically raised.” Supra, ¶ 35. The parties have had a full opportunity to
address the enforceability of the bond provision; indeed, both parties have
discussed the issue in their briefs. It is squarely before this Court and we
must address it.
¶87 The bond provision contains two clear directives. First,
section (B)(2) requires this Court to impose a bond when a special action is
filed by the Attorney General. The statute states that the “court shall require
the county, city or town to post a bond equal to the amount of state shared
revenue [(“SSR”)] paid to the county, city or town pursuant to section
42-5029 and 43-206 in the preceding six months.” (emphasis added.) By
using the word “shall,” the legislature clearly intended the bond provision
to be mandatory. See Ins. Co. of N. Am. v. Superior Court, 166 Ariz. 82, 85
(1990) (“The use of the word ‘shall’ indicates a mandatory intent by the
legislature.”).
¶88 Second, compliance with the bond provision is not a
prerequisite for judicial review. Section (B)(2) requires this Court to
determine whether a local ordinance violates state law. The statute does
not state, nor does it imply, that our ruling is contingent on a party posting
the bond.
¶89 Despite these directives, the bond provision fails to provide
any direction as to how — or why — this Court should impose the bond.
4 My concurring colleague, Justice Bolick, does not join Part III of the
Court’s opinion. See ¶¶ 66-84, supra.
32
STATE V. CITY OF TUCSON
JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ,
Concurring in Part and in the Result
Of greatest concern is the fact that section (B)(2) does not prescribe what
occurs if a party fails to post the bond. For example, the statute does not
authorize this Court to enter a default in favor of the Attorney General, or
to strike the City’s response. In short, the text of the statute does not state,
either expressly or impliedly, that failing to post a bond deprives the City
of its right to defend the Ordinance before this Court.
¶90 The bond provision is incomplete in a number of other areas.
Unlike most bond statutes, section (B)(2) contains no provision for reducing
the amount of the bond on the basis of economic hardship. Cf. A.R.S.
§ 12-2108(C) (allowing for reduction of a supersedeas bond upon a showing
that the appellant will suffer substantial economic harm). Additionally,
section (B)(2) does not identify the conditions for forfeiting or exonerating
the bond. Contra, e.g., A.R.S. § 12-1537 (stating that a replevin bond posted
by a defendant is exonerated if the attachment is vacated or a judgment is
entered for the defendant); A.R.S. § 14-5419(I) (a conservator’s bond is
exonerated upon filing of a closing statement); A.R.S. § 13-3974 (stating the
conditions for exonerating an appearance bond); A.R.S. § 13-3858
(providing for forfeiture of an appearance bond if a defendant fails to
appear in court).
¶91 Section (B)(2) also does not state the bond’s purpose. If its
purpose is to ensure that a city or county complies with state law during
the pendency of the Attorney General’s special action, then this is a valid
reason for imposing the bond. See Porter v. Commercial Standard Ins. Co., 112
Ariz. 491, 492-93 (1975) (stating a supersedeas bond is intended to maintain
“the status quo [of the parties] until the appellate process is completed”).
But if this is the purpose of the statute, we are left with a puzzling result:
under section (B)(1), when the Attorney General determines a local
ordinance does violate state law, no bond is required during the thirty-day
cure period. However, under section (B)(2), when no final determination
has been made regarding a potential violation, a party is required to post a
substantial bond while the Attorney General’s special action is pending.
¶92 It is difficult to understand why section (B)(2) requires a bond,
and section (B)(1) does not. In practice, section (B)(2) creates a greater
financial burden when the Attorney General concludes an ordinance “may
violate” state law than when the Attorney General concludes an ordinance
“does violate” state law. Under section (B)(1), a city or county suffers no
economic penalty until there has been a “final” determination that its
33
STATE V. CITY OF TUCSON
JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ,
Concurring in Part and in the Result
ordinance violates state law and it has been given thirty days to cure the
violation. In contrast, under (B)(2), when the Attorney General determines
there may be a violation of state law, the city or county is automatically
required to post a bond equal to six months of its SSR.
¶93 The parties recognize that the bond provision, as written, is
likely unenforceable. The City contends that imposing a bond consisting of
six months’ SSR creates an insurmountable financial burden. The City
argues that imposing such a large bond would effectively prevent it from
defending its Ordinance before this Court. Ariz. Const. art 2, § 13. In
contrast, the State asserts that given the City’s agreement to suspend
enforcement of its Ordinance pending this litigation, the purpose of the
bond is satisfied, and therefore imposing the bond is unnecessary. In the
alternative, the State argues that even if the bond is unconstitutional, it is
severable from section (B)(2).
¶94 In considering these arguments, the majority expresses
concern that section (B)(2) places an undue financial burden on the City.
Based on this concern, the majority generally agrees with the City that the
bond provision may be unconstitutional. Specifically, the majority
contends that imposing such a large bond “would likely dissuade” the City
from defending its Ordinance, which in turn would “displace this Court
from its constitutionally assigned role under article 6 of interpreting
Arizona’s constitution and laws.” Supra, ¶ 33; Ariz. Const. art 6, § 1.
¶95 If the majority is indeed concerned that the bond provision
may be unconstitutional on this basis, I disagree. Generally, we afford
statutes a presumption of constitutionality. Cf. Gallardo v. State, 236 Ariz.
84, 87 ¶ 9 (2014) (discussing presumption of constitutionality generally
afforded legislative enactments). Additionally, the record is undeveloped
as to the actual bond amount the City will have to post. There has been no
evidentiary hearing in this case. We have no testimony from witnesses, no
exhibits or any other evidence showing the actual financial impact on the
City. All we have are allegations by the City that it lacks the financial means
to post the bond. And these allegations appear to be based on the
assumption that section (B)(2) requires the City to post the full amount of
the bond as a cash bond. However, section (B)(2), by its terms, does not
prohibit the City from posting a security bond to satisfy the bond
requirement. We have no evidence before us as to whether the City could
post such a security bond.
34
STATE V. CITY OF TUCSON
JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ,
Concurring in Part and in the Result
¶96 The majority also concludes that based on the City’s
agreement to suspend enforcement of its Ordinance, imposing the bond is
unnecessary in this case. I recognize this is a practical approach to dealing
with the deficiencies of the statute. However, section (B)(2) does not, by its
terms, authorize waiving the bond requirement based on such an
agreement. In the face of such a mandatory provision, we must either
impose it, or explain why it is unenforceable.
¶97 At bottom, the problem with the bond provision is not
ambiguous language or undefined terms. Rather, it is, in several material
respects, so incomplete as to be unintelligible. The result is a partial,
unfinished legislative directive that is impossible for this Court to enforce.
Cf. Cohen v. State, 121 Ariz. 6, 9 (1978) (stating “it is the duty of a court in
construing a statute to strive to uphold it whenever possible.”).
¶98 Under these circumstances, I would declare the bond
provision unintelligible and unenforceable, and provide the Legislature
with an opportunity to fix it. The unintelligibility doctrine is a well-
established doctrine that has been applied in several states. See Board of
Trustees of Judicial Form Retirement System v. Attorney General of Com., 132
S.W.3d 770, 779-81 (Ky. 2003); Yeik v. Dept. of Revenue and Taxation, 595 P.2d
965, 968-69 (Wyo. 1979); State ex rel. Miller v. Brown, 150 N.E.2d 46, 48 (Ohio
1958); Davidson Bldg. Co. v. Mulock, 235 N.W. 45, 54-56 (Iowa 1931); Midwest
Hotel Co. v. State Board of Equalization, 273 P. 696, 697-99 (Wyo. 1929); State
ex rel. Hughes v. Reusswig, 126 N.W. 279, 280 (Minn. 1910); Ward v. Ward, 37
Tex. 389, 392 (1872); see also Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 134-138 (2012) (discussing the
“Unintelligibility Canon” of statutory construction, which holds that an
unintelligible, incomplete statute is unenforceable).
¶99 A careful reading of Ethridge v. State Bd. of Nursing, 165 Ariz.
97, 104 (App. 1989) and State Compensation Fund v. De La Fuente, 18 Ariz.
App. 246, 251-52 (1972) also supports the existence of the unintelligibility
doctrine in Arizona. In Ethridge, the court stated that “[a]n indefinite and
incomplete statute may be held invalid on three bases: (1) the language used
may not have sufficient legal significance to be capable of intelligent
execution; (2) the statute may unduly delegate legislative powers in
violation of the separation of powers doctrine under article 3 of the United
States Constitution, and (3) as applied, the statute may violate due process
under the Arizona Constitution.” (emphasis added) Id., 165 Ariz. at 104.
35
STATE V. CITY OF TUCSON
JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ,
Concurring in Part and in the Result
Importantly, the first category mentioned — “the language used may not
have sufficient legal significance to be capable of intelligent execution” —
is identified as a separate, distinct basis from the other two grounds.
Similarly, De La Fuente lists “three bases upon which a statute without the
requisite definiteness and completeness may be held invalid,” including
“the language used may not have sufficient legal significance to be capable
of intelligent execution.” Id., 18 Ariz. App. at 251-52 (emphasis added).
¶100 Generally, if a statute is ambiguous, courts apply a void-for-
vagueness analysis. The unintelligibility doctrine, however, is distinct from
this doctrine. See, supra ¶ 103. The void-for-vagueness doctrine is typically
applied to ambiguous or indefinite statutes involving criminal or punitive
civil laws, or laws involving First Amendment rights, that are applied to
members of the general public. See, e.g., State v Holle, 240 Ariz. 300, 310 ¶ 46
(2016) (holding that statutes defining crimes for sexual abuse and child
molestation provided sufficient notice to the public of the proscribed
conduct, and are not void for vagueness); Western Waste Serv. Sys. v. Superior
Court, 120 Ariz. 90 (1978) (holding that Arizona Uniform Antitrust Act
provision imposing treble damages for a “flagrant” violation of the statute
was not void for vagueness). In contrast, the unintelligibility doctrine is
reserved for incomplete, non-punitive civil statutes that are oftentimes
directed at judicial procedures. Board of Trustees, 132 S.W.3d at 778; cf. De
La Fuente, 18 Ariz. App. at 251-52 (statute concerning authority of Industrial
Commission to determine death benefits lacked any standards or
regulations to govern Commission’s decision; as a result, the statute was
declared unenforceable on multiple grounds, including unintelligibility).
¶101 For example, in Yeik a statute provided that before a person
could appeal a driver’s license suspension to the district court, he was first
required to file an appeal with the “revenue and tax commission.” The
statute, however, provided no regulations or directions as to how to pursue
an appeal to the commission. In holding the statute was unenforceable as
incomplete and unintelligible, the court stated:
Those wishing to seek review from the tax commission are
given no guidance by the rules and regulations as to: 1. Within
what time frame must the appeal be effected? 2. What notice
of appeal is required? 3. Is the decision of the hearing
examiner stayed during the pendency of the review process
or must the party seeking review specifically ask for such a
36
STATE V. CITY OF TUCSON
JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ,
Concurring in Part and in the Result
stay? 4. Must the party seeking review write a brief? 5. Does
the party seeking review have a right or obligation to present
oral argument to the tax commission? There are a host of other
unanswered procedural questions that the state tax
commission must answer in the form of Reasonable rules and
regulations before s 31-7-105(c) can have any real meaning.
Yeik, 595 P.2d at 968. See also Ward, 37 Tex. at 391-92 (statute was
unenforceable because the procedures for filing an appeal from an
interlocutory order were incomplete and unintelligible); Midwest Hotel, 273
P. at 697 (procedures for filing an appeal from the board of equalization
were incomplete, and therefore unenforceable); Davidson, 235 N.W. at 54-56
(statute was unenforceable because procedures for appealing from a tax
board of review decision were so indefinite and incomplete as to be
unintelligible).
¶102 The unintelligibility doctrine is perhaps the quintessential
example of how a court, acting with restraint, observes its constitutional
role under the separation of powers. See Board of Trustees, 132 S.W.3d at
781 (stating “the unintelligibility rule has its foundation in the
constitutional requirement of separation of powers”); see also U.S. Const.
art. I-III; Ariz. Const. art. 3. When faced with an incomplete, unintelligible
statute, a court may either attempt to re-write the statute, or declare it
unenforceable. Id. The first option is a clear violation of the separation of
powers. Courts lack the constitutional authority to legislate, and this
limitation is perhaps most acute when a court attempts to enforce a statute
that, by virtue of its incompleteness, is really no law at all. See Ballesteros v.
Am. Standard Ins. Co. of Wis., 226 Ariz. 345, 349 ¶ 17 (2011) (stating “[i]f the
legislature desires to add [ ] a requirement [to A.R.S. § 20–259.01], it may do
so . . . but it is not our place to rewrite the statute”). In contrast, when a
court declares an incomplete, unfinished statute unenforceable on the
grounds of unintelligibility, it refrains from stepping outside its judicial
authority, and provides the legislature with an opportunity to address the
infirmities in the statute.
¶103 Thus, I conclude that because the bond provision is
incomplete and unintelligible, it is unenforceable.
37