City of Tucson, City of Phoenix v. State of Arizona Ken Bennett

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
CITY OF TUCSON, A MUNICIPAL CORPORATION
Plaintiff /Appellee,
and
CITY OF PHOENIX,
Intervenor-Plaintiff/Appellee,
v.
THE STATE OF ARIZONA AND KEN BENNETT, IN HIS OFFICIAL CAPACITY
AS SECRETARY OF STATE OF ARIZONA
Defendants/Appellants.
No. 2 CA-CV 2013-0146
Filed August 18, 2014
Appeal from the Superior Court in Pima County
No. C20126272
The Honorable James E. Marner, Judge
AFFIRMED
COUNSEL
Michael G. Rankin, Tucson City Attorney, Tucson
By Dennis P. McLaughlin, Principal Assistant City Attorney
Counsel for Plaintiff/Appellee City of Tucson
Daniel L. Brown, Acting Phoenix City Attorney, Phoenix
By Sandra Hunter, Assistant Chief Counsel
Counsel for Intervenor-Plaintiff/Appellee City of Phoenix
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
Thomas C. Horne, Arizona Attorney General
By Paula S. Bickett, Chief Counsel, Civil Appeals, Phoenix
Diana Day, Assistant Attorney General
Counsel for Defendants/Appellants
Juan Pablo Flores, Douglas City Attorney, Douglas
Counsel for Amicus Curiae City of Douglas
Judith R. Baumann, Tempe City Attorney, Tempe
By David Park, Assistant City Attorney
Counsel for Amicus Curiae City of Tempe
OPINION
Judge Miller authored the opinion of the Court, in which Judge
Howard and Judge Vásquez concurred.
M I L L E R, Judge:
¶1 Section 16-204(E), A.R.S., was added in 2012 to require
that most municipal candidate elections be held simultaneously with
state and national candidate elections. 2012 Ariz. Sess. Laws, ch.
353, § 1. As originally enacted in 1996, § 16-204 limited these
elections to only four specified days each year, which the Legislature
declared was for the “purpose[] of increasing voter participation and
for decreasing the costs to taxpayers.” 1996 Ariz. Sess. Laws, ch.
271, § 16. By mandating municipal candidate elections be held on
even-numbered years, concurrent with general elections, the
amended statute banned off-cycle municipal candidate elections. 1
1An election held on a date different from state and national
elections is referred to as an off-cycle election. See, e.g., United States
v. Village of Port Chester, 704 F. Supp. 2d 411, 420 (S.D.N.Y. 2010)
(“Village elections for Mayor and Trustees are held ‘off cycle’—that
is, they are not conducted in November alongside other county,
state, and national elections, but instead are held in the spring,
2
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
Relying on the declaration of purpose for the original statute, the
state contends the amendment is a matter of statewide concern that
preempts city charter provisions to the contrary. § 16-204(A), (E).
The cities of Tucson and Phoenix sought declaratory and injunctive
relief, arguing the Arizona Constitution did not grant the legislature
authority to preempt their charters that mandate candidate elections
be held on odd-numbered years. The cities’ position is supported in
amicus briefs filed by the cities of Douglas and Tempe.
¶2 This appeal requires us to determine whether the
authority of charter cities to structure how their governing officers
are elected includes the power to schedule their election cycles
wholly separate from state-wide elections. We also consider,
consistent with our case law, whether the selection of an off-cycle
election is a matter affecting “‘the method and manner of
conducting elections,’” or is limited to an “administrative aspect[] of
elections.” City of Tucson v. State, 229 Ariz. 172, ¶¶ 32, 35, 273 P.3d
624, 629-30 (2012) (Tucson II), quoting Strode v. Sullivan, 72 Ariz. 360,
368, 236 P.2d 48, 54 (1951).
¶3 For the reasons that follow, we conclude that state-
mandated election alignment, when it conflicts with a city’s charter,
improperly intrudes on the constitutional authority of charter cities.
We therefore affirm the trial court’s judgment that § 16-204 does not
preempt city charters that require odd-numbered year election
dates.
Factual and Procedural Background
¶4 The cities of Tucson and Phoenix are chartered under
the Arizona Constitution. Ariz. Const. art. XIII, § 2; Tucson City
Charter ch. I; Phoenix City Charter, Preamble; see also Tucson II, 229
Ariz. 172, n.1, 273 P.3d at 626 n.1. Their charters require candidate
elections to be held on odd-numbered years, staggered from the
even-numbered-year federal, state, and county elections. Tucson
usually on the third Tuesday in March.”). An odd-year election is
necessarily an off-cycle election. See Ariz. Const. art. VII, § 11
(requiring biennial general elections on even-numbered years).
3
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
City Charter ch. XVI, §§ 2-4; Phoenix City Charter ch. III, § 6. In
2012, the Arizona Legislature amended § 16-2042 to require charter
2Section 16-204 now states in relevant part:
E. Beginning with elections held in 2014 and later and
notwithstanding any other law or any charter or
ordinance to the contrary, a candidate election held for
or on behalf of any political subdivision of this state
other than a special election to fill a vacancy or a recall
election may only be held on the following dates and
only in even-numbered years:
1. The tenth Tuesday before the first
Tuesday after the first Monday in
November. If the political subdivision
holds a primary or first election and a
general or runoff election is either required
or optional for that political subdivision,
the first election shall be held on this date,
without regard to whether the political
subdivision designates the election a
primary election, a first election, a
preliminary election or any other
descriptive term.
2. The first Tuesday after the first
Monday in November. If the political
subdivision holds a general election or a
runoff election, the second election held
shall be held on this date. If the political
subdivision holds only a single election and
no preliminary or primary or other election
is ever held for the purpose of reducing the
number of candidates, or receiving a
partisan nomination or designation or for
any other purpose for that political
subdivision, the single election shall be
held on this date.
4
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
cities to hold their first (primary or general) and second (general or
runoff) candidate elections on the same two days that the state holds
its primary and general elections for county, state, and federal
offices. 2012 Ariz. Sess. Laws, ch. 353, § 1; see also A.R.S. §§ 16-201,
16-211.
¶5 The City of Tucson sought declaratory and injunctive
relief against the state and Ken Bennett, in his official capacity as
secretary of state. Appellee City of Phoenix moved to intervene,
which motion the trial court granted. The parties filed cross-
motions for summary judgment, asserting that no genuine issue of
material fact existed and they were entitled to judgment as a matter
of law. The court denied the motions, finding that the parties had
presented conflicting factual claims and that an evidentiary hearing
was “necessary to allow the Court to determine as a matter of fact
whether the state’s interests are paramount thereby mandating
adoption of the election schedule described in the recently amended
version of A.R.S. § 16-204 by Tucson and Phoenix,” citing City of
Tucson v. State, 191 Ariz. 436, 957 P.2d 341 (App. 1997) (Tucson I).
After a two-day evidentiary hearing, 3 the court granted relief in
favor of the cities, and this appeal followed. We have jurisdiction
pursuant to A.R.S. § 12-2101(A)(1).
Discussion
¶6 Whether § 16-204(E) improperly preempts the
constitutional authority of a charter city to direct its own affairs is a
question of law we review de novo. See Tucson I, 191 Ariz. at 437,
957 P.2d at 342; see also Tucson II, 229 Ariz. 172, ¶ 34, 273 P.3d at 630.
Under the Arizona Constitution, a city with a population of more
than 3,500 people is entitled to establish a charter for its government.
Ariz. Const. art. XIII, § 2; see also John D. Leshy, The Arizona State
Constitution 333 (2d ed. 2013). Known as the home-rule provision,
the purpose of article XIII, § 2 “‘was to render the cities adopting
3Our resolution of the issue on appeal is necessarily an ad hoc
determination that does not turn on disputed questions of
adjudicative fact. See Tucson II, 229 Ariz. 172, ¶ 20, 273 P.3d at 628.
Thus, we do not review the trial court’s findings of fact.
5
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
such charter provisions as nearly independent of state legislation as
was possible.’” Tucson II, 229 Ariz. 172, ¶ 9, 273 P.3d at 626, quoting
City of Tucson v. Walker, 60 Ariz. 232, 239, 135 P.2d 223, 226 (1943); see
also Leshy, supra, at 333-34. Our supreme court has held that a
charter city is granted autonomy over matters of local interest. See,
e.g., Tucson II, 229 Ariz. 172, ¶¶ 45-47, 273 P.3d at 631-32; Strode, 72
Ariz. at 364-65, 236 P.2d at 51. If a state law conflicts with the
provisions of a city charter and the relevant interest is local, the
city’s charter supersedes the statute. See Tucson II, 229 Ariz. 172,
¶ 20, 273 P.3d at 628; Strode, 72 Ariz. at 364-65, 236 P.2d at 51.
Because § 16-204(E) conflicts with the cities’ charters, we must
determine whether the interests affected are local or statewide.
¶7 Determining whether the subject matter at issue is of
statewide or local interest “can be problematic in application.”
Tucson II, 229 Ariz. 172, ¶ 20, 273 P.3d at 628. “The concepts of
‘local’ versus ‘statewide’ interest do not have self-evident
definitions.” Id. Our supreme court has not provided an explicit
framework through which we might analyze the question before us;
rather, “distinguishing between matters that are properly subject to
local versus state control often involves case-specific line drawing.”
Id. This is not a problem unique to Arizona. In their expansive
review of how courts address this issue, professors Baker and
Rodriguez observed:
Where the state constitution grants
localities sovereign power in the area of
local affairs, the task falls to the court to
discern just what is or is not a local affair.
The nature of the project is necessarily ad
hoc: The courts are asked to evaluate
specific exercises of municipal power
against the background of language,
typically “local affairs” or “municipal
affairs,” that is notoriously ambiguous.
Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and
Judicial Scrutiny, 86 Denv. U. L. Rev. 1337, 1344 (2009). In the context
of election-related matters, Arizona cases particularly focus on
whether a conflicting statute affects the autonomy of a charter city,
6
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
for which the manner and method of conducting elections is a
critical component.
Charter City Autonomy
¶8 Our supreme court has been “absolutely clear that
charter city governments enjoy autonomy with respect to
structuring their own governments.” Tucson II, 229 Ariz. 172, ¶ 21,
273 P.3d at 628. More than sixty years ago, in Strode, our supreme
court considered a charter city’s autonomy involving the non-
partisan election system adopted by the City of Phoenix. See Strode,
72 Ariz. at 361-62, 236 P.2d at 49-50; Phoenix City Charter ch. XII,
§ 9. At the time, state statutes permitted candidates for state,
county, and city offices to be nominated as a member of a political
party. See Strode, 72 Ariz. at 361-64, 236 P.2d at 50-51; see also Tucson
II, 229 Ariz. 172, ¶ 18, 273 P.3d at 627. The court concluded that
these statutes did not displace the Phoenix charter, which provided
that “‘nothing on the ballot shall be indicative of the source of the
candidacy or the support of any candidate.’” Strode, 72 Ariz. at 363,
368, 236 P.2d at 50, 54, quoting Phoenix City Charter ch. XII, § 9; see
also Tucson II, 229 Ariz. 172, ¶ 18, 273 P.3d at 627.
¶9 The supreme court in Strode emphasized the importance
of protecting a charter city’s authority to structure its own
government:
The framers of the Constitution, in
authorizing a qualified city to frame a
charter for its own government, certainly
contemplated the need for officers and the
necessity of a procedure for their selection.
These are essentials which are confronted
at the very inception of any undertaking
looking toward the preparation of a
governmental structure. We can conceive of
no essentials more inherently of local interest or
concern to the electors of a city than who shall
be its governing officers and how they shall be
selected.
7
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
72 Ariz. at 368, 236 P.2d at 54 (emphasis added). Therefore, if an off-
cycle election affects the method and manner of selecting its
governing officers, the constitution protects the autonomy of the
charter city.
¶10 The state contends other language in Strode limits the
constitutional authority of city charters to laws that are “purely
municipal.” It argues, not without persuasive force, that “purely” is
a term of exclusion. Stated simply, the state would limit Strode’s
holding to statutes without any potential statewide interest. We
disagree. First, the seemingly exclusionary language in Strode
derives from multiple citations to Oklahoma cases that employ the
terms as dicta. See, e.g., City of Wewoka v. Rodman, 46 P.2d 334, 335
(Okla. 1935) (charter city control over fire department is “purely”
and “solely” matter of local concern); Lackey v. State, 116 P. 913, 919
(Okla. 1911) (date of elections is a “mere municipal matter”).4
¶11 Second, in Tucson II our supreme court reaffirmed the
rationale employed by Strode and reached the same result while
acknowledging potential statewide interests at play. The court first
observed that “[m]any municipal issues will be of both local and
state concern.” Tucson II, 229 Ariz. 172, ¶ 20, 273 P.3d at 628. If, as
the state contends, the mere existence of a potential state interest is
sufficient to negate a finding of a “purely” local interest, then the
court’s analysis would have ended and it would have concluded the
statute applies to Tucson’s elections. Instead, the court examined
each of the potential statewide interests to determine if any trumped
Tucson’s charter. For example, the state argued “the federal Voting
Rights Act (‘VRA’), 42 U.S.C. § 1973 (2006), creates a statewide
interest in barring Tucson’s use of at-large council elections.” Id.
¶ 36. Although the court acknowledged that the city must comply
4The holding in Lackey is particularly significant because if it
were unequivocally adopted in Arizona, the decision would resolve
the case adverse to the state without further discussion. See 116 P. at
918-19. As we discuss later in this decision, however, the holding in
Tucson I and the adoption of some of its reasoning in Tucson II
militate against the bright-line rule of Lackey notwithstanding its
endorsement in Strode.
8
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
with applicable federal law, and the state’s compliance with the
VRA could be affected if “its political subdivisions . . . engaged in
any discriminatory voting practice,” there was no evidence of VRA
violations by the city. Id. ¶¶ 37-38. It held that “[c]oncerns to
prevent possible violations of the VRA,” which are of statewide
interest, “do not support . . . trumping Tucson’s charter.” Id. ¶ 39.
We conclude, therefore, the possibility of a statewide interest in a
statute does not bar the conclusion that the statute impermissibly
reaches an area of “purely” or “solely” local interest. See id.
The Method and Manner of Conducting Elections Is An Expression
of Charter City Autonomy
¶12 The state acknowledges that the Legislature cannot
regulate the “method and manner” of conducting municipal
elections. See Tucson II, 229 Ariz. 172, ¶ 22, 273 P.3d at 628. It
contends, however, our supreme court determined the choice of an
election date to be a permissible legislative function that only
involves the “administrative aspects of elections.” See id. ¶ 35. We
agree with the state that dicta from Tucson II arguably places election
dates outside of local autonomy and interest, but the case from
which the dicta is derived, Tucson I, cannot be stretched so far.
¶13 As originally enacted, § 16-204 merely restricted
elections held by political subdivisions to four specified dates during
the year. Tucson I, 191 Ariz. at 437, 957 P.2d at 342. The practical
impact on the City of Tucson was minor: a one-week change in the
date of its primary election. Id. at 439, 957 P.2d at 344.
Section 16-204(E), on the other hand, would require major changes
to city charters and election procedures, including altering the terms
of office for some officials. The state responds that even if these
changes are significant, they are “one-time” adjustments to achieve
election alignment. Assuming for the purpose of argument that
§ 16-204(E) requires minor, one-time adjustments, we next address
whether an off-cycle election is an integral component of the method
and manner of conducting elections.
¶14 The cities argue that election alignment affects
numerous election issues. An off-cycle election allows a city to
obtain the full focus of the electorate and to insulate its electoral
9
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
process from the influence of partisan issues that are inevitably
interwoven with federal, state, and county elections. Additionally,
municipal candidates may have a more difficult time competing
with state and national candidates for resources if the elections are
aligned. Even if the candidates receive sufficient resources, it may
be more difficult or expensive to use those resources for election
advertising during general elections.
¶15 The decision to hold an off-cycle election may also affect
voter participation. The cities and state seemingly agree on this
point, although they disagree whether the ultimate impact is
positive or negative because of additional factors, such as voter
fatigue and ballot roll-off. 5 These differing conclusions illustrate
valid policy disagreements and, potentially, qualitatively different
results in election outcomes. As law professors Barry and Gersen
observed:
[T]he timing of local government elections
has significant implications for local
democratic process. Electoral timing
significantly influences voter turnout and
generates identifiable differences in
substantive policy outcomes.
Christopher R. Berry & Jacob E. Gersen, The Timing of Elections, 77 U.
Chi. L. Rev. 37, 55 (2010).
5Voter fatigue refers to reluctance of voters to participate in
multiple elections held on different dates. Cf. Zoltan L. Hajnal et al.,
Municipal Elections in California: Turnout, Timing, and Competition vii-
viii (2012) (voter turnout affected by timing of local election,
including whether local election held concurrent with statewide
election). Ballot roll-off describes the phenomenon where fewer
votes are cast as the ballot extends in length. Cf. Green Party of
Tennessee v. Hargett, 953 F. Supp. 2d 816, 833 (M.D. Tenn. 2013)
(increase in physical dimension of ballot, whether size of paper or
number of pages, may increase likelihood that voters fail to
complete their ballots).
10
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
¶16 Our supreme court concluded that when there are
“competing policy concerns” in the manner of the election,
“Arizona’s Constitution entrusts those issues to the voters of charter
cities [if the statute conflicts with the charter].” Tucson II, 229 Ariz.
172, ¶ 46, 273 P.3d at 632.6 The “administrative aspects” of elections
do not encompass substantive policy matters. Id. ¶ 35. For instance,
our supreme court explained that whether or not a charter city
conducts a partisan election involves competing policy concerns that
Arizona’s Constitution entrusts to the voters of a charter city. Id.
¶¶ 46-47; see also Strode, 72 Ariz. at 368-69, 236 P.2d at 54. Similarly,
the home rule charter provision of article XIII, § 2 entrusts charter
city voters to determine whether they want their municipal elections
shaped by state, county, or federal partisan issues.
¶17 We next examine whether the state identifies actual
statewide interests. The state relies upon the 1996 legislative
declaration 7 that the statute was for “the purposes of increasing
voter participation and for decreasing the costs to the taxpayers.”
A.R.S. § 16-204(A). Initially, we note that this portion of the
declaration was not modified or updated in 2012. 2012 Ariz. Sess.
6Tucson II is also notable for the absence of any reference to the
balancing test outlined in Tucson I. See Tucson I, 191 Ariz. at 439, 957
P.2d at 344. Instead, Tucson II instructs that the Arizona
Constitution places with the voters the responsibility to choose
between competing policy concerns. Tucson II, 229 Ariz. 172, ¶ 46,
273 P.3d at 632. From that perspective, we agree with the state’s
contention that the trial court erred in applying a balancing test.
7 To the extent the state argues we must defer to the
Legislature’s declaration that § 16-204 concerns a matter of statewide
interest, we disagree. We must respect and consider legislative
findings, but “whether state law prevails over conflicting charter
provisions under Article 13, Section 2 is a question of constitutional
interpretation,” within the exclusive province of the courts.
Tucson II, 229 Ariz. 172, ¶ 34, 273 P.3d at 630; see also Walker, 60 Ariz.
at 238-39, 135 P.2d at 226-27; cf. Forty-Seventh Legislature of State v.
Napolitano, 213 Ariz. 482, ¶ 8, 143 P.3d 1023, 1026 (2006) (noting
courts ultimately responsible for interpreting constitution).
11
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
Laws, ch. 353, § 1. This begs the question: if mandatory alignment
of off-cycle charter city elections increases voter participation and
decreases taxpayer costs, wouldn’t the state have had the same
interest when the original statute was enacted sixteen years earlier?
If so, presumably the Legislature would have aligned off-year
elections in 1996. That it did not take that action in 1996 causes
doubt as to whether its declaration even applies to the 2012
amendment. While it is possible that conditions changed in the
interim period necessitating broader alignment, the state advances
no facts or legislative findings to support such a conclusion.
¶18 The state also relies upon the comments of legislators
and the bill’s supporters that the amendment would decrease costs
and increase voter turnout. See Hearing on H.B. 2826 Before the H.
Comm. on Judiciary, 50th Leg., 2d Reg. sess. (Feb. 16, 2012); Hearing on
H.B. 2826 Before the S. Comm. on Judiciary, 50th Leg., 2d Reg. sess.
(March 12, 2012). Notably missing from the comments, however,
was factual support for how the state’s own interests would be
affected. See, e.g., Hearing on H.B. 2826 Before the H. Comm. of the
Whole, 50th Leg., 2d Reg. sess. (March 1, 2012) (statement of Rep.
John Kavanagh, relating positive experience of Scottsdale in aligning
its election, but omitting any benefit for non-city voters).
¶19 Similarly, in its legal argument the state does not posit
that interests outside of the charter cities are affected. For instance,
assuming that alignment decreases “costs to taxpayers,” are those
city or state taxpayers? If the latter, the state provides no support
for its contention. If only city costs are implicated, then the Arizona
Constitution delegates to the city’s voters to determine whether its
costs actually would decrease and, if so, whether the decrease is
worth the trade-off in loss of off-cycle election benefits. See Tucson
II, 229 Ariz. 172, ¶ 46, 273 P.3d at 632. The same questions and
conclusions apply to the state’s contention regarding voter
participation. We conclude the state has not shown § 16-204(E)
implicates an existing, statewide interest that is not independent of
the interests of the charter cities.
¶20 Finally, our own research discloses one out-of-state case
involving off-cycle elections by a home-rule jurisdiction. In State ex
rel. Carroll v. King County, 474 P.2d 877, 878 (Wash. 1970), the
12
CITY OF TUCSON v. STATE OF ARIZONA
Opinion of the Court
Washington Supreme Court held that a county adopting a home rule
charter could elect its officers in odd-numbered years despite an
earlier constitutional provision establishing county elections in even-
numbered years. Although the court was required to resolve
arguably conflicting state constitutional provisions, it relied on
principles similar to those expressed in Strode and Tucson II:
The people of this state, in adopting [a
home rule enabling mechanism],
manifested an intent that they should have
the right to conduct their purely local
affairs without supervision by the state, so
long as they abided by the provisions of the
constitution and did not run counter to
considerations of public policy of broad
concern, expressed in general laws. The
respondent has suggested no sound reason
why the state should have an interest in the
dates of elections which concern only the
residents of a county.
Id. at 880. The reasoning applied in Oklahoma in 1911 or
Washington in 1970 applies equally to Arizona in 2014.
Disposition
¶21 In light of the foregoing, we affirm the trial court’s grant
of a permanent injunction enjoining the State of Arizona from
requiring the City of Tucson and the City of Phoenix to comply with
the candidate election scheduling requirements of § 16-204, as
amended.
13