Summary of Brnovich v. City of Tucson (SB1487 Decision)
by Christina Estes-Werther, League General Counsel
On October 12, 2016, Rep. Mark Finchem filed a complaint pursuant to Senate Bill 1487 (Laws 2016, Ch. 35) codified as A.R.S. § 41-194.01 against the City of Tucson alleging that the City was violating the state law prohibiting firearm destruction. The Attorney General investigated and issued a report that found that the City “may be” in violation of the law and provided the City with time to repeal the ordinance. On December 6, 2016, the Tucson City Council voted unanimously to defend the City and challenge the constitutionality of SB1487. The same day the Attorney General filed a Special Action Petition in the Arizona Supreme Court seeking an order declaring that Tucson’s ordinance violates state law and to withhold the City’s shared revenue if the ordinance is not repealed.
The Arizona Supreme Court required extensive briefing on the underlying issue relating to firearm destruction and the constitutionality of provisions of SB1487, including a request for supplemental briefs on the following six questions:
- Is the Court’s jurisdiction under A.R.S. § 41-194.01(B) mandatory or discretionary and, if the latter, should the Court accept jurisdiction?
- Do either A.R.S. §§ 41-194.01(A) or (B)(2) violate Arizona’s Constitution?
- Are the bond provisions of A.R.S. § 41-194.01(B)(2) mandatory or discretionary?
- Are the provisions of A.R.S. § 41-194.01 severable?
- Under Article 13, § 2 of the Arizona Constitution, does Tucson City Code § 2-142 supersede inconsistent provisions in A.R.S. § 12-945(B) and § 13-3108(F)?
- If Tucson City Code § 2-142 does not supersede and therefore violates conflicting provisions of state law, would appropriate relief include an order instructing the State Treasurer to withhold and distribute certain state-shared monies from the City if the City does not resolve the violation within a specified time?
Oral arguments were held on February 28, 2017 and the Court issued its decision on August 17, 2017.
The first question the Court addressed was whether it would accept jurisdiction. As the first case tested under this new law, it was unclear whether the Court’s jurisdiction was discretionary or mandatory. Under A.R.S. § 41-194.01(B)(2) the Court found that the special action jurisdiction is mandatory because the legislative intent is clear and the statute compels the court “to resolve the issue” and give action precedence “over all other cases.” The Court rejected the City’s contention that B(2)’s mandatory jurisdiction requirement invades the court’s rule-making authority concerning procedural matters. The court views the legislature’s actions in SB1487 as expanding the court’s original jurisdiction.
The Court denied the City’s motion to dismiss the special action and accepted jurisdiction of the case. The Court examined some of the arguments raised by the parties.
Separation of Powers
The City had argued that the legislature’s requirements directing the actions of the Attorney General and the Supreme Court were a separation of powers violation. The Court disagreed and found that the statutory procedure requiring an Attorney General investigation and determination upon the request of a legislator does not unconstitutionally infringe on both executive and judicial powers because 1) Disbursing appropriations and enforcing legislative conditions are executive functions being exercised under this law; 2) The legislator does not control the investigation, decision-making related to the investigation or action taken upon determination; 3) The legislature’s objective was not to usurp executive or judicial authority but to require and incentivize political subdivisions to comply with state law; and 4) the practical consequences of the action was to encourage compliance with state law, not coerce, control or interfere with executive powers or prerogatives. Under this separation of powers analysis, the Court believes the legislature was acting within its power.
Further, the Court found that the AG’s determination that a local law “may violate” a provision of state law and the required filing of a special action that the court must prioritize the action over all other cases does not unconstitutionally infringe on judicial power. The Court stated that the Attorney General is not exercising a judicial function and is making a legal opinion subject to judicial review. The Court remains free to make its own determination based on the particular facts of the case.
The court found that the question of whether the statute requires the court to order a bond was not before them because the state didn’t request the bond and the court didn’t order it. However, the Court agreed that the bond is mandatory but share’s the city’s concerns that there is no identifiable purpose to the large bond, its practical application was unclear, and there was no direction about how to enforce the bond requirement or how bond proceeds would be disposed of upon conclusion of the special action. The statute doesn’t specify if the bond is a precondition for the city to defend its position or for the court to address and rule on the merits. The Court noted that if the bond is enforced, it would deter the city from disputing the Attorney General’s opinion and displace the court’s role, effectively preventing final judicial resolution of the issue. Despite these statements, the Court found there was no reason to address enforceability of the bond provision and stated it can be addressed in future cases.
A concurring opinion disputes the notion that the matter wasn’t before the court and found the bond requirement to be unenforceable. See Justices Gould, Bolick, and Lopez Concurrence. Validity of Tucson Code § 2-142 (Firearm Destruction) under State Law The Court found that a conflict exists between Tucson Code § 2-142 (requiring the city’s police department to dispose of unclaimed and forfeited firearms by destroying them) and A.R.S. § 13-3108(F), which prohibits any political subdivision or law enforcement agency from facilitating the destruction of a firearm and requires the sale of the firearm and A.R.S. §13-3108(A), which states that a political subdivision may not enact any ordinance relating to possession, sale, transfer, purchase, acquisition or use of firearms in Arizona.
The Court held that firearm-related statutes implicate several matters of statewide concern because the state has broad police powers that encompass disposition of property, regulation of firearms, and preserving the right to bear arms under the federal and state constitutions. The Court rejected the city’s arguments that it destroys firearms in a proprietary capacity. Therefore, the Court held that 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 regulating the destruction of firearms. The court awarded attorney’s fees to the State under A.R.S. § 12-348.01.
Justice Bolick Concurrence
Justice Bolick states that A.R.S. § 9-284(A) establishes that state law trumps city ordinances in most situations and he would overturn Strode, which is the case that states that “the provisions of the charter supersede all laws of the state in conflict with such charter provisions.” The majority rejected Justice Bolick’s argument stating that under his assertion there would not be much left of charter cities’ authority under the state constitution and it was not appropriate to upset established precedent when the issue was not raised.
Justices Gould, Bolick, and Lopez Concurrence
This concurrence focused on the bond issue and stated that the matter was fairly before the court and fully briefed by all parties and should have been addressed. The concurrence found that the bond provision is unenforceable because it is incomplete and unintelligible due to the following:
- There is no direction how or why the court should impose the bond;
- There is no statement that failing to post the bond deprives the city of the right to defend an ordinance;
- There is no provision for reducing bond based on economic hardship;
- There are no conditions identified for forfeiting/exonerating the bond;
- There is no purpose expressed in the legislation for the bond;
- There is an inconsistent application between B(1) and B(2) – one provision requires a bond while another does not;
- The bond prevents a city from defending the ordinance before the court; and
- There is no evidence in this case if the City could post bond (no evidentiary hearing was held).
Ultimately, the justices stated that the bond provision is impossible to enforce and suggest that legislature fix it.
While the Court addressed some of the issues raised by the parties, they remained silent on others. The Court ruled on the jurisdiction question, separation of powers issues relating to A.R.S. § 41-194.01(B)(2) and the conflict between the City’s charter and state law. All of the justices appear to have concerns about the bond provision and it appears it will not be enforced. Despite these outcomes, the Court did not rule on the severance of the bond provision and did not grant the State’s request to take the City’s state-shared revenues. Despite the outcome, other provisions of SB1487 remain untested (the “does violate” provision, taking of state-shared revenues, etc.) so future court challenges may further clarify the law’s constitutionality.