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City of Tempe v. State

Court of Appeals of Arizona, First Division

June 4, 2015

CITY OF TEMPE, a municipal corporation; ELIZABETH CHAVEZ, Tempe Housing Services Manager, Plaintiffs/Petitioners/Appellants,
STATE OF ARIZONA, a body politic, and MARK BRNOVICH, [1] in his capacity as Attorney General for the State of Arizona, Defendants/Respondents/Appellees

Page 368

Appeal from the Superior Court in Maricopa County. No. CV2012-013761. The Honorable Lisa Daniel Flores, Judge.

Tempe City Attorney's Office, Tempe, By Judith R. Baumann, Counsel for Plaintiffs/Petitioners/Appellants.

Arizona Attorney General's Office, Phoenix, By Ann R. Hobart, Counsel for Defendants/Respondents/Appellees.

Judge Kenton D. Jones delivered the opinion of the Court, in which Presiding Judge John C. Gemmill and Judge Donn Kessler joined.


Page 369

Kenton D. Jones, Judge:

¶1 In this case, the City of Tempe (Tempe) challenges the authority of the Arizona Attorney General (AAG) to investigate a complaint alleging discriminatory housing practices against a municipal corporation. Because a municipal corporation is a " person" subject to the Arizona Fair Housing Act (AFHA), Ariz. Rev. Stat. (A.R.S.) § § 41-1491[2] to -1491.37, the AAG can investigate a complaint against Tempe alleging housing discrimination. Accordingly, we affirm the trial court's grant of summary judgment in favor of the State and the AAG and the award of fees under A.R.S. § 12-348.01.


¶2 Tempe is a municipal corporation that, inter alia, operates Tempe Housing Services (THS), a public housing agency. THS administers the Section 8 Housing Choice Voucher Program (HCVP) through which the U.S. Department of Housing and Urban Development (HUD) provides rental subsidies to eligible families and individuals living in approved housing units. As required by federal statute, Tempe adopted a plan for administering the voucher program, which provides that THS shall " comply fully with all Federal, State, and local nondiscrimination laws . . . from the time a prospective tenant first applies [to the voucher program] through a voucher being given." See 42 U.S.C. § 3604 (prohibiting discrimination in the sale or rental of housing); 24 C.F.R. § 982.53 (requiring administrator of HCVP to comply with certain anti-discrimination laws).

¶3 The Arizona legislature adopted the AFHA in 1991 and tasked the AAG with investigating and enforcing complaints brought thereunder.[4] A.R.S. § § 41-1491.09, -1491.22(A), -1491.24, and -1491.34. Additionally, through a Memorandum of Understanding, HUD declared the AFHA to be " substantially equivalent" to the federal Fair Housing Act (FHA), 42 U.S.C. § § 3601 to 3631. As a result, HUD may refer local

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FHA complaints to the AAG for investigation. See A.R.S. § 41-1491.24(A).

¶4 In June 2012, Ron Bircher filed a fair housing complaint against Tempe with the AAG; Tempe then dual-filed the complaint with HUD. Pursuant to the Memorandum of Understanding, HUD referred Bircher's complaint under the FHA to the AAG for investigation. Bircher later amended his complaint to provide additional details in support of his allegation that his application for a housing voucher was denied based upon an alleged disability, and to add Elizabeth Chavez, a THS manager, as an additional respondent.

¶5 Upon receiving Bircher's complaint, the AAG sent Tempe and Chavez a " Notice of Charge of Discrimination" and requested Tempe provide it with a position statement. Tempe resisted the investigation and ultimately filed a complaint in the superior court seeking declaratory and special action relief, asserting the AFHA did not authorize the AAG to investigate a complaint made against a municipal corporation.[5]

¶6 The parties filed cross-motions for summary judgment, disputing three issues: (1) whether Tempe and Chavez are " persons" within the meaning of A.R.S. § 41-1491(9); (2) whether Tempe engages in conduct that could constitute a discriminatory housing practice under the AFHA; and (3) whether the AAG abused its discretion in refusing to summarily dismiss Bircher's complaint.

¶7 After oral argument on the cross-motions, the trial court found: (1) municipal corporations are subject to the requirements of the AFHA, (2) Tempe, a municipal corporation, engages in conduct regulated by the AFHA, and (3) the AAG did not abuse its discretion or act arbitrarily and capriciously by declining to dismiss Bircher's complaint without an investigation. The court also made specific findings that the AAG is mandated to conduct an investigation, and " Tempe thwarted the investigation," such that it could not " now complain that the [AAG] abused his discretion by not dismissing the complaint when the investigation [was] not complete." Accordingly, the court granted the State's summary judgment motion and dismissed Tempe's complaint. The State then applied for its attorneys' fees under A.R.S. § 12-348.01, which the court granted in the amount of $108,090. Tempe timely appealed. We have jurisdiction pursuant to A.R.S. § § 12-120.21(A)(1) and -2101(A)(1).


¶8 Summary judgment is appropriate if " there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a); Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 14, 180 P.3d 977 (App. 2008). Even where the facts are not disputed, as here, summary judgment is improper " if the evidence of record does not demonstrate that the movant is entitled to judgment as a matter of law." Comerica Bank v. Mahmoodi, 224 Ariz. 289, 291, ¶ 12, 229 P.3d 1031 (App. 2010). We ...

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