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State ex rel. Brnovich v. City of Tucson

Supreme Court of Arizona

August 17, 2017

State of Arizona, ex rel. Mark Brnovich, Attorney General, Petitioner,
City of Tucson, Arizona Respondent, Jeff DeWit, in his official capacity as State Treasurer, Nominal Respondent.

          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, Bosse 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 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.



         ¶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.


         ¶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 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 "[disposition 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 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 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.


         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 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 legislators) 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 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 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. Deft 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.

         ¶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. Deft 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).) "[Statutory 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 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. Redisricting 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, ยงยง 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 ...

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