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.
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
I. Wilenchik, John D. Wilenchik, Wilenchik & Bartness,
P.C., Phoenix, Attorneys for Jeff DeWit
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.
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.
PELANDER, VICE CHIEF JUSTICE.
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
In 2000, the Arizona Legislature passed House Bill 2095,
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)).
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.
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
[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.).
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. 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).
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. §
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.
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
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.
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 §
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
Separation of Powers Challenge to S.B. 1487
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).
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
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.
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
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.
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.
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.
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).
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. 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).
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.
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").
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.
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
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)).
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 ...