United States District Court, D. Arizona
G. Campbell, United States District Judge
brought suit against Defendant City of Phoenix, challenging a
City ordinance that prohibits pet stores from selling dogs
and cats supplied by commercial breeders (“the
Ordinance”). See Phoenix City Code §
8-3.06. Plaintiffs argued that the Ordinance violated the
Dormant Commerce and Equal Protection Clauses of the U.S.
Constitution as well as the Arizona Constitution's
prohibition on special laws, and was preempted by state law.
Doc. 1. The Court permitted the Humane Society of the United
States (“HSUS”) to intervene. Doc. 37. The Court
granted summary judgment to Defendant and HSUS, ruling that
the Ordinance did not violate the U.S. or Arizona
Constitutions and was not preempted because it did not
conflict with state law. Doc. 177.
an appeal from this decision was pending before the Ninth
Circuit, the Arizona Legislature enacted State Bill 1248.
Contrary to the requirements of the Ordinance, the new law
specifically allows pet stores to sell dogs and cats obtained
from commercial breeders that meet certain requirements.
A.R.S. § 44-1799.10. The law contains an express
preemption provision, stating that any local ordinance that
imposes stricter requirements on pet dealers “is
preempted.” A.R.S. § 44-1799.11.
light of this new statute, Plaintiffs filed a motion to
dismiss in the Ninth Circuit, arguing that the statute
preempted the Ordinance and mooted this case, and that
automatic vacatur of this Court's summary judgment was
appropriate. Doc. 209-1 at 2-17. The City and HSUS opposed
the motion, arguing the case was not moot because the statute
did not preempt the Ordinance under the Arizona Constitution,
and that automatic vacatur was not appropriate because
Plaintiffs persuaded the Arizona Legislature and Governor to
adopt the new statute. Id. at 75-97. In response,
the Ninth Circuit remanded the case to this Court “for
consideration of the effect, if any, ” of the new
legislation. Doc 207-1. Thus, the case has been fully
remanded to this Court for consideration of the new statute.
Court held a status conference on May 17, 2017. The parties
and the Court agreed that the parties would file supplemental
memoranda and stipulated facts on the preemption and vacatur
issues. The parties have since made these filings. Docs. 216,
217, 218, 221. Plaintiffs' counsel stated at the status
conference that they did not need further oral argument.
Defense counsel reserved the right to request oral argument,
but have not done so. See Doc. 218. After
considering the briefs, stipulated facts, and relevant cases,
the Court finds that the new statute preempts the Ordinance
and that the summary judgment in favor of Defendant and HSUS
should be vacated.
their counsel, and their lobbyists drafted proposed
legislation, contacted and met with legislators, and
testified before the Arizona Legislature. Doc. 216
¶¶ 1-9. Defendant and HSUS countered with a
lobbying effort of their own. Id. ¶¶
10-15. The Arizona Legislature ultimately enacted the
proposed legislation and the Governor signed it into law.
Doc. 216-1 at 30-31. The new law took effect on August 6,
2016, as A.R.S. §§ 44-1799.10 and 44-1799.11.
statute provides that a pet store or dealer “may not
obtain a dog or cat for resale or sell or offer for sale any
dog or cat obtained from a person who is required to be
licensed by the pet dealer regulations of the United States
department of agriculture” and who either is not
currently licensed or has violated various regulations.
A.R.S. § 44-1799.10(A). Thus, if breeders are currently
licensed by the Department of Agriculture and have not
violated the specified regulations, the statute permits pet
stores or dealers to acquire dogs and cats from them. The
statute expressly preempts any local law that imposes
stricter regulations than the statute or prohibits the sale
of a dog or cat “based on the source from which the
animal is obtained if obtained in compliance with §
44-1799.10.” A.R.S. § 44-1799.11. The Ordinance -
which provides that pet stores and dealers can only sell
animals obtained from shelters or nonprofit rescue
organizations - imposes stricter regulations than the
statute. Doc. 177 at 7. The parties agree that the statute is
designed to preempt the Ordinance. Doc. 209 at 2.
Arizona Constitution has a home-rule charter provision. Under
this provision, “eligible cities may adopt a charter -
effectively, a local constitution - for their own government
without action by the state legislature.” City of
Tucson v. State, 273 P.3d 624, 626 (Ariz. 2012).
“The purpose of the home rule charter provision of the
Constitution was to render the cities adopting such charter
provisions as nearly independent of state legislation as was
possible. Under it a city may provide for the exercise of
every power connected with the proper and efficient
government of the municipality where the legislature has not
entered the field.” City of Tucson v. Walker,
135 P.2d 223, 226 (Ariz. 1943) (internal quotation marks
omitted). “The City of Phoenix, as authorized by the
Arizona Constitution, Article 13, Section 2, has adopted a
charter permitting it to enact municipal ordinances.”
State v. McLamb, 932 P.2d 266, 269 (Ariz.Ct.App.
charter city, Defendant “may exercise all powers
granted by its charter, provided that such exercise is not
inconsistent with either the constitution or general laws of
the state.” Jett v. City of Tucson, 882 P.2d
426, 429 (Ariz. 1994); see also A.R.S. § 9-
284(B). Defendant “is granted autonomy over matters of
local interest.” City of Tucson v. State, 333
P.3d 761, 763 (Ariz.Ct.App. 2014). In a case decided only
weeks ago, the Arizona Supreme Court again described the
relationship between general state statutes and local
ordinances adopted by charter cities:
Where the legislature has enacted a law affecting municipal
affairs, but which is also of state concern, the law takes
precedence over any municipal action taken under the home
rule charter. But where the legislative act deals with a
strictly local municipal concern, it can have no application
to a city which has adopted a home rule charter. Whether or
not an act of the legislature pertains to a matter of local
or state-wide concern becomes a question for the courts when
a conflict of authority rises.
State ex rel. Brnovich v. City of Tuscon, 399 P.3d
663, 673 (Ariz. 2017) (internal quotation marks omitted). The
focus, as is evident from this language, is on the subject
matter regulated by the state statute. The relevant inquiry
“hinges on whether the subject matter is characterized
as of statewide or purely local interest.” Id.
at 674 (internal quotation marks omitted). A court does not
balance the evidence to determine whether the state or the
city has a more ...