City of Tucson v. Pima County

Decision Date15 March 2001
Docket NumberNo. 1 CA-CV 00-0411.,1 CA-CV 00-0411.
Citation19 P.3d 650,199 Ariz. 509
PartiesCITY OF TUCSON, a municipal corporation, Plaintiff-Appellee, v. PIMA COUNTY, a political subdivision of the State of Arizona; Mike Boyd, Sharon Bronson, Raymond Carroll, Dan Eckstrom and Raul Grijalva, in their official capacities as Members of the Pima County Board of Supervisors, Defendants-Appellants, The Committee to Incorporate the Town of Tortolita, Defendant-Intervenor-Appellant. The Committee to Incorporate the Town of Tortolita; Town of Tortolita; Cheryl L. Wiener; Ronald K. Wiener; Joan L. Eerkes; David L. Eerkes, Counterclaimants-Appellants, v. State of Arizona; City of Tucson, a municipal corporation; Town of Oro Valley, a municipal corporation, Counterdefendants-Appellees.
CourtArizona Court of Appeals

Anthony B. Ching, Tempe, Attorney for Appellants Pima County and Members of its Board of Supervisors.

Risner & Graham by William J. Risner, Tucson, Attorneys for Appellants Committee to Incorporate the Town of Tortolita, Town of Tortolita, Cheryl L. Wiener, Ronald K. Wiener, Joan L. Eerkes and David L. Eerkes.

Michael D. House, Tucson City Attorney by Dennis P. McLaughlin, Principal Assistant City Attorney, Tucson, and Ulrich & Anger, P.C. by Paul G. Ulrich, Phoenix, Attorneys for Appellee City of Tucson.

Frank Cassidy, P.C. by Frank Cassidy, Tucson, and Dan Dudley, Town Attorney, Town of Oro Valley, Oro Valley, Attorneys for Appellee Town of Oro Valley.

Janet A. Napolitano, Attorney General by Eva K. Bacal, Assistant Attorney General, Tucson, Attorney for Appellee State of Arizona.



¶ 1 The ultimate issue presented by this case is whether it is constitutional for the Arizona state legislature to require the consent of a proximate municipality before an area may incorporate. We conclude that the statute requiring such permission as a predicate to municipal incorporation, ARIZ.REV. STAT. ("A.R.S.") § 9-101.01(B)(1) (1996), is constitutional, and we therefore affirm the superior court's judgment dismissing the appellants' contrary contentions.


¶ 2 Since 1961, A.R.S. sections 9-101 (Supp.2000) and 9-101.01 have outlined the procedure for a municipality's incorporation. See City of Tucson v. Woods, 191 Ariz. 523, 959 P.2d 394 (App.1997),

review denied; Snyder v. Lena, 145 Ariz. 583, 703 P.2d 527 (App.1985),

review denied. Section 9-101(A) provides that, when two-thirds of the electors residing in a community properly petition their county's board of supervisors for incorporation of that community, the board shall incorporate the community as a city or a town. Subsection B of the same statute offers an alternative that, if ten percent of the electors within the community petition the board, the board shall order an election on the issue of the community's incorporation.

¶ 3 However, A.R.S. section 9-101.01 modifies these procedures if an "urbanized area" is involved. That statute states, in relevant part:

A. Notwithstanding any other provision of law to the contrary, all territory within six miles of an incorporated city or town, as the same now exists or may hereafter be established, having a population of five thousand or more as shown by the most recent federal census, and all territory within three miles of any incorporated city or town, as the same now exists or may hereafter be established, having a population of less than five thousand as shown by the most recent federal census is declared to be an urbanized area.
B. No territory within an urbanized area shall hereafter be incorporated as a city or town, and the board of supervisors shall have no jurisdiction to take any action upon a petition to incorporate a city or town within such area, unless:
1. There is submitted with the petition for incorporation a resolution adopted by the city or town causing the urbanized area to exist approving the proposed incorporation; or

2. There is filed with the board of supervisors an affidavit stating that a proper and legal petition has been presented to the city or town causing the urbanized area to exist requesting annexation of the area proposed for incorporation and such petition has not been approved by a valid ordinance of annexation within one hundred twenty days of its presentation.

¶ 4 In April 1997, the Arizona Legislature enacted Laws 1997, Chapter 204, Section 2 ("1997 Law"), the sole purpose of which was to suspend the consent requirement of A.R.S. section 9-101.01(B)(1) in Pima County between July 21, 1997, and July 15, 1999. This prompted the proponents of incorporating the areas known as Tortolita and Casas Adobes to file incorporation petitions with the Pima County Division of Elections.1 Both Tortolita and Casas Adobes are within the relevant distance of the City of Tucson and the Towns of Marana and Oro Valley to qualify as "urbanized areas." Tucson responded by immediately filing a complaint in Pima County Superior Court challenging the 1997 Law as a special or local law barred by the Arizona Constitution.

¶ 5 The superior court ruled that the 1997 Law was constitutional. Thus, the members of the Pima County Board of Supervisors, relying on the 1997 Law and therefore without the consent otherwise required by A.R.S. section 9-101.01(B)(1), declared Tortolita incorporated and called for an incorporation election for Casas Adobes.

¶ 6 Shortly thereafter, though, we concluded in Woods that the 1997 Law was a special or local law contrary to the Arizona Constitution, Article 4, Part 2, Section 19. 191 Ariz. at 528-32, 959 P.2d at 399-403. This voided the incorporation processes for Tortolita and Casas Adobes, and the case was remanded to the superior court for further proceedings.

¶ 7 As those proceedings continued, the case again was brought to this court by petition for special action review. City of Tucson v. Alfred (Pima County), 1 CA-SA 98-0281 (Dec. Order, Nov. 24, 1998). Accepting jurisdiction but denying relief, we ruled that the superior court had correctly interpreted the opinion in Woods to permit federal constitutional challenges to A.R.S. section 9-101.01 to be presented by Pima County, the Pima County Board of Supervisors, the Committee to Incorporate [the Village of Casas Adobes] and the Committee to Incorporate the Town of Tortolita. Id.

¶ 8 Upon further proceedings, the superior court issued a series of thoughtful and thorough minute entries. It declared that the Town of Oro Valley was permitted to intervene; that Pima County, the members of its Board of Supervisors, Tortolita and Casas Adobes lacked standing to bring federal constitutional claims challenging a state statute; that the Committee to Incorporate the Town of Tortolita, Cheryl L. Wiener, Ronald K. Wiener, Joan L. Eerkes and David L. Eerkes lacked standing and a justiciable claim of a violation of the Guaranty Clause of the United States Constitution; that the Committee to Incorporate [the Village of Casas Adobes], Jane Madden, Scott Nelson and Lowell Lowe, and the Committee to Incorporate the Town of Tortolita, Cheryl L. Wiener, Ronald K. Wiener, Joan L. Eerkes and David L. Eerkes lacked standing to challenge A.R.S. section 9-101.01(B)(2); and that claims against the State of Arizona pursuant to 42 United States Code section 1983 filed by the Committee to Incorporate [the Village of Casas Adobes], Madden, Nelson and Lowe were not permitted because of the Eleventh Amendment to the United States Constitution. The court refused to consider whether Tucson's decision not to consent to Tortolita's incorporation was one of bad faith because such an inquiry would require an examination of the motivation of the legislative branch by the judicial branch of government, an inquiry barred by the state and federal constitutional requirements of the separation of powers among the three branches of government. ¶ 9 Ultimately, the superior court held that A.R.S. section 9-101.01(B)(1) is constitutional because it neither violates federal constitutional guarantees of equal protection, procedural or substantive due process, the "right to self-determination" or any of the rights enshrined by the First Amendment to the United States Constitution, nor does it have an adverse impact on the right to vote. Rather, the court concluded, it bears a rational relationship to a legitimate state interest against the Balkanization of its counties. Accordingly, judgment was granted in favor of Tucson, the State and Oro Valley. It is from this judgment that there now is a further appeal, presenting the following issues:

1. Whether Pima County and Tortolita have standing;
2. Whether the superior court abused its discretion by permitting Oro Valley to intervene;
3. Whether A.R.S. section 9-101.01(B)(1) violates the voting-rights doctrine of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution;
4. Whether there has been a violation of the appellants' right to petition the government for a redress of their grievances pursuant to the First Amendment to the United States Constitution; and
5. Whether Tucson acted in bad faith in refusing to consent to Tortolita's incorporation.


A. Standing of Pima County and Tortolita

¶ 10 Tucson argues that, as state political subdivisions, Pima County and Tortolita are without standing to challenge the constitutionality of A.R.S. section 9-101.01. "Whether appellants have standing to sue is a question of law we review de novo." Alliance Marana v. Groseclose, 191 Ariz. 287, 289, 955 P.2d 43, 45 (App.1997).

¶ 11 The issue of standing is not jurisdictional in Arizona but, rather, "solely a rule of judicial restraint." Woods, 191 Ariz. at 526 n. 2, 959 P.2d at 397 n. 2; see Armory Park Neighborhood Ass'n v. Episcopal Community Servs., 148 Ariz. 1, 6, 712 P.2d 914, 919 (1985)

; Alliance Marana, 191 Ariz. at 289,

955 P.2d at 45. We invoke the doctrine of standing to ensure that we do not issue...

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