State ex rel. Brnovich v. City of Tucson

Decision Date14 April 2021
Docket NumberNo. CV-20-0244-SA,CV-20-0244-SA
Citation484 P.3d 624,251 Ariz. 45
Parties STATE of Arizona, EX REL. Mark BRNOVICH, Attorney General, Petitioner, v. CITY OF TUCSON, Arizona, Respondent.
CourtArizona Supreme Court

Mark Brnovich, Arizona Attorney General, Joseph A. Kanefield, Chief Deputy and Chief of Staff, Brunn W. Roysden III (argued), Solicitor General, Michael S. Catlett, Linley Wilson, Jennifer Wright, Assistant Attorneys General, Phoenix, Attorneys for State of Arizona

Jean-Jacques Cabou (argued), Alexis E. Danneman, Matthew R. Koerner, Perkins Coie LLP, Phoenix; Michael G. Rankin, City Attorney, Dennis P. McLaughlin, Roi I. Lusk, Jennifer Stash, Principal Assistant City Attorneys, Office of the Tucson City Attorney, Tucson, Attorneys for City of Tucson

Jon M. Paladini, Prescott City Attorney, RoseMarie R. Horvath, City of Prescott Legal Department, Prescott, Attorneys for Amicus Curiae City of Prescott

Robert B. Washburn, Scottsdale, Attorney for Amicus Curiae League of Arizona Cities and Towns

Judith R. Baumann, Tempe City Attorney, Sarah R. Anchors, Elizabeth Higgins, Assistant City Attorneys, City of Tempe, Tempe, Attorneys for Amicus Curiae City of Tempe

Cris A. Meyer, Phoenix City Attorney, Deryck R. Lavelle, Assistant City Attorney, Office of the City Attorney, Phoenix, Attorneys for Amicus Curiae City of Phoenix

VICE CHIEF JUSTICE TIMMER authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, and JUSTICES LOPEZ, BEENE, and MONTGOMERY joined.* JUSTICE BOLICK dissented.

VICE CHIEF JUSTICE TIMMER, opinion of the Court:

¶1 Arizona Revised Statutes § 16-204.01 requires political subdivisions to consolidate local elections with state and national elections when voter turnout for the former significantly decreases. Our constitution's "home rule charter" provision, article 13, § 2, gives charter cities autonomy over matters of purely municipal concern. We are asked to decide whether the home rule charter provision precludes application of § 16-204.01 to a city whose charter requires electing local officials on non-statewide election dates. Whether to align municipal elections with state and national elections or hold them in different years is purely a matter of municipal interest and not a statewide concern. Consequently, we hold that § 16-204.01 cannot apply to require a city to consolidate local elections with state and national elections if its charter provides otherwise.


¶2 The legislature has sought in recent years to align local, state, and national election dates. Beginning with the 2014 elections, the legislature required nearly all political subdivisions to hold most candidate elections in even-numbered years on dates selected for state and national elections.1 See A.R.S. § 16-204(E) ; see also A.R.S. §§ 16-211 through -213 (setting dates for state and national candidate elections); Ariz. Const. art. 7, § 11 (requiring biennial general elections be held in even-numbered years). In doing so, the legislature preempted all laws, charters, and ordinances requiring different election dates. See § 16-204(E). After two charter cities challenged this legislation, the court of appeals held that "state-mandated election alignment, when it conflicts with a city's charter, improperly intrudes on the constitutional authority of charter cities." City of Tucson v. State (Tucson III ), 235 Ariz. 434, 435 ¶ 3, 333 P.3d 761, 762 (App. 2014). In relevant part, the court found "no facts or legislative findings" showing that aligning local, state, and national candidate elections affects statewide interests, which would have rendered § 16-204(E) permissible under the home rule charter provision. Id. at 439 ¶ 17, 333 P.3d at 766.

¶3 In 2018, the legislature responded to Tucson III by enacting A.R.S. §§ 16-204.01 and -204.02. See § 16-204.01(A). Section 16-204.01 requires a political subdivision to "hold its elections on a statewide election date" ("on cycle") if voter turnout for its most recent local election held on a non-statewide election date ("off cycle") decreased by twenty-five percent or more from the political subdivision's voter turnout for the most recent gubernatorial election. § 16-204.01(B) and (D)(2). Section 16-204.01 does not authorize political subdivisions to return to off-cycle elections once moved to on-cycle elections. If off-cycle elections are consolidated with on-cycle election dates, incumbent officials’ terms in office are lengthened to align accordingly. See § 16-204.02.

¶4 The legislature found that consolidating election dates in the above-described circumstances would increase voter participation in local elections, a matter of statewide concern. § 16-204.01(A). Thus, as it did in § 16-204, the legislature preempted all contrary local laws, ordinances, and charter provisions. See §§ 16-204.01(A) and -204.02(A).

¶5 The City of Tucson is an incorporated city with a charter. Since 1960, its charter has required off-cycle elections for electing city officials and for repealing or amending previously adopted city initiative measures. Tucson City Charter, ch. 16, §§ 3, 4; ch. 19, § 9. The charter empowers the mayor and city council to select election dates. Id. , ch. 4, § 1(20); ch. 16, § 6.

¶6 After enactment of §§ 16-204.01 and -204.02, the City placed a referendum measure on the November 2018 ballot seeking to amend its charter to require on-cycle elections. The measure failed.

¶7 The City experienced a significant decline in voter turnout between the 2018 gubernatorial election and the 2019 city election, thereby triggering § 16-204.01 ’s directive for conducting on-cycle elections.

Regardless, the mayor and city council enacted Ordinance No. 11731 ("Ordinance") in 2020, setting off-cycle primary and general election dates in 2021 to select three city council members.

¶8 An Arizona legislator asked the Attorney General to investigate whether the Ordinance violates § 16-204.01. The request triggered A.R.S. § 41-194.01, which required the Attorney General to investigate and report whether the Ordinance violates, may violate, or does not violate § 16-204.01. See § 41-194.01(A)(B).

¶9 The Attorney General found that the Ordinance may violate § 16-204.01. Pursuant to § 41-194.01(B)(2), he therefore filed this special action asking us to resolve the issue. We have jurisdiction pursuant to article 6, section 5(6) of the Arizona Constitution and § 41-194.01(B)(2).

I. General principles

¶10 Arizona's constitutional framers adopted a home rule charter provision during the 1910 convention. Ariz. Const. art. 13, § 2. Including the provision in our constitution coincided with an urban reform movement seeking to discontinue treating cities as mere "creatures, agents, or subdivisions" of the state by providing them lawmaking authority and freedom from state legislative interference in municipal affairs.2 David J. Barron, Reclaiming Home Rule , 116 Harv. L. Rev. 2255, 2278 & n.68 (2003) ; see also Toni McClory, Understanding Arizona's Constitution 178 (2d ed. 2010) ("Arizona's Progressive founders valued local autonomy, so they put constitutional limits on the legislature's ability to interfere with cities and towns. For example, the legislature is expressly prohibited from enacting ‘local or special’ laws that treat communities individually. Even more importantly, the Progressives encouraged municipal home rule."); Strode v. Sullivan , 72 Ariz. 360, 367, 236 P.2d 48 (1951) (explaining that the purpose of home rule "is to emancipate the municipal governments of cities ... from the control formerly exercised over them by the Legislature" (quoting State ex rel. Short v. Callahan , 96 Okla. 276, 221 P. 718, 719 (1923) )); State ex rel. Brnovich v. City of Tucson (Tucson IV ), 242 Ariz. 588, 598 ¶ 40, 399 P.3d 663, 673 (2017) (phrasing the purpose as "render[ing] the cities adopting such charter provisions as nearly independent of state legislation as was possible" (quoting City of Tucson v. Walker , 60 Ariz. 232, 239, 135 P.2d 223 (1943) )).

¶11 Arizona's home rule charter provision authorizes any city with a population greater than 3500 people to "frame a charter for its own government." Ariz. Const. art. 13, § 2. Once ratified by the city's voters and approved by the governor, the charter becomes the "organic law of such city," effectively, a local constitution. See id. ; City of Tucson v. State (Tucson II ), 229 Ariz. 172, 174 ¶ 10, 273 P.3d 624, 626 (2012) ; see also Paddock v. Brisbois , 35 Ariz. 214, 220, 276 P. 325 (1929) (noting that unlike a state constitution, which limits state government's power, a city charter "is a grant of power"). Whatever powers a city exercises under its charter, however, must be "consistent with, and subject to, the Constitution and laws of the state." See Ariz. Const. art. 13, § 2 ; accord A.R.S. § 9-284(B) ; see also Strode , 72 Ariz. at 364, 236 P.2d 48 (stating that a charter city does not possess "carte blanche authority or plenary power to adopt any legislation that it might desire"); Tucson IV , 242 Ariz. at 602 ¶ 55, 399 P.3d at 677 (observing that our prior cases have consistently recognized that the "consistent with, and subject to" clause operates as a "significant constitutional restraint on charter cities’ powers").

¶12 Although the home rule charter provision addresses conflicts between a charter and state laws existing at the time the charter is approved, it does not expressly address conflicts arising after the charter is approved. See Ariz. Const. art. 13, § 2 (requiring the governor to approve a voter-ratified charter and any subsequently ratified amendments unless they "conflict with [the] Constitution or with the laws of the state"). From statehood onward, however, the home rule charter provision has been continuously viewed as providing local autonomy to exercise charter-granted authority over purely municipal concerns while preserving final state legislative authority over matters of joint municipal and statewide concern. See, e.g. , 1912...

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