State ex rel. Brnovich v. City of Tucson

• Decision Date: 17 August 2017
• Docket Number: No. CV-16-0301-SA,CV-16-0301-SA
• Citation: 399 P.3d 663
• Parties: STATE of Arizona, EX REL. Mark BRNOVICH, Attorney General, Petitioner, v. CITY OF TUCSON, Arizona, Respondent, Jeff DeWit, in his official capacity as State Treasurer, Nominal Respondent.
• Court: Arizona Supreme Court

399 P.3d 663

STATE of Arizona, EX REL. Mark BRNOVICH, Attorney General, Petitioner,

v. CITY OF TUCSON, Arizona, Respondent,Jeff DeWit, in his official capacity as State Treasurer, Nominal Respondent.

No. CV-16-0301-SA

Supreme Court of Arizona.

Filed August 17, 2017

As Amended August 17, 2017

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, Bossé 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.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶ 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.

BACKGROUND

¶ 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 "[d]isposition 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.

DISCUSSION

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...