Arizona Attorney General tests state preemption law against the City of Tucson

Last week, Attorney General Mark Brnovich asked the Arizona Supreme Court to cut off the City of Tucson’s $170 million a year in state aid, claiming Tucson is violating Arizona ridiculous state preemption law prohibiting local governments from destroying seized handguns. Brnovich sues Tucson over firearms destruction:

In his legal filing, Brnovich contends the 2005 city ordinance runs afoul of a series of state laws that sharply restrict the right of local governments to make their own gun laws. And he told the justices that a newly enacted state statute specifically gives him the right to intercede and ask the high court to punish offenders.

Officially, the lawsuit asks the high court to give Tucson a deadline by which they have to repeal the ordinance. That is unlikely to occur: Just hours earlier, council members voted unanimously to fight Brnovich in court, though they did agree to voluntarily stop the gun destruction until the Supreme Court rules.

The 2016 law that gives Brnovich the right to take cities to court spells out that any community that wants to fight him must first post a bond equal to half of its annual state aid. Attorneys for the city are expected to ask the justices to declare that requirement illegal or, at the very least, waive it.

Brnovich claims the ordinance runs afoul of several state laws.

The first, enacted in 2000, explicitly prohibits local governments from enacting any ordinances dealing with the acquisition, licensing, registration or use of firearms.

More specific is a 2013 law, adopted on a party-line vote by the Republican-controlled legislature, that bars law enforcement agencies from destroying operable seized firearms. And a companion measure says the only proper way to dispose of a seized weapon is to sell it.

In seeking to have the ordinance voided, Brnovich urged the justices to reject arguments by city officials that the issue is strictly a local matter and they have a right to make such decisions.

“Firearms regulation is a matter of statewide concern because it involves the constitutional right to bear arms,” he wrote in the lawsuit.

The way Brnovich explains it, there’s a public interest in keeping cities from destroying weapons because requiring them to sell off what they seize not only increases the supply but also lowers the costs to buyers. He also is arguing that allowing otherwise usable weapons to be destroyed runs afoul of the legislature’s belief “that increasing the supply of legal firearms is in the interest of public safety” because it helps fight crime.

Brnovich’s lawsuit is built on legislation crafted by Senate President Andy Biggs, who complained during hearings earlier this year there is a “growing disrespect for state law” by local governments.

The law, approved with only Republican support, allows any lawmaker who thinks a local regulation is contrary to state to require the attorney general to investigate. In this case, it was Rep. Mark Finchem, R-Oro Valley, who filed the complaint.

Under the law, if the attorney general concludes state law is being violated, the local government is given 30 days to comply. At that point, failure to act would require the treasurer to stop providing state aid and redistribute those dollars to every other community.

But the law also says if the attorney general believes the ordinance only may violate the law, he or she must ask the Supreme Court to resolve the matter, with the city required to post that bond equal to half of its annual state aid. Brnovich said he decided to take this approach rather than trigger the immediate loss of dollars.

* * *

While the court fight technically involves weapons, it will require the justices to determine exactly how much authority charter cities have to write their own laws.

Tucson is among 18 cities that have taken advantage of a constitutional provision allowing them to write their own charters. And even Brnovich conceded that such charters “supersede all laws of the state in conflict … as such laws relate to purely municipal affairs.”

It was that provision that allowed Tucson to successfully challenge a 2012 state law which sought to dictate when cities can have local elections.

The City of Tucson has now responded. Tucson asks court to block state interference in firearms destruction program:

Calling the measure unconstitutionally punitive, attorneys for Tucson on Monday asked a judge to void the law that allows Attorney General Mark Brnovich to order the community’s revenue sharing withheld if it does not bend to the state’s will.

Lead attorney Rick Rollman said the legislation, approved earlier this year, amounts to illegal coercion of local officials to abandon measures they adopted in what they believe is the best interests of their residents.

More to the point, Rollman said that violates provisions in the Arizona Constitution, which gives charter cities like Tucson and 17 other communities the right to set their own policies and establish their own laws on matters of strictly local concern.

“In doing so, the Arizona Constitution intended to allow the charter city residents to elect officials to govern the city free from punitive threats from the legislature and state officials,” Rollman wrote in his pleadings to Pima County Superior Court Judge Catherine Woods. He said that right to govern includes the ability to decide that handguns and assault rifles that are seized or found should be destroyed.

And Rollman said if the law is not voided it means elected officials are “coerced into not supporting an action they believe to be lawful and in the city’s best interests” simply because the attorney general disagrees with that conclusion.

The city also is filing similar proceedings with the Arizona Supreme Court in a bid to block the lawsuit Brnovich filed last week seeking to deprive Tucson of its approximately $115 million a year in state revenue sharing dollars.

Aside from seeking to void or limit the scope of the new state law, the lawsuit asks the court to specifically rule that how Tucson disposes of personal property, including guns, “is a matter of local concern and as a result, is a lawful exercise of the city’s charter authority and not a violation of state law.” And Rollman wants the court to order state Treasurer Jeff DeWit to make the city’s regular revenue sharing payments without any withholding.

* * *

Rollman, in his superior court lawsuit, said immediate action is necessary to stop Brnovich in his tracks, saying city residents and businesses “will suffer irreparable harm” unless the judge immediately stops further efforts to strip the city of its revenue sharing dollars.

He said stripping the funds will result in longer response times for police and fire “and the associated increased risk to the health and safety of the city’s residents, including the risk of increased crime and property damages.” What also will happen, Rollman is telling the court, is transit services will be cut, including for the disabled, parks and pools will be closed and there will be “dramatic reductions in criminal prosecutions.”

Rollman most immediately wants a court to set aside the requirement that Tucson post a bond of half of its revenue sharing funds as a condition of even being able to fight Brnovich’s attempt to withhold all of it.

Put simply, Rollman said, the city’s current fund balance is only about $51 million, less than the law requires Tucson to put up to fight what Brnovich is trying to do.

“The bond is an unconstitutional filing fee, serving as a barrier to the city’s access to judicial relief and is intended to prevent the city from presenting its positions and arguments in a special action brought by the attorney general,” Rollman said.

The Arizona Supreme Court will decide whether the justices will even look at Brnovich’s complaint on Jan. 10.

Tim Steller of the Arizona Daily Star writes, City-state debates always return to gun issue:

Abstractly speaking, the city’s battle with the state is over our ability to rule ourselves, not about guns.

Tucson is fighting against a law, SB 1487, that imposes Draconian penalties on cities whose ordinances might violate state law or the Constitution. You could say that it’s just coincidence that the first city action to be challenged is a Tucson ordinance related to the destruction of seized guns.

But really, this battle has been about guns all along.

That’s been true from the state’s decades-old pre-emption debates to this new complaint against the city of Tucson.

* * *

But interestingly, [this] was not the first effort at using SB 1487 to force a city to comply. The first complaint, by Rep. Paul Boyer, was against the town of Snowflake over its handling of a marijuana greenhouse proposal. The town amended its agreement in order to address the concerns and the complaint was resolved.

In August, Sen. Gail Griffin, of Hereford, raised the issue of Bisbee’s plastic-bag ordinance, which requires that stores using disposable bags charge a 5-cent tax, of which two cents goes to the store and three cents goes to conservation efforts. The ordinance seems to violate an absurdly specific state law, which bans plastic-bag ordinances. But Griffin never filed a formal complaint.

So, not surprisingly, the complaint that will finally test the constitutionality of SB 1487 is about the issue that pre-emption has always really been about — city ordinances on guns.

The Arizona Daily Sun editorializes, Our View: Don’t shut down municipal laboratories of democracy:

It used to be that they called the states the laboratories of democracy after Congress gridlocked along hyperpartisan lines.

But now that many state legislatures have elevated partisan ideology above practicality as the litmus test for public health and safety, it’s up to the cities to take on the challenge of crafting affordable policies that serve the common good.

In Arizona, there are 19 cities that under the state constitution have adopted charters that give them a measure of home rule on issues deemed of local concern. The Arizona Legislature, notorious for pushing back against federal claims of sovereignty over immigration, clean air and public lands, has done the same to the charter cities on everything from guns to plastic bags and minimum wages. A law or program is only local, it seems, if the Republican majority and the governor agree with it.

CONFISCATORY COURT FEE

The latest wrinkle is a law passed by Republicans that requires cities to post a bond worth half of their annual state-shared revenues if the Attorney General thinks a municipal ordinance conflicts with state law and sues them. Aside from the unconstitutional nature of requiring what amounts to a confiscatory court access fee, there’s no reason other than punitive to link what a city is owed by the state for the taxes its residents have already paid to, say, whether the city decides to require a nickel deposit on every plastic bag at a supermarket.

So Arizona charter cities, including Flagstaff, owe the city of Tucson a big return favor for taking on the Legislature over the revenue-withholding statute, which Attorney General Mark Brnovich has invoked over Tucson’s 2005 gun disposal law. That ordinance directs city staff to melt down firearms confiscated from convicted criminals – more than 4,800 guns have been disposed of since the beginning of 2013. Tucson says the measure protects police and citizens by taking firearms – mainly handguns and semiautomatic weapons – off the streets.

Republicans in the Legislature, marching to the campaign contributions of the Second Amendment hardliners at the NRA and the gun manufacturing lobby, contend just the opposite: More guns make society – and thus the state – safer because they can be used to fight crime, notwithstanding plenty of evidence to the contrary. Guns don’t kill people, says the NRA, but apparently they protect people on sheer numbers alone.

THUMBING ITS NOSE

Using that rationale, the Legislature contends that guns are a statewide issue, thus prohibiting cities from enacting ordinances dealing with acquisition, licensing, registration or use of firearms. The city of Tucson has thumbed its nose at this law for years, but now that the AG has filed a challenge to the disposal program, the whole legal framework behind guns as a statewide issue, the revenue withholding penalty and the confiscatory court access bond could wind up before the Arizona Supreme Court. Just posting the bond could tie up $57 million that the city of Tucson has already committed to municipal services.

Given the way Gov. Doug Ducey has recently stacked the court by adding two Republican members to hike the membership to seven, things might not go Tucson’s way. But the last time we checked, legislative and overreach and fiscal retaliation against cities aren’t bedrock GOP principles. In fact, we’d argue that frustrating municipal home rule is the antithesis of a governing philosophy that seeks to put power into the hands of people as close to the grassroots as possible. If the world were fair, it would be the Legislature that would have to post a bond anytime it challenged an existing city law, then pay triple court costs when it lost.

But as we’ve seen in the last national election, consistency or even logic in party platforms and presidential candidates is no requirement for electoral success. The question will be how long it will take before a majority of voters catch on that the ideologues and special interests that run Congress and most statehouses are also calling the shots at the White House. But this time the Republicans won’t have any excuses when a guy on the no-fly list or a history of domestic violence commits mayhem with a gun he bought legally.

GRASSROOTS INNOVATION

The Republican mantra that the less government oversight there is over guns, schools, banking, workplaces and our air, water and forests the better off we’ll all be is belied by choices voters make at the level of government where citizens actually have to make things work: cities and towns. If cities like Los Angeles, Houston and Pittsburgh, for example, no longer have the lung-choking smog still common in Beijing and Mumbai, it’s because political and business leaders there said enough was enough and took action. And the fact that cleaner vehicle fuels and more smokestack controls worked in U.S. cities paved the way for regional and nationwide action on clean air and water laws. If it had been left to the congressional and statehouse lobbyists for the motor vehicle and carbon fuel industries, we’d still be gagging on our own discharges.

So for Republicans to credibly contend that they stand for small government, they need to stand aside when cities are ready to innovate with the grassroots consent of their citizens. State lawmakers don’t have to run landfills, keep potholes filled, make sure no student is left behind or bury police officers killed by people with no business having access to a gun. The wheels that are greased by the anti-tax, deregulatory dark money now flowing in the wake of Citizens United don’t yet have much traction in nonpartisan cities like Flagstaff. State lawmakers who want to shut down the laboratories of democracy need to look in the mirror and answer the question: Do I really think the gun lobby and the other special interests at the State House have shown they know how to run Arizona’s cities any better?