City of Tucson files its response in state preemption lawsuit


Howard Fischer reports, Tucson asks State Supreme Court to toss out AG complaint:

The city of Tucson is asking the state supreme court to throw out a lawsuit filed by Attorney General Mark Brnovich that the claims the city is in violation of state law for its policy to destroy confiscated guns.

lastgreatactofdefianceThe 30-page motion filed Thursday night suggests the legal mechanism that brought the complaint to the state’s highest court – SB 1487 – is unconstitutional and therefore, unenforceable.

Additionally, city officials argue the gun destruction policy – which applies to handguns and semi-automatic weapons – is protected as Tucson is a charter city.

Tucson is among 18 cities that have taken advantage of a constitutional provision allowing them to write their own charters.

The filing also asks the Supreme Court to instead have a lower court to hear the case – the city has filed a case in Pima County Superior Court – so that the issues raised in the superior court action that the City has filed can be heard.

Attorneys for the city, Richard M. Rollman and Richard A. Brown, argue that the state legislature wrote SB 1487 in an effort to force local municipalities into rescinding controversial policies.

“It may be that the Legislature disagrees with the authority given to charter cities by the constitutional framers. But, rights granted by the constitution can only be withdrawn by a constitutional amendment that is approved by the voters pursuant to Article 21 of the Arizona Constitution. Section 41-194.01 seeks to avoid that requirement by coercing any city that seeks to exercise its charter city authority through the prospect of catastrophic financial sanctions without judicial review,” they wrote.

Tucson receives $115 million a year in state-shared revenue.

If the Court refuses to throw the case out, the city has asked the high court to consider the constitutionality of SB1492 as part of the overall complaint.

“If the Petition’s merits are considered by this Court, then it should permit the City to brief the unconstitutionality of (the state law) and find that the statutory scheme on which the Petition is based is unconstitutional,” attorneys for the city of Tucson wrote.

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The Tucson City Council voted earlier this month to reject Brnovich’s demand that it repeal its 2005 ordinance requiring the destruction of most handguns and semi-automatic weapons seized by police.

The Council did decide at the same time to indefinitely suspend the destruction of firearms until the court fight has been resolved.

I can’t predict how the Arizona supreme court will deal with these two lawsuits, but eventually it will have to address the state preemption of charter cities’ constitutional rights to home rule. If legal precedents have any bearing in the newly reconstituted supreme court, the City of Tucson has good reason to be optimistic. But you never really know, now do you?