283 F. Supp. 3d 815
D. Ariz.2017Background
- Plaintiffs challenged Phoenix Ordinance § 8-3.06, which barred pet stores from selling dogs and cats sourced from commercial breeders, asserting constitutional violations and state-law preemption.
- The district court granted summary judgment to the City of Phoenix and intervenor HSUS, upholding the Ordinance.
- While the Ninth Circuit appeal was pending, Arizona enacted A.R.S. §§ 44-1799.10–.11, which permit pet stores to sell animals from USDA-licensed breeders (subject to conditions) and expressly preempt local laws that are stricter.
- Plaintiffs moved to dismiss the appeal as moot and to vacate the district-court judgment; the Ninth Circuit remanded for consideration of the new statute’s effect.
- On remand, parties submitted supplemental briefs and stipulated facts; the court concluded the state statute addresses a matter of statewide concern and therefore preempts the Phoenix Ordinance.
- The court vacated its earlier judgment in favor of the City and HSUS and terminated the action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether A.R.S. §§ 44-1799.10–.11 preempt Phoenix Ordinance § 8-3.06 | New statute does not preempt under Arizona Constitution; Ordinance regulates purely local concern (animal homelessness) | Statute is a statewide regulation preempting any stricter local rules; Legislature intended to preempt Phoenix Ordinance | Statute preempts the Ordinance because regulation of pet dealers is a matter of statewide concern |
| Whether Phoenix (a charter city) may enforce a stricter local rule despite state law | City: home-rule authority allows local regulation of pet-sourcing to address local homelessness and animal-control concerns | State law governs matters of statewide concern; home rule yields where legislature has entered the field | Home-rule power is limited where the legislature has enacted law of statewide concern; Ordinance cannot stand |
| Whether plaintiffs’ lobbying caused mootness (impacting vacatur) | Plaintiffs caused mootness by persuading legislature; equities disfavour vacatur | Lobbying does not count as causing the legislation; Chemical Producers forecloses imputing legislation to private parties; vacatur appropriate | Lobbying does not count as causing the mootness; plaintiffs may obtain vacatur; equities do not bar vacatur |
| Whether the district court’s prior judgment should be vacated | Vacatur appropriate because subsequent statute renders decision moot and plaintiffs did not cause mootness | Vacatur inappropriate because plaintiffs induced the statute and public interest favors keeping the precedent | Judgment vacated; district-court opinion remains publicly available and persuasive but is vacated for purposes of future binding effect |
Key Cases Cited
- City of Tucson v. State, 229 Ariz. 172, 273 P.3d 624 (explains home-rule cities’ power and limits)
- State v. McLamb, 188 Ariz. 1, 932 P.2d 266 (charter cities may enact ordinances under Arizona Constitution)
- Jett v. City of Tucson, 180 Ariz. 115, 882 P.2d 426 (charter city powers subject to constitution and general laws)
- State ex rel. Brnovich v. City of Tucson, 242 Ariz. 588, 399 P.3d 663 (tests whether legislation is of statewide or purely local concern)
- Reid v. Colorado, 187 U.S. 137 (regulation of livestock as state police power)
- Sentell v. New Orleans & C. R. Co., 166 U.S. 698 (dogs subject to state police power)
- Simpson v. City of L.A., 40 Cal.2d 271, 253 P.2d 464 (police power extends to licensing and control of dogs)
- Greer v. Downey, 8 Ariz. 164, 71 P. 900 (municipal exercise of police power regarding animals)
- Luhrs v. City of Phx., 52 Ariz. 438, 83 P.2d 283 (municipal actions conducted as agent of the state are statewide concerns)
- Chemical Producers & Distribs. Ass'n v. Helliker, 463 F.3d 871 (lobbying does not ‘cause’ legislation for vacatur inquiry)
- U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18 (vacatur framework where mootness results from settlement)
- NASD Dispute Resolution, Inc. v. Judicial Council of State of Cal., 488 F.3d 1065 (district opinions remain citable persuasive authority even if vacated)