State Ex Rel Brnovich v. City of tucson/dewit
242 Ariz. 588
| Ariz. | 2017Background
- In 2005 Tucson enacted Tucson Code §§ 2-140–2-142 requiring police to destroy unclaimed or forfeited firearms unless retained for law-enforcement use or transfer.
- The Arizona Legislature in 2013 amended A.R.S. §§ 12-945(B) and 13-3108(F) to prohibit political subdivisions and agencies from facilitating firearm destruction and to require sale of unclaimed firearms to authorized dealers; A.R.S. § 12-943 tied city-held property disposition to the article.
- In 2016 the Legislature enacted S.B. 1487 (codified in part at A.R.S. § 41-194.01), authorizing a single legislator to request an AG investigation of local laws and requiring the Attorney General to file a special action in the Arizona Supreme Court if the ordinance "may violate" state law; the statute also mandates a bond equal to six months of state-shared revenue (SSR).
- The AG concluded Tucson’s ordinance "may violate" state law and filed a special action after the City refused to repeal the ordinance; Tucson suspended destruction pending adjudication and simultaneously sued in superior court challenging S.B. 1487.
- The Supreme Court accepted the § 41-194.01(B)(2) special action, rejected Tucson’s separation-of-powers and charter-city arguments as applied here, held the Court’s jurisdiction under (B)(2) is mandatory, found Tucson Code § 2-142 conflicts with state law, and awarded the State reasonable attorney fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Separation of powers challenge to S.B. 1487 (AG investigations and mandatory filing) | State: statute is a valid legislative directive to the AG to investigate and, if appropriate, seek judicial resolution; does not usurp executive or judicial power. | Tucson: authorizing a single legislator to compel AG action and mandating filing and prioritization invades executive and judicial powers. | Statute is constitutional as applied: AG duties set by law; legislature did not impermissibly control executive action; AG issues legal opinions and Court retains final adjudicative authority. |
| Scope and nature of Supreme Court jurisdiction under § 41-194.01(B)(2) | State: when AG finds an ordinance "may violate" state law and files a special action, Supreme Court jurisdiction is mandatory and must be given precedence. | Tucson: jurisdiction is discretionary; (B)(1) governs when AG finds a violation, not (B)(2). | Court’s original jurisdiction under (B)(2) is mandatory (statutory special action) and consistent with the Constitution; (B)(1) applies only where law clearly compels a "does violate" finding. |
| Bond requirement in § 41-194.01(B)(2) (posting bond equal to six months SSR) | State: bond is mandatory but may be reduced/waived in practice; here bond unnecessary because Tucson suspended its ordinance; severable if unconstitutional. | Tucson: bond is an unconstitutional financial barrier to judicial access; discretionary or invalid. | Majority: bond is mandatory on its face but raises serious constitutional and practical concerns; because Tucson suspended enforcement, the Court did not order the bond and left enforceability/severability for another day. Concurring opinion would find the bond provision unenforceable as incomplete/unintelligible. |
| Preemption / home-rule conflict: do A.R.S. §§ 12-943, 12-945(B), 13-3108(F) preempt Tucson Code § 2-142? | State: statutes address statewide concerns (police power, firearms regulation, disposition of forfeited/unclaimed property, oversight of law enforcement), so they preempt conflicting municipal ordinance. | Tucson: as a charter city, Tucson’s power to control disposition of its property (including firearms) under art.13 §2 and its charter supersedes state law on municipal matters. | Held: The state statutes implicate statewide concerns and displace Tucson Code § 2-142; the Ordinance conflicts with and is superseded by state law. |
Key Cases Cited
- State ex rel. Woods v. Block, 189 Ariz. 269 (1997) (separation-of-powers factors and analysis)
- McDonald v. Thomas, 202 Ariz. 35 (2002) (legislative changes to executive clemency procedures and separation-of-powers context)
- Clayton v. State, 38 Ariz. 136 (1931) (state determines what is of statewide concern versus municipal concern)
- Strode v. Sullivan, 72 Ariz. 360 (1951) (articulated municipal/state interest framework for charter-city conflicts)
- Tucson v. State (Tucson II), 229 Ariz. 172 (2012) (home-rule charter analysis; local vs statewide interest)
- Luhrs v. City of Phoenix, 52 Ariz. 438 (1938) (police power and distinction between governmental and proprietary city functions)
- District of Columbia v. Heller, 554 U.S. 570 (2008) (Second Amendment principles regarding individual right to bear arms)
- McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporation and fundamental nature of right to bear arms)