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Legal Corner
By Joni Hoffman, League General Counsel
The League was busy in 2012 writing and filing amici curiae briefs on behalf of cities and towns that requested the League's assistance. As you may know,
amicus assistance is one of the services the League provides to its member cities and towns. If a city or town is involved in a suit and the resolution
of the suit could impact cities and towns statewide, the city or town may ask the League to file a brief to ask the court to consider the statewide impact
of any decision it makes. In the past, the League has filed briefs in the Arizona Court of Appeals, the Arizona Supreme Court and Federal court. Below
are descriptions of the cases in which the League filed amici last year.
Coleman v. City of Mesa. In November of 2011, the Arizona Court of Appeals issued a ruling that said that not only is the act of applying a tattoo "pure
speech" protected by the First Amendment of the United States Constitution and its Arizona equivalent, the court also stated that operating a tattoo
parlor is pure speech. The Court ruled that Mesa's denial of a council use permit to a tattoo parlor violated the prospective permittees' First Amendment
rights.
Mesa asked the Arizona Supreme Court to review the case. The League filed an amicus brief early in 2012 urging the Supreme Court to hear the appeal because
of the wide-ranging ramifications for cities and towns when they make decisions as to the appropriate location of various types of businesses. The Supreme
Court did take the appeal and last September vacated the court of appeals case, essentially wiping out the holding that operating the tattoo parlor is
protected by the First Amendment. But, the Supreme Court sent the case back to the superior court to allow the Colemans, the persons seeking to open a
tattoo parlor in Mesa, to show whether Mesa violated their first amendment rights to free speech, equal protection under the law and due process. Encouraging
is a statement from the Supreme Court that: "We acknowledge that municipalities have legitimate business interests in controlling the location of businesses
through zoning ordinances." The case is now back at the superior court.
Sedona Grand v. City of Sedona. In a case that implicated Prop 207, the city of Sedona's ordinance prohibiting short term rentals was challenged. The
challengers stated their property value had been diminished and they should be compensated under the Private Property Rights Protection Act, which was
a statewide ballot measure passed in 2006. There is an exception in Prop 207 for land use laws that prohibit a use that protects the public's health
and safety and Sedona, in its ordinance, stated that this was the purpose of prohibiting short term rentals. The court of appeals, in language that
seemed to add a requirement to the law that does not exist, stated that Sedona must "establish by a preponderance of the evidence" that
the ordinance was enacted for the principal purpose of protecting the public's health and safety.
Sedona asked the Supreme Court to hear an appeal from the court of appeals and the League weighed in with an amicus that urged the court to take the case,
because the League believed the way the court of appeals applied Prop 207's health and safety exception would be detrimental to other cities and towns that
wished to invoke the exception.
Unfortunately, the Supreme Court decided not to take the case, leaving the court of appeals of decision in place. This means the case is back at the superior
court for a determination whether the ordinance falls under the Prop 207 health and safety exception as interpreted by the court of appeals.
Town of Marana v. Pima County. In another case in which the League believes the court of appeals added language to statute that does not exist, the town of
Marana asked the Supreme Court to accept an appeal from the court of appeals. This case involves the requirement in law that if a city or town wishes to
acquire a plant or property devoted to the business of or services rendered by a public utility, the question must first be put to a vote of the people.
Marana had done just that in 1988, using the exact wording from the state law. However, Pima County sued stating that the 1998 election did not satisfy the
law. The court of appeals agreed with Pima County and held that the statute requires a municipality to obtain from its voters the authority to acquire a
"particular" plant or property. This could have obvious impacts on cities and towns statewide, where votes held under the statute could be declared invalid,
and the League filed an amicus explaining this impact to the Supreme Court.
Ultimately, however, the Supreme Court did not accept Marana's petition for review and the court of appeals decision is the last word on the issue. While
municipalities are now required to obtain voter authorization for each particular utility acquisition, it is important to note that the decision only requires
the particularized vote authorization when the municipality is taking over or competing with an existing public utility, not if there is no existing service.
Marana has scheduled a March vote to obtain the voter authorization for the particular Pima County sewer assets at issue in this case.
Fields v. The Elected Officials' Retirement Plan. The League filed an "amicus submittal" in this case, along with the Governor's office and the Legislature,
asking that the Supreme Court transfer this case from the court of appeals and take the issue on directly from the superior court. This case involves the
constitutionality of legislation that was passed in 2011 making changes to the Elected Officials Retirement System, which covers both elected officials and
judges. The challengers claim the changes violate the state and federal "contracts clauses" which do not allow the legislature to substantially impair
contracts and the constitutional provision that states retirement systems are a contractual relationship, prohibiting benefits from being impaired or diminished.
The League filed the submittal asking that the case be transferred to the Supreme Court but made it clear that the reason we were weighing in was not to take a position
on the constitutionality of the law, but to have an expedited decision on the issue to alleviate the uncertainty surrounding the implementation of the 2011 law. If the
law is declared unconstitutional, cities and towns may have to make additional contributions, which affect city and town budgets. The League's position is that the
sooner these issues are clarified, the better. Allowing the case to proceed in the court of appeals, with a probable appeal to the Supreme Court, would drag out the
issue too long.
The Supreme Court did rule to transfer the case to its jurisdiction and a briefing schedule has been set.
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League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ 85007
Phone: 602-258-5786
Fax: 602-253-3874
http://www.azleague.org
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