State of Arizona v. City of Tucson (Arizona Supreme Court 4.14.21)

This blog post written a couple of weeks ago did not publish so here it is.

Arizona’s constitution includes a “home rule charter provision.” Ariz. Const. art. 13, § 2. A recurring issue is what authority this gives because the provision states the charter must be “consistent with, and subject to, the Constitution and laws of the state.” The City of Tucson has litigated over its turf for many years because courts have recognized local autonomy for “purely municipal concerns.” This case is about setting election dates for city officials. And, one wonders what more of a local concern could there be? The Arizona Legislature enacted a law in 2018 stating if a local election was held on a non-statewide election date (off-cycle), and the voter turnout significantly decreased from a statewide election, local elections would be consolidated with the statewide election dates and local terms adjusted accordingly.

After running through the home rule charter provision and arguments from Justice Bolick’s lengthy and continuing dissent over the court’s home rule jurisprudence, the Arizona Supreme Court asks if Justice Bolick is right, what’s left of the charter provision? The supreme court holds the decision of whether to have municipal elections on cycle or off cycle is a matter of purely municipal concern. State law cannot preempt this decision absent a better articulated statewide interest.

A few words about the dissent. Justice Bolick argues the court’s jurisprudence has resulted in “decades of cacophony-producing cases.” To enforce his argument, he begins with a humorous anecdote of a carpenter hitching a ride with a farmer driving a “rust-bucket” truck that never worked and still doesn’t. After leaving the farmer and the carpenter, he gives a textualist reading of the home rule charter provision, questions a statute enacted after the constitution was adopted, and relentlessly attacks prior court decisions. The path he would take is direct – if a state law conflicts with a charter city ordinance, then the ordinance is invalid. But all of this gets rather lost because we are still thinking about the farmer. The late Reid Buckley warned against starting a speech with a joke. Perhaps a dissent should not begin with one either.

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