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.

The parties entered into a settlement agreement under which the defendant agreed to make settlement payments over time. If the payments were not made, the parties agreed plaintiff could file a stipulation for entry of judgment. The parties then filed a stipulation to dismiss the case with prejudice stating, “in the event of a default in payment of the settlement amount, [plaintiff] shall have the right to file, and the Court shall have jurisdiction to immediately enter, and shall enter, a Stipulated Judgment held by [plaintiff’s’ counsel].” The trial court denied the request stating that the dismissal with prejudice is an adjudication on the merits and such language was inconsistent with the dismissal.

The court of appeals could not find anything in the rules or statutes “allowing or forbidding” courts from retaining jurisdiction; the United States Supreme Court has given some direction to federal courts allowing such under Fed.R.Civ.P. 41 (in dicta); and, several other states allow courts to retain jurisdiction to enforce settlements. After citing what other jurisdictions have done, the court determined cases allowing such were persuasive and consistent with Arizona law by encouraging settlement and providing an easy mechanism to enforce an agreement. Retaining jurisdiction will enable “a trial court to clear the case from its docket until the time arises, if ever, to enforce the terms of the agreement.” Thus, the trial court abused its discretion by stating it could not retain jurisdiction when a case is dismissed with prejudice. But what if the trial court refuses to retain jurisdiction not because it cannot retain jurisdiction but because it does not want to do so? What then? The court of appeals does not give any bounds to this discretion. A trial court may decide a case is better cleared from it docket and better reflective of the rule of law by not retaining jurisdiction instead of giving an open-ended opportunity for litigants to come back.

In 2003, the Town of Florence annexed a large piece of property and entered a development agreement with its property owner allowing the owner to develop the property as residential and also to operate a copper mine. The owner’s plan was to mine the copper and then build houses over the mine. Years later the Town changed its mind and decided it no longer wanted a copper mine within the Town’s limits. Owner’s successor (through a bankruptcy) later moved forward with developing the mine and not the homes. And, although owner did not feel it was necessary and later withdrew the request, the owner applied for rezoning and a special use permit for the mining operation.

The Town filed suit arguing a zoning ordinance adopted years after the agreement barred mining on the property. The court of appeals held the owner had a vested right, and the Town could not unilaterally rescind the prior agreement. Using alliterative words of flout, foist, fully and formally, the court holds the Town to its agreement: “We do not discount the tension between yesterday’s binding promises and today’s public opinion, but having agreed to the Development Agreement in 2003, the Town must comply with its terms.” The court also rejected the Town’s argument that the owner abandoned the mining rights.

The court of appeals concludes with affirming a $1.7 million award of attorney fees to the owner. The court approves of the superior court judge who had “used high-stakes or bet-the-company litigation as a barometer to determine the amount of fees. . . ” But how is this barometer a standard? Should there not be more analysis of a large statutory award of fees intended “to mitigate the burden of the expense of litigation.” A.R.S. § 12-341.01. No China Doll or lodestar calculation? We cannot tell whether it is reasonable to make such fee award to a copper company in a case that appears to be neither complex nor novel.