2017 LEAGUE ANNUAL CONFERENCE ARIZONA CITY … · 2017-08-21 · the 2000 changes to § 39121.01 would be superflu- ous. Moreover, the Arizona Supreme Court said long before the 2000

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ROUNDTABLE AGENDA 2017 LEAGUE ANNUAL CONFERENCE

ARIZONA CITY ATTORNEYS ASSOCIATION ROUNDTABLE Thursday, August 24, 2017- 2:30 p.m., Santa Rita

Hilton El Conquistador, Oro Valley, AZ Conference Call Number: 1-800-220-9875; Passcode: 14393287#

DISCUSSION ITEMS IF THERE ARE SEPARATE ATTACHMENTS, THEY ARE INDICATED IN ITALICS.

1. Recent AG Opinion re texting/social media (Michael Bailey) – See AG Opinion; Clean Elections Commission Opinion (refuting the AG’s guidance)

2. Status of the ADOR IGA (Lee Grafstrom)

3. Status of Wireless Facilities in ROW (Susan Goodwin) – See Tips for Implementing 2365; WCF ROW CoC New Small Cell Design Standards for Streetlights and Signal Poles -- FINAL DRAFT - 8-15-17; and WCF ROW Mesa Small Cell Terms and Conditions DRAFT 8-16-17

4. Goldwater Report about Municipal Courts (Susan Goodwin) – See Goldwater City Court Policy Paper

5. GPLET Enforcement by ADOR (Bill Sims) – See info from ADOR website

6. SB1487 Decision (Mike Rankin, Christina Estes-Werther) – See Brnovich v. Tucson Opinion

7. Definition of “subdivision” in A.R.S. § 9-463.02 as applied to commercial and industrial projects (Frank Cassidy) – See A.R.S. § 9-463.02

8. San Francisco’s sign code survives First Amendment scrutiny in regulating on-site vs off-site commercial signs (Phyllis Smiley) – See Contest Promotions v. San Francisco

STATE OF ARIZONA

OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL OPINION

By

MARK BRNOVICH

ATTORNEY GENERAL

July 7, 2017

No. I17-004 (R15-026)

Re: Whether Arizona’s Public Records Law

Extends Beyond its Terms and Applies to Privately Sent Messages

To: Senator Steve Farley

Arizona State Legislature

Questions Presented

Are messages sent and received via texting and social media sites by officers or public

bodies that have a substantial nexus to the job public records, even if the employee uses a private

cell phone or electronic device?1

Summary Answer

Electronic messages sent or received by a government-issued electronic device or

through a social media account provided by a government agency for conducting government

business are public records. With respect to communications conducted on private devices or

accounts, although private devices or accounts do not themselves harbor public records, public

officials have an affirmative duty to reasonably account for official activity. This duty

1 This opinion addresses only the specific request made, relating to electronic messages sent via “texting and social media sites,” and does not evaluate the applicability of the Arizona Public Records Law, A.R.S. § 39-121 et seq, to any other types of potential public records.

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encompasses official activity engaged in through private devices or accounts. In other words,

public officials cannot use private devices and accounts for the purpose of concealing official

conduct.

Analysis

I. Electronic Messages Sent or Received Using Electronic Devices or Social Media Accounts Provided by A Government Agency for Conducting Government Business. Public officers and bodies in Arizona are legally obligated to “maintain all records . . .

reasonably necessary or appropriate to maintain an accurate knowledge of their official activities

and of any of their activities which are supported by monies from this state or any political

subdivision of this state.” A.R.S. § 39-121.01(B). Public records are generally open to

inspection by any member of the public during office hours. A.R.S. § 39-121. “[T]he core

purpose of the public records law . . . is to . . . allow the public access to official records and

other government information so that the public may monitor the performance of government

officials and their employees.” Phoenix New Times, L.L.C. v. Arpaio, 217 Ariz. 533, 541 ¶ 27

(App. 2008) (internal quotation marks and citation omitted).

An electronic message sent or received using a device or a social media account provided

by a government agency for conducting government business is a public record unless it is of a

“purely private or personal nature.” See Griffis v. Pinal Cnty., 215 Ariz. 1, 4 ¶10 (2007) (“only

those documents having a ‘substantial nexus’ with a government agency’s activities qualify as

public records” even when created and located on government systems or devices); see also Lake

v. City of Phoenix, 222 Ariz. 547 (2009) (where government agency maintains public record in

electronic format, document metadata associated with record was also public record); ACLU v.

DCS, 240 Ariz. 142 (App. 2016) (CHILDS database was public record), review denied (Apr. 18,

2017). Thus, where a government agency provides a device or social media account as a means

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of conducting government business and generating public records, messages sent or received by

any such device or account are public records unless of a purely private or personal nature.

II. Electronic Messages Sent and Received Using Private Electronic Devices or Social Media Accounts Not Established As Systems For Conducting Government Business. If the electronic message is solely on a private electronic device or through a social media

account that an agency has not established as a system for conducting government business, then,

as explained below, the electronic message is not a public record.

This is a question of first impression in Arizona, as no Arizona appellate decision has

addressed the applicability of the public records law to electronic messages on non-government

electronic devices or messages on non-government social media accounts.2 Courts interpret

statutes by looking first to the plain language of the law as the best indicator of the legislature’s

intent. Premier Physicians Grp, PLLC v. Navarro, 240 Ariz. 193, 195 ¶ 9 (2016). When an

ambiguity exists in a statute, courts “determine its meaning by considering secondary factors,

such as the statute’s context, subject matter, historical background, effects and consequences,

and spirit and purpose.” Id. “[G]enerally ‘the legislature does not include in statutes provisions

which are redundant, void, inert, trivial, superfluous, or contradictory.’” Vega v. Morris,

184 Ariz. 461, 463 (1996).

2 Courts in other states have recently issued opinions on public-records related disclosure questions in their own states, interpreting their own state statues and constitutional provisions in light of judicial precedent. E.g., Nissen v. Pierce Cty., 357 P.3d 45 (Wash. 2015); City of San Jose v. Superior Court, 389 P.3d 848 (Cal. 2017). While these opinions may identify many of the same conflicting policy issues identified herein, the policy choices reached in those opinions do not provide a basis for going beyond the plain language of the pertinent Arizona provisions in answering the question presented: what electronic systems the Arizona Legislature has determined can contain public records under Arizona law. This is especially true given that, as noted below, it would be improper for this opinion to supplant the legislature’s role as the arbiter of the policy balancing on this important question. Making private devices per se subject to government review should not be done without authorization in the law, flowing from a proper legislative balancing of constitutional and policy considerations.

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Since 2000, the Arizona Public Records Law has covered electronic records as a result of

legislative action, which expanded the statutory definition of public records to include records

regardless of physical form or characteristics. Specifically, the Legislature amended

§ 39-121.01(B) as follows (additions are noted by underlines and deletions by strike-through):

All officers and public bodies shall maintain all records, including records as defined in section 41-1350, reasonably necessary or appropriate to maintain an accurate knowledge of their official activities and of any of their activities which are supported by funds from the state or any political subdivision thereof of the state.

2000 Ariz. Sess. Laws ch. 88, § 54 (2d Reg. Sess.).

The first change is relevant to the present analysis. It incorporated by reference the

definition of the term “records,” which (as reflected in the current version of § 39-121.01(B)) has

been renumbered to § 41-151.18. That definition provides in relevant part that “records” means:

all books, papers, maps, photographs or other documentary materials, regardless of physical form or characteristics, including prints or copies of such items produced or reproduced on film or electronic media pursuant to § 41-151.16, made or received by any governmental agency in pursuance of law or in connection with the transaction of public business and preserved or appropriate for preservation by the agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the government . . . .

A.R.S. § 41-151.18.

The effect of this change was to make clear that materials “regardless of physical form or

characteristics” count as records. The 2000 amendment of § 39-121.01(B) is therefore critical to

understanding the scope of the public records law as it applies to electronic records. The

Arizona Supreme Court’s most recent opinion on the public records law held that when an

agency maintains a public record document in electronic form, the document’s metadata is itself

subject to disclosure if requested. Lake, 222 Ariz. at 551 ¶ 13. In reaching its holding, the Court

noted multiple times the significance of the 2000 legislative amendment. See id. at 549 ¶9 & n.3

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(quoting the definition of “records” in § 41-1350); id. at 550 n.4 (noting 2000 amendment and

the addition of the reference to § 41-1350 when discussing that “the 1975 adoption of § 39–

121.01(B) ‘define[d] those matters to which the public right of inspection applies more

broadly.’”).

The text of § 41-151.18 requires that the materials be “made or received by any

governmental agency in pursuance of law or in connection with the transaction of public

business and preserved or appropriate for preservation by the agency” (emphasis added).

Similarly, § 41-151.16(A) permits “[e]ach agency of this state” to maintain records using

electronic media. The statutes’ plain language makes clear that when the Legislature expanded

the scope of public records to include electronic records, it did so only with respect to agency-

maintained systems. Concluding otherwise would require going beyond the language of the

relevant statutes and would make the 2000 amendment to § 39-121.01(B) superfluous. For the

same reason, the language “public records and other matters” in § 39-121 does not itself cover

electronic communications. If “other matters” itself covered electronic communications, then

the 2000 changes to § 39-121.01 would be superfluous. Moreover, the Arizona Supreme Court

said long before the 2000 legislative amendments that the breadth of § 39-121.01 “obviate[ed]

the need for any technical distinction between ‘public records’ or ‘other matters,’ insofar as the

right to inspection by the public is concerned.” Carlson v. Pima Cty., 141 Ariz. 487, 490 (1984).

The Court’s language in Griffis that “the nature and purpose of a document determine

whether it is a public record,” 215 Ariz. at 4 ¶10 (quoting Salt River Pima-Maricopa Indian

Cmty. v. Rogers, 168 Ariz. 531, 538 (1991)), is not to the contrary. That language, like similarly

broad language in other cases, was used in the context of limiting what documents on a

government-issued electronic device or in the possession of an agency count as public records,

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not expanding it beyond those contours. Absent direction from the Legislature otherwise, it is

improper to pull language out of its context in Griffis limiting the reach of the public records law

in order to expand that statute’s application.

The plain text of the relevant statutes contemplates government management of

government systems alone. Several policy arguments bolster this conclusion. First, an agency

does not have control of private electronic devices or social media accounts. Deeming all

communications on such electronic devices or services to be public records subject to mandatory

retention requirements under Arizona law would impose a duty on an agency that may be

impossible to meet. See Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S.

136, 152 (1980) (Department of State did not improperly withhold documents that had been

lawfully taken by Secretary of State and were housed outside of the State Department’s control).

Second, public employees have a strong privacy interest in their personal electronic

devices and social media accounts, which contain significant personal, private information.

See, e.g., Riley v. California, 134 S. Ct. 2473, 2491 (2014) (noting special privacy concerns

implicated by modern cell phones: “it is no exaggeration to say that many of the more than

90% of American adults who own a cell phone keep on their person a digital record of nearly

every aspect of their lives—from the mundane to the intimate”; “a cell phone search would

typically expose to the government far more than the most exhaustive search of a house”); see

also Ariz. Const. art. II, § 8, providing “broad protection” of “individual privacy.” Mobilisa, Inc.

v. Doe, 217 Ariz., 103, 112 (App. 2007). Classifying messages on personal electronic devices

and social media accounts as public records would potentially expose the entire contents of

employees’ personal electronic devices and social media accounts to agency access and perusal

as part of the public records response process.

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Third, officers and public bodies are under independent obligations to record their work

and otherwise maintain records. See, e.g., A.R.S. § 39-121.01(B), (C) (Officers and public

bodies are obliged to keep records that are “reasonably necessary or appropriate to maintain an

accurate knowledge of their official activities.”). This record-keeping obligation precludes

public officials from using private devices or accounts for the purpose of concealing official

activities. While nothing herein should be read as encouraging the use of private electronic

devices or social media accounts to conduct official activities, if such activity does occur it is the

duty of the public official to record the activity in accordance with A.R.S. § 39-121.01.3

Government agents are presumed to meet this obligation. See, e.g., Bracy v. Gramley, 520 U.S.

899, 909 (1997) (“Ordinarily, we presume that public officials have ‘properly discharged their

official duties.’”) (quoting United States v. Armstrong, 517 U.S. 456, 464 (1996)).

Fourth, other statutes provide for criminal penalties for destroying or tampering with

public records. See, e.g., A.R.S. § 38-421 (providing for class 4 felony for officer who

“knowingly and without lawful authority destroys” any record). If the scope of public records is

expanded to include potentially all messages on private electronic devices and social media

accounts, then this could create criminal liability for public employees without the notice

provided by affirmative legislative action. Long-standing legal principals counsel against this

type of extra-legislative expansion of criminal liability. See, e.g., Crandon v. United States,

494 U.S. 152, 158 (1990) (Rule of lenity is a “time-honored guideline” that “serves to ensure

both that there is fair warning of the boundaries of criminal conduct and that legislatures, not

courts, define criminal liability.”)

Conclusion

3 The precise contours of this duty are not the subject of this Opinion and likely involve fact-intensive analyses.

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Electronic messages sent or received by a government-issued electronic device or

through a social media account provided by a government agency for conducting government

business are public records. Messages sent or received by a private electronic device or through

a private social media account implicate the public official’s duty to provide a reasonable

account of official conduct, but do not themselves harbor public records. Interpreting the statute

in this manner is consistent with the statutory text and is mindful of the separation of powers. It

is the province of the Legislature, not of this office or the courts, to weigh considerations such as

balancing public employee privacy rights with the need for government transparency and

accountability.

Mark Brnovich Attorney General

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Tips for Implementing HB 2365

and Risky Regulations on Wireless Facilities to Avoid1

In General

• Standard Terms and Conditions are needed for SWF’s meeting the size requirements, but cities

will also want to be able to articulate the rules for wireless facilities that may exceed these limits (e.g. more than 6 cubic feet and equipment more than 28 cubic feet).

• AT&T advocates for up to 35 cubic feet in volume for non-pole collocations that can support at least 3 providers and that the size limit only apply to each carrier’s equipment, not to all “wireless

equipment on the pole in the aggregate.”2 • Be clear in what, if any, pole-mounted equipment will be allowed and what it will should look like

with respect to any stealth or concealment required. • Be sure to have rates, fees and terms for monopoles, including objective design standards and

any stealth and concealment requirements for any pole-mounted equipment (if allowed). • Determine what document the carriers will be required to sign that obligates them to obey the

standard terms and conditions, sets forth any modifications to those that have been negotiated, and imposes any site-specific requirements (as allowed by the standard terms and conditions). Will this be a “master licensing agreement” or a “site license” or a “modified encroachment permit”

or some other document?

Applications

• Avoid questions relating to: • Finances • Ownership • System design (beyond what may be necessary to know from a physical impact

standpoint) • Avoid requiring:

• Site design requirements that ask for information regarding all surrounding wireless facilities for distances up to a mile or more

• Detailed radio frequency studies (however requiring a showing of compliance with FCC’s

RF emissions standards should be allowable) • Note that A.R.S. § 9-593(E) says “An application must include an attestation that the small

wireless facilities will be collocated on the utility pole or wireless support structure and that the small wireless facilities will be operational for use by a wireless services provider to provide service within one hundred eighty after the permit issuance date.” The statute also allows this period to be extended if the authority and the wireless provider agree to that or if a delay is caused by a lack of commercial power at the site.

1 Based on the review of CTIA’s and other industry commenters in the FCC’s Wireless and Wireline Proceedings, WT Docket No. 17-79 and WC Docket No. 17-84 (submitted June 15, 2017). 2 AT&T Reply Comments, at 12 citing the Collocation NPA Stipulation Vi.A.5.b as the justification

2

Processing Times

• A.R.S. § 9-593(F)(2) requires 20 days to review of the application for completeness, but Verizon is asking the FCC for 15 days.

• A.R.S.§ 9-593(F)(3) requires 75 days to complete the approval (or disapproval) process once the application is complete, but the industry is asking the FCC to adopt a 60-day shot clock for the entire process (even if the application is not necessarily complete).

• For new facilities like monopoles, the industry wants a 90-day shot clock and Mobilitie is advocating for a 60-day shot clock.

• Thus, having a review processes that will fit within those time frames will be helpful to a local government if the FCC decides to preempt Arizona law. HB 2365 set the shot clock of 150 days for monopoles. (A.R.S. § 9-594(C)(3)).

Standard Terms and Conditions

• Avoid imposing arbitrary limits on equipment dimensions • Avoid requiring the submission of “as built” plans every year (if nothing has changed) • Avoid prohibitions of new wireless facilities within an entire zoning classification • Avoid restrictions of wireless facilities in proximity to parks, schools, and other specific uses • Avoid having a blanket prohibition on constructing new poles without a waiver process to provide

for exceptions o The industry is advocating that undergrounding ordinances are de facto prohibitions on

wireless service and discriminate against wireless technologies because poles can be installed without impeding the flow of traffic or pedestrians.

o If the installation of other new verticality in the ROW is allowed by others, the wireless industry will claim discrimination.

• Local government will want to be able to articulate the justification for prohibiting new poles in general or be able to provide reasons why a new pole in a certain area should not be allowed.

Traditional Right-of-Way Management includes:

o Coordination of construction schedules o Determination of insurance o Bonding and indemnity requirements o Establishment and enforcement of building codes o Keeping track of the various systems using the rights-of-way to prevent interference

between them o Regulating the time or location of excavation to preserve effective traffic flow, preventing

hazardous road conditions, or minimizing noise impacts o Requiring a company to place its facilities underground, rather than overhead, consistent

with the requirements imposed on other utility companies o Requiring a company to pay fees to recover an appropriate share of the increased street

repair and paving costs that result from repeated excavation o Enforcement of local zoning regulations o Requiring a company to indemnify the City against any claims of injury arising from the

company’s excavation. • Industry concedes that the following are allowed:

o Preserving physical integrity of the ROW o Controlling the orderly flow of vehicles and pedestrians,

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o Protecting the health, safety, and welfare of the public o Consideration of the aesthetic impact of a facility (as noted by the FCC).

Fees

• With respect to fees for wireless facilities and monopoles in the ROW, the industry wants these to be limited to the locality’s direct costs incurred in issuing permits and managing the ROW, but only for those costs “they would not have incurred but for the wireless facility”3 and no more.

• This means the industry only wants local governments to recover their incremental costs to: o Review and issue siting permits o Supervise the installation of facilities that impact rights of way o Ensure those facilities are properly maintained o Upkeep, maintenance, inspections and application processing

• For monopoles, the ROW use fee is limited to “not more than the direct and actual costs of

managing the right-of-way”. A.R.S. § 9-594(D)(4) • With respect to application fees for wireless facilities outside of the ROW, the industry is

advocating that these also need to be based on the “actual costs associated with consideration of the application.”

Stealth and Concealment

• AT&T says the FCC has observed that the current shot clocks (90 and 150 days) may be longer than necessary and reasonable to review a small cell siting request because small cells may have less potential for aesthetic and other impacts than macrocells.4

• The industry objects to “vaguely worded or subjective visual or other aesthetic interests”. a. “Character of the neighborhood” and “compatibility” with the character of the area are

considered to be subjective criteria by the industry. b. The industry objects to aesthetic restrictions based on “generalized concerns,” such

as the “flatness of the terrain, the presence of nearby residential neighborhoods,” and neighborhood concerns that the facility will have a negative visual impact.

c. The industry says objective standards are the size of the equipment (using the FCC’s

volumetric safe harbor), placement on the pole, and painting requirements. • Sprint says its small cells are “small, prepackaged units approximately the size of a shoe box to a

fire extinguisher that mount on a traditional utility pole, streetlight, traffic signal, or building with no additional equipment installed on the ground…. A typical small cell radio unit is 20” x 10” x

10”, or in other words smaller than the ubiquitous power transformers mounted on electric

poles nationwide and similar in size to pole-mounted junction boxes for telecommunications. There is an omni-directional antenna and one or two additional smaller pieces of equipment mounted on the pole to provide backhaul, as well as an electric meter.5

• ExteNet said its “equipment is substantially similar to or even smaller than wireline or utility equipment.”6

• Industry says “small cells and DAS systems are designed to blend in to the streetscape with

minimal if any visual impact.”7

3 CTIA Comments, at 32 4 AT&T Reply Comments, at footnote 39 at 9 5 Sprint Comments, at 12, photo at 13 6 ExteNet Comments, at 3 7 CTIA Comments, at 29

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• Accordingly, the industry should not object to local government requiring the following:

“Small Wireless Facilities shall be designed to blend in to the surrounding streetscape

with minimal, if any, visual impact.”

• Verizon, however, wants small cells to be excepted from review by local authorities for aesthetic concerns because it says there would never be a justification for a denial on aesthetic grounds because there is no new construction that alters the appearance of the neighborhood in a material way.8

• A.R.S. § 9-593(F)(5) says if an application for an SWF is denied, the local government “shall

document the basis for the denial, including the specific code provisions, regulations or requirements on which the denial was based…”

• With respect to the installation of new monopoles, utility poles or wireless facilities and the collocation of wireless facilities subject to zoning codes and other regulatory processes, A.R.S. § 9-594(C)(4) says if an application is denied, the local government must provide “substantial

supporting evidence of the reason for denial” and there must be “a reasonable basis for the

denial”. “An authority may not deny an application if the denial is discriminatory against the

applicant with respect to the placement of the facilities of other wireless providers.”

Other Industry Objections

• The industry claims that any ownership interest in the ROW is “governmental,” not proprietary, and that the municipality’s original decision to allow the purchase and erection of the poles and to

lease space on them was “an exercise of regulatory authority. Any monies collected for lease of the poles goes into the municipal treasury…. And municipalities have the same monopoly power

over price and conditions as private pole owners do.”9 • Verizon argues that because lampposts and streetlights are present to enhance public safety – ‘a

classic regulatory role’ – and not to advance a locality’s economic agenda, a municipality is not

acting within its economic interest (as a private party would be) in constructing these poles.10 Verizon also includes water towers and utility conduits in this category, saying that states and municipalities do not own and operate such structures purely for their own benefit, but oversee these structures as a way of managing public resources.11

• The industry views zoning approvals and public hearings on wireless facilities as being discriminatory.

• The industry also objects to: o Having to provide photos of the surrounding area and proposed installation o Minimum distances (e.g. 300 to 500 feet) between small cell antennas o Minimum distances between residential buildings o Screening, camouflage and tree planting requirements o Needing permits for individual sites o Fiber optic line fees that are part of a DAS or small cell deployment that exceed the direct

costs incurred by the local government in managing the provider’s use of the ROW and

that are greater than fees charged to other users of the ROW. o Fees that are not publicly disclosed in advance.

8 Verizon Comments, at 20 and Reply Comments, at 24 9 CTIA Comments, at 14 10 Verizon Comments, at 28 and Reply Comments, at 19 citing a 1999 FCC ruling related to fiber optic cable in footnote 73. 11 Verizon Comments, at 28

FINAL DRAFT 8-15-17

2017

City of Chandler

Design Standards, Concepts & Requirements

for

Wireless Facilities in the Right-of-Way

FINAL DRAFT 8-15-17

City of Chandler

Design Standards, Concepts and Requirements

Wireless Facilities in the Right-of-Way

Table of Contents

Table of Contents Page i

Standard Design Requirements for

Wireless Facility on Existing Streetlights Page 1 - 2


Wireless Facility on Existing Traffic Signal Pole Page 3 - 5


Wireless Facility on New Wireless Support Structure Page 6 - 7

Common Standard Design Concepts,

Requirements, and Details Page 8 - 12

City of Chandler Contact Information Page 13

Exhibit A1

Calculating Height of Existing Streetlight Page 14

Exhibit A2

Calculating the Height of Existing Streetlight with Integrated Mast Arm Page 15

Exhibit B

Calculating the Height of Existing Traffic Signal Pole Page 16

Exhibit C1

Panel Antenna Shroud – 45 Degrees Page 17

Exhibit C2

Panel Antenna Shroud – 90 Degrees Page 18

Exhibit D

Example of Electrical Meter Pedestal Page 19

i

FINAL DRAFT 8-15-17City of Chandler

Standard Design RequirementsSmall Wireless Facility on Existing Streetlight

The following design standards shall apply, in addition to the Common Standards Design Concepts, Requirements and Details that is included in this document, to a Small Wireless Facility (SWF) proposed for a location with an existing city-owned or third party-owned streetlight in the City of Chandler Right-of-Way (ROW). These design standards are not exhaustive and the City, as the owner, keeper and manager of the ROW retains the right to modify or adjust the requirements on a case-by-case basis.

A. Pole Criteria:

1. Purpose of Streetlight Pole: The primary purpose of the pole shall remain as a pole structure supporting a streetlight luminaire and related streetlight fixtures used to provide lighting to the City ROW. The attachment of wireless equipment to an existing streetlight pole or to a replacement pole that impedes this primary purpose will not be approved.

2. General Requirement:

a) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact.

b) A replacement pole shall match the City of Chandler standard streetlight pole, as closely as possible, subject to more specific criteria below.

c) For each individual pole type or style used to support the wireless equipment, one spare replacement pole shall be provided by the wireless provider to City in advance so the pole can be replaced promptly in case of a knockdown.

d) All plans shall be signed and sealed by a Professional Civil and Electrical Engineer.

e) All other details in the City of Chandler Street Light Design (Technical Design Manual #6) shall apply.

3. Specific Criteria:a) New or Replacement Pole Height

A new or replacement pole may be installed without zoning review if one of the two height requirements is met:

1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less), per A.R.S. §9-592(I); or

2) Up to forty (40) feet above ground level, per A.R.S.§9-592(J)

b) Overall Height of Replacement Pole

1) The “base” height of an existing streetlight pole shall be the height of the vertical pole section from the existing grade. The height of the luminaire mast arm, if higher than the vertical pole section, shall not be used to determine the new overall height of the replacement pole.

2) If the antennas are the highest vertical element of the site, then the new overall height of the replacement pole is measured from the existing grade to the top of the canister or the top of the panel antenna.

c) Increase in Outside Diameter (OD) of Pole

The non-tapered replacement pole outside diameter (OD) of the base section shall be equal to the top section, and the OD shall not exceed eight and five-eights (8-5/8)inches (the pole manufacturing industry standard OD for an 8 inch diameter pole) or a 100% increase in diameter of the original pole, whichever is less.

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FINAL DRAFT 8-15-17d) Luminaire Mast Arms

1) All luminaire mast arms shall be the same length as the original luminaire arm, unless the City requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole.

2) Unless otherwise approved, all luminaire mast arms shall match the arc (if applicable) and style of the original luminaire arm.

3) The replacement luminaire mast arm shall be at the same height above the ground as the existing luminaire.

e) Light Fixtures

1) All replacement poles shall have the City standard light-emitting diode (LED) lightfixture installed.

2) All replacement light fixtures shall have a new City standard photo-cell or sensor.

f) Pole Foundation

1) All pole foundations shall conform to the City’s adopted standards and specificationson streetlight design and shall be modified for wireless communications equipment and cables.

2) The City, in its sole discretion, may allow the pole foundation design to be “worst case” for all soil conditions.

3) A separate, one-inch diameter conduit shall be installed in the pole foundation for the City’s luminaire wire and any additional City wires or cables. The City’s conduit shall be trimmed to three (3) inches above the top of the caisson.

4) The height of the pole foundation shall be two (2) inches above finished grade. If the pole foundation encroaches into any portion of the sidewalk, then the pole foundation shall be flush with the sidewalk.

5) Shrouds for the streetlight pole mounting bolts may be required for the replacement pole.

g) Painting of Replacement Pole

1) If the replacement pole is an unpainted galvanized pole, the pole shall not be painted or have a finish unless otherwise specified by the City.

2) For powder coated bronze/silver SL-6, SL-8 or SL-16 type poles, the wireless provider shall replace with same powder coated color and/or color combination per Chandler Street Light Design Manual (Technical Design Manual #6)

3) For Park Green SL-10 style poles (no longer being installed), the wireless provider shall replace with powder-coated bronze/silver SL-8 type pole.

h) Painting Antennas and Mounting Equipment

1) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and other equipment mounted on a new or replacement unpainted galvanized pole shall be painted Sherwin Williams “Web Grey” (SW7075) color or equivalent, unless specified otherwise by the City.

2) All antenna mounting brackets and hardware, antenna mounting posts, cables, shrouds and all other equipment mounted on a painted new or replacement pole shall be painted a color specified by the City

i) Wireless provider shall install pole numbers on each replacement pole (to match the number on the existing streetlight pole being replaced) per Chandler Street Light Design Manual (Technical Design Manual #6).

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Standard Design RequirementsSmall Wireless Facility on Traffic Signal Pole

The following design standards shall apply, in addition to the Common Standards Design Concepts, Requirements and Details included in this document, to a Small Wireless Facility (SWF)proposed for a location with an existing City-owned traffic signal in the City of Chandler Right-of-Way (ROW). These design standards are not exhaustive and the City, as the owner and manager of the ROW retains the right to modify or adjust the requirements on a case-by-case basis.

A. Pole Criteria:

1. Purpose of Traffic Signal Pole: The primary purpose of the traffic signal pole shall remain as a pole structure supporting a traffic signal and related streetlight fixtures used to provide traffic control and lighting to the City ROW. The attachment of wireless equipment to a new or replacement traffic signal pole that impedes this primary purpose will not be approved.


a) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact.

b) A replacement pole shall match the City of Chandler standard traffic signal pole, as closely as possible, subject to more specific criteria below.

c) For each individual pole type or style used to support the wireless equipment, one spare replacement pole shall be provided by Company to City in advance so the pole can be replaced promptly in case of a knockdown.

d) All plans shall be signed and sealed by a Professional Civil Engineer.

e) All other details in the City of Chandler Traffic Signal Design (Technical Design Manual #5) shall apply.

3. Specific Criteria:a) New or Replacement Pole Height

A new or replacement pole may be installed without zoning review if one of the two height requirements is met:

1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less),per A.R.S. §9-592(I); or

2) Up to forty (40) feet above ground level, per A.R.S. §9-592(J).

b) Overall Height of Replacement Pole

The height of the replacement pole is measured from grade to the top of the antenna canister or the top of the panel antennas if the antennas are the highest elements.

c) Increase in Outside Diameter (OD) of Pole

1) If the replacement pole is a taper design, the diameter of the base section of the replacement pole OD shall not exceed twelve (12) inches or a 100% increase in the OD of the base section, whichever is less.

2) If the replacement pole is non-tapered, then the diameter of the base section shallbe equal to the top section and the OD shall not exceed twelve (12) inches or a 100% increase, whichever is less.

d) Signal Head Mast Arms

1) The traffic signal head mast arms shall be the same length as the original signal head mast arm unless the City requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole.

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FINAL DRAFT 8-15-172) All signal head mast arms shall match the arc (if applicable) and style of the original

signal head mast arm.

e) Luminaire Mast Arms

1) All luminaire mast arms shall be the same length as the original luminaire armunless the City requires the mast arm to be different (longer or shorter) based upon the location of the replacement pole.

2) All luminaire mast arms shall match the arc (if applicable) and style of the original luminaire arm.

f) Signal Heads

1) All existing signal heads shall be replaced, at no cost to City, with new light-emitting diode (LED) signal heads, per City of Chandler Traffic Signal Design (Technical Design Manual #5).

2) All signal heads shall be procured from a City approved signal heads supplier or manufacturer.

g) Light Fixtures

1) All replacement poles shall have the City standard LED light fixture installed.

2) All replacement light fixture shall have a new photo-cell or sensor installed to City standard.

h) Other City Elements on Signal Mast Arm or Pole

All existing emergency signal detection units, video detection cameras, video cameras, cross walk service buttons, cross walk signals, and any other pedestrian or traffic devices shall be replaced with new units by wireless provider and installed at no cost to the City. All equipment shall be procured from a list of City approved suppliers.

i) Signs and Other Misc.

All street name plates or signs, directional signs and any other City approved signs shall be replaced with new signs at no cost to the City. All signs and attachments shall be procured from a list of City approved suppliers.

j) Traffic Signal Pole Foundation

1) All pole foundations shall conform to the City’s standards an specifications on traffic signal pole design and shall be modified for wireless communications equipment, hand holes and cables.

2) The wireless provider shall install a three (3) inch diameter (OD) conduit in the pole foundation for the City’s cables and wires for the signal heads, luminaire and devices on the signal mast arm and luminaire mast arm. The City’s conduit shall be trimmed to three (3) inches above the top of the pole foundation.

3) In addition to the conduits for the City’s use inside the pole, the wireless providershall install one of the two options for its cables and wires:

a) One, six (6) inch diameter conduit in the pole foundation; or

b) Two, four (4) inch diameter conduits in the pole foundation. The length of the conduit shall extend from the pole foundation to six (6) inches above the signal head mast arm.

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FINAL DRAFT 8-15-174) Pole Foundation – Height Above Ground Level

a) If the pole foundation is in a landscaped or unimproved area, the height of the caisson shall be two (2) inches above finished grade. However, if the pole foundation is adjacent to or within a sidewalk or ramp, the height of the pole foundation shall be flush with the surface of the immediate area.

b) Shrouds for the traffic signal pole mounting bolts may be required for the replacement pole.

k) Painting of Pole, Antennas and Mounting Equipment

1) Specifications on paint color and painting process are provided in the City of Chandler Traffic Signal Design (Technical Design Manual #5).

2) For powder-coated traffic signal poles, the wireless provider shall replace with same powder-coated color and/or color combination.

l) Construction of Traffic SignalThe installation work of the replacement traffic signal pole, including mast arms, signal heads and devices, must be performed by a AZ licensed Traffic Signal Contractor with a minimum of five (5) years of experience installing traffic signals.

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Standard Design RequirementsSmall Wireless Facility on New Poles in ROW

The following design standards, in addition to the Common Standards Design Concepts, Requirements and Details that are included in this document, shall apply to a Small Wireless Facility (SWF) that a wireless provider may install in the ROW that is not either: 1) a replacement pole for an existing streetlight, or 2) a replacement pole for an existing traffic signal.

A new wireless support structure, including a monopole that is up to forty (40) inches in outside diameter (OD), shall incorporate the highest level of stealth and concealment of the antennas and wireless equipment in order to minimize the visual impact of the site to the public.

A. Pole Criteria:

1. Purpose of Wireless Support Structure: The sole purpose of a new vertical element or wireless support structure is to attach antennas for the provision of wireless services by a wireless provider in the City’s right-of-way.


a) A new wireless support structure shall be designed to minimize the visual and aesthetic impact of the new vertical element and associated equipment upon the look, feel, theme, and use of the surrounding area.

b) An SWF shall be designed to blend in with the surrounding streetscape with minimal to any visual impact.

c) The new wireless support structure shall be architecturally integrated and compatible with the use of the surrounding area.

d) The height of the new wireless support structure cannot exceed the maximum allowed height of the zoning district that the site is proposed.

e) All plans shall be signed and sealed by a Professional Civil Engineer.

3. Specific Criteria:

a) New Pole Height

A new wireless support structure may be installed without zoning review if one of the two height requirements are met, see A.R.S. §9-592(I) and A.R.S. §9-592(J):

1) Up to a ten (10) foot increase, not to exceed fifty (50) feet total (whichever is less),per A.R.S. §9-592(I); or

2) Up to forty (40) feet above ground level, per A.R.S. §9-592(J).

b) Overall Height of New Pole

The height of the new wireless support structure is measured from grade to top of the antenna canister, or the top of the panel antenna if the antennas are the highest elements of the site. Otherwise, the measured height shall be from existing grade to the highest point of the wireless support structure.

c) Outside Diameter of Monopole

The maximum outside diameter of a monopole, as defined in A.R.S. §9-591(13), shall not exceed forty (40) inches.

d) Stealth and Concealment Elements

As part of the stealth and concealment elements of the wireless support structure, the City may require the wireless provider to install street name plates, directional signs, and other decorative signs or artistic elements on the structure.

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FINAL DRAFT 8-15-171) The wireless provider is solely responsible for the cost of all stealth and

concealment elements and the installation of other elements required by the City.

2) The wireless provider is responsible for the performance of and any costs incurred for regular upkeep, maintenance and replacement (if necessary) of these stealth and concealment elements.

e) Architectural Integration with Surrounding Area

1) The new wireless support structure shall be designed in consultation with various internal City stakeholders and may include external stakeholders.

2) No new wireless support structure shall be constructed without the consent and simple majority approval of the key stakeholders.

3) The City may require the new wireless support structure to be constructed of a specific material that will enhance the stealth and concealment of the site.

f) Pole Foundation

1) The pole foundation for the wireless support structure, if required, shall conform to civil and structural engineering standards acceptable to the City, with designmodifications for wireless communications equipment and cables.

2) The height of the pole foundation shall be two (2) inches above finished grade. However, if the pole foundation is adjacent to or within a sidewalk or ramp, the height of the pole foundation shall be flush with the surface of the immediate area.

3) Shrouds for the pole mounting bolts may be required.

g) Painting of Wireless Support Structure, Antennas and Mounting Equipment

1) The City shall identify the paint colors, location of paint and any decorative work that may be painted onto the new wireless support structure.

2) The City shall identify the paint colors for the antennas, antenna mounting brackets and posts, antenna shrouds, and cables.

3) The City may require the new wireless support structure to be painted using apowder-coat process.

h) Ground Mounted Equipment

The City may require the ground-mounted wireless equipment to be screened or concealed to reduce the visual impact to the surrounding area. The screening or concealment shall take into account the location of the site, the use of the immediate area, and the existing aesthetic elements surrounding the site.

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Small Wireless in the ROWCommon Standard Design Concepts, Requirements and Details

The following standard design requirements shall be applied to all new small wireless facilities in the ROW, whether for a small wireless facility to be installed on an existing or replacement streetlight pole, an existing or replacement traffic signal pole, or on a new wireless support structure.

A. Pole Design & Installation

1. Replacement Pole Clearances – Underground Utilities

All ground-mounted electrical equipment shall maintain minimum horizontal clearance from underground utilities.

Clearance from water lines shall be at least six (6) feet

Clearance from sewer lines shall be at least six (6) feet

Clearance from telecommunications shall be at least one (1) foot

Clearance from cable television lines shall be at least one (1) foot

Clearance from all other types of underground infrastructure shall be at least six (6) feet

a) The City, in its sole discretion, may grant a variance, upon approval by the City Engineer, from these horizontal separation distances on a case-by-case basis. The approval of a variance is dependent factors specific to the site.

b) In the case where there is an issue with horizontal separation from other underground utilities, the wireless provider may elect to work with the impacted utility to have lines, pipes or property moved so that minimum clearance is achieved. All relocation of City-owned or a privately-owned utility shall be at the sole expense of the wireless provider.

2. Calculating the Base Height of an Existing Pole

The base height, from which the calculation of the “increase in pole height” is referenced for determining the overall pole height, shall be calculated as follows:

a) Streetlight Pole (see Exhibit A1 and A2)

i. A streetlight with a separate luminaire mast arm mounted to the vertical pole shall use the top of the vertical pole as the base height.

ii. A streetlight, with the luminaire mast arm integrated (e.g. telescopic style pole) into the top vertical section of the pole, shall use the point on the pole where the mast arm is connected plus twenty-four (24) inches as the base height.

b) Traffic Signal Pole (see Exhibit B)

i. A traffic signal pole with a luminaire mast arm that is mounted above the signal head mast arm to the pole shall use the top of the vertical portion of the pole as the base height.

3. Replacement Pole Clearance – Original Streetlight Pole or Traffic Signal Pole

The minimum distance of the replacement pole from the original pole location shall be sixty (60) inches or more so that construction can occur safely. The City may change this minimum distance on a case-by-case basis.

4. Replacement Pole Clearances – Sidewalks

The new or replacement pole shall maintain twelve (12) inch minimum clearance distance from sidewalks. The City, in its sole discretion, may increase that minimum clearance on a case-by-case basis to ensure the safe use of the sidewalk and adjacent area.

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FINAL DRAFT 8-15-175. Sight Distance Easements (SDE) and Sight Visibility Triangles (SVT)

All new and replacement poles shall be installed in a location that does not impair or interfere with SDE or SVT safety requirements.

6. Cables, Wires and Jumpers

a) All cables for the wireless equipment and antennas – except where such cables or wires attach to the ports in the antenna – shall be located inside a conduit, inside the caisson and pole. There shall not be any “dog house” or externally visible conduit or entry point of the cables.

b) All electrical wires for the streetlight luminaire, traffic signal heads, and any City device on the pole shall be new and connected to the existing power source.

7. Hand-holes

a) All hand-hole locations shall be called out on the plans.

b) All hand-holes near antennas shall have the top of the hand-hole no lower than the bottom height of the antennas

c) The bottom of the hand-hole should not exceed six (6) inches below the bottom of the antenna.

8. Wireless Facility Identification Information

a) A four (4) inch by six (6) inch Radio Frequency Safety Sticker may be mounted no less than twenty-four (24) inches from the bottom of the antenna, facing away from traffic.

b) The wireless provider may place a discreet site identification or number. The size, color and location of this identifier shall be determined by the City.

c) No wireless provider signs may be placed on a streetlight pole including a replacement pole except to the extent required by local, state or federal law or regulations.

9. Interference with City Wireless Network

The City has certain wireless devices in a network that connects traffic signals, community centers, water sites, and other locations for the City’s proprietary use. The selection of a location for a wireless site shall consider the potential interference of the City’s wireless network with RF from a wireless provider’s proposed site.

a) The City, in its sole discretion, after researching the proposed site, radio frequencies, line of sight to other wireless locations in the City’s network, and other technical factors may allow a wireless provider to install a site in the ROW.

B. Removal of Original Pole, Equipment and Pole Foundation

1. Removal of Original Signal Pole, Mast Arm, Signal Heads and Luminaire

a) The City shall determine what original components, (e.g., original pole, mast arm(s), signal heads and luminaire, etc.), shall be delivered at no cost to the City’s Street Transportation Operations Yard by the wireless provider.

b) If the City declines to accept some or all of the original components, then only those components the City wants to retain shall be delivered by the wireless company to the City’ Yard and the remaining components shall be discarded by the wireless provider.

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FINAL DRAFT 8-15-172. Removal of Original Streetlight or Traffic Signal Pole Foundation

The concrete pole foundation for the original streetlight or traffic signal pole shall be removed by the wireless provider as instructed by the City:

a) Partial Removal

The original pole foundation shall be taken back to a level that is twelve (12) inches below existing grade and covered with four (4) inches of one-half (1/2”) inch to three (3/4”) quarter inch rock materials. The remaining eight (8) inches shall be native soil.

b) Complete Removal

If the entire original pole foundation must be removed, then all materials (concrete, rebar, metals, bolts, etc.) shall be removed. The City’s Inspector shall determine, on a case-by-case basis, the type of backfill material and compaction required – ranging from native soil that is compacted to a half (1/2) sack slurry for the entire depth, or a combination of native soil and slurry.

C. Antennas, RRH/RRU, Cables and Mounting on Pole:

1. General Requirement: All antennas shall be installed in a manner that minimizes the visual impact to the general public. All work shall be performed in a professional manner that is consistent with the highest standards of workmanship.

2. Specific Criteria:

a) Antenna Mounting Posts and Brackets

1) All panel antennas shall be mounted directly to the pole or onto a mounting pole so that the distance from the “face” of the streetlight pole to the back of the antenna does not exceed nine (9) inches.

2) All mounting posts shall be trimmed so that the poles do not extend higher than the top of the antenna or protrude lower than the antenna unless necessary to install the shroud.

3) All pole attached wireless equipment must be a minimum ten (10) feet from the sidewalk elevation.

b) Panel Antennas

1) All panel antennas for a small cell site shall fit within an imaginary enclosure of not more than six (6) cubic feet in volume in accordance with A.R.S. §9-591(19)(a). (NOTE: This volume does not include antenna cable shrouds when required.)

2) All panel antennas with exposed cables from the bottom of the antenna shall have a shroud installed on the antenna or antenna mounting posts to conceal the cables. (see Exhibits C1 and C2)

a. The type of shroud may be a forty-five (45) degree angle (away from the bottom of the antenna; toward the pole) or a ninety (90) degree angle (parallel to the bottom of the antenna) depending on the location of the site.

b. The shroud shall extend from the bottom of the antenna to two (2) inches below the bottom of the nearest hand-hole.

c) Canister Antennas

1) All canister antennas shall fit within an imaginary enclosure of not more than six (6)cubic feet in volume. (Note: This volume does not include the canister as it is a stealth device and not the antenna.)

2) The canister shall be no larger than eighteen (18) inches in diameter.

3) All canister antennas shall be located in a canister that is mounted to a base plate at the top of the vertical section of the replacement pole.

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FINAL DRAFT 8-15-174) All cables protruding from the canister shall be concealed within the canister or by a

shroud at the point where the canister is mounted to the base plate.

d) Remote Radio Heads (RRH) / Remote Radio Units (RRU)

Under State Law §9-591(19)(a), the RRH/RRU is not considered part of the antenna. If allowed, the RRH/RRU shall be calculated as part of “All other wireless equipment associated with this facility…” in A.R.S. §9-591(19)(b) that is subject to the twenty-eight (28) cubic feet maximum size for small cell sites.

1) On a case-by-case basis, the City in its sole discretion and – upon reviewing the landscape in the immediate surrounding area, the location of the pole, and stealth options, may allow a site to have an RRH/RRU installed on the pole.

D. Ground-mounted Equipment:

1. General requirement: All ground-mounted equipment shall be installed in a manner that minimizes the visual and ingress/egress impact to the general public. All work shall be performed in a professional manner that is consistent with the highest standards of workmanship.

2. Specific criteria:

a) Sight Distance Easements (SDE) and Sight Visibility Triangles (SVT)

All ground-based wireless equipment shall be installed in a location that does not impair or interfere with SDE or SVT safety requirements. To ensure proper sight distance, all City of Chandler Standard Details (C-246, C-247 and C-248) shall apply.

b) Ground Equipment Location – Generally

All ground-based wireless equipment, including but not limited to equipment cabinets or power pedestals, shall be placed as far as practical to the back of the ROW while maintaining at least three (3) feet of ingress/egress in the ROW or public utility easement (PUE) around the equipment.

c) Ground Equipment Clearances—Underground Utilities

1) All ground-mounted electrical equipment shall maintain minimum horizontalclearance from below-ground utilities:

Clearance from water lines shall be at least six (6) feet

Clearance from sewer lines shall be at least six (6) feet

Clearance from telecommunications shall be at least one (1) foot

Clearance from cable television lines shall be at least one (1) foot

Clearance from all other types of underground infrastructure shall be at least six (6) feet

2) The City, in its sole discretion, may grant a variance upon approval from the City Engineer, from these horizontal separation distances on a case-by-case basis. The approval of a variance is dependent on factors specific to the site.

3) In the case where there is an issue with horizontal separation from other underground utilities, the wireless provider may elect to work with the impacted utility to have its lines, pipes or property moved so that minimum clearance is achieved. All relocation work of City-owned or a privately-owned utility shall be at the sole expense of the wireless provider.

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FINAL DRAFT 8-15-17d) Ground Equipment Clearance – Sidewalks

The ground equipment shall maintain a minimum twelve (12) inch clearance distance from sidewalks. The City, in its sole discretion, may increase the minimum clearanceon a case-by-case basis to ensure the safe use of the sidewalk and adjacent area.

e) Compliance with Height Requirements

Evidence or documentation that, where the above-ground structure is over thirty-six (36) inches in height, given its proposed location, the structure will comply or be in compliance with applicable City of Chandler planning and zoning ordinances. The Zoning ordinance can be found at https://library.municode.com/az/chandler/codes/code_of_ordinances?nodeId=PTVIPL

f) Screening of Ground Equipment

The City, in its sole discretion, may require the ground-mounted equipment to be screened; the type of screening materials and design will be addressed on a case-by-case basis.

1) In cases when screening is not required, the City may specify the paint color of the ground-mounted equipment.

g) Decals and Labels

1) All equipment manufacturers’ decals, logos and other identification information shall be removed unless required for warranty purposes.

2) The wireless provider of the site may place an “Emergency Contact” decal or emblem to the ground equipment.

3) The ground-mounted equipment shall not have any flashing lights, sirens or regular noise other than a cooling fan that may run intermittently.

h) Equipment Cabinets on Residential Property

1) Residential Single-Family Lot

The Wireless Equipment and Ancillary Equipment listed in A.R.S. §9-591(19)(b) shall not exceed thirty-six (36) inches in height in the front yard of a residential single-family zoned property.

2) Air-conditioning Units

Unless otherwise specified by City, a wireless equipment cabinet with air-conditioning (not a fan only) shall be enclosed by walls and setback a minimum of fifteen (15) feet from lots where the existing or planned primary use is a residential single-family dwelling.

i) Electric Company Meter

1) All electric company meters shall be installed in the ROW or PUE. The location of the meter equipment shall have minimum ingress and egress clearance from private property lines and driveways.

2) All electric company meters shall maintain minimum clearance from above-ground utility cabinets and below-ground utilities.

3) All electric company meters shall be installed in a location that does not impair or interfere with the SDE or SVT safety requirements of the City.

4) The electric company meters shall be screened or contained within a “Myers-type” or “Milbank-type” pedestal cabinet that is painted to match the ground equipment or as specified by the City. (see Exhibit D)

5) In the case where screening is not required, the City may specify the paint color of the electric company meter cabinet on a case-by-case basis.

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FINAL DRAFT 8-15-17

City of Chandler Contacts

For questions regarding the 2017 City of Chandler Design Standards, Concepts & Requirements for Wireless Facilities in the Right-of-Way, contact:

Regulatory Affairs Manager(480) 782-3410

Utility Development Administrator(480) 782-3315

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FINAL DRAFT 8-15-17Exhibit A1

Calculation Points for Height of an Existing Streetlight with Separate Luminaire Mast Arm

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The purple line next to the streetlight

depicts the section of the existing

streetlight pole that shall be used to

calculate the height of the existing

pole. The lines are not to scale and

are solely used for illustrative

purposes.

FINAL DRAFT 8-15-17Exhibit A2

Calculation Points for Height of an Existing Streetlight with Integrated Luminaire Mast Arm

15

The “Connection Point” on an

Existing Telescopic Style

Streetlight Pole with an

Integrated Luminaire Mast Arm

The Top and Bottom Points on a Telescopic Streetlight

Pole to Calculate the Vertical Height of the

Existing Streetlight Pole

PLUS

Twenty-four (24) inches

+ 24 inches

FINAL DRAFT 8-15-17Exhibit B

Calculation Points for Height of Existing Traffic Signal Pole

16

The Top and Bottom

Points on a Traffic

Signal Pole to

Calculate the Base

Vertical Height of the

Existing Pole

FINAL DRAFT 8-15-17Exhibit C1

Antenna Shrouds – 45 Degrees

17

FINAL DRAFT 8-15-17Exhibit C2

Antenna Shrouds – 90 Degrees

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FINAL DRAFT 8-15-17Exhibit D

Examples of Electrical Meter Pedestals – “Myers” or “Milbank” Style

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SMALL CELL WIRELESS TERMS AND CONDITIONS

The Common Council of the City of Mesa has adopted the following terms and conditions

(the “Terms”) to govern the use of City-Owned right-of-way for the placement of wireless

facilities by a Wireless Services Provider as defined by the Arizona Revised Statutes,

Section 9-591, et seq. These terms are effective as of _______, 2017, and may be

amended only upon approval of the City Council.

RECITALS

A. City, in its governmental capacity, owns or holds a legal interest in public roads, streets and alleys and all other dedicated public rights-of-way, public utility easements and public utilities and facilities easements of the City (collectively the “ROW”). City is responsible for the management of the ROW within City’s boundaries. Pursuant to ARS §§ 9-240, 9-276 and 9-582, the City has exclusive control of the ROW.

B. As authorized by ARS § 9-591, et seq., Wireless Service Providers will attach Wireless Facilities to Authority Utility Poles (as defined in ARS § 9-591) located in the ROW, and where permitted, erect Monopoles in the ROW.

C. All Authority Utility Poles approved for such private uses shall retain their primary governmental purpose, and those entities occupying public property must not interfere with those purposes in any way, nor shall their activities create an unreasonably dangerous condition for the public.

D. The primary purpose of these Terms is to protect the health, safety, and welfare for the public, and to protect the value of and physical integrity of publicly-owned property and assets.

1. DEFINITIONS

1.1. “Antenna(s)” means the physical structure, or structures, as depicted on the Site Plans, which are attached to (or incorporated into) the Authority Utility Pole that transmits and/or receives communications exclusively for Permitted Uses by converting electric current to/from electromagnetic waves used in providing wireless services.

1.2. “Applicable Laws” means the federal, state, county, and City of Mesa laws,ordinances, rules, regulations, and permit requirements that apply to Licensee’s use of the Use Areas.

1.3. “Authority Utility Pole” means means a utility pole that is owned or operated by the City and that is in the ROW. Authority Utility Pole does not include a utility

{00243001.7} 2

pole for electric distribution.

1.4. “Equipment Cabinets” shall mean equipment that is ground mounted or placed on a concrete slab that contains Licensee’s improvements, personal property and facilities to operate its Antenna(s) for Permitted Uses including: radio receivers, transmitters, related facilities, and/or cabinets, related cables and utility lines, location based power source (including a battery), the electrical meter and any other equipment necessary for the operation of wireless antenna.

1.5. “Licensee” shall mean an entity providing Wireless Services and that holds a valid site license to use the ROW for such business.

1.6. “Licensee’s Facilities” shall mean the Antennas, Equipment Cabinets, and all other cable, wire, equipment, conduit, screen walls, or other such element used by Licensee for Permitted Uses including antennas, radios and cable owned by third parties, in connection with its installation of Monopoles and Small Cell Wireless Facilities and related equipment on Authority Utility Poles pursuant to individual Site Licenses.

1.7. “Monopole” means a wireless support structure that is not more than forty inches in diameter at the ground level and that has all of the wireless facilities mounted on the pole contained inside the pole.

1.8. “Permitted Uses” means, and is limited to, Licensee's right to construct, install, operate, maintain and repair the related support facilities (such as wireless antennas and equipment cabinets) for the delivery of wireless services.

1.9. “Site License” means a revocable, nonexclusive permission to attach facilities to Authority Utility Poles and encroach in the ROW, which does not create or confer any interest in real or personal property.

1.10. “Small Cell Wireless Facility” means a wireless facility that meets both of the following qualifications:

1.10.1. Having all antennas located inside an enclosure of not more than six cubic feet in volume, or in the case of an antenna that has exposed elements, the antenna and all of the antenna’s exposed elements could fit within an imaginary enclosure of not more than six cubic feet in volume; and

1.10.2. All other wireless equipment associated with the facility are cumulatively not more than twenty-eight cubic feet in volume, or fifty cubic feet in volume, excluding the following equipment: an electric meter, concealment features, a telecommunications demarcation box, grounding equipment, a power transfer switch, a cutoff switch, and vertical cable runs for the connection of power and other services.

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1.11. “Small Wireless Facility” means a Small Cell Wireless Facility or a Monopole.

1.12. “Use Area” means the area that Licensee is permitted to use pursuant to an approved Site License. The term Use Area includes the area depicted on the Site License that shows where the Antenna will be attached to the Authority Utility Pole, and where the Equipment Cabinet and Cable Route will be located.

1.13. “Utility Pole” means a pole or similar structure that is used in whole or in part for communications services, electric distribution, light or traffic signals. Utility Pole does not include a Monopole.

1.14. “Wireless Services” means any services that are provided to the public and that use licensed or unlicensed spectrum, whether at a fixed location or mobile, using wireless facilities.

2. Licensing Scope, Standards, and Procedures

2.1.Licensee shall not attach any Small Wireless Facility to an Authority Utility Pole,place Licensee Facilities in the ROW, or erect a Monopole in the ROW without an approved Site License. Placement of any unauthorized facilities on Authority Utility Poles or in the ROW without a Site License shall constitute trespass.

2.2.Licensee shall submit an application for individual Site Licenses on an application form, which shall be substantially similar to the form on Exhibit A. Once the Site License application is reviewed and approved by City, a Site License in substantially the form of Exhibit B can then be executed by the Parties. The City Engineer or designee will have the authority to execute a Site License.

2.3.Any change to the site plan of an approved Site License is void unless City agrees to the change in writing through the Site License approval process.

2.4.Licensee, at its sole expense, shall supply all material associated with the installation, operation, and maintenance of the Licensee’s Facilities. Licensee shall maintain Licensee’s Facilities always.

2.5.Where installation of Licensee’s Facilities requires replacement of an existing Authority Utility Pole, Licensee shall replace the Authority Utility Pole with a structure meeting all applicable City standards and specifications and shall returnreplaced structures to City at a designated location.

2.6.Site Licenses do not provide Licensee with any ownership or leasehold interests in the Authority Utility Poles, replacement poles or ROW, nor do they provide Licensee with any of the City’s rights to use the public property upon which the Authority Utility Poles and Licensee’s Facilities are located, other than those

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expressly provided herein or in the Site License.

2.7.Licensees are responsible for the study and inspection of the City-owned facilities, Authority Utility Poles and ROW to be utilized by Licensee and for determining the fitness for the use by Licensee. City expressly disclaims all warranties of merchantability and fitness for a purpose or absence of hazardous conditions associated with the City-owned facilities, Authority Utility Poles and ROW. City makes available City-owned facilities, Authority Utility Poles and ROW “AS IS.”

2.8.Licensees assume all risk, costs and expenses related to the Licensee Facilities and loss of service that may occur due to damage, destruction or collapse of any Authority Utility Pole or due to any incompatibility of Licensee’s use with City’s use, or another user’s use, of the Authority Utility Poles. Licensee shall be solely responsible for the relocation of any Licensee Facilities placed on a structure or property not owned by City or wrongly designated as an Authority Utility Poleand/or ROW at any time.

2.9.To the extent that Licensee owns any fiber or conduits that will be placed underground, and to the extent that State law requires it, Licensee shall comply with Arizona Revised Statutes Title 40, Chapter 2, Article 6.3 by participating as a member of the Arizona Blue Stake Center (or other appropriate organizationselected by the City). A copy of Licensee’s proof of membership shall be filed with the City.

2.10. Licensees shall apply for and obtain one annual permit for emergency operations (no excavation) occurring within the ROW and/or on the Authority Utility Poles.

2.11. City may require Licensees to remove any unauthorized attachment to a Authority Utility Pole or placement of facilities in the ROW. If Licensees fail to remove the unauthorized facilities within thirty (30) days after notice, City may remove the unauthorized facilities without incurring any liability, including but not limited to liability for interruption of service. Licensees shall reimburse City for its actual costs of removal of the unauthorized facilities. The failure of the City to act to remove any unauthorized facilities shall not constitute permission or a de facto Site License in any manner nor shall subsequent issuance of a Site License operate retroactively.

2.12. Licensees shall, at all times during the term of a Site License, maintain the Licensee Facilities in good repair and shall keep the Use Area free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or source of undue vibration, heat, noise or interference.

2.13. Licensees shall purchase and store extra street light and traffic signal poles in anticipation of emergency or routine replacement of such poles utilized by Licensee or City. All replacement poles shall be approved by City prior to

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installation.

2.14. Licensees shall comply with any necessary building permit, traffic control, ROW management requirements, non-City utility permits, other permits as required, or other regulatory requirements (“Permits”) that apply to Licensee Facilities.

2.15. Licensee Facilities may be used solely for Permitted Uses, and Licenseesare not authorized to and shall not use the Licensee Facilities to offer or provide any other services not specified herein. The Licensee Facilities shall be owned by Licensees.

2.16. If a Licensee abandons use of any of Licensee’s Facilities, or any portion thereof, installed under or pursuant to an approved Site License, the Licenseeshall remove all of the Licensee Facilities, including subgrade facilities and foundations, installed pursuant to the approved Site License immediately, but in no event later than three (3) days, at the Licensee’s expense and restore the Authority Utility Pole and ROW, including Licensee Facilities installed sub-grade, to better than or equal to the condition that existed prior to construction and installation of the Licensee Facilities.

3. Duration

3.1.Term of Master Agreement and Site Licenses

Subject to a Licensee’s right to terminate, Site Licenses shall have a duration of ten years.

3.2.Early Termination

Licensees may terminate a Site License at any time upon service of 60-days written notice to City. In the event a Licensee exercises this option, Licensee shall be subject to all obligations in these Terms to restore and rehabilitate all Authority Utility Poles and ROW used for Licensee’s Facilities to their former condition and utility.

3.3.Renewal

Site Licenses shall be renewable for one additional term of ten years, at aLicensee’s sole discretion, so long as the Licensee and Licensee’s Facilities are in compliance with these Terms, the related Site License, and all applicable federal, state, local, and City codes, standards, specifications, rules, and regulations.

4. Relocation of Authority Utility Poles

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City shall have the right at any time to require relocation of a Licensee’s Facilities or any portion of them to accommodate a public project, at Licensee’s expense, to another location suitable for Licensee’s use. Licensee shall have at least ninety (90) days notice of such relocation and shall fully cooperate in such relocation. If a Licensee fails to relocate as required herein, the Licensee shall reimburse City for actual, direct and indirect damages incurred by the City as a result of such delays.

5. Installation of a Licensee’s Facilities

5.1.All work in the ROW will be performed only by a Licensee and its contractors and will be performed substantially in compliance with Mesa City Code, applicable City policies, the Uniform Standard Specifications and Details for Public Works Construction sponsored and distributed by the Maricopa Association of Governments (“MAG”) as amended, Mesa’s Engineering and Design Standards, Mesa’s Approved Product List and Technical Specifications, National Electric Code (NEC), National Electric Safety Code (NESC), OSHA regulations, compliance with the FCC Radio Frequency Exposure Guidelines (FCC OET Bulletin 65) and all other applicable radio frequency emissions laws and regulations in effect from time to time.

5.2.Licensees shall prepare and maintain record drawings of all Licensee Facilities located on Authority Utility Poles and in the ROW and furnish such record drawings at City’s request. Locations of said encroachments shall be reported using State Plan Coordinate System Arizona Central Zone, North American Datum 1983 (NAD83) for horizontal position, and North American Vertical Datum 1988 (NAVD88) for vertical positions; or other public land survey system accepted by the City Engineer or designee. Licensees shall furnish City copies of the record drawings in both hard copy and electronic formats, as requested by the City. The electronic copy shall be provided in Autocad 2014 DWG format or other current City electronic format. If the horizontal and vertical locations are not known or provided as requested by City, Licensees shall reimburse the City for actual costs associated with locating and potholing a Licensee’s Facilities, in the event that Licensee Facilities need to be relocated in connection with one of Mesa’s projects.

5.3. If a Licensee Facilities are not located in the precise location depicted in the Site License or the As-Built Drawings, Licensee shall be responsible, and shall reimburse City, for all costs and damages incurred in locating the LicenseeFacilities and all delay costs incurred to locate (and if necessary relocate) the Licensee Facilities.

5.4.Consistent with the requirements of Mesa City Code and Mesa’s Engineering and Design Standards, Licensees shall screen or conceal, as applicable, all pole-mounted, pad, and ground-mounted equipment used for Permitted Uses withrequired aesthetic features, such as canisters, screen walls, and landscaping, as approved by City with each Site License. Concealing and screening shall blend

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with or enhance the surrounding area with the use of artistic and/or architectural detail and shall take into account scale, form, texture, materials and color and shall conceal the equipment. Concealing and screening features shall be noted on the site survey and construction drawings submitted with each application.

5.5.Licensees shall cause all construction to occur lien-free and in compliance with all applicable laws and ordinances. If any lien is filed against City Property as a result of acts or omissions of a Licensee or its employees, agents or contractors, the Licensee shall discharge the lien or bond the lien off in a manner reasonably satisfactory to City within thirty (30) days after Licensee receives written notice that the lien has been filed.

5.6.Licensees shall install separate meters for any utilities used by Licensee and shall pay for all utilities supplied to, used, or consumed as a result of the operation of Licensee’s Facilities, including without limitation (as applicable) all gas, electric, sanitation, and telephone installation and monthly use charge. Licensees shall comply with all City of Mesa Ordinances, permit requirements, Utility Terms and Conditions, and regulations related to utility services. Any third-party equipment needed to service the Licensee Facilities shall be required to apply for and obtain separate permits. The City shall not provide easements within the right-of-way to Licensees or third-parties.

5.7. In the event of an emergency, maintenance, accident or condition that causes the City to replace or remove a Licensee Facilities, the Licensee at its sole expense shall be responsible for the reconnection to a utility.

5.8.No secondary power supply (generator or battery, permanent or temporary) may be located on the Authority Utility Poles and/or in the ROW without the prior written consent of City pursuant to an approved Site License.

6. Operations Interference, Testing, and Reservation

6.1.Licensees shall not use the Authority Utility Poles or the ROW in any way which interferes with the use of any portion of the City Property by City. In the event City determines that a Licensee’s use of the Authority Utility Poles or the ROW interferes with the City’s use of the City Property, City will notify the Licensee of such interference and the Licensee shall have fifteen (15) days to remedy the interference. If a Licensee does not remedy the interference, such action shall be deemed a material breach by the Licensee and City shall have the right to terminate the Site License.

6.2.Licensees shall not install, operate, or allow the use of equipment, methodology or technology that interferes or is likely to interfere with the optimum effective use or operation of City's existing or future fire, law enforcement, Police, Public Safety, transportation, information technology, engineering, emergency or other

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communication equipment, methodology or technology (including, but not limited to, voice, data or other carrying, receiving or transmitting equipment.) If such interference should occur, the Licensee shall immediately discontinue using the equipment, methodology or technology that causes the interference until the Licensee takes corrective measures to alter the Licensee Facilities to eliminate such interference. Any such corrective measures shall be made at no cost to City.

6.3.Both City and the Licensees may conduct radio frequency emission and interference studies from time to time to determine whether a Licensee's use of the Licensee Facilities will interfere with City’s use of the Authority Utility Poles or the ROW. In the event such a study indicates that a Licensee’s use will potentially interfere with City’s use of the Authority Utility Poles or the ROW, the Licenseeshall have thirty (30) days to remedy the interference to City's satisfaction. If the problem is not so remedied in thirty (30) days, then City may require the Licensee, at Licensee's full expense, to relocate the Licensee Facilities so as to remove or minimize the interference, to the extent City deems necessary. City may permit Licensee to place a temporary Antenna (Cell on Wheels or similar installation) on the Authority Utility Poles, the ROW or at some other location acceptable to Licensee and City, during relocation of the Licensee’s Facilities.

6.4.City may, at its expense, perform tests as necessary to determine compliance of the Licensee Facilities on the Authority Utility Poles or in the ROW with Federal radio frequency exposure limit rules, 47 C.F.R. Section 1.1310, or subsequent Federal rules as amended from time to time.

6.5.Licensees shall conduct an initial test for compliance with Federal radio frequency exposure limit rules prior to placing Licensee Facilities (or that of any sub-lessees of Licensee) on Authority Utility Poles or in the ROW into commercial operation, and Licensees shall perform additional tests upon any significant change in the Licensee Facilities on the Authority Utility Poles or in the ROW, such as sublicenses to third parties for them to install communications equipment on the Authority Utility Poles or in the ROW. All such testing shall be performed by a qualified radio engineer, and a copy of the test results shall be provided to all Parties. If such tests show noncompliance with applicable radio frequency exposure limit rules then in effect, then noncompliant Licensee Facilities on the Authority Utility Poles or in the ROW shall be shut down (except for work necessary to bring it into compliance) until subsequent tests again show compliance with such rules.

6.6.City does not grant, and reserves for itself, its lessees, successors and assigns, (i) all mineral rights, seismic rights and rights to oil, gas, water, other hydrocarbons or minerals on, as to, under or about any portion of the City Property; (ii) rights to generate electricity from the wind or wind power on, as to or about any portion of the City Property; and (iii) the right to grant to others the rights hereby reserved.

6.7.City shall have the right to operate, replace and maintain all Authority Utility Poles

Commented [1]: Likely can’t require this. See 9-593(G)(2)

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in such manner as best serves City’s service requirements including, but not limited to, the right to allow the attachment of additional facilities. Licensee agrees to shut down communications and electrical equipment during any time City is maintaining, testing or replacing the Authority Utility Pole within one (1) business day from the date of notice. If Licensee fails to shut off the equipment within one(1) business day from the date of notice, Licensee shall reimburse City for its costs related to the delay including time and labor expenses. The reimbursement will be at a minimum $500 per incident.

7. Fees

7.1.Licensees shall pay the application fees set forth on the Schedule of Fees on Exhibit B, attached hereto and incorporated herein, for each Site License at the time of submittal of a Site License application.

7.2.Licensees shall pay all applicable permit fees at the time of issuance of a construction permit for each Site License, including by way of illustration and not limitation, all applicable taxes, traffic control fees, and technology fees that are adopted by the City from time to time.

7.3.The applicable fees set forth on Exhibit B for each Site License shall be consideration for the right to use Authority Utility Poles or the ROW.

7.4.The Fee shall be paid to City in advance, on or before the anniversary date of the effective date of each Site License, without prior demand and without any deduction or offset whatsoever.

7.5.Fees paid by Licensees are non-refundable.

8. Public Notification

Licensee shall notify all adjacent property owners and the owners of any residential property within 300’ of a proposed Small Cell Wireless Facility. Such notice shall be by mail and shall include: the project location, address, general description, equipment dimensions, Licensee contact information, and a construction schedule. Licensee shall include a copy of the notification and attestation of mailing with any Site License application.

9. Safety Program

In order to perform duties necessary as owner and manager of the public ROW, the City and its employees, agents, and representatives must have uninterrupted and safe access to the ROW and all structures located thereon. In conjunction with the requirements of paragraph 6.7, above, and in order to ensure the safety of those working on or near a Licensee’s Facilities, Licensees must comply with at least one of the following safety protocols:

Commented [2]: Unsure if this will stay.

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9.1.Participate in a City-sponsored RF Safety Program (the “City’s Safety Program”), enrollment in which shall include: (i) a one-time contribution to the City of five thousand dollars ($5,000.00) to fund the purchase of two (2) RF Personal Monitors for monitoring radio frequency emissions from Licensee Facilities during maintenance of City-Owned Facilities and ROW, and also to fund, in part, third-party training for City personnel who work near Licensees’ RF emissions; and (ii)an annual contribution of one thousand five hundred dollars ($1,500.00) as and for the continuing operation of the City’s Safety Program (“Annual Contribution”).

9.2.Provide access to a kill switch for each Small Wireless Site that the City’s employees, agents, or representatives can use to turn off all power to the Licensee’s Facilities while City work is performed at the location.

9.3.Within 24 hours of a request, agree to send a technician with an RF monitor to confirm that all RF emitting equipment has, in fact, been deactivated, and to install all appropriate lockout tags and devices.

10.Indemnification

To the fullest extent permitted by law, Licensees shall indemnify, hold harmless, and defend the Indemnified Parties for, from and against all claims, damages, losses, and expenses including, but not limited to, reasonable attorneys' fees arising out of or resulting from the conduct or management of Licensee’s Facilities or any condition created in or about the Licensee’s Facilities or any accident, injury, or damage whatsoever occurring in or at Licensee’s Facilities or from the failure of Licensee to keep its facilities in good condition and repair, provided that any such claim, damage, loss, or expense (a) is attributable to bodily injury, sickness, disease, or death, or injury to or destruction of tangible property, including loss of use therefrom, and (b) is caused by any act or omission of Licensee or anyone directly or indirectly employed by it, including any contractor or subcontractor, or anyone for whose acts it might be liable. Notwithstanding the foregoing, Licensee’s obligation to indemnify or hold harmless the Indemnified Parties under this provision shall be limited to the extent that the damage or injury is attributable to the negligence or other wrongful acts or omissions of Licensee or its employees, contractors, subcontractors or agents. If the damage or injury is caused by the joint or concurrent negligence of City and Licensee, the loss shall be borne by City and Licensee in proportion to their degree of negligence or fault. Licensee’s hold harmless agreement includes latent defects, and, subject to standard provisions of the relevant policies, the hold harmless obligation shall be specifically covered and insured by the insurance policies required by these Terms.

11.Insurance

11.1. Without limiting any liabilities or any other obligations of any Licensee or any of its contractors or subcontractors under any Site License or otherwise, aLicensee and its contractors or subcontractors shall provide and maintain, with forms and insurers acceptable to City, and until all obligations under all Site Licenses are satisfied, the minimum insurance coverage, as follows:

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11.1.1. Commercial General Liability Insurance, including coverage of contractual liability assumed under each Site License, affording protection of not less than TWO MILLION DOLLARS ($2,000,000) per occurrence, combined single limit for bodily injury and property damage, against damages because of, or on account of, bodily injuries to or the death of any person or destruction of or damage to the property of any person, occurring on or about any of Licensee’s Facilities or due in any way to the use, occupancy, maintenance or operation of the Small Cell or Ground Facilities or related facilities.

11.1.2. Workers’ compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction of Licensee’s and Licensee’s contractor or subcontractor employees who may be working on Licensee’s Facilities, and employer’s liability with a minimum limit of ONE HUNDRED THOUSAND DOLLARS ($100,000).

11.1.3. Commercial automobile liability insurance with a combined single limit for bodily injury and property damage of not less than TWO MILLION DOLLARS ($2,000,000) each occurrence with respect to vehicles assigned to or used in the performance of the work, whether owned, hired, or non-owned.

11.2. The policies required by Sections 11.1.1 and 11.1.3 herein shall include the City of Mesa, members of its governing bodies, its officers, agents and employees as additional insureds and shall stipulate that the insurance afforded for shall be primary insurance and that any insurance carried by the City of Mesa, members of its governing bodies, its officers, agents and employees shall be excess and not contributory.

11.3. Contractor, its subcontractors and its insurers providing the required coverages shall waive all rights of subrogation against the City of Mesa, members of its governing bodies, its officers, agents and employees.

11.4. Prior to commencing construction, Contractor or Subcontractor shall furnish the City with Certificates of Insurance and related endorsements as evidence that policies providing the required coverage, conditions and limits are in full force and effect. Such certificates shall provide that not less than thirty (30) days’ notice of cancellation, termination, or material change shall be sent directly to City.

11.5. All insurance policies shall be obtained from companies duly authorized to issue such policies in the State of Arizona, having Best’s ratings of “A” and acceptable to City.

12.Breach

Any breach of these terms and conditions or of any provision of a Site License, if

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left uncured after 30-days’ written notice, shall render Licensee’s Facilities as unauthorized work within the right-of-way, and shall be subject to the penalties in Mesa City Code 9-1-11.

13.General Provisions

13.1. Force Majeure

13.1.1. Neither City nor any Licensee shall be liable or responsible for a delay or failure in performing or carrying out any of its obligations (other than obligations to make payments) under any Site License caused by force majeure. Force majeure shall mean any cause beyond the reasonable control of City or Licensee, as applicable, or beyond the reasonable control of any of their respective contractors, subcontractors, suppliers or vendors, including without limitation: acts of God, including, but not necessarily limited to, lightning, earthquakes, adverse weather of greater duration or intensity than normally expected for the job area and time of year, fires, explosions, floods, other natural catastrophes, sabotage, acts of a public enemy, acts of government or regulatory agencies, wars, blockades, embargoes, insurrections, riots, or civil disturbances; Labor disputes, including, but not necessarily limited to, strikes, work slowdowns, work stoppages, or labor disruptions, labor or material shortages, or delays or disruptions of transportation; orders and judgments of any federal, state or local court, administrative agency or governmental body; the adoption of or change in any federal, state or local laws, rules, regulations, ordinances, permits or licenses, or changes in the interpretation of such laws, rules, regulations, ordinances, permits or licenses, by a court or public agency having appropriate jurisdiction after the date of the adoption of these Terms; or any suspension, termination, interruption, denial or failure to issue or renew by any governmental authority or other party having approval rights of any approval required or necessary hereunder for installation or operation of any Small Cell Equipment or for either Party to perform its obligations hereunder, except when such suspension, termination, interruption, denial or failure to issue or renew results from the negligence or failure to act of the Party claiming the occurrence of an event of force majeure.

13.1.2. If either City or a Licensee is rendered unable to fulfill any of its obligations under a Site License by reason of force majeure, such Party shall promptly notify the other and shall exercise due diligence to remove such inability with all reasonable dispatch; provided, that nothing contained in this Section 13.1 shall be construed as requiring City or a Licensee to settle any strike, work stoppage or other labor dispute in which it may be involved, or to accept any permit, certificate, license or other approval on terms deemed unacceptable to such Party, or to enter into any contract or other undertaking on terms which the Party deems to be unduly burdensome or costly.

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13.2. Assignment

Licensees will have the right to assign, sell or transfer its interest under a Site Licensewithout the approval or consent of City, to the Licensee’s affiliate or to any entity which acquires all or substantially all of the Licensee’s assets in the market defined by the Federal Communications Commission in which the Licensee’s Facilities are located by reason of a merger, acquisition, or other business reorganization. Licensees may not otherwise assign a Site License without the City’s consent, City’s consent not to be unreasonably withheld, conditioned or delayed. Any purported assignment in violation of this Section shall be void.

13.3. Entire Agreement

These Terms and any related Site Licenses represent the entire agreement of the Parties. There are no other agreements or terms, written or oral. Except for those previously-executed and enforceable contracts, these Terms and related Site Licenses supersedes all previous communications and representations between the Parties on the same subject matter, whether oral or written. All changes to any Site License agreed to by the Parties shall be in writing, and must be executed by both Parties.

13.4. Severability

If any a provision of these Terms is invalidated by a court of competent jurisdiction, all other provisions hereof shall continue in effect.

13.5. Governing Law and Choice of Forum

These Terms and all matters relating hereto shall be governed by, construed and interpreted in accordance with the laws of the State of Arizona without reference to principles of conflict of laws in Arizona or any other jurisdiction. Any proceeding shall be filed, prosecuted and resolved in the courts of the State of Arizona, state or federal, and venue for any litigation or other dispute shall be only in Maricopa County, Arizona. The Parties waive any and all rights to a jury.

13.6. Remedies Cumulative

All remedies specified in these Terms and all remedies provided by law or otherwise (except as specifically excluded herein), shall be cumulative and not alternative.

13.7. Attorneys’ Fees and Expenses

In the event of default by either Party or any action or suit arising out of these Terms or any Individual Site License Addendum, the prevailing Party or the non-defaulting Party shall be entitled to recover its costs, expenses, reasonable attorneys’ fees, experts’ fees and witness fees of any type.

13.8. Notices

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CONTACT INFORMATION HERE

13.9. Exhibits

The forms of Exhibits attached to these Terms may change from time to time in City’s discretion, as technology and business needs change.

By Mark FlattenNational Investigative ReporterGoldwater Institute

CITY COURT:MONEY, PRESSURE AND POLITICS MAKE

IT TOUGH TO BEAT THE RAP

2 | Goldwater Institute

T he red and blue lights are flashing in your rear-view mirror as you pull to the side of the road, certain you did not do anything wrong and wondering why you are being stopped.

The police officer’s first question is likely to be whether you know why he pulled you over. When you stare at him with a puzzled look and say no, he will explain and

ask you for your driver’s license, registration, and proof of insurance.If your paperwork is not in order, you will likely face criminal charges and possible arrest.If it is, the encounter will most likely end with a traffic ticket. Maybe two or three. Each will cost

you hundreds of dollars in fines, fees, and surcharges, in addition to driving up your insurance rates because any traffic violations add demerits to your license.

You could hire a lawyer and challenge the ticket in court. But the lawyer will cost you far more than just paying the ticket.

Besides, if you do challenge the ticket, it may come down to your word against that of the police officer, a city employee.

Your case will be heard in city court in front of a city judge.That judge is hired and retained by the city council.That city council is responsible for raising money to continue paying the salaries of city employ-

ees, including their own, the judge’s and the police officer’s.If you beat the ticket, the city gets no money. If you are found responsible, about half of the mon-

ey you pay in fines, fees, and surcharges will go directly into the city’s coffers. The rest will be scattered to a variety of special accounts used to pay for things as varied as DNA testing and the state’s clean elections fund financing political candidates.

Given all that, do you really think you can get a fair hearing?That question is causing much soul searching in courtrooms and legislatures nationally, and has

been the subject of a half-dozen reform efforts in Arizona since the 1950s, all without success.Arizona judges at all other levels—whether members of the justice, superior, or appeals courts—

answer directly to the people through elections. Only in city court are judges completely beholden to the political branch of government: the city council, which not only appoints and retains them, but can fire them at any time if council members determine there is sufficient cause.

More than 20 years ago, an Arizona Supreme Court justice said the nearly unchecked power of city councils to hire and fire judges “fastens the lid on the coffin of judicial independence.” His concerns were rejected by his colleagues on the bench and written in dissent, as the court upheld the council’s power to fire a judge for cause at any time.

Nothing has changed since then.The biggest danger is that outside political pressure can skew the independence of the judges and

thereby influence their decisions.That pressure may be to raise more money for the city, which means judges might be more likely

to convict. It may be to give preferential treatment to influential city insiders. Or it may be to sign off on questionable city policies, such as what constitutes legal notification of a photo-enforcement ticket.

Goldwater Institute | 3

“The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests.”- U.S. Department of Justice Ferguson report

The DOJ documented pressure from city officials on city judges to continually increase the flow of mon-ey. This pressure to raise revenue led to practices such as tacking abusive and potentially illegal fees onto fines for minor infractions, and using arrest warrants and driver’s license suspensions primarily as tools to compel payment of fines rather than to protect the public or mete out justice.

“Ferguson has allowed its focus on revenue genera-tion to fundamentally compromise the role of Ferguson’s municipal court,” the Justice Department concluded in its final report, issued in March 2015. “The municipal court does not act as a neutral arbiter of the law or a check on unlawful police conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth Amendment’s due process and equal protection requirements.”

Appointment and retention of judges in Ferguson is done by the city council, just as it is in Arizona.

SUBTLE INFLUENCE

Despite the conclusion that raising money was a prime objective of the Ferguson court, the DOJ report does not cite a single instance in

which city officials either directly told a judge how to rule in a particular case or generally asked a judge to boost revenue through more convictions.

The pressure was more subtle than that.It was typically couched in terms of meeting rev-

enue and budget projections, and using aggressive collection techniques to ensure defendants who owed money paid on time.

It’s not always clear what is allowed and what is in-appropriate in conversations between municipal judges and other city officials. Clearly, city council members should not tell judges how to rule on cases, according to interviews with judges and other city officials.

But presiding municipal court judges also have ad-ministrative responsibilities over budgets and person-nel, just like other city department heads.


What that means to you is that when you go to city court, reaching a fair and impartial decision in your case may not be all that’s on the judge’s mind.

“Judges may perceive pressure to rule in particular ways, and even if they don’t feel the pressure, the pub-lic may think it exists,” Rebecca White Berch, former chief justice of the Arizona Supreme Court, said in an email interview with the Goldwater Institute. “And perception is often as important as reality. Our justice system depends on citizens’ faith in the independence of judges, so even the perception of undue or unseemly pressure can destroy confidence in the judicial system.

“Judges should not seek to please any particular group or litigant with his/her rulings; judges must ad-here to the law,” said Berch, who retired from the court in 2015. “This requirement is so strong that judges must rule according to law even when doing so is not popular or may cost them their jobs.”

City judges being co-opted by political forces is a long-simmering issue, both in Arizona and nationally. Seventeen states have eliminated municipal courts. Of the rest, about half have their judges elected, accord-ing to data from the National Center for State Courts. Arizona is one of about a dozen states that put the ap-pointment of judges solely in the hands of the mayor and city council, and one of only about seven states that allow the city council, rather than voters, to de-termine whether a judge will be reappointed at the end of the first term in office. The figures are not precise because some states allow appointment and retention mechanisms to differ between cities.

Technically, Arizona law allows cities to determine the method of appointment and length of terms for judges. Yuma is the only city that allows its judges to be elected by the people. In every other Arizona city, judges are appointed by the councils.

The danger of political pressure skewing city court decisions is not an esoteric one. Its consequences were exposed in stark detail by the U.S. Department of Jus-tice in Ferguson, Missouri, after the police shooting of Michael Brown in August 2014.

The DOJ did two investigations. The first pro-duced a highly publicized report clearing the police officer of wrongdoing. The second and less well-known investigation looked into the overall police and court practices of Ferguson.

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Municipal judges are expected to cooperate with city budget planners to develop revenue projections for the coming year, to operate efficiently within the spending limits set by the council, and to adhere to city budget and personnel rules as long as they do not impede the ability to fulfill their legal duties.

So talks about revenue and expenses of the court might be inappropriate pressure on the judge, or sim-ply good budget planning.

“Interference by local political office holders with locally appointed judges may be discrete and difficult to identify,” the national Confer-ence of State Court Administrators warned in a report issued in 2014.

Judges can refuse to follow or-ders they believe compromise their independence.

City councils can refuse to re-appoint those judges without giving a reason.

The Goldwater Institute re-viewed personnel evaluations of presiding judges in several cities. None tied the judge’s performance to meeting revenue goals. Instead, the official reviews included more gener-ic categories such as integrity, accountability, courtesy, knowledge, and “contributing to team success.”

Judges and other city officials are not likely to ad-mit publicly if they are inappropriately pressured to raise revenue, much less put it in writing.

Rick Schwermer, state courts administrator in Utah, said that since he joined the office in 1990 he regularly received confidential complaints from city judges saying they were pressured to raise more money.

“Some of our judges said to me ‘my mayor told me I got to get the revenue up,’” Schwermer said. “That’s not something a judge is ever going to say in public, but they were able to say that to me.”

Largely because of those complaints, in 2008 Utah revamped its method of appointing and retaining mu-nicipal court judges so they now answer to voters, not city councils.

Pressure to raise revenue and the focus on finan-cial compliance by defendants are recurring concerns of city judges and court administrators, according to

a report published by the National Center for State Courts. The conclusion is based on confidential sur-veys and discussions at court management conferences conducted between 2003 and 2010, including one in Phoenix. Other recurring concerns include judicial in-dependence, the “role and purpose” of the courts, and “collaboration and tensions with justice partners.”

All of the municipal judges interviewed by the Goldwater Institute said they have never been told directly by council members or other city officials that they need to increase revenue, either through more convictions or more aggressive collection techniques. They do acknowledge that they dis-cuss revenue projections and court spending as part of their administra-tive duties, adding those conversa-tions are appropriate and necessary to plan budgets.

“For the most part, the budget parameters as far as spending is in their (city council’s) ballpark,” said Judge Joseph Olcavage, presiding

judge of the Scottsdale Municipal Court. “As far as revenue, it would be totally inappropriate for them to say you need to bring in so much money because that goes into sentencing and applying fines. That has to be based on fairness . . . As far as revenue goes, that’s in our ballpark entirely, and they should have no input into that.”

MONEY AND POWERS

If you ever wind up in court, chances are it will be in city court. More than half of all cases in Arizona are handled in city court, according to the Arizona

Administrative Office of the Courts, the administrative wing of the state’s judiciary, which operates under the Supreme Court. That means city courts in Arizona deal with about 1 million cases per year.

Municipal courts are also the biggest moneymakers in the Arizona judicial system. They raise almost half of


“Some of our judges said to me ‘my mayor told me I’ve got to get the revenue up.’ That’s not something a judge is ever going to say in public, but they were able to say that to me.”- Rick Schwermer, Utah court administrator

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all the money generated by the court system in Arizona, about $167 million in 2016. Yet they account for only about 13 percent of the cost of running the state’s courts.

Arizona law requires all cities to have municipal courts. There are 82 in Arizona, depending on how they are counted. Cities can contract with each other or with justice of the peace courts to provide judicial ser-vices if they are within the same county.

Municipal judges do not have to be lawyers in Arizona. Each city sets its own minimum qualifications.

City court judges have criminal juris-diction over misdemeanor crimes and petty offenses committed within town limits. That includes misdemeanor traffic offenses such as driving under the influence of alco-hol (DUI), reckless driving, and leaving the scene of an accident.

Municipal courts also have primary jurisdiction over violations of city ordinances, which are also frequently classified as criminal misdemeanors. Those can range from prostitution and obstructing a police officer to seemingly minor offenses such as hav-ing excessively tall weeds in your yard, littering, failing to return a library book, and violating city smoking ordinances, all of which are considered criminal infrac-tions in some municipal codes across Arizona.

Last year, 11 people were booked into Maricopa County jail for violating Mesa’s smoking ordinance, a criminal offense under the city code, according to re-cords from the sheriff’s office.

Spitting on the sidewalk is a criminal misdemeanor in Mesa, and last year that was among the charges one man faced when he was booked into jail after threaten-ing police.

In Peoria, two people were jailed for the crime of having weeds taller than six inches on their property. Others were jailed for having disabled vehicles parked on their property, also a criminal offense in Peoria.

Municipal judges can impose sentences of up to six months in jail and $2,500 in fines for criminal misde-meanors, including local ordinance violations. If a per-son misses a court date, or even a single payment on a misdemeanor fine, the judge can issue an arrest warrant.

Violating minor ordinances that wind up in city courts also can have severe consequences beyond just the fines and jail time a judge might impose. Courts have ruled that police can arrest and search people stopped for even minor ordinance violations, and pros-ecute them on more serious felony charges if illegal items such as drugs are found as a result.

A misdemeanor conviction in municipal court means a person will have a criminal record, which can make it difficult to obtain a job, an occupational li-cense, a teaching certificate, or a student loan. A crim-inal conviction in city court can jeopardize a person’s immigration status. It can even make it illegal for the person to possess a gun if the case involves domestic violence or orders of protection.

CHARGES AND SURCHARGES

But the real moneymaker for Arizona city courts is civil traffic violations, things like routine tick-ets for speeding, running red lights, and making

illegal turns.


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In 2016, 623,797 civil traffic cases were filed in municipal courts statewide, which accounted for about two-thirds of all new cases. Another 79,070 parking cases went through city courts.

State reports do not specify how much money is raised through traffic and parking tickets as opposed to other charges such as DUIs and misdemeanors. Nor do they show how much of the money raised by individual courts is retained by the cities. Much of the money they collect is forwarded to dozens of special funds set up in state law and financed by court-related penalties.

What the state reports do show is that municipal courts raised $166.7 million in 2016.

Of the total, about $69.4 million is from the fines themselves. The cities keep most of that.

Court fees and other charges layered on by the state and cities added $53 million in revenue.

The state also imposes a surcharge on all traffic and parking tickets, misdemeanor convictions, and pretty much every other type of case that goes through city courts. That raised about $44.3 million in 2016.

So a traffic violation that carries a base fine of $124 will cost you about $342 when all of the fees and sur-charges are tacked on, according to calculations from the state courts.

For a simple DUI conviction, a base fine of $250 will reach a total of $1,671 by the time additional as-sessments, fees, and surcharges are added in.

Roughly half of the total amount raised by munic-ipal courts goes to the city. The exact amount retained by each city varies by jurisdiction and by charge. Cit-ies can get another piece of the state surcharge money through grants for technology and training.

The money does not go directly to the court. Rath-er it is paid into the city’s general fund, where it goes to support general city operations. Court funding is set through the normal city budget process and is financed almost exclusively through the general fund of the city.

As with revenue figures, there is scant information about conviction rates in municipal courts.

The state office of the courts was unable to provide any figures on conviction rates in individual city courts. It did conduct a study examining data from 2014 that found the overall conviction rate for civil traffic viola-tions in justice and municipal courts across Arizona is 83 percent. That includes about 22 percent of those

cited who opted to plead responsible—the civil traf-fic equivalent of guilty—in return for being allowed to take a defensive driving class and have the ticket wiped off their driving record.

Defensive driving school is only available for peo-ple who plead responsible. It is not an option for those who want to contest the charges. That is a powerful inducement to admit guilt. Upon completion of the course, there will be no record of the citation on the driver’s record and no points against a person’s driver’s license. Points for traffic convictions spike insurance rates and can lead to revocation of a driver’s license.

Defensive driving is only available for one charge, and only to drivers who have not taken the course for at least a year.

The overall conviction rate for speeding tickets, the most common traffic violation, is 87.8 percent.

The Goldwater Institute observed several days of hearings in different courts throughout Maricopa County recently. In traffic court, defendants frequent-ly have multiple citations and agree to plead responsi-ble to one in return for having other charges dropped. This was particularly common when defensive driving school was available.

REVENUE PRESSURE

City courts in Arizona often tout their reve-nue-raising ability on their websites, in annual reports on the courts, or in budget documents.

“The Court has the highest case-to-personnel ratio and second highest revenue-to-expenditure ratio of the largest Municipal Courts in Maricopa County,” reads the 2016 annual report from Tempe city court. It adds that in its court, “for every $1 expended on Court op-erations, the Court collected $2.56 in fines and fees in FY [fiscal year] 14/15.”

Paradise Valley similarly boasted the revenue-raising ability of its municipal court, noting in a budget document:

“For every $1 expended on court operations [the court] collected $3.08 in fines, fees and State surcharg-es,” the budget says, noting the average return for all


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Arizona municipal courts is $1.83 in revenue for every dollar spent.

Among the goals for the Page municipal court cit-ed in budget documents is to “continue to maintain current funding levels with existing resources.”

Pressure on judges to raise revenue plays out in sub-tle ways, said Joseph St. Louis, a Tucson attorney who has practiced in front of municipal courts for about 30 years and is certified by the American Bar Association and the National College for DUI Defense as a special-ist in defending criminal and DUI cases. The pressure may manifest as rulings in individual cases that don’t make sense but which taken as a group consistently go against the defendants. It could be consistently siding with the police version of what happened.

Outside influence is particularly damaging in civ-il traffic cases, where defendants are rarely represented by an attorney and the standard of proof is “preponderance of the evi-dence,” meaning the judge simply has to find that it is more likely than not—to any degree—that the defen-dant is guilty, he said.

“You certainly see decisions that result in convictions and fines being imposed that have the appearance of having been made in order to en-gineer that result, in order to make sure that there has been a conviction and that monies have been paid,” said St. Louis, who is also past pres-ident of the Arizona Attorneys for Criminal Justice. “In my experience judges are very aware of how much revenue they are bringing in, where their caseload is at, how often people are being convict-ed or not convicted in their courtrooms.

“The concern ought to be making sure the per-son has their day in court, gets a fair shake and that the right result is obtained, and not a concern for how much money is being generated. That shouldn’t even be a factor. If you’ve got judges that are concerned with the amount of revenue that’s coming in versus being concerned with reaching the right result in the case, that’s a fatal error.”

DANGEROUS DEMANDS

Even the Arizona Office of the Courts is cogni-zant that there is at least a danger that cities can lean on their courts to be moneymakers, espe-

cially in light of the Justice Department’s findings in Ferguson. Fair Justice for All, a special task force creat-ed last year by Scott Bales, chief justice of the Arizona Supreme Court, warned that:

“Courts are not revenue-generating centers. While courts do collect monies in the form of restitution, fines, and fees, the purpose of courts is to administer justice—not produce revenue for governmental use.”

The Justice for All committee examined the break-down of the judicial system in Fergu-son and developed reforms to prevent the same things from happening in Arizona cities. Its recommendations focused primarily on alternatives to punitive debt collection tools, such as arrest warrants, rather than reve-nue-raising pressures on city judges.

But even before Ferguson and the Justice for All task force, guid-ance from the Arizona office of the courts had long warned cities against exerting pressure on judges to do anything but fairly dispense justice.

“Interference that impedes the court from carrying out the impar-tial administration of justice violates the distribution of powers provision

of the Constitution of the State of Arizona, and the fundamental principles of our constitutional form of government,” the office warns in guidance aimed as much at city councils as the judges themselves.

Don Taylor, chief presiding judge in Phoenix Mu-nicipal Court, said he understands why some people perceive the primary role of city courts is to make mon-ey. Jail is not an option for civil traffic cases, and is not appropriate for most of the misdemeanor cases that wind up in city court, said Taylor, a member of the Justice for All task force.


“In my experience judges are very aware of how much revenue they are bringing in, where their caseload is at, how often people are being convicted or not convicted in their courtrooms.”- Joseph St. Louis, Tucson attorney

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That means the only appropriate punishment in most of the cases heard in city court is to assess a fine, he said. That fuels the perception that it’s all about money.

But the courts in Phoenix and most other Arizona cities lose money, even though a small number do turn a profit, Taylor said, an assessment backed by a review of city budgets. In the 2017 fiscal year, Phoenix antici-pates raising about $15.2 million from court fines and spending $28.1 million from its general fund to pay for the courts.

Court fines also account for a miniscule part of overall city budgets. In Phoenix, the fines account for about 1.4 percent of the total city general fund, which finances day-to-day operations. In Ferguson, court fines generated about a quarter of total city general fund rev-enues in 2015, according to the Justice Department.

“The court is not about making money. That’s a byproduct of what we do, which is hold people respon-sible,” Taylor said. “You’ve got the people who believe it’s all a revenue-generating system. If that’s the truth, it’s the worst business model ever designed. The court is going to collect far less in general fund revenues than it costs to fund the court out of the city’s general fund. So it’s a huge money-losing proposition. If that’s the case, we’d do better economically shutting it all down.”

Cities are required to have municipal courts by law.Taylor said he has never been pressured to raise rev-

enue. Even if he was, there are not many revenue-rais-ing options for judges since cases are handled on an individual basis, and the court has no control over how many cases are filed.

“Even if those sort of inappropriate conversations were going on, there’s nothing we could do,” he said.

TURNING A PROFIT

T here are two ways to gauge whether a city court is profitable.

One way is to look at the total amount of money generated by each court, including fines, fees, and surcharges. By that measure, 21 city courts cost more money to operate than they raise, almost all of which are in small communities like Hayden, Safford, and Somerton.

But cities keep only about half of that money. So that may not be the best way to gauge profitability, even though it is the figure typically cited in budget documents to tout the efficiency of individual courts.

There is a line buried in city budgets called “fines and forfeits,” which represents court-generated revenues paid into the general fund that the city gets to keep. By that measure, most cities either lose money or break even, even when additional state funds are included.

There are exceptions.Paradise Valley has the most lucrative court in Ar-

izona, based on budget projections for the 2017 fiscal year. The municipal court will raise about $3.4 million for the town while costing about $705,290 to operate. Judges in Paradise Valley are all volunteers, which helps keep costs down.

The town also raises an inordinate amount of mon-ey through the court fees it tacks on to the penalties, according to state revenue figures from 2016. In most other cities, court-imposed fees account for about a third or less of the total amount raised through fines, surcharges, and fees. In Paradise Valley, fees account for about two-thirds of the total revenue raised.

Many of the court fees are set locally and are re-tained by the city.

Court-generated revenues—the part that the town gets to keep—account for about 13 percent of all rev-enue generated for the Paradise Valley general fund. That is far more than other Arizona cities, which typi-cally raise less than 5 percent of their general fund rev-enue through the courts, but still less than Ferguson.

Volunteer judges are a big reason the cost of run-ning the town’s court is so low, said Tyrrell Taber, pre-siding judge of the Paradise Valley court. The city also has invested in technology and other improvements that increase efficiency and customer service, he said.

Taber, who serves on a two-year term, said he has never been pressured to raise revenue by the mayor, council, or any other city official, and would not toler-ate it if he ever was.

As to the language in town budgets touting the court’s revenue-raising prowess, Taber said he is re-quired to report that information to the state. Noting it in budget documents is “a statement of fact.”

“It’s not something that we would try to hide or disguise in any way. It is what it is,” he said. “The prob-lem you have with any municipal court is the percep-


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tion is that every municipal court is there for purposes of trying to make money. The answer to that is not ours. That’s not our goal. That’s not our mission.”

Tempe also runs a profitable court, with projec-tions showing it will raise about $8.4 million from fines and forfeitures in 2017 while costing the city about $4.4 million from its general fund.

Other cities showing positive net revenues from their courts include Scottsdale, Gilbert, and Tucson.

One Arizona community did make Ferguson-level profits from its court-related operations in recent years. Star Valley, a small town on Highway 260 near Payson, raised $890,000 through photo radar traffic tickets in 2016. That was about 47 percent of the town’s total general fund income.

Star Valley uses the local justice of the peace to ad-judicate its traffic tickets through an agreement with Gila County.

The legislature put an end to the practice last year when it banned photo radar on state highways. As a result, the town anticipates raising about $96,000 through traffic citations in 2017.

FAILURES IN FERGUSON

T he national hand-wringing about the role of municipal courts and whether they are too vulnerable to political pressure was trig-

gered by the Justice Department’s findings in Fergu-son. Beyond the bottom-line conclusion that the judge in Ferguson had allowed his court to become a rev-enue-raising tool of the city, the DOJ was critical of practices such as issuing arrest warrants and suspending driver’s licenses to compel payment of fines.

Similar practices are routinely used in Arizona to compel payment.

The Ferguson judge and his staff, as well as the police chief, were repeatedly urged to take steps to in-crease revenue to meet budget projections, according to DOJ. The police chief did his part by implementing a ticket quota system, whereby police officers’ perfor-mance evaluations were tied to the number of citations they issued and the amount of revenue they generated.

Those tickets wound up in city court, where the judge did not question the practice, according to DOJ.

The judge in Ferguson is appointed and retained by the city council, just as city judges are in Arizona and about 10 other states.

The Arizona Supreme Court has ruled that the council can choose not to retain a judge for any reason. It only needs cause to fire a judge if it occurs outside the reappointment process, the court said in a 1994 decision.

The justices in that case did not specify what would be sufficient cause to fire a judge midterm. Cities in Arizona have fired municipal judges for such things as sexual harassment of attorneys and conflicts of interest involving individual defendants.

Judges in Arizona actually have more power than they do in Ferguson. In Missouri, the city judge can put people in jail for up to three months and assess up to $1,000 in fines. In Arizona, city judges can jail someone for six months and impose $2,500 in fines.

Other than that, their duties are largely the same.The city courts in Ferguson and those in Arizona

also are overseen by higher courts, which is supposed to be a check on abuse. In Ferguson, oversight is the responsibility of county circuit court under rules pro-mulgated by the Missouri Supreme Court. In Arizo-na, similar oversight responsibility exists through the county courts and the state supreme court.

JUDICIAL PRODUCTIVITY

T he Arizona Supreme Court has stripped two city judges of their duties for misconduct since 1995, according to a list from the state

Commission on Judicial Conduct. That happened most recently in 2014, when it removed Judge Scott Sulley from his dual roles as municipal court judge in the city of Maricopa and as justice of the peace in Pinal County.

Maricopa is in Pinal County. Sulley had been the magistrate judge there since the city was incorporated in 2003.

In November 2013, the state Office of the Courts determined money that people had paid to Sulley’s


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courts to attend defensive driving school was not be-ing deposited into the proper accounts. Audits were ordered, which uncovered gross financial mismanage-ment in both the city and justice courts. Payments of court fines were not properly recorded and deposited. Final dispositions, some years old, were not properly recorded in case files. Restitution payments were not forwarded to victims. Surcharge money that should have gone to the state was not paid.

Auditors discovered more than $112,000 in unsecured cash, checks, and money orders dating back several months scattered in the court clerk’s office. Case files were stacked on tables, in hallways, and in a holding cell.

The disarray prompted the Arizona Supreme Court to issue an order assigning administrative control of both courts to the presiding Pinal County Superior Court judge.

Subsequent investigation uncovered practices that rivaled those in Ferguson.

Defendants on time payment plans were required to regularly appear in court, even if they were up to

date on their payments. When one defendant showed up a day late, Sulley insisted on issuing a warrant for failure to appear.

One man continued to have his wages garnished even after he’d paid all his court fines because the re-cord-keeping was so sloppy.

Because of the lack of accurate payment records, the Pinal County presiding judge ordered Sulley to stop issuing arrest warrants for missed payments until the accounts could be reconciled. Sulley continued issuing them anyway. One reason cited in disciplinary records is that issuing warrants increased his judicial productivity credits, a formula set in statute used to calculate a justice of the peace’s pay. As a result, issuing more warrants “di-rectly impacted his personal financial gain.”

When a Maricopa city council member was arrest-ed for DUI—an obvious conflict of interest—Sulley had the case transferred to Casa Grande justice court. Sulley suggested he’d done the councilman a favor be-cause the Casa Grande judge is “very lenient.”

The supreme court issued an order barring Sulley from performing any judicial duties in February 2014.


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The fourth judge, who was 73 years old at the time, was allowed to retire as St. Johns municipal judge in 2007 to settle pending disciplinary proceedings alleg-ing he “failed to follow the law.” He agreed not to serve as a judge again as part of an agreement.

Other city judges have faced less-serious discipline from the Supreme Court for misconduct.

A Tucson judge was removed from the bench by the city council in 2010 for sexually harassing attor-neys, and later was forced by the city to resign. He was subsequently censured, had his law license suspended for two years, and was prohibited from ever again serv-ing as a judge by the supreme court.

Ten other judges were censured, which is essential-ly a public rebuke and the most lenient formal sanction that can be imposed on a judge. Four other city judges have been suspended since 1994, but were allowed to return to the bench.

One of the judges was censured in 2005 for “ap-pearing to show favoritism when he dismissed several charges and waived fines for a county official’s relative,” according to the case description.

Another judge was censured in 2004 for improper-ly releasing his daughter’s friend from custody.

A third judge was censured in 2006 for ordering a husband and wife jailed while refusing to allow them to contact their attorney or child care provider.

Other misconduct by city judges that drew noth-ing more severe than a censure includes yelling at de-fendants, failing to allow defendants to speak with an attorney, using vulgar language, and communicating improperly with attorneys, prosecutors, witnesses, vic-tims, or defendants.

COLLECTION TOOLS

T o ensure a steady stream of income, the judge in Ferguson aggressively used collection tools, such as arrest warrants, to make sure people

were paying their fines, according to DOJ. Arrest war-rants were routinely issued for people who missed court appearances or even a single payment on a fine. When that defendant was subsequently arrested, a new crim-

He was later slapped with a lifetime ban from ever serv-ing as a judge and was disbarred by the supreme court, meaning he could not practice law.

RARE REMOVALS

A side from Sulley, the Arizona Supreme Court has removed only one other municipal court judge from the bench for misconduct since

1995, according to records from the state Commission on Judicial Conduct.

In the 1995 case, the supreme court found a Tempe Municipal Court judge had separately assaulted three people, including his ex-girlfriend, and that “alcohol played a role” in all of the attacks. The judge also was convicted on charges of soliciting a prostitute, which the court deemed a crime of “moral turpitude” in the order stripping him of his judicial duties.

The Tempe court was in turmoil at the time. The city’s presiding municipal judge, Stephen Mirretti, was indicted on charges of fraud, theft of public money, bribery, and conspiracy to obstruct a criminal investi-gation, all felonies. Mirretti resigned in 1994, before the supreme court could remove him, and ultimately reached a plea agreement on the criminal charges. The supreme court did disbar him 11 months after he re-signed from the bench.

Four municipal court judges resigned and were barred from ever holding judicial office in Arizona again as part of negotiated agreements to settle judicial disciplinary proceedings, including two in 1996. One of them, an Apache Junction judge, was accused of ignoring state laws, and exceeded her authority when issuing orders of protection and injunctions against ha-rassment. Her term in office expired prior to the sanc-tion being imposed.

Another judge in the Miami city court was accused in 1996 of unethical resolution of civil and criminal traf-fic tickets, and refusing criminal defendants the right to a lawyer. The judge routinely and improperly dismissed traffic tickets, and when investigators asked her why, she replied of the defendants, “because they like me.”

The third judge with a lifetime judicial ban was accused of falsifying affidavits to make it look like there were no backlogs in her Globe-Miami court in 2010.


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inal charge was added, which brought more fines and more legal complications.

“The evidence we have found shows that these arrest warrants are used almost exclusively for the pur-pose of compelling payment through the threat of incarceration,” DOJ concluded. “Most strikingly, the court issues municipal arrest warrants not on the basis of public safety needs, but rather as a routine response to missed court appearances and required fine payments.” Arizona law gives judges the power to use arrest war-rants to compel attendance and payments.

A person who fails to show up for a scheduled hearing in municipal court can face a new misdemean-or charge of failure to appear if the underlying charge is a misdemeanor or a petty offense. A petty offense is a criminal charge for which the only penalty is a fine. It does not include civil traffic charges, such as routine speeding violations.

A person can be convicted of the new failure to ap-pear charge regardless of the outcome of the underlying charge that led to the missed court date. So a person ac-quitted of the underlying charge can still be convicted on the failure to appear charge.

A different criminal statute authorizes arrest war-rants to be issued if a person fails to pay a fine or misses even a single payment.

Technically, that is treated as contempt of court, and the warrant is issued to ensure attendance at a hearing to determine why the payment was not made.

Regardless, the person can still be held in jail until a hearing in front of the judge. If the judge determines the person had the ability to pay but chose not to, the defendant can be held in jail until all outstanding fines are paid.

Arrest warrants probably cannot be issued for missed payments or failing to appear in civil traffic cas-es, either directly or in a roundabout way through a contempt of court proceeding, according to the state courts office and most judges surveyed by the Goldwa-ter Institute. The law is unclear.

But what frequently does happen is people who miss a payment or court date related to a civil traffic ticket have their driver’s license suspended, and are sub-sequently arrested for driving on a suspended license, a criminal charge. Driving on a suspended license is the most common criminal traffic violation in Arizona.


FAILURE TO APPEAR

Judges routinely issue failure to appear warrants for people who miss court dates or fine payments in misdemeanor cases, including ordinance viola-

tions, according to information on various city court websites.

“When a person fails to appear for a scheduled court date, a warrant is issued,” the Glendale City Court says on its website. “The defendant may be arrested. A warrant will be issued if a person is required to pay a fine or to complete a sentence and fails to do so.”

The Mesa Municipal Court has similar language:“A warrant of arrest can be issued for several rea-

sons. This can include but is not limited to non-com-pliance with a Court order or failing to appear in Court as directed. A warrant for non-compliance may be is-sued if fine payments, jail time, counseling or treat-ment sessions are not completed as ordered.”

And from the Page Magistrate Court website:“Arrest warrants will be issued for failing to appear.

Each time the Court is forced to take this action, addi-tional fees are added to the amount owed.”

Taylor, the Phoenix judge, says issuing an arrest warrant for people who do not obey court directives in criminal misdemeanor cases is standard practice in Phoenix and other Arizona cities, just as it was in Ferguson.

Judges do not have many options to compel people to pay their fines or show up to court, Taylor said.

In Phoenix, the court staff will attempt to contact people who have missed court dates or payments in-volving misdemeanor charges. Prior to issuing an arrest warrant, an order to show cause hearing is scheduled and the defendant is served with a summons to appear and explain why court dates were missed or fines were not paid.

Usually new arrangements, such as payment plans, can be worked out to get the person into compliance with court orders, said Taylor.

If a defendant fails to show up for the hearing or fails to abide by other court orders, a warrant will be issued in Phoenix, Taylor said.

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allowing them to set their own fine amounts and en-sure the cases stay in city court.

The second most common types of ordinance vio-lations that led to an arrest involved people who were illegally camping or loitering on city property, usually parks. Other common charges included urinating in public and having unleashed dogs.

All of those are criminal violations in city codes.Arresting people who can’t pay their fines treads

dangerously close to jailing people for poverty, the DOJ warned in Ferguson. That runs afoul of both the U.S. and Arizona constitutions.

When people are arrested on a failure to appear or failure to pay warrant, which usually occurs in a traffic stop, they will wait in jail until a hearing is scheduled in front of a judge. That must happen within 24 hours.

If the judge determines the person is willfully dis-obeying the court’s orders by not showing up or paying fines, the defendant can be held longer.

Usually, the only way to get out of jail immediately is to pay the full amount of what is owed for the un-derlying charges, said Mike Reeves, a Phoenix attorney who has spent about 30 years practicing in municipal courts.

“All of these problems you hear of in Ferguson, I think they exist everywhere,” said Reeves, vice chair of the State Bar of Arizona’s Criminal Justice Executive Council. “I don’t think that they were unique to Fer-guson by any stretch of the imagination. It could be that Ferguson was more lax in how they treat people or more draconian in how they issued arrest warrants. But it’s still the same problem everywhere because people don’t pay their fines.”

LOSING A LICENSE

T he other tactic abused in Ferguson to compel payment of fines was the automatic suspen-sion of a person’s driver’s license for missing a

hearing or payment on a fine for a simple traffic viola-tion, according to the justice department.

That is also standard practice in Arizona.If you fail to appear for a civil traffic hearing, the

“I don’t have any other way to compel the atten-dance of the person to be accountable and compliant other than an arrest warrant,” Taylor said. “Unless we are going to say when they thumb their nose at the court just let it all go, what’s the court supposed to do?

“In Phoenix you have to bend over backwards to ignore the court to end up in the situation where the court’s only real recourse in a criminal case, whatever it is you failed to do, is an arrest warrant.”

There were 248,472 outstanding warrants issued by municipal courts in Arizona for the arrest of people who failed to appear, according to state data for the 2016 fis-cal year. Of those, 135,273 were for cases involving mis-demeanors and the rest were for criminal traffic offenses.

Of the criminal traffic warrants, about 45,000 in-volved DUIs or what are considered “serious” criminal traffic violations, such as leaving the scene of an ac-cident or reckless driving. The other 68,468 were for criminal traffic offenses not deemed “serious” in state reports, such as driving on a suspended license.

Phoenix had 39,211 outstanding arrest warrants for failure to appear violations in 2016.

‘SAME PROBLEM EVERYWHERE’

A rresting people for failing to appear or pay a fine for what started as a minor offense highlights another problem cited by the DOJ

in Ferguson.Every time an arrest warrant is issued, the person

faces new charges, fines, and fees that often make it even less likely they will be able to keep up on their payments or ever clear the underlying charges, the DOJ found. The routine use of arrest warrants also means people can be jailed for minor ordinance violations and other charges that would not normally entail jail time.

In Arizona, Maricopa County Sheriff booking re-cords show 1,249 people were jailed last year on charges involving violations of city ordinances. The most com-mon offenses had to do with escort services and prosti-tution, 254 cases.

Prostitution is already a crime under state law, but many cities also adopt their own criminal ordinances,


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judge will most likely enter a default judgment that you are responsible—guilty—and order that the entire amount of the fine is due, according to information on various city court websites. The court will then notify the state motor vehicle division (MVD), which will au-tomatically suspend your driver’s license.

Driving on a suspended license is a criminal misde-meanor. That means if you are stopped again, you will face arrest and criminal charges, even if the underlying offense is nothing more than a minor traffic violation.

Other penalties apply for missed payments on traf-fic tickets in Arizona, not all of which were cited as problems in the Ferguson report.

In addition to suspending your driver’s license, the state will place a hold on your vehicle registration, and you will not be able to renew it until the fines are paid. The Arizona Department of Revenue will put a hold on any tax refunds you are otherwise entitled to, and the debt can be turned over to a private collection agency.

There also will be additional fines and surcharges ordered against you, which will also have to be paid before you can get your license back, though the judge can modify that requirement.

Examples of how quickly things can escalate are found on the legal website Avvo, which has a forum for people to submit questions for legal advice.

One person described being cited in Mayer, Arizo-na, for failing to have proof of insurance. The driver was insured, and mailed proof to the court, which claimed it did not receive it. So the person’s driver’s license was suspended for failure to appear or failure to pay.

The first the driver learned of the license suspension was when he was later cited in Scottsdale for driving on a suspended license, according to the Avvo description.

“After I went to the Mayer court they waived the fine and had the suspension lifted, but now I am facing two criminal driving on a suspended license for FTA/FTP, plus had my truck impounded that cost $150,” the driver wrote. “I have no money for a[n] attorney or the hefty fine that is possible along with jail time. If I go to jail, I will lose my job. I can’t believe this all because I didn’t have my [insurance] card in the car that day.”

In 2014, 53 percent of all defendants who were initially charged for civil traffic violations and lost their licenses because they failed to appear in court were later


cited for the criminal charge of driving on a suspended license, according to data from the state office of the courts. About 41 percent of all criminal traffic offenses were for driving on a suspended license.

Last year, the state suspended the driver’s licenses of 74,001 people for failing to appear or pay a fine in municipal court, according to records from the state MVD. The most common underlying violation that led to a license suspension in city court was speeding, which accounted for more than 17,000 of the suspensions.

DUIs, including extreme DUIs, accounted for about 3,800 of the suspensions, according to MVD data.

You don’t even have to be driving to lose your li-cense for failing to appear in city court.

There were 239 people who had their driver’s li-cense suspended in city court because of failure to ap-pear or pay a ticket related to violations that occurred when they were pedestrians, such as crossing against a light or outside of a crosswalk. Another 162 of the license suspensions involved people who were riding a bicycle at the time they were initially ticketed.

‘BLOOD FROM A TURNIP’

T he punitive tools city court judges use to compel payment can create a vicious cycle in which people who cannot pay their fines are

continually hammered with new penalties, said Ales-sandra Soler, executive director of the American Civil Liberties Union of Arizona.

People who commit minor traffic violations are routinely hit with hundreds of dollars in fines, fees, and surcharges they cannot afford to pay. So they miss a payment, and their license is suspended. They con-tinue to drive because they have to get to work. If they are stopped, they face more charges, more fines, and possibly jail time. Unable to get to work, they lose their jobs. In the end, they are left unemployed, poorer than before, and even less likely to be able to pay their ev-er-mounting debts to the court.

“These practices, these excessive financial obliga-tions, these improper practices for enforcing court debt

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Three bills were introduced in the legislature to im-plement much of what was recommended by the com-mittee. The governor signed one bill, giving municipal judges more ability to hold mental competency hear-ings in misdemeanor cases. The other two bills failed. One would have made it easier for courts to mitigate fines and allow community service in lieu of financial sanctions. The other would have made driving on a suspended license a civil traffic violation rather than a criminal misdemeanor if the suspension was the result of failing to appear or pay a fine.

Missing from the Justice for All report is anything that would insulate local judges from political pressure, other than the generic warning that judicial indepen-dence must be maintained.

Previous study committees have made that at-tempt, all without success.

Since the 1950s, a half-dozen task forces and spe-cial committees have been created in Arizona to study city and justice courts. They have pretty much all rec-ommended eliminating municipal courts and taking away the power of city councils to appoint judges.

NOTHING HAS CHANGED

T he first to make that recommendation was a committee created by the American Bar Asso-ciation to study Arizona courts in 1952. Sim-

ilar recommendations to eliminate municipal courts, usually by folding them into county superior court, have been made by various study committees in 1958, 1972, 1981, 1989, and 1995.

The two most recent committees were created by the chief justices of the Arizona Supreme Court who were serving at the time.

can have extremely harmful consequences for people,” Soler said. “They are criminal-izing the poor to increase their own profits. The consequences are horrific for families.

“Some of these people are connected to the criminal justice system for years, until they pay off these fines. They live under this constant threat of being sent back to jail be-cause they can’t pay this unmanageable legal debt.”

The harsh measures to collect money also are a bad investment of taxpayer money, Soler said. It makes no sense to spend thousands of dollars to put someone in jail to collect a few hundred dollars in fines.

“They are spending a tremendous amount of re-sources trying to get blood from a turnip,” she said.

Some cities have begun collecting overdue fines using techniques that are less harsh. The Mesa and Glendale municipal courts and the Pima County jus-tice courts have implemented a telephone notification system that alerts defendants of upcoming court dates, missed payments, or the issuance of arrest warrants. The result is a reduction of up to 24 percent in the number of people who fail to appear or comply with court orders.

Phoenix Municipal Court recently implemented a program that notifies defendants whose driver’s licens-es have been suspended that they can come to court, make new arrangements, and set up payment plans in return for having their license reinstated. In the first four months, more than 5,200 people took advantage of the program, resulting in the payment of $2.3 mil-lion in outstanding fines.

Breaking the spiraling cycle of debt and incarcer-ation for what began as minor offenses was the task of the Fair Justice for All committee, created by Arizona Supreme Court Justice Bales in March 2016, a year af-ter the DOJ’s Ferguson report came out.

While the committee made passing references to revenue-raising pressures compromising judicial inde-pendence, as happened in Ferguson, the Justice for All task force did not recommend any structural changes to municipal courts in Arizona, including to how judg-es are appointed.

Instead, the committee focused primarily on debt-collection techniques that disproportionately hurt the poor.


“They are criminalizing the poor to increase their own profits. The consequences are horrific for families.” - Alessandra Soler, American Civil Liberties Union of Arizona

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“Since 1952, every major court reform study has recommended some degree of unification and im-proved management of the courts,” the 1995 commit-tee reported. “Despite strong evidence to support these recommendations and the offering of several viable, common sense solutions, there have been no signifi-cant statewide structural changes to the court system in Arizona.”

Nothing has changed since then.Several of the committees also recommended merit

selection for all judges, and funding all courts through the state rather than through local jurisdictions. Mer-it selection is a method whereby superior court judg-es in Maricopa, Pima, and Pinal counties, as well as all appellate court judges in Arizona, are appointed by the governor from a list of nominees selected by an independent committee. Subsequent to the initial appointment, the judges face reten-tion elections in which voters decide whether they will remain.

In 1974, voters established mer-it selection for all Arizona appellate judges and for superior court judges in Maricopa and Pima counties. Pi-nal County was added later because of population growth. Superior court judges in other counties are elected.

The prior efforts to reform mu-nicipal courts in Arizona have been fought by cities and their primary lobbying organization, the League of Arizona Cities and Towns. So far, they’ve always won.

Stanley Feldman, the former Ar-izona Supreme Court chief justice who created the 1995 commission, said he was concerned at the time about local forces influencing the independence of city judges. That might be pressure to raise revenue, but also polit-ical influence by powerful city insiders seeking special treatment.

“In some communities there may be political pres-sure from the town council or the city council on the judges to be revenue positive, so to speak,” Feldman said in a recent interview with the Goldwater Institute. “There’s always the danger of that, and that’s always the danger of the people who do the appointing.”


Retention elections would solve some of that, though elections also have their downsides, Feldman said. But at least the judges would answer to voters, not to the politicians who have other priorities, he said.

‘A DARK HOLE’

Gordon Griller of Scottsdale agrees the current system of having judges appointed by city councils is “a dark hole in a lot of ways.”

Griller has long been in the middle of the debate over political influence on city court judges. He is the principal court management consultant for the National Center for State Courts, an independent, nonprofit clearing house for information about best court practices and data, created in 1971 at the urging

of former Chief Justice of the U.S. Supreme Court Warren Burger.

Griller was project director of a study done for the Missouri Su-preme Court to develop reforms to the municipal court system in that state after the Ferguson investiga-tion. He is separately working with St. Louis County, where Ferguson is located, to make changes to the more than 80 city courts there.

In 2010, Griller was chairman of Scottsdale’s Judicial Appoint-ments Advisory Board, a commit-tee specifically created by the city to take politics out of the appointment and retention of judges.

During his tenure, the city council opted not to reappoint one associate city judge, who had been crit-icized by a close political ally of Mayor Jim Lane. The council also initially chose not to retain the presiding city judge, citing budget concerns they did not explain, but later backed off and reappointed that judge to one final two-year term.

The judicial advisory board had unanimously rec-ommended the retention of both judges.

Concerns about political interference and finan-cial pressures exposed in Ferguson also were present in Scottsdale, said Griller, who left the city advisory board

“In some communities there may be political pressure from the town council or the city council on the judges to be revenue positive, so to speak.” - Stanley Feldman, former chief justice of the Arizona Supreme Court

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LaSota said he’d represented a mentally challenged man, for free, who had been cited for ticket scalping at the Phoenix Open in Scottsdale. He got what he con-sidered a particularly bad ruling from Morton.

LaSota’s client was cited for selling the tickets on private property used by event promoters near the en-trance to the golf tournament. Since the man was on private property, he was not in violation of the Scott-sdale ordinance prohibiting ticket sales on a public street, LaSota argued.

Morton ruled that the ordinance encompasses more than just public streets and includes areas set aside for public use, including the entryway into the Open where the man was cited. She fined LaSota’s client $88 and ordered the forfeiture of another $226 seized by police.

LaSota said he was so upset with Morton’s perfor-mance he felt obliged to bring it to the attention of city officials. As it turned out, Morton was up for reap-pointment, and LaSota saw a notice in the newspaper soliciting comments. So he sent his letter outlining his gripes against the judge.

LaSota knew it might look bad, given his connec-tions to Lane. But his connections to the mayor should not disqualify him from raising concerns about the judge he had based on his own experience, he said.

“I was trying to influence the process, but not un-duly,” LaSota told the Goldwater Institute. “I certainly wrote the letter in the hopes they would say ‘wait a minute, let’s take a look at this judge.’ Absolutely I was trying to influence this process.

“Her ruling was so obnoxious that I knew I had to do something about it,” LaSota said of Morton. “The city council shouldn’t regard it as any big deal. I’m just another guy, and I wanted to express my opinion.”

The city council apparently did think it was a big deal. It voted 4-3 against reappointing Morton in January 2010. Lane was among those voting against retention.

Council members cited concerns about appeals and reversals of Morton’s rulings, but did not explain, according to meeting minutes and media coverage at the time.

Morton went on to work as a municipal court judge in Phoenix, and is now a Maricopa County Su-perior Court commissioner. She declined a request for an interview.

a few months after the controversy involving the judg-es. Even many of the reforms that were recommend-ed in Ferguson, such as independent judicial advisory boards, proved an ineffective foil to political influences in Scottsdale, he said.

Beyond revenue issues, city judges also might face pressure to allow questionable practices implemented by the police department or policy priorities of the city council. In Ferguson, it was ticket quotas for police. In other cities it might be crackdowns targeting things such as massage parlors, tall weeds, or unleashed dogs.

One of the duties of judges is to be a “check on un-lawful police conduct,” as the DOJ put it in its Fergu-son report. Being that check is especially difficult when the judge, especially one with a two-year term, knows the city council will decide on reappointment when the term expires, Griller said.

“If I was the architect of the state constitution, I would have never set up a situation where the munici-pal courts are subservient to the city executive and leg-islative branch,” Griller said. “It just does not serve the interest of justice well. The judges have to be indepen-dent enough to be able to rule based on the law and the facts, and not be always thinking in the back of their minds about revenue generation or about supporting the city police department.

“It just is too difficult, too dangerous, and it does not give the judges the independence that they need.”

UNDUE INFLUENCE

W hat happened in Scottsdale demonstrates the ineffectiveness of many well-meaning reforms that are supposed to check the

political interference of city councils over judges, Griller conceded.

The trouble started in late 2009 when Jack LaSota, a former state attorney general and then legal advisor to Mayor Lane’s campaign, sent a letter to the city com-plaining about Wendy Morton, a Scottsdale associate municipal judge. LaSota’s son was Lane’s chief of staff at the time.


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Griller said Morton’s dismissal by the council was “more political than anything else.”

“We were sort of window dressing in a lot of ways, which eventually became apparent,” Griller said of the advisory board. “This back channel approach with a prominent lawyer, I conclude, was the primary reason that she was not reinstated.”

‘POLITICAL HACKING’

A bout the same time, Monte Morgan was also coming up for reappointment to his fifth two-year term as presiding judge.

The council voted in February 2010 not to reap-point Morgan on a 4-2 vote. Lane voted for retention.

Council members did not explain their decision, other than to cite budget and administrative concerns, according to council minutes and media reports.

Three days later, the council reappointed Morgan in a special meeting on a 5-2 vote. Council members did not explain the reversal.

Morgan said both he and Morton got caught up in political infighting among city council members who could not get along with each other and wanted to show they were in charge.

“It was manslaughter on both counts,” Morgan said of the council’s actions against himself and Mor-ton. “They did it on the basis of political hacking.

“They were fighting among themselves over every issue,” said Morgan, now presiding municipal judge in El Mirage. “They were just on fire and it didn’t take much to upset them. They were going to clean house. They were going to clean the swamp. They didn’t care.”

City judges do not have much protection from po-litical pressure in Arizona, Morgan said. Two-year terms and the ability of city councils not to retain them for just about any reason means judges who do buck the priorities of the city councils, prosecutors, police, or budget directors risk being out of a job.

“If you are a weak-kneed judge you are going to fold on a sneeze,” he said. “The higher the integrity of the judge, the less that is going to happen.”


Despite that, Morgan says having city councils ap-point judges is not a bad system if both sides take se-riously their responsibility to avoid political influence. Some improvements could be made, such as strength-ening judicial advisory boards and making it harder for councils to overturn their recommendations.

“The system that we have in place for appointing municipal judges is very good,” Morgan said. “It’s all pilot error, the carrying out of a really good scheme by very bad players. It doesn’t matter what kind of a scheme you have, if you’ve got bad players involved you are going to have a bad result . . . But the process is fine. It’s very workable. It’s very doable. It’s very reli-able. Here’s a guy talking who took the brunt of the political malfeasance.”

UNCLEAR LINES

L ane told the Goldwater Institute he has tried to protect the independence of city judges since he became mayor in 2009.

Politics was not what motivated his vote against Morton, he said. Rather it was concerns about her courtroom demeanor, which were raised by the judicial advisory board, even though it ultimately recommend-ed her retention.

Asked directly whether LaSota’s letter influenced him, Lane replied:

“I’m sure it did. But did it unduly or because of the relationship? I don’t think so.

“It’s the culmination. It’s the entire process that JAAB went through, which included LaSota’s letter as well. It’s the entire picture that was presented for her.”

As for Morgan, Lane said he cannot explain why other council members initially voted against retention. Lane added he worked behind the scenes to get them to reverse their decision. Comments some of them made about budgets and administration do not mean they were pressing Morgan to raise more money, Lane said. As presiding judge, Morgan also had administrative duties to ensure the courts were operating efficiently and effectively.

Council members should not interfere with judges when it comes to decisions in their courtrooms, Lane

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said. But they do have a responsibility to make sure tax dollars are not wasted and that the presiding judge, like any other city employee, meets performance expecta-tions.

It’s not always clear where the line is that separates the two.

That was particularly true when Morgan was up for retention. The national recession had caused a steep drop in city revenues, and all departments were forced to make cuts, Lane said.

“I don’t believe there was an effort really to have the court system become a moneymaking new stream of business,” Lane said. “We were just more concerned of it spending their money wisely so that there wasn’t hav-ing to be some unnecessary increases coming out of the general fund, because the money simply wasn’t there.

“I don’t know where you cross the line. There is no real effort to try to, in any way, damage the indepen-dence of the court system and the judges with city hall. We stay far afield of trying to influence the judges in any way, shape, or form in the judgments that they call in the courtroom. But when it comes to administration and management, they do have some responsibility to city hall to operate efficiently and effectively and, frankly, within budgets. I don’t know whether that’s ex-ceeding our authority or not, but that’s the distinction I would have drawn in the past.”

‘MONEYMAKING MACHINE’

T he intrigue over judges continues in Scotts-dale. Sandra Schenkat had a complaint against a city judge. Schenkat did not like his ruling

against her in a 2012 case involving an ugly and pro-tracted battle with a fellow member of her homeowner’s association board.

That would normally not be much of a problem, except that Schenkat is in her second term on the Scott-sdale Judicial Appointments Advisory Board, and the judge was coming up for a retention vote by the council last April.

Because of her dispute with the judge, Schenkat recused herself from participating in the board’s as-

sessment. However, as a private citizen she sent a letter outlining her complaints and recommending he not be reappointed.

Coincidently, about that same time, the Goldwa-ter Institute filed a public records request seeking all documentation related to the city council’s personnel reviews of its judges.

Within two hours of delivering her letter to the city clerk, Schenkat got a call from Lane asking to meet with her. Lane pressured her to withdraw the letter, say-ing it would create problems for the city in light of the Goldwater Institute’s investigation, she said.

After she refused, Lane sent her a letter recom-mending she resign from the board, citing concerns she’d implied judges in Scottsdale are tied too closely to city prosecutors.

She refused to quit.Schenkat later was asked by two other members

of the council not to testify against the judge at the April 4 council hearing, at which he was unanimously reappointed.


“The court is set up as a moneymaking machine, and they are just happy to know there is revenue coming in. They don’t want to upset that apple cart. So they are complicit with bad justice in the name of revenue.” - Sandra Schenkat

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“Obviously they don’t feel that any negative com-ments should even be expressed,” Schenkat said of the council.

She stands by her previous concerns that the judges in Scottsdale are too sympathetic to prosecutors, add-ing that’s an attitude the council seems to favor.

“The court is set up as a moneymaking machine, and they are just happy to know there is revenue com-ing in,” she said. “They don’t want to upset that apple cart. So they are complicit with bad justice in the name of revenue.”

Lane said he did not ask Schenkat to withdraw her letter but rather suggested it would be best if she did not testify against the judge, or at least that she make it clear she was speaking as a private citizen and not a member of the judicial board.

Lane did ask her to resign later because, in his view, Schenkat had clearly let her personal animosity toward one judge taint her independence and objectivity, he said.

ACCEPTABLE ALTERNATIVE

Pressure on city judges does not just come from city councils. As was seen in Ferguson, police and prosecutors also rely on compliant judges to

allow practices that are both lucrative and controversial.In Ferguson, it was ticket quotas.In Scottsdale, it is photo radar.If you get a photo radar ticket, the standard form

of notification is sending a letter in the mail advising you of the violation and instructing you how to either pay or contest the ticket.

You can ignore that because mailing a letter is not considered adequate service in Arizona. If you do not respond, the ticket must be dismissed after 90 days.

To get around this, cities must serve you with a notice of a photo radar ticket in person. That means they have a process server deliver the notice. That is expensive.

If the process server is unable to serve you in per-son, the ticket must be dismissed.

Except in Scottsdale.

That city has developed a different method, which it calls “alternative service.” If a process server makes three unsuccessful attempts to deliver the notice, Scott-sdale’s policy allows you to be served through a certified letter in the mail and a notice taped to your door.

The Scottsdale City Court signed off on the prac-tice. Scottsdale is the only city in Arizona that uses it.

Default judgments are entered against people who still do not show up for court. Until recently, their driv-er’s license was automatically suspended just as it would be for other missed court appearances.

The Arizona Legislature put a crimp in the practice last year. It did not ban alternative service. Rather it passed a new law prohibiting the suspension of a per-son’s driver’s license if they received notice of a photo radar ticket through alternative service.

Scottsdale continues to use alternative service, in spite of the new law.

The city anticipates raising about $3.8 million through photo radar in the 2017 fiscal year, almost as much as it will raise through all other court cases combined, including parking violations. In 2016 it paid almost $1.6 million to the vendor who operates the cameras.

Joseph Olcavage, presiding municipal judge in Scottsdale, said the decision to use alternative service came from city prosecutors, not the court. He doesn’t know why it’s not used in other cities.

Alternative service is permitted in the law, and has been upheld as a legitimate form of notification for photo-radar tickets by the Scottsdale courts, Olcavage said. Anyone who disagrees with the policy can chal-lenge a conviction by appealing.

“The law is there, so unless they find the law un-constitutional—that would be at the court of appeals or the supreme court level—it is what it is.”

It’s not the job of city judges to question policy decisions of the police, prosecutor, or city council, or to be a “check on unlawful police conduct,” according to Olcavage, a view shared by several other judges interviewed.

“It’s not our job to tell another branch of govern-ment what to do,” he said.

Cases are handled on an individual basis. That means if the police and prosecutors meet all constitu-tional and legal requirements, and they present suffi-

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cient evidence that the individual defendant is guilty, the judge has a duty to convict, Olcavage said.

If not, the charges will be tossed.

‘DANGER OF INJUSTICE’

Federal and state appeals courts have not done much to limit city courts or protect city judges from political interference, aside from occasion-

ally appointing a study committee and issuing guidance that judges should not be swayed by political interests.

The two most important cases in which the U.S. Supreme Court looked at the issue of whether city courts can deliver a fair hearing to defendants both in-volved municipal courts in Ohio where the mayor also served as the judge.

The first case is Tumey v. Ohio, decided in 1927. In Tumey, the mayor received a payment for each conviction, but none for acquittals. The Supreme Court tossed out that arrange-ment, declaring that the direct financial interest impeded the defendant’s ability to get a fair trial.

It wasn’t that the judge in that par-ticular case was necessarily swayed by the $12 he received for the conviction, the justices found. Rather the structure of the court itself was a violation of the defen-dant’s due process rights.

“The requirement of due process of law in judicial procedures is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice,” the court wrote.

The second case, Ward v. Village of Monroeville, decided in 1972, invalidated a similar court setup in which the mayor sat as the city judge but was not paid directly through a portion of the fines collected. The high court found that because the mayor had revenue-raising responsibilities for the town, the defendant could not get an impartial hearing.

Justices also rejected the state’s claim that, since the

defendant could get a new hearing by appealing the city court conviction, any errors at the local level could be remedied by a higher court.

In Ohio, the defendant was entitled to what’s called a de novo appeal, which is basically a new trial in which the state must again prove its case and the defendant is presumed innocent.

“This ‘procedural safeguard’ does not guarantee a fair trial in the mayor’s court,” the Supreme Court ruled. “Petitioner is entitled to a neutral and detached judge in the first instance.”

Even that safeguard is not afforded in appeals from municipal courts in Arizona, which go to county supe-rior courts.

Defendants are not entitled to a de novo review. No new evidence is presented. No witnesses are called. The superior court judge will reverse the city court only if it finds the judge erred on a question of law or gave a decision that is plainly contrary to the evidence, and that any mistake “was so important that it likely affect-ed the outcome of the case.”

Appeals of cases originating in city court are not allowed beyond the superior court unless the defendant is challenging the validity of a law, fine, or tax.

Appeals of ordinance violations or civil traffic cita-tions are rare, said Reeves, the Phoenix attorney. They are hard to win, and the cost of appealing far exceeds whatever fines are levied, he said.


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Appealing a responsible verdict is especially diffi-cult for a traffic citation. Normal rules of civil proce-dure do not apply, as they would in a criminal case. And judges are free to consider whatever evidence they deem relevant.

In typical civil traffic hearings, there is no prosecu-tor. A police officer or city representative explains why a ticket was issued. Defendants then give their side, and the judge makes the decision.

A sampling of appeals from city courts to Maricopa County Superior Court shows the most typical case in-volves a DUI, a criminal traffic offense. Convictions are rarely overturned.

FASTENING THE LID

T he two most relevant appeals that did reach the Arizona Supreme Court were brought by judges claiming the city council overstepped

its bounds when it fired them.In a 1985 ruling, the court rejected the claims from

two cities that municipal court judges are “at will” em-ployees, like everyone else on the city payroll, and can therefore be fired without any reason.

The supreme court said that since municipal judg-es are part of the integrated court system in Arizona, firing them without cause would violate the separation of powers between the legislative and judicial branches required by the state constitution.

City judges must have fixed terms in office to pro-tect them from politics, the court decided. While it did not say how long the term should be, it said nothing under two years would be satisfactory.

In 1994, the Arizona Supreme Court decided in a case out of Tucson that cities could remove a judge midterm for sufficient cause. It did not specify what cause would be deemed sufficient.

In that case, the city judge ordered the release from police custody of her live-in boyfriend, and the council voted to fire her shortly thereafter.

The supreme court agreed with the city’s argument that the council does have the power to fire a judge if it has good cause.

The court suggested in a footnote that a four-year term would be more appropriate, but did not require it.

That was the case Justice Frederick Martone said “fastens the lid on the coffin of judicial independence.”

Taken together, the two cases mean cities must have a good reason to fire judges during their fixed terms. However, the councils can opt not to reappoint a judge for almost any reason when the term ends, according to guidance from the office of the courts.

Sweeping reforms to city courts tend to come from legislatures or voters, not court cases or judicial decrees.

It was voters in Arizona who explicitly put over-sight of municipal courts under the state supreme court when they passed an amendment to the state constitu-tion in 1960.

In California, voters passed a constitutional amend-ment in 1998 that eliminated municipal courts by fold-ing them into the county courts system, much the way that multiple reform committees have recommended in Arizona since the 1950s.

In the wake of the Ferguson report, the Missouri General Assembly enacted a series of reforms that limit the percentage of a city’s general fund that can come through traffic fines. It also capped fines, prohibited jail time for certain local ordinance violations, and reduced fines and fees for traffic offenses.

The Institute for Justice, a nonprofit legal advoca-cy group, also filed a federal lawsuit in 2015 challeng-ing what it calls the unconstitutional use of criminal ordinances to raise revenues in the Missouri town of Pagedale, located in St. Louis County.

After the Missouri legislature limited the amount of money cities could keep from traffic fines, towns like Pagedale stepped up enforcement of nontraffic ordi-nance violations, according to the lawsuit. Town ordi-nances prohibit people from having a basketball hoop or wading pool in front of their houses, ban front yard barbecues except on national holidays, and require win-dows facing the street to have drapes or blinds “which are neatly hung,” according to the lawsuit. Violation of many of these ordinances carry penalties of up to three months in jail and a $1,000 fine.

Pagedale’s reliance on penalties from minor ordi-nance-related offenses violates the constitutional due process rights of the defendants and the prohibition against excessive fines, the complaint alleges.

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RELIEVING THE PRESSURE

In Utah, it was pressure from the state supreme court that led to a complete makeover of the mu-nicipal courts in 2008, six years before the events in

Ferguson made it a national issue.City courts are called justice courts in Utah. At the

time, the method of appointing and retaining judges was similar to Arizona’s.

Rick Schwermer, state court administrator in Utah, said that since his appointment as the state’s first jus-tice courts administrator in 1990, municipal judges had complained to him that they were under too much pres-sure from city councils to raise money.

“We saw examples of a lack of judicial indepen-dence,” Schwermer said. “First a mayor would refuse to reappoint a justice court judge, and it just sort of seemed like there were revenue issues. The judge would say ‘I got called in because I didn’t make budget.’ These all point to judicial independence, but specifically that started us to a point toward we need to disentangle the judge from the money.”

As in Ferguson, the pressure to raise revenue was subtle, Schwermer said. No judge was told outright to convict more people to generate more revenue.

Responding to those complaints, Utah Supreme Court Chief Justice Christine Durham in 2006 ap-pointed a task force to review justice courts. Two years later, the committee recommended changes in the law aimed at “uncoupling the money and the judge.”

Durham laid out the case for change to the Utah Legislature in her 2008 State of the Judiciary message, citing concerns about “a growing public perception that justice courts are vehicles for generating revenue.”

The legislature made most of the changes recom-mended by the task force, including revamping the method of appointing and retaining judges.

Now, when a city has a court vacancy, a judicial se-lection committee screens and recommends candidates to the mayor. Judges are still appointed from that list by the mayor and confirmed by the council, but that’s where their influence ends. Upon completion of their six-year terms, the judges must face voters in a reten-tion election.

The new system has been a success, Schwermer said. Public confidence is up, and there are fewer com-plaints from judges about political pressure from may-ors and councils.

“They don’t have fear of any of the traditional ways of retaliation,” Schwermer said of Utah judges. “The mayor can’t unseat them. The mayor can’t reduce their salary. In short, they have a measure of judicial independence.”

Reform efforts in other states have not been so suc-cessful.

An investigation by the New York Times in 2006 prompted the chief judge of the New York Court of Appeals to appoint a study committee to recommend reforms. The committee concluded in 2008 that the city courts in New York might be unconstitutional be-cause they did not provide defendants the right to a tri-al by a judge who is a lawyer. However, the committee concluded there was “no statewide political appetite” for changing the system.

Two years later, what the Times described as “the most ambitious effort in decades to reform New York State’s vast network of small-town courts” failed when bills to implement changes died in the legislature. No significant reform efforts have been initiated since.

Reform efforts in New Jersey played out much the same as they did in New York. The Asbury Park Press published an investigation in 2016 that showed many cities there relied on their city courts as revenue gener-ators, exposing many of the same practices that were used in Ferguson. Despite talk of reform from legisla-tors, no major changes were passed.

NOT JUST FERGUSON

T here is no shortage of ideas about how to make city courts more independent and insu-late them from political pressure, especially in

the wake of Ferguson.The Justice Department recommended a series of

reforms to the Ferguson courts, mostly having to do with such things as limiting the use of arrest warrants and driver’s license suspensions for missed court ap-pearances or payments involving minor offenses. It did not address the way judges are appointed.


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Arizona’s Fair Justice for All task force made similar recommendations last year.

In 2014, the national Conference of State Court Administrators recommended that the appointment and retention of municipal judges should be handled the same way as for other judges in a state. That means in Arizona, all judges would face voters at some point, either by directly electing them to the bench or through retention elections after the judges’ initial appointments.

“The opportunity for interference with judicial in-dependence may be avoided by ensuring a process of election by voters or appointment and confirmation in-dependent from the discretion of those who hold local political office,” the study concludes.

The study conducted by the National Center for State Courts for the Missouri Supreme Court, the one headed by Griller, also concluded that judges who are elected rather than appointed by city councils “are better positioned to resist improper influences and job-related pressures from politicians or special interest groups.”

However, that study did not call for elimination of council appointments. Rather it recommended a series of steps to give the state supreme court and presiding county judge greater influence and control over the op-eration of city courts. It also recommended that cities be required to have judicial appointment advisory boards, similar to the one that proved so ineffective in Scottsdale.

Griller said his organization did not recommend electing judges in Missouri because other groups were

already pushing for that. The supreme court justices did not seem prepared to take up that fight, which would require legislation and possibly a constitutional amendment.

The national Conference of Chief Justices, an as-sociation of top judicial officials from all 50 states, and the Conference of State Court Administrators created a special task force in February 2016 to come up with reforms to address the problems identified in Ferguson. So far, it hasn’t issued any recommendations dealing with how cities should appoint their judges, and its final report is not expected until later this year at the earliest.

What ultimately needs to happen is that mayors and council members who appoint city judges need to understand that the courts are there to dispense justice, not to raise money, said Maureen O’Connor, chief jus-tice of the Ohio Supreme Court and co-chair of the task force.

“As we began work on the issue, it soon became ap-parent that this is not just a problem in Ferguson, Mis-souri. It’s something that has permeated nationally in our courts,” O’Connor said in an interview published last year by Judicature, a scholarly journal for judges. “I think it’s a misunderstanding, and it’s an attempt by non-judicial officers in many cases—and by that I mean elected officials in many jurisdictions—to look to the courts to be revenue centers. And that seems to be the problem.” t

TELL US YOUR CITY COURT STORY

If you’ve experienced any of the problems described in this story, we’d like to hear from you. Please email us with a brief description of your case, why you think you were treated unfairly and the best way to contact you. Your contact information will remain confidential.

Email us at [email protected]

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TOP DOLLAR COURTSMUNICIPAL COURTS WITH THE HIGHEST EARNINGS IN ARIZONA

Note: Information is derived from state-mandated budget summary schedules. Court revenue is based on reported “Fines and Forfeits” line in city budget documents. Some cities provide a single figure while others list multiple lines for different types of court-related fines, which were totaled. Revenue represent only the amount of money retained by the city through its general fund, and does not include additional money raised by the courts from state surcharges and fees that is not retained by the city. Expense figures only include money spent from the general fund. Many cities augment their court budgets with special enhancement funds, or through state and federal grants.

PHOENIXINCOME RANK: 1Court Revenue: $15,242,000 Court Expense: $ 28,112,455

TUCSONINCOME RANK: 2Court Revenue: $10,478,630Court Expense: $9,380,940

TEMPEINCOME RANK: 3Court Revenue: $8,404,268Court Expense: $4,396,533

SCOTTSDALEINCOME RANK: 4Court Revenue: $7,766,086Court Expense: $4,742,649

MESAINCOME RANK: 5Court Revenue: $6,626,035Court Expense: $7,665,301

GILBERTINCOME RANK: 6Court Revenue: $3,576,000Court Expense: $3,237,830

PARADISE VALLEYINCOME RANK: 7Court Revenue: $3,347,490Court Expense: $705,290

FLAGSTAFFINCOME RANK: 8Court Revenue: $3,298,980Court Expense: $3,165,706

CHANDLERINCOME RANK: 9Court Revenue: $3,240,900Court Expense: $4,417,406

PEORIAINCOME RANK: 10Court Revenue: $1,595,674Court Expense: $1,972,926

AVONDALEINCOME RANK: 11Court Revenue: $1,311,380Court Expense: $982,760

YUMAINCOME RANK: 12Court Revenue: $1,210,000Court Expense: $1,815,993

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IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA, EX REL. MARK BRNOVICH, ATTORNEY GENERAL, Petitioner,

v.

CITY OF TUCSON, ARIZONA Respondent,

JEFF DEWIT, IN HIS OFFICIAL CAPACITY

AS STATE TREASURER, Nominal Respondent.

No. CV-16-0301-SA Filed August 17, 2017

Special Action JURISDICTION ACCEPTED; RELIEF GRANTED IN PART

COUNSEL: Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Paula S. Bickett, Chief Counsel, Civil Appeals Section, Paul N. Watkins (argued), Brunn (Beau) W. Roysden III, Oramel H. (O.H.) Skinner, Evan G. Daniels, John Heyhoe-Griffiths, Aaron M. Duell, Assistant Attorneys General, Phoenix, Attorneys for State of Arizona Richard M. Rollman (argued), Richard A. Brown, Bossé Rollman PC, Tucson, Attorneys for City of Tucson Dennis I. Wilenchik, John D. Wilenchik, Wilenchik & Bartness, P.C., Phoenix, Attorneys for Jeff DeWit Paul F. Eckstein (argued), Jean-Jacques Cabou, Perkins Coie LLP, Phoenix, Attorneys for Amicus Curiae League of Arizona Cities and Towns and Carol McMillan; Brad Holm, City Attorney, Thomas G. Stack, Assistant City Attorney, Phoenix, Attorneys for City of Phoenix; and Richard W.

STATE V. CITY OF TUCSON Opinion of the Court

2

Files, City Attorney, Rodney C. Short, Assistant City Attorney, Yuma, Attorneys for City of Yuma Michael J. Rusing, J. William Brammer, Jr., Rusing, Lopez & Lizardi, PLLC, Tucson; and David H. Thompson, Peter A. Patterson, John D. Ohlendorf, Cooper & Kirk, PLLC, Washington, D.C., Attorneys for Amicus Curiae National Rifle Association of America, Inc.

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES and JUSTICES BRUTINEL and TIMMER joined. JUSTICE BOLICK concurred in part and in the result. JUSTICE GOULD, joined by JUSTICES BOLICK and LOPEZ, concurred in part and in the result.

VICE CHIEF JUSTICE PELANDER, opinion of the Court: ¶1 The primary issue we address here is whether the state may constitutionally prohibit a city’s practice, prescribed by local ordinance, of destroying firearms that the city obtains through forfeiture or as unclaimed property. We conclude that a generally applicable state statute on this subject controls over a conflicting municipal ordinance, that the legislature may require the Attorney General to investigate and file a special action in this Court regarding alleged violations of the state law, and that this Court has mandatory jurisdiction to resolve whether the allegedly conflicting ordinance violates state law. Applying those principles here, we accept jurisdiction of the State’s special action and hold, in accordance with article 13, section 2 of the Arizona Constitution, that A.R.S. §§ 12-945(B) and 13-3108(F) supersede Tucson Code § 2-142.

BACKGROUND

¶2 In 2000, the Arizona Legislature passed House Bill 2095, which declared:

It is the intent of the legislature to clarify existing law relating to the state’s preemption of firearms regulation in this state. Firearms regulation is of statewide concern. Therefore, the legislature intends to limit the ability of any political


3

subdivision of this state to regulate firearms and ammunition. This act applies to any ordinance enacted before or after the effective date of this act.

2000 Ariz. Sess. Laws, ch. 376, § 4 (2d Reg. Sess.). That legislation also amended A.R.S. § 13-3108(A) to provide: “[A] political subdivision of this state shall not enact any ordinance, rule or tax relating to the transportation, possession, carrying, sale, transfer, purchase, acquisition, gift, devise, storage, licensing, registration, discharge or use of firearms or ammunition . . . in this state.” Id. § 2 (codified as amended at A.R.S. § 13-3108(A)).

¶3 In 2005, the City of Tucson passed Ordinance No. 10146 (the “Ordinance”), which enacted Tucson Code §§ 2-140 to -142. Section 2-142 governs the “[d]isposition of unclaimed and forfeited firearms by the [Tucson] police department.” Tucson Code § 2-142. The Tucson Code permits the Tucson Police Department to keep a forfeited firearm for its own purposes or to lend or transfer it to another law enforcement agency or museum; otherwise, the Code states that the police “shall dispose” of unclaimed and forfeited firearms “by destroying” them. Id.

¶4 In 2013, the legislature amended two statutes governing the destruction of firearms. Section 13-3108 was revised to add new subsection (F), which provides: “[A]ny agency or political subdivision of this state and any law enforcement agency in this state shall not facilitate the destruction of a firearm . . . .” 2013 Ariz. Sess. Laws, ch. 145, § 6 (1st Reg. Sess.) (codified as amended at A.R.S. § 13-3108(F)). And § 12-945(B), contained in an article that governs the disposal of “unclaimed property in [the] hands of [a] public agency,” was amended to state:

[I]f the property is a firearm, the agency shall sell the firearm to any business that is authorized to receive and dispose of the firearm under federal and state law and that shall sell the firearm to the public according to federal and state law, unless the firearm is otherwise prohibited from being sold under federal and state law.

2013 Ariz. Sess. Laws, ch. 145, § 5 (1st Reg. Sess.) (codified as amended at A.R.S. § 12-945(B)). Also enacted by the legislature in 2013, A.R.S. § 12-943 provides that certain specified property, including firearms, “in the possession of a . . . city . . . may only be disposed of pursuant to this article.” 2013 Ariz. Sess. Laws, ch. 145, § 3 (1st Reg. Sess.).


4

¶5 Pursuant to the Ordinance, between 2013 and October 2016, the City of Tucson destroyed approximately 4,800 unclaimed or forfeited firearms. In March 2016, the legislature passed Senate Bill 1487, codified primarily in A.R.S. § 41-194.01.1 2016 Ariz. Sess. Laws, ch. 35, § 1 (2d Reg. Sess.). It establishes a framework under which, “[a]t the request of one or more members of the legislature, the attorney general shall investigate any ordinance, regulation, order or other official action adopted or taken by the governing body of a county, city or town that the member alleges violates state law or the Constitution of Arizona.” A.R.S. § 41-194.01(A). The statute gives the Attorney General thirty days to investigate and provide a “written report of findings and conclusions.” Id. § 41-194.01(B).

¶6 If the Attorney General concludes that the regulation or ordinance at issue affirmatively “[v]iolates any provision of state law, . . . the attorney general shall provide notice to the county, city or town . . . of the violation, [and the local government] has thirty days to resolve the violation.” A.R.S. § 41-194.01(B)(1). If the Attorney General concludes that the matter has not been resolved in that time frame, he “shall . . . [n]otify the state treasurer who shall withhold [from the offending entity] and redistribute state shared monies” until the “offending ordinance . . . is repealed or the violation is otherwise resolved.” A.R.S. § 41-194.01(B)(1)(a)–(b).

¶7 If the Attorney General concludes that the regulation or ordinance at issue “[m]ay violate a provision of state law, . . . [he] shall file a special action in [the] supreme court to resolve the issue, and the supreme court shall give the action precedence over all other cases.” A.R.S. § 41-194.01(B)(2). And “[t]he court shall require the county, city or town to post a bond equal to the amount of state shared revenue paid to the county, city or town pursuant to §[§] 42-5029 and 43-206 in the preceding six months.” Id.

¶8 In October 2016, Representative Mark Finchem asked the Attorney General’s Office to investigate whether the Ordinance violates state law. The Office investigated, and the City provided public records and a written response. The City contended that the Ordinance was a valid

1 S.B. 1487 is also codified in A.R.S. §§ 42-5029(L) and 43-206(F), which direct the State Treasurer to implement monetary penalties imposed by A.R.S. § 41-194.01. 2016 Ariz. Sess. Laws, ch. 35, §§ 2–3 (2d Reg. Sess.).


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exercise of the City’s “organic law” as a charter city, see Ariz. Const. art. 13, § 2, and that the state’s firearms statutes “have no application to the City.”

¶9 In November 2016, the Attorney General issued his report, concluding that the Ordinance “may violate one or more provisions of state law” because it requires the destruction of firearms, conflicting with A.R.S. § 13-3108(F), which prohibits any “political subdivision” from “facilitat[ing] the destruction of a firearm.” The Attorney General rejected Tucson’s charter city argument.

¶10 After the Attorney General’s Office sent its report to the City, the Tucson City Council met in December and refused to repeal or otherwise change the Ordinance. The City did, however, “suspend the implementation of gun destruction required by [the Ordinance] until the issue is adjudicated.” That same day the Attorney General’s Office filed this special action pursuant to § 41-194.01(B)(2).

¶11 Several days later, the City filed a complaint in Pima County Superior Court, seeking an injunction against implementation of § 41-194.01 and a declaration that the statute is unconstitutional. The City responded in this Court to the State’s special action petition and also moved to dismiss it, arguing that the State’s allegations are covered by § 41-194.01(B)(1), not (B)(2), that the State sought relief not provided for in (B)(2), and that dismissal would “allow full consideration of the issues raised in the [City’s] superior court action.” Earlier this year, we ordered the parties to brief several discrete issues raised in this special action and held oral argument, without prejudice to the parties continuing to litigate the superior court action.

DISCUSSION

I. Separation of Powers Challenge to S.B. 1487

¶12 This litigation was prompted by a single state legislator’s request for the Attorney General to investigate, as required under S.B. 1487 and codified in A.R.S. § 41-194.01(A), whether the City’s Ordinance violates state law. Based on the Attorney General’s investigation and conclusion that the Ordinance may violate state statutes, and the City’s refusal to repeal or otherwise change the Ordinance, the State filed this special action pursuant to § 41-194.01(B)(2).


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¶13 As it has in its pending superior court action, the City raises a host of constitutional challenges to S.B. 1487, but we address only those portions of the law that are directly implicated here. The City contends that S.B. 1487 violates the separation of powers doctrine, see Ariz. Const. art. 3, § 1, by directing the Attorney General to investigate alleged violations upon a single legislator’s request and, if the Attorney General concludes that a local ordinance “may violate” state law, requiring him to file a special action in this Court “to resolve the issue.” § 41-194.01(A), (B)(2). These statutory procedural mandates, the City asserts, unconstitutionally infringe on both executive and judicial powers. We reject these arguments.

¶14 In determining whether a statute violates separation of powers, we examine: (1) the essential nature of the power being exercised; (2) the legislature’s degree of control in the exercise of that power; (3) the legislature’s objective; and (4) the practical consequences of the action. State ex rel. Woods v. Block, 189 Ariz. 269, 276 (1997). As for the first factor, implementing the law, disbursing appropriations, and enforcing legislative conditions on appropriations are essentially executive functions. See id. at 277 (stating that “acts necessary to carry out the legislative policies and purposes already declared by [the Legislature] are administrative” and, thus, “executive function[s]” (first alteration in original) (internal quotation marks omitted) (quoting Pioneer Trust Co. v. Pima Cty., 168 Ariz. 61, 65 (1991)). Under S.B. 1487, the executive branch exercises those powers.

¶15 Regarding the second factor, neither the requesting legislator(s) nor the legislature as a whole controls the “exercise” of the executive branch’s investigative and enforcement power under S.B. 1487. In fact, the legislature has no role beyond initiating Attorney General review. The Attorney General retains his discretion to apply independent legal analysis and judgment when opining whether a municipal action violates state law. He also retains discretion to choose the legal positions he will advance should he file a special action under § 41-194.01(B)(2). A legislator does not control the investigation itself, decision-making related to the investigation, or any action taken upon a determination under § 41-194.01. Cf. McDonald v. Thomas, 202 Ariz. 35, 41 ¶ 17 (2002) (upholding legislative enactments that increased the power of clemency board recommendations and imposed time limitations on the Governor’s power to act on those recommendations because “the governor—and the governor alone—has the final word with regard to whether clemency is granted”). But cf. Woods, 189 Ariz. at 276–78 (holding that the legislatively created


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Constitutional Defense Council, the controlling members of which were appointed by the legislature, violated separation of powers because it “create[d] conflict between an executive agency and a legislative agency performing an executive function”).

¶16 Nor does the third or fourth factor support a finding that S.B. 1487 violates separation-of-powers principles. The enactment itself suggests that the legislature’s apparent objective in S.B. 1487 was not to usurp executive or judicial authority but rather to require and incentivize political subdivisions to comply with state law. Likewise, the practical consequence of S.B. 1487 is to encourage compliance with state law, not to coerce, control, or interfere with executive powers or prerogatives.

¶17 S.B. 1487 permits a single legislator to initiate and require an investigation by the Attorney General’s Office. See § 41-194.01(A). But other statutes similarly allow or direct the initiation of an investigation or issuance of an opinion upon legislative request. See A.R.S. §§ 32-3246(D), 41-193(A)(7). We do not view S.B. 1487 as materially different for separation-of-powers purposes, and the City cites no authority for finding it unconstitutional.

¶18 The Attorney General’s duties are “prescribed by law,” Ariz. Const. art. 5, § 9, and through S.B. 1487 the legislature has validly established that a single legislator may compel an Attorney General investigation and opinion (and nothing more) regarding whether a local ordinance violates state law. That this procedure may cause the Attorney General’s Office to focus and expend resources to identify possibly conflicting local laws and to resolve any related issues in this Court does not offend separation-of-powers principles. The procedure authorized by § 41-194.01(A) is very different from a legislative attempt to direct the exercise of prosecutorial discretion in a criminal case or civil enforcement action.

¶19 Upon the Attorney General’s determination that a local law “[m]ay violate a provision of state law,” S.B. 1487 also requires the Attorney General to file a special action “to resolve the issue” in this Court, which shall prioritize the action “over all other cases.” § 41-194.01(B)(2). Those provisions do not unconstitutionally infringe on judicial power. The Attorney General is not exercising a judicial function in determining whether an action may violate state law. Rather, such determinations are legal opinions, which the Attorney General routinely and permissibly


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issues in other contexts. See § 41-193(A)(7) (stating that “[u]pon demand by the legislature, or either house or any member thereof,” the Attorney General’s Office shall “render a written opinion upon any question of law relating to their offices”); cf. A.R.S. § 41-1481(B) (requiring, at any citizen’s request, the Attorney General’s Civil Rights Division to investigate complaints of employment discrimination); id. § 41-1491.09 (providing the same for Fair Housing complaints).

¶20 Moreover, as this case illustrates, judicial review is available when the Attorney General determines that a local ordinance “may violate” state law. And even if the Attorney General were to conclude under § 41-194.01(B)(1) that a local law violates state law, the offending municipality has a cure period and (as the State concedes) may file an action challenging the conclusion and any withholding of funds.2 See, e.g., Ariz. R.P. Spec. Actions 1(a). In either case, the Court must decide, or at least retains discretion to decide, the issue. Because S.B. 1487 “leaves the judiciary free to make its own determination based on the particular facts of a case,” it “comports with separation of powers.” State v. Rios, 225 Ariz. 292, 299 ¶ 22 (App. 2010); cf. Cactus Wren Partners v. Ariz. Dep’t of Bldg. & Fire Safety, 177 Ariz. 559, 563 (App. 1993) (concluding that because a statute did not “constitute[] a ‘coercive influence’ upon the judiciary,” it did not unconstitutionally usurp judicial power).

II. Jurisdiction

¶21 We next address whether this Court’s special action jurisdiction under § 41-194.01(B)(2) is mandatory, as the State contends, or discretionary, as the City asserts. Based on the statute’s text, its underlying legislative intent, and the legislature’s constitutional authority to prescribe this Court’s jurisdiction, we conclude that our jurisdiction in this matter is mandatory.

¶22 When, as here, the Attorney General determines that a municipal ordinance or regulation “may violate” state law and then files a

2 Because § 41-194.01(B)(1) is not at issue here and does not directly impact the questions before us, we express no opinion on the constitutionality of that subsection, including its provision permitting the Attorney General to unilaterally decide whether appropriated monies should be withheld by the State Treasurer from the offending political subdivision and redistributed.


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“special action” in this Court pursuant to § 41-194.01(B)(2)’s mandate, the statute compels us “to resolve the issue” and “give the action precedence over all other cases.” As long as it comports with the Arizona Constitution, that language quite clearly makes our jurisdiction mandatory. See Litgo N.J. Inc. v. Comm’r N.J. Dep’t of Envtl. Prot., 725 F.3d 369, 394–95 (3d Cir. 2013) (characterizing as “a mandate” Congress’s statement that a particular claim “shall be brought” in a “district court”).

¶23 Our state constitution identifies the various components of this Court’s subject matter jurisdiction and, in a catch-all provision, vests the Court with “[s]uch other jurisdiction as may be provided by law.” Ariz. Const. art. 6, § 5(6); see also A.R.S. § 12-102(A) (“The supreme court shall discharge the duties imposed and exercise the jurisdiction conferred by the constitution and by law.”). Under that authority, the legislature may expand, but not contract, this Court’s original jurisdiction as long as doing so does not otherwise violate the constitution. That is precisely what the legislature did by enacting § 41-194.01(B)(2). No constitutional impediment prevents or nullifies that action.

¶24 Section 41-194.01(B)(2) provides “mandatory” jurisdiction for this Court in the sense that this is a statutory special action rather than a “discretionary” special action. (The latter reflects the Court’s constitutional authority to issue extraordinary writs under article 6, section 5(1), which historically were a form of discretionary relief, see Dobson v. State, 233 Ariz. 119, 121 ¶ 6 (2013).) “[S]tatutory special actions ‘are not at all discretionary.’” Circle K Convenience Stores, Inc. v. City of Phoenix, 178 Ariz. 102, 103 (App. 1993) (quoting Ariz. R.P. Spec. Action 1 state bar committee’s note to subsec. (b)); accord Book Cellar, Inc. v. City of Phoenix, 139 Ariz. 332, 336 (App. 1983). By requiring the Attorney General to file “a special action” in this Court if he determines that a local ordinance “may violate” state law, and by directing the Court “to resolve the issue” and “give the action precedence over all other cases,” § 41-194.01(B)(2), the legislature clearly intended for us to have mandatory jurisdiction.

¶25 The City contends that § 41-194.01(B)(2) is inapplicable and thus cannot support jurisdiction here because the State asserts in its special action briefs that Tucson Code § 2-142 “does in fact violate,” not merely that it “may violate,” state law. “Under § 41-194.01(B)(1),” the City argues, “the Attorney General’s finding that a local ordinance ‘does’ violate state law triggers a different path—administrative action by the Attorney General and Treasurer—not a special action under (B)(2).” But the City


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misapprehends the relationship between (B)(1) and (B)(2). The latter recognizes that there might be circumstances, as this case illustrates, when a local ordinance arguably violates state law, but the issue is not settled by existing case law. In light of (B)(2), the most reasonable interpretation of (B)(1) is that it allows a “does violate” determination only when existing law clearly and unambiguously compels that conclusion. Otherwise, it is this Court’s responsibility “to resolve the issue” via a process that, as the State notes, is “akin to a standard declaratory judgment action.” § 41-194.01(B)(2); see also A.R.S. § 12-1831 to -1846; cf. Ariz. Indep. Redistricting Comm’n v. Brewer, 229 Ariz. 347, 354–55 ¶¶ 33–34 (2012) (stating that this Court is authorized and obligated “to interpret and apply constitutional law,” that is, “to say what the law is” (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)).

¶26 Finally, we reject the City’s contention that “§ 41-194.01(B)(2)’s purported mandatory jurisdiction unconstitutionally invades the Court’s rule making authority” concerning “procedural” matters. See Ariz. Const. art. 6, §§ 1, 5(5). Because article 6, section 5(6) of the Arizona Constitution expressly authorizes the legislature to expand this Court’s original jurisdiction, it arguably does not matter whether S.B. 1487’s grant of such jurisdiction is “procedural” or “substantive.” Even if that distinction were pertinent here, however, the City’s contention is without merit.

¶27 Although “the legislature and this Court both have rulemaking power, . . . in the event of irreconcilable conflict between a procedural statute and a rule, the rule prevails.” Seisinger v. Siebel, 220 Ariz. 85, 89 ¶ 8 (2009). But because “the legislature has plenary power to deal with any topic unless otherwise restrained by the Constitution,” if a “statute conflicting with a court-promulgated rule is ‘substantive,’ the statute must prevail.” Id. at 92 ¶ 26 (citations omitted). “[T]he precise dividing line between substance and procedure” is at best elusive. Id. at 92 ¶ 29.

¶28 Even assuming that subsection (B)(2)’s vesting of mandatory jurisdiction in this Court is purely procedural, we find no “irreconcilable conflict” between that provision and our procedural rules. Id. at 89 ¶ 8. And pursuant to its plenary constitutional and statutory authority, see Ariz. Const. art. 6, § 5(6); A.R.S. § 12-102(A), in other contexts the legislature has vested this Court with mandatory jurisdiction when doing so did not conflict with court rules. See, e.g., A.R.S. § 16-351(A) (providing that superior court rulings on nominating petitions “shall be appealable only to


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the supreme court”); id. § 13-4031 (providing that criminal actions in which a death sentence is imposed “may only be appealed to the supreme court”); cf. Fleischman v. Protect Our City, 214 Ariz. 406, 408–09 ¶ 12 (2007) (identifying areas in which the legislature has vested exclusive jurisdiction in this Court). In addition, as it has in § 41-194.01(B)(2), the legislature has required this Court to give precedence to certain other actions. See A.R.S. § 48-3706(C) (requiring this Court to “give[] precedence” to special actions from water conservation district orders).

¶29 In short, § 41-194.01(B)(2)’s mandatory jurisdiction and procedural framework do not run afoul of this Court’s rule-making authority. And, as the State has acknowledged, the “mandatory” jurisdiction under (B)(2) would not require the Court to decide a case that is moot or otherwise nonjusticiable. Accordingly, we exercise the jurisdiction established by subsection (B)(2) and deny the City’s motion to dismiss the special action.

III. Bond Requirement

¶30 Section 41-194.01(B)(2) provides that “[t]he court shall require the county, city or town to post a bond equal to the amount of state shared revenue [(“SSR”)] paid to the county, city or town pursuant to §[§] 42-5029 and 43-206 in the preceding six months.” In an uncontested declaration filed in this Court, the City states that its SSR for the 2016–2017 fiscal year is approximately $115 million or 23.5% of the City’s budget. Similarly, in its pending superior court action, the City alleged that during the six-month period between June and November 2016, “the City received SSR under §§ 42-5029 and 43-206 in the aggregate amount of $55,639,999.37,” and that the City could not post a bond at or near that amount as it would “exceed[] the sum total of the City’s available reserves by nearly $5 million.” The State has not requested — and this Court has not ordered — posting of a bond in this action. Whether the statute requires the Court to order a bond even absent any request is not before us.

¶31 The State contends that S.B. 1487 makes the (B)(2) bond mandatory but that this Court has authority to reduce or waive the bond in certain circumstances, for example, when requiring the bond would lead to absurd or impossible results or cause a “severe financial hardship.” The City acknowledges (B)(2)’s mandatory wording (“shall”), but argues we should interpret the bond provision “as directory, and therefore discretionary,” because otherwise it poses “an unconstitutional financial


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blockade to judicial access.” See Ariz. Downs v. Ariz. Horsemen’s Found., 130 Ariz. 550, 554–55 (1981) (interpreting “shall” as permissive rather than mandatory to preserve a statute’s constitutionality).

¶32 We agree with the State that the bond provision is mandatory, but we share the City’s concerns regarding the bond’s purpose, basis, practical application, and constitutionality. See Ariz. Const. art. 3, § 1 (“Distribution of Powers”); id. art. 6, § 1 (“Judicial power; courts”), § 5(5) (vesting the Supreme Court with “[p]ower to make rules relative to all procedural matters in any court”); cf. Eastin v. Broomfield, 116 Ariz. 576, 586 (1977) (finding a non-waivable cost bond requirement in medical malpractice cases unconstitutional under article 2, section 13 of Arizona Constitution, “by denying access to the courts”); New v. Ariz. Bd. of Regents, 127 Ariz. 68, 70 (App. 1980) (finding a bond requirement in negligence actions against the state unconstitutional as “a monetary blockade to access to the courts”).

¶33 The statute does not identify the purpose of a large bond, the practical application or enforcement of the bond requirement, or the disposition of the bond proceeds upon the conclusion of the special action; nor does it provide that posting the bond is, or is not, a precondition for a political subdivision to defend its position or for this Court to address and rule on the merits. But even assuming that failure to comply with the bond requirement would not bar a city from challenging a (B)(2) action, that requirement, if enforced, would likely dissuade if not absolutely deter a city from disputing the Attorney General’s opinion of a local law’s constitutional validity. Such acquiescence, in turn, would displace this Court from its constitutionally assigned role under article 6 of interpreting Arizona’s constitution and laws — effectively preventing final judicial resolution of the issue on which the Attorney General has specifically requested a ruling pursuant to § 41-194.01(B)(2). Cf. Forty-Seventh Legislature v. Napolitano, 213 Ariz. 482, 485 ¶ 8 (2006) (“To determine whether a branch of state government has exceeded the powers granted by the Arizona Constitution requires that we construe the language of the constitution and declare what the constitution requires.”). In effect, the bond requirement problematically instructs us to charge a substantial fee — unrelated to securing a monetary judgment or costs for a non-appealing party — if a political subdivision defends on constitutional grounds a local ordinance the Attorney General challenges in an original action filed in our Court.


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¶34 In any event, although the purpose, practical application, and ramifications of the bond requirement are unclear, the State asserts that if it is meant to ensure that a city “does not benefit from receiving SSR while possibly violating state law, then an agreement to cease the violating action (and enforcement thereof) is likely to fulfill that purpose in the same way as a bond.” Because that is the situation here (inasmuch as the City voluntarily agreed to suspend Tucson Code § 2-142 pending this litigation), the State sees no reason to impose the bond requirement against the City. In addition, assuming the bond requirement is unconstitutional, the State asserts that it can be severed because, “[e]ven without the bond provision, the statute would achieve the Legislature’s purpose—incentivizing state-law compliance and quickly resolving whether a subdivision is violating state law.” See State Comp. Fund v. Symington, 174 Ariz. 188, 195-96 (1993) (setting forth requirements for finding severability).

¶35 In his concurrence, Justice Gould declares the bond provision “unenforceable because it is incomplete and unintelligible.” Infra ¶ 85 (Gould, J., concurring in part and in the result). Neither party made this argument. And given the procedural posture of this case, there is no reason to address the enforceability of (B)(2)’s bond provision. Whether the bond requirement may, as written, be constitutionally enforced, or ignored under the novel theory advanced by Justice Gould, can be addressed in future cases where that issue is specifically raised and we have the benefit of full briefing on that particular point. Here, we instead turn to the issue raised by the special action petition — whether the Ordinance conflicts with and violates state law. Cf. Slayton v. Shumway, 166 Ariz. 87, 92 (1990) (we generally seek to avoid constitutional issues when interpreting and applying statutes).

IV. Validity of Tucson Code § 2-142 under State Law

¶36 With certain exceptions, Tucson’s Ordinance provides that the City’s police department “shall dispose” of unclaimed and forfeited firearms “by destroying” them. Tucson Code § 2-142. State law, in contrast, specifically prohibits any political subdivision or law enforcement agency from “facilitat[ing] the destruction of a firearm,” A.R.S. § 13-3108(F), and instead, with certain exceptions, requires public agencies to “sell the firearm to any business that is authorized to receive and dispose of the firearm under federal and state law,” A.R.S. § 12-945(B); see also id. § 12-943 (providing that certain specified property, including firearms, “that is in the possession of a . . . city . . . may only be disposed of pursuant to this


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article”). Thus, the Tucson Code unquestionably conflicts with Arizona law on this subject.

¶37 Under state law, a political subdivision may not “enact any ordinance . . . relating to,” among other things, the possession, sale, transfer, purchase, acquisition, or use of firearms in Arizona. A.R.S. § 13-3108(A). In no uncertain terms, the Arizona Legislature has declared that “[f]irearms regulation is of statewide concern” and has expressed its intent to preempt “firearms regulation in this state” and thereby “limit the ability of any political subdivision of this state to regulate firearms.” 2000 Ariz. Sess. Laws, ch. 376, § 4 (2d Reg. Sess.). We of course respect the legislature’s statements, but “whether state law prevails over conflicting charter provisions under Article 13, Section 2 is a question of constitutional interpretation.” City of Tucson v. State (Tucson II), 229 Ariz. 172, 178 ¶ 34 (2012); cf. Clayton v. State, 38 Ariz. 135, 145 (1931) (subject to judicial review, the state legislature, not a city, determines whether a particular subject “is of general statewide concern or of purely municipal concern”). Thus, pursuant to § 41-194.01(B)(2), the Attorney General properly asked this Court to resolve that legal issue.

¶38 Despite the legislature’s broad pronouncements regarding firearms, the City argues that Tucson Code § 2-142 does not violate state law because it is authorized and protected by article 13, section 2 of the Arizona Constitution. The clear conflict between its Code and state law, the City asserts, “does not require the repeal of [the Ordinance] because as a charter city it is authorized to determine matters of local concern free from the Legislature’s interference.” According to the City, “[d]isposition of the City’s own property—even firearms—is solely a matter of local concern,” and therefore Tucson Code § 2-142 “supersedes A.R.S. §§ 12-945(B) and 13-3108(F)” under article 13, section 2. The State counters that its applicable, firearms-related statutes implicate several matters of statewide, not merely local, concern and therefore govern over the conflicting municipal Ordinance. We agree with the State.

¶39 Our analysis begins with the “home rule charter” provision in Arizona’s Constitution, which from statehood has provided that any city with a population of more than 3,500 “may frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the state.” Ariz. Const. art. 13, § 2. Once adopted and approved, a city’s charter is, “effectively, a local constitution.” Tucson II, 229 Ariz. at 174 ¶ 10. By statute, the roots of which also trace back to statehood, see Rev. Stat. of


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Ariz., Civ. Code, tit. 7, ch. 16, ¶¶ 2033, 2036 (1913), the charter “shall prevail” over any conflicting law relating to charter cities in force when the charter was adopted and approved. A.R.S. § 9-284(A) (also stating that the charter “shall operate as a repeal or suspension of the law to the extent of conflict, and the law shall not thereafter be operative as to such conflict”). “The charter,” however, “shall be consistent with and subject to the state constitution, and not in conflict with . . . general laws of the state not relating to cities.” A.R.S. § 9-284(B); see City of Tucson v. Ariz. Alpha of Sigma Alpha Epsilon (Arizona ASAE), 67 Ariz. 330, 335 (1948) (noting that § 9-284’s predecessor statute “supplements” article 13, section 2 of the Arizona Constitution).

¶40 “The purpose of the home rule charter provision of the Constitution was to render the cities adopting such charter provisions as nearly independent of state legislation as was possible.” City of Tucson v. Walker, 60 Ariz. 232, 239 (1943) (internal quotation mark omitted) (quoting Axberg v. City of Lincoln, 2 N.W.2d 613, 614 (Neb. 1942)). Consistent with that purpose, we have articulated the following rule:

Where the legislature has enacted a law affecting municipal affairs, but which is also of state concern, the law takes precedence over any municipal action taken under the home rule charter. But where the legislative act deals with a strictly local municipal concern, it can have no application to a city which has adopted a home rule charter. Whether or not an act of the legislature pertains to a matter of local or state-wide concern becomes a question for the courts when a conflict of authority rises.

Id.; see also Tucson II, 229 Ariz. at 174 ¶ 10 (“[A] home rule city deriving its powers from the Constitution is independent of the state Legislature as to all subjects of strictly local municipal concern.”) (internal quotation marks omitted) (quoting City of Tucson v. Tucson Sunshine Climate Club, 64 Ariz. 1, 8–9 (1945)); Luhrs v. City of Phoenix, 52 Ariz. 438, 442–43 (1938); Clayton, 38 Ariz. at 144–45; id. at 468 (on denial of motion for rehearing in Clayton).

¶41 Tucson has been a charter city pursuant to article 13, section 2 since 1929. See Tucson II, 229 Ariz. at 173 ¶ 1. Its charter broadly states that the City has the “power . . . [t]o purchase, receive, have, take, hold, lease, use and enjoy property of every kind and description, both within and without the limits of said city, and control and dispose of the same for the


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common benefit.” Tucson City Charter, ch. 4, § 1(4). Based on that authority, in 2005 the City passed the Ordinance in which Tucson Code § 2-142 was enacted.

¶42 Under this state’s well-established jurisprudence, whether the City’s Code controls over the conflicting state laws essentially hinges “on whether the subject matter is characterized as of statewide or purely local interest.” Tucson II, 229 Ariz. at 176 ¶ 20 (citing Strode v. Sullivan, 72 Ariz. 360, 365 (1951)). We acknowledge that the extensive Arizona case law in this area is muddled. As we noted in Tucson II, “[m]any municipal issues will be of both local and state concern,” and thus differentiation is “problematic in application” because it “often involves case-specific line drawing,” and “[t]he concepts of ‘local’ versus ‘statewide’ interest do not have self-evident definitions.” 229 Ariz. at 176 ¶ 20; see also Luhrs, 52 Ariz. at 442–43 (to same effect); John D. Leshy, The Arizona State Constitution 334 (2d ed. 2013) (observing that “the numerous court decisions addressing issues of charter city power show considerable variation in the flexibility with which they construe charters”); cf. Strode, 72 Ariz. at 366 (noting the “difference of opinion” in case law “as to what activities of a charter city are of local interest or concern and therefore free from legislative interference”).

¶43 Our concurring colleague, Justice Bolick, faults Strode as setting Arizona courts on a wayward path that is untethered to article 13, section 2, asserts that Strode and similar cases should be overruled, and disavows as irrelevant in cases like this any distinction between matters of statewide interest and those of purely local concern. Infra ¶¶ 76–78, 80 (Bolick, J., concurring in part and in the result). Notably, well before Strode, this Court in several cases (including Clayton, which Justice Bolick applauds, infra ¶ 73–74) recognized as significant the distinction that he deems immaterial. See, e.g., Clayton, 38 Ariz. at 468 (on motion for rehearing) (stating that where “the subject is of state-wide concern, and the legislature has appropriated the field and declared the rule, its declaration is binding throughout the state” and controls over conflicting local laws); Luhrs, 52 Ariz. at 442 (same, and recognizing this as “the general rule”); Walker, 60 Ariz. at 239 (quoting Axberg, 2 N.W.2d at 614) (noting that if a state statute addresses a matter of purely local concern it does not apply to a charter city’s law on that subject).

¶44 The unarticulated but obvious take away from Justice Bolick’s concurrence is this: assuming it is constitutional, a state statute on any particular topic will always trump and invalidate a political subdivision’s


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conflicting ordinance, even if the topic indisputably is solely and purely one of local concern. Under that view, one must wonder what is left of charter cities’ authority under article 13, section 2.

¶45 While thought-provoking, Justice Bolick’s concurrence is puzzling not because of its content but rather because of its gratuitous nature. No party or amicus has briefed or argued that Strode was wrongly decided, that its analysis conflicts with the constitution, or that it or any other case should be overruled. We generally do not reach out to decide important constitutional issues or to upset established precedent when no party has raised or argued such issues. See, e.g., State v. Valenzuela, 239 Ariz. 299, 306 ¶ 21 (2016) (declining to address issues “[t]he parties did not brief”); State v. Martinez, 230 Ariz. 208, 212 ¶ 10 n.2 (2012) (refusing to address Arizona constitutional issues “not separately argued”). But cf. Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 319–21 & 320 n.6, 349–50 (1971) (overruling a prior case when the federal government, appearing as amicus curiae, urged that result and the parties addressed the issue at oral argument). Exercising judicial restraint, we therefore decline to sua sponte address further the points that only Justice Bolick makes.

¶46 In the end, we find no need here to overhaul our longstanding analytical approach to resolving conflicts between state and local laws. This case does not fall within the “doubtful or twilight zone separating those matters that are clearly of municipal concern from those that are not.” Clayton, 38 Ariz. at 148; see also Ariz. ASAE, 67 Ariz. at 336 (also referring to “a twilight zone” in which it is difficult to clearly discern whether legislation is of general or rather merely local concern). The State identifies several matters of alleged statewide concern implicated by its statutes and on which Tucson Code § 2-142 encroaches: regulating firearms under the state’s police powers; regulating police departments (and other government agencies) handling forfeited or unclaimed property; protecting the constitutional right to bear arms; and regulating city budgets and finances. To varying degrees, we are persuaded that at least some of those asserted state interests exist and prevail over the Ordinance.

¶47 Unlike municipalities, which have “no inherent police power,” the state has broad police power, including “[t]he protection of life, liberty, and property, and the preservation of the public peace and order, in every part, division, and subdivision of the state.” Luhrs, 52 Ariz. at 444 (internal quotation marks omitted) (quoting Kansas City v. J.I. Case Threshing Mach. Co., 87 S.W.2d 195, 202 (Mo. 1935)); see also State v. Jaastad, 43 Ariz.


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458, 463 (1934) (“The police power inheres in the state and not in its municipalities.” (quoting Clayton, 38 Ariz. at 145)). Matters involving the police power generally are of statewide concern. See Associated Dairy Prods. v. Page, 68 Ariz. 393, 396–97, 400–01 (1949) (noting “concern of the state in the exercise of its police powers” and holding that regulation of milk products was within scope of statewide concern for public health); see also City of Scottsdale v. State, 237 Ariz. 467, 471 ¶17 (App. 2015) (“Arizona courts have rejected municipal ordinances that conflict with state statutes . . ., particularly when such ordinances involve the police powers of the state.”).

¶48 The laws at issue here implicate the state’s police power in several respects: the disposition of forfeited or unclaimed property, the conduct of law enforcement officers, including their handling of unclaimed property, and the regulation of firearms.

¶49 The Tucson Police Department’s disposition of property (whether forfeited or unclaimed) is an exercise of police power granted by the state. See A.R.S. §§ 12-940 to -945 (relating to disposition of unclaimed property); A.R.S. §§ 13-4301 to -4315 (forfeiture); see also Van Oster v. Kansas, 272 U.S. 465, 467 (1926) (“[A] state in the exercise of its police power may forfeit property . . . .”). Thus, the state’s authority validly extends over the possession and disposition of the firearms. See McMann v. City of Tucson, 202 Ariz. 468, 472 ¶ 9 (App. 2002) (“In general, when a city acts ‘as an agent of the state,’ the subject upon which it acts is not of solely local concern.” (quoting Luhrs, 52 Ariz. at 443)).

¶50 Relatedly, regulating police departments’ conduct, including their handling of unclaimed property, is also a matter of statewide concern. See A.R.S. §§ 12-940 to -945. Arizona case law recognizes the statewide interest in subjects even tangentially connected to the work of public safety officers and criminal justice. See Jett v. City of Tucson, 180 Ariz. 115, 121 (1994) (removal of city magistrates from office); Walker, 60 Ariz. at 237 (police pensions); Luhrs, 52 Ariz. at 448 (police and firefighter minimum wage); Prendergast v. City of Tempe, 143 Ariz. 14, 17–18 (App. 1984) (pay for police officers’ lunch hour). “[A] policeman . . . in the regular line of duty is performing a governmental function . . . .” Luhrs, 52 Ariz. at 446; see also id. at 444 (“Certain functions have . . . definitely been determined governmental, the control of which remains in the state.”). And the Ordinance relates to the day-to-day work of police as much as the matters addressed in the above-cited cases.


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¶51 Regulation of firearms, including their preservation or destruction, also involves the state’s police power and is of statewide concern. See Dano v. Collins, 166 Ariz. 322, 324 (App. 1990) (compiling cases from other jurisdictions where firearm regulations were upheld as valid exercises of police power); State v. Beadle, 84 Ariz. 217, 221–22 (1958) (“The purpose of an Act, promulgated under the State’s police power, is to protect the public health, safety or welfare.”). The legislature has indicated that the disposal of firearms by government agencies is itself a component of firearm regulation by specifically including the disposal restrictions within a comprehensive statutory firearms regulation scheme. See A.R.S. § 13-3108; cf. Tucson Sunshine Climate Club, 64 Ariz. at 8 (requiring municipalities to participate in a general advertising plan would show the matter is of statewide concern). Because both Tucson Code § 2-142 and the state laws with which it conflicts involve the state’s police power and matters “that the entire state is interested in,” the matters at issue here “are proper subjects for general laws.” Luhrs, 52 Ariz. at 448 (holding that “the matter of pensioning policemen, as also the matter of fixing a minimum wage for policemen and firemen, is of state-wide concern”). Accordingly, although the state laws in question undoubtedly “affect[] municipal affairs,” they are also of “state concern” and therefore “take[] precedence” over the City’s conflicting Ordinance. Walker, 60 Ariz. at 239.

¶52 The City points to the lack of any evidence “of a gun shortage in Tucson, leaving Tucsonans or visitors without access to firearms in the City,” or any evidence “that the ordinance impacts anyone or anything outside of Tucson.” But as the State observes, “[t]he number of firearms affected by [Code § 2-142] has nothing to do with the nature of the regulated subject matter. As this Court has explained, ‘whether general state laws displace charter provisions depends on whether the subject matter is characterized as of statewide or purely local interest.’” (citing Tucson II, 229 Ariz. at 176 ¶ 20).

¶53 The State and amicus National Rifle Association argue that preserving the right to bear arms under the federal and state constitutions is also a subject of state concern. See U.S. Const. amend. II; Ariz. Const. art. 2, § 26; see also McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (describing the right to bear arms as “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” (internal quotation marks omitted) (first quoting Duncan v. Louisiana, 391 U.S. 145, 149 (1968); and then quoting Washington v. Glucksberg, 521 U.S. 702, 721


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(1997)); District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (noting that the people “elevate[d] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home”). We agree with that proposition, but even assuming that the Ordinance somehow implicates that right, we need not address this argument inasmuch as the superiority of state law over the Ordinance is clearly established based on the state’s asserted police powers discussed above.

¶54 The confluence of the state’s broad police powers, Arizona’s comprehensive statutory and regulatory schemes regarding firearms and unclaimed or forfeited property, and the state’s interests in regulating law enforcement agencies’ handling of such property, all lead to one conclusion: the pertinent state statutes, §§ 12-943, -945(B), and 13-3108(F), embrace a topic of statewide interest and concern and, conversely, the Ordinance does not address a matter of purely local concern. Therefore, the Ordinance cannot legally coexist with the applicable and controlling state law.

¶55 The City’s contrary arguments are not persuasive. Relying on article 13, section 2 of the Arizona Constitution and a handful of Arizona cases, the City contends that it “has charter authority to dispose of property it owns,” including firearms. Because the state statutes address matters of statewide interest, however, whatever powers the City seeks to exercise under its home-rule charter authority and related ordinances must be “consistent with, and subject to, the Constitution and laws of the state.” Ariz. Const., art. 13, § 2; accord A.R.S. § 9-284(B). Our cases have consistently recognized this significant constitutional restraint on charter cities’ powers. See, e.g., Tucson II, 229 Ariz. at 174 ¶ 9; Strode, 72 Ariz. at 364 (observing that a charter city does not have “carte blanche authority or plenary power to adopt any legislation that it might desire”); Tucson Sunshine Climate Club, 64 Ariz. at 4, 6 (a charter city’s powers extend “not only in matters of local concern, but also in matters of state-wide concern, within its territorial limits, unless the Legislature has appropriated the field, and directly or by necessary implication established a rule, beyond which the city may not go”); Luhrs, 52 Ariz. at 442 (recognizing the “general rule” that when “the subject is of statewide concern, and the Legislature has appropriated the field and declared the rule, its declaration is binding throughout the state” (quoting Clayton, 38 Ariz. at 468)).

¶56 This Court has narrowly limited the concept of “purely municipal affairs,” or “local interest or concern,” see Strode, 72 Ariz. at 365-66, restricting the extent to which charter city ordinances can prevail


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over state law. In only two areas have we upheld a municipal ordinance that directly conflicts with state law. First, we have held that the “method and manner of conducting elections in the city . . . is peculiarly the subject of local interest and is not a matter of statewide concern.” Strode, 72 Ariz. at 368; see also Tucson II, 229 Ariz. at 177 ¶¶ 30–31 (concluding that “Tucson’s manner of electing its city council members supersedes the conflicting provisions of [state law],” and observing that “[i]f the ‘home rule’ provisions of Article 13, Section 2 are to have effect, they must at the least afford charter cities autonomy in choosing how to elect their governing officers”). These cases are inapposite and unhelpful to the City, inasmuch as the conflict here does not involve municipal elections or “the authority of charter cities to structure how their governing officers are elected.” City of Tucson v. State (Tucson III), 235 Ariz. 434, 435 ¶ 2 (App. 2014).

¶57 Second, this Court has held that “the manner and method of disposal of real estate of a city is not a matter of state-wide public concern.” Arizona ASAE, 67 Ariz. at 336; see also McMann, 202 Ariz. at 470 ¶ 1, 472 ¶¶ 10–11, 474 ¶ 18 (upholding city ordinance requiring lessees of city-owned real property to perform “instant background checks for prospective gun purchasers during gun shows held at the [City’s convention center]” because “the use permit” is “essentially a lease” and thus “a disposition of property,” a city was “engaging in business activities,” and “the legislature did not clearly intend to preempt the City from requiring [such] background checks”). These cases likewise do not support the City’s position here.

¶58 Unlike this case, neither Arizona ASAE nor McMann involved a clear conflict between a municipal law or action and a state law of general application and concern. In Arizona ASAE, for example, this Court determined that the state law at issue clearly “ha[d] no application to charter cities” and observed that other Arizona cities and towns have “no interest” in what Tucson’s charter provides regarding “the manner and method of disposal of [a city’s] real estate.” 67 Ariz. at 335, 336. And in McMann, the state had not attempted to regulate (as an exercise of its police power) the leasing of city property. See McMann, 202 Ariz. at 473 ¶ 14 (noting that “the context of [the subject statute] in the entire [state] legislative scheme does not establish a clear legislative intent to preempt the City’s ordinance”); cf. City of Scottsdale, 237 Ariz. at 471 ¶ 16, 472 ¶ 23 (distinguishing Arizona ASAE and McMann because “selling and leasing


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property owned by a municipality do not implicate the police powers of the state,” and holding that a state statute “preempts local ordinances that impose a blanket prohibition on sign walkers conducting business on public sidewalks”). Because the statutes here involve matters of “state-wide concern” and “the legislature has appropriated the field” regarding governmental entities’ destruction or disposal of firearms, “its declarations are binding throughout the state, and all cities and municipalities, including charter cities, are precluded” from directly contravening the statutes through local laws. Arizona ASAE, 67 Ariz. at 336.

¶59 Other arguments presented by the City and amicus the League of Arizona Cities and Towns are also unpersuasive. Relying on Luhrs, the League asserts that “whether the property at issue is real or personal, guns or butter, if it is owned by a charter city, its use or disposition is a matter in which the Legislature is constitutionally proscribed from interfering.” See Luhrs, 52 Ariz. at 442–43 (noting that when the particular activity “is exercised by the city in its proprietary capacity, it is a power incident to home rule”); see also Tucson Sunshine Climate Club, 64 Ariz. at 8 (observing that in advertising its advantages, city was “acting in its proprietary rather than its governmental capacity” and “not acting as the agent of the state”); cf. Ariz. Const. art. 13, § 5 (“Every municipal corporation within this State shall have the right to engage in any business or enterprise which may be engaged in by a person, firm, or corporation by virtue of a franchise from said municipal corporation.”).

¶60 This argument, however, skirts the pivotal inquiry in cases like this: “whether the subject matter is characterized as of statewide or purely local interest.” Tucson II, 229 Ariz. at 176 ¶ 20. Thus, even if relevant, the City’s ownership interest or proprietary capacity is not determinative. In addition, the City does not destroy firearms in a proprietary capacity (and the City does not specifically argue otherwise). Cf. City of Scottsdale v. Mun. Court, 90 Ariz. 393, 398–99 (1962) (a city’s operation of a sewage plant is a governmental function); Jones v. City of Phoenix, 29 Ariz. 181, 181-82 (1925) (a city’s disposal of garbage is a governmental function). Just as a city’s wastewater management and disposal are governmental functions, so too is the City’s destruction of firearms.

¶61 Notably, over the past seventy years only a few of the many Arizona cases addressing city/state conflicts under article 13, section 2 have cited, let alone based the decision on, a proprietary/governmental distinction that originated from dicta in Luhrs, 52 Ariz. at 443 (stating that


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if a municipality’s activity “is carried on . . . as an agent of the state[,] . . . it is of general or public concern,” but “[i]f it is exercised by the city in its proprietary capacity, it is a power incidental to home rule”). See Tucson Sunshine Climate Club, 64 Ariz. at 8 (same); McMann, 202 Ariz. at 472 ¶ 11 (noting that Tucson’s “[o]peration of a convention center is a constitutionally permitted business activity”); Shaffer v. Allt, 25 Ariz. App. 565, 569–70 (1976) (referring to a city’s “proprietary powers” and holding that local ordinance allowing city to purchase liquor license and sell alcoholic beverages at city recreation facility was not inconsistent with the Arizona Constitution or “any general law of the state”). Because the proprietary/governmental distinction is murky and unhelpful in resolving disputes of this kind, we do not view it as an appropriate factor in determining whether a state law relates to a matter of “statewide or purely local interest.” Tucson II, 229 Ariz. at 176 ¶ 20; cf. Ryan v. State, 134 Ariz. 308, 310 (1982) (abolishing as an unnecessary, “speculative exercise” the “public/private duty doctrine” in determining governmental immunity issues).

¶62 The City also proposes a balancing test, under which courts would balance the competing state and municipal interests to determine if the asserted statewide interest is “sufficiently concrete and identifiable to outweigh the local interest of home rule cities in municipal self-government.” In support of that concept, the City cites Johnson v. Bradley, in which the California Supreme Court stated that “as a condition of state legislative supremacy,” the state must show “a dimension demonstrably transcending identifiable municipal interests,” so that the phrase “statewide interest” does not invade areas of intramural concern only, thereby preserving core values of charter city government. 841 P.2d 990, 996 (Cal. 1992). Under California law, if a statewide concern is established, a charter city’s contrary law is preempted only if the state law is “reasonably related” to resolving the state’s interest and “narrowly tailored” to limit incursion into legitimate municipal interests. Id. at 999–1000 (citation and internal quotation marks omitted). Johnson was based on California’s constitution, which exempts from the control of state law “all ordinances and regulations in respect to municipal affairs.” Cal. Const. art. XI, § 5(a). Arizona has no counterpart, but instead requires a city charter to be consistent with “the laws of the state.” Ariz. Const. art. 13, § 2.

¶63 We reject the California approach and the City’s proposed balancing test. It would not aid courts in determining if a particular subject


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is of statewide interest or rather purely local concern. We therefore decline to follow Johnson and cases from other states that embrace a balancing approach. See U.S. Elevator Corp. v. City of Tulsa, 610 P.2d 791 (Okla. 1980); Madison Teachers, Inc. v. Walker, 851 N.W.2d 337 (Wis. 2014).

¶64 In addition, a balancing test finds only limited, marginal support in Arizona. In Tucson I, without citing any Arizona authority, the court of appeals found “a balancing test” appropriate in determining whether local or statewide interests were “paramount.” 191 Ariz. at 439. More recently, however, the court of appeals correctly found that a trial court erred in applying a balancing test to resolve a city/state dispute, aptly noting that this Court has never used or approved such a test in this context. Tucson III, 235 Ariz. at 439 ¶ 16 n.6 (App. 2014). We agree and therefore disapprove Tucson I’s use of a balancing test in its analysis. In short, we find such a test is neither helpful nor appropriate, and instead would potentially cause confusion and inconsistent results, in resolving issues under article 13, section 2.

V. Conclusion

¶65 The state laws here, A.R.S. §§ 12-945(B) and 13-3108(F), involve matters of statewide, not purely local, interest and thus displace the City’s inconsistent Ordinance, Tucson Code § 2-142, regarding destruction of firearms. Having decided the legal issue presented under A.R.S. § 41-194.01(B)(2), we do not address other issues pertaining to S.B. 1487. The State is awarded its reasonable attorney fees under A.R.S. § 12-348.01, upon its compliance with ARCAP 21.

STATE V. CITY OF TUCSON JUSTICE BOLICK, Concurring in Part and in the Result

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JUSTICE BOLICK, concurring in part and in the result:

¶66 The Court does a fine job harmonizing and applying what it aptly refers to as the “muddled” jurisprudence governing conflicts between city charters and state law and it reaches the correct result. Although I join fully in Parts I, II, and V of the Court’s opinion, I write separately to address erroneous prior decisions that produced the jurisprudential muddle, from which we can extricate ourselves by aligning our case law with constitutional text.

¶67 The Court describes this as a “gratuitous” endeavor. Respectfully, it is not. Although the parties may determine what issues are placed before us, they cannot constrain our analysis when a law’s constitutionality is questioned. In every instance, that analysis should begin with the Constitution’s text. Such analysis consists not merely of recitation but application. “We look first to the language of the provision, for if the constitutional language is clear, judicial construction is neither required nor proper.” Perini Land & Dev. Co. v. Pima Cty., 170 Ariz. 380, 383 (1992); Jett v. City of Tucson, 180 Ariz. 115, 119 (1994) (“If the language is clear and unambiguous, we generally must follow the text of the provision as written.”). Resort to the Constitution’s plain meaning is especially essential where, as the Court freely acknowledges, the state of the law is disarray. See, e.g., ¶ 46 (noting that the Court has at least twice described our jurisprudence as creating a “twilight zone”). In such instances, our fidelity should be to the Constitution rather than to the disarray. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 805-06 (2010) (Thomas, J., concurring in part and concurring in the judgment) (agreeing that the Second Amendment is applicable to the states, but urging the Court to abandon a “well-settled” but misguided test in favor of “a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history”).

¶68 Article 13, section 2, of the Arizona Constitution possesses the virtue of great clarity. It provides cities that meet certain criteria with a mechanism to secure greater self-governance. That section includes two provisions that squarely address the issue presented here. An eligible city “may frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the state.” Ariz. Const. art. 13, § 2 (emphasis added). Upon approval, the “charter shall become the organic law of such city and supersede any charter then existing . . . and all ordinances inconsistent with said new charter.” Id. (emphasis added).


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¶69 That clear language renders simple the dispute here. As the Court amply demonstrates, Tucson’s charter provision conflicts with state law regarding the disposition of seized firearms. Tucson’s charter is subject to that law and does not supersede it.

¶70 Were we construing and applying only the constitutional text as written, we would have no jurisprudential muddle. Charter cities and the state would understand their respective boundaries and taxpayers could save the cost of unnecessary litigation. But the tendency of the law toward complexity over clarity often seems irresistible.

¶71 As the Court observes, the law governing conflicts between state and charter cities did not end with the Constitution. Shortly after the Constitution’s ratification, the legislature passed an emergency statute presently codified as A.R.S. § 9-284 (the “charter statute”). Section 9-284(A) provides that where charter provisions “are in conflict with any law” relating to cities eligible for charter status “in force at the time of the adoption and approval of the charter, the provisions of the charter shall prevail notwithstanding the conflict.” Section 9-284(B) provides, “The charter shall be consistent with and subject to the state constitution, and not in conflict with the constitution and . . . general laws of the state not relating to cities.”

¶72 Two observations about the charter statute are pertinent. First, it established that charter provisions would prevail only as to conflicting statutes “relating to” charter-eligible cities “in force at the time of the adoption and approval of the charter.” Thus, the charter statute does not apply here because Tucson’s charter was adopted long before the conflicting statute. Second, if article 13, section 2, of the Arizona Constitution itself established supremacy of charters over certain conflicting state statutes, there would have been no need to enact that status through legislation, much less on an emergency basis. The statute’s enactment thus implied the legislature’s recognition that article 13, section 2 did not, by its own terms, elevate charters over statutes.

¶73 Early cases harmonized the charter statute with the Constitution. In Clayton v. State, 38 Ariz. 135 (1931), the Court invalidated local highway laws that conflicted with state statutes. The Court posed the question of who determines whether a matter is of “general statewide concern or of purely municipal concern? Shall the city be permitted to determine this question, or shall the state?” Id. at 145. Applying the


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Constitution, the Court’s answer was unequivocal: the state. Id. (quoting State v. Thompson, 137 N.W. 20, 31 (Wis. 1912)) (even where the Constitution divides powers between the state and cities, the state alone determines what is a municipal concern). Quoting the Oklahoma Supreme Court, the Court observed that the Constitution “in no way limited or abridged the supreme sovereign control over such municipality, but only guarantees to such municipality the right of municipal government subject to the Constitution and laws of the state.” Id. at 143 (quoting City of Sapulpa v. Land, 223 P. 640, 646 (Okla. 1924)). If charter powers were not “subject to the supreme powers of the Legislature[,] . . . then we have the inevitable result that the framers of the Constitution authorized the establishment of independent petty states within this state.” Id. (quoting City of Sapulpa, 223 P. at 646).

¶74 The Clayton Court continued its analysis, however, by noting that article 13, section 2 was supplemented by statute. Id. at 146. The Court explained that under the statute, where a conflict exists between preexisting state laws and charter provisions, the latter shall prevail except as to general laws of the state not relating to cities. Id. The Court went on to conclude that the law at issue was a general law not relating to cities, thus it prevailed over the conflicting charter provision. Id. at 146-49. The Court made clear that it was the statute (which is not at issue here), not the Constitution, that allowed charter provisions to prevail over conflicting state laws in limited circumstances. Id.; see also ¶ 39 (acknowledging that the statute, not the Constitution, established charter cities’ primacy over state laws in certain circumstances).

¶75 In Mayor & Common Council of City of Prescott v. Randall, 67 Ariz. 369 (1948), the Court struck down a charter city’s alcohol regulations that conflicted with state law. The Court cited numerous cases to the effect that “a charter city is sovereign in all of its ‘municipal affairs’ where the power attempted to be exercised has been specifically or by implication granted in its charter.” Id. at 371. However, the Court noted that in “practically all of the foregoing cases the effect of section 16-303 [predecessor to § 9-284] . . . has been directly or indirectly considered by this court” as supplementing charter powers conferred by the Constitution. Id.; see also City of Tucson v. Ariz. Alpha of Sigma Alpha Epsilon (AASAE), 67 Ariz. 330, 335 (1948) (resolving conflict between state and charter city laws pursuant to charter statute).

¶76 But only three years later, those statutory considerations


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vanished from the Court’s analysis and the charter statute was grafted onto article 13, section 2. In Strode v. Sullivan, 72 Ariz. 360 (1951), the Court held that a charter city’s election laws superseded conflicting state law. The Court selectively quoted article 13, section 2, placing emphasis on a city forming a charter “for its own government” and omitting any reference to charters superseding inconsistent local laws but not state laws. Id. at 364.

¶77 Without any overt indication that it was doing so, the Court substituted the charter statute language for the constitutional text. The difference between the constitutional rule announced in Strode and the actual constitutional text is so stark that it invites direct comparison:

Article 13, section 2:

Eligible city “may frame a charter for its own government consistent with, and subject to, the Constitution and the laws of the state . . . . [S]aid charter shall become the organic law of such city and supersede any charter then existing . . . and all ordinances inconsistent with said new charter.

Ariz. Const. art. 13, § 2 (emphasis added).

Strode Rule:

[A] city charter . . . becomes the organic law of the city and the provisions of the charter supersede all laws of the state in conflict with such charter provisions insofar as such laws relate to purely municipal affairs.

72 Ariz. at 365 (emphasis added).

¶78 The Court in Strode literally rewrote the constitutional provision at issue, which of course it had no power to do. It thus replaced the Constitution’s bright line with a judicially manufactured line of constitutional demarcation between matters of statewide concern, over which the state prevails, and matters of purely local concern, over which charter cities have hegemony. That blurry line is entirely the cause of our muddled jurisprudence over the past two-thirds of a century.

¶79 So the question presents itself: should we hew to the


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Constitution or to our prior decisions? The judicially created doctrine of stare decisis instructs that the rule of law requires stability and continuity, and therefore we should generally follow precedent. Galloway v. Vanderpool, 205 Ariz. 252, 256 ¶ 16 (2003). But as judges, we take an oath to the Constitution, not to the stare decisis doctrine. Thus, “[w]hile, under our judicial system, all courts have a strong respect for precedent, this respect is a reasonable one which balks at the perpetuation of error, and the doctrine of stare decisis should not prevail when a departure therefrom is necessary to avoid the perpetuation of pernicious error.” State ex rel. La Prade v. Cox, 43 Ariz. 174, 183 (1934). “Stare decisis is ‘at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.’” Mitchell v. United States, 526 U.S. 314, 343 (1999) (Thomas, J., dissenting) (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)); see also Galloway, 205 Ariz. at 256 ¶ 16 (stare decisis “is strongest when prior decisions construe a statute”). “The Court has therefore adhered to the rule that stare decisis is not rigidly applied in cases involving constitutional issues, and has not hesitated to overrule decisions, or even whole lines of cases, where experience, scholarship, and reflection demonstrated that their fundamental premises were not to be found in the Constitution.” Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 787 (1986) (White, J., dissenting) (internal citation omitted), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); see also id. at 787–88.

¶80 Given that Strode departed so sharply from constitutional text and has spawned constant litigation to ascertain its contours, I would overturn it along with other decisions holding that charter enactments superseded conflicting state laws. See, e.g., City of Tucson v. State, 229 Ariz. 172 (2012); City of Tucson v. State, 235 Ariz. 434 (App. 2014); McMann v. City of Tucson, 202 Ariz. 468 (App. 2002). Instead, I would adhere to the Constitution’s rule that city charters do not supersede conflicting state laws.3

3 Applying the constitutional rule would preserve judicial analysis of whether the state’s statute occupies the field of regulation and conflicts with the charter city provision. If it does not, the city’s provision should stand. See, e.g., Babe’s Cabaret v. City of Scottsdale, 197 Ariz. 98, 103–04 ¶¶ 18–19


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¶81 The City protests that such a construction would render charters meaningless. Not at all. As the Court observed in AASAE, “Cities and towns, regardless of how organized, have only such powers as are expressly or by implication conferred upon them.” 67 Ariz. at 334–35. “A municipality has no inherent powers, but only such powers as are expressly conferred by statute or are implied as necessary in aid of those powers which are expressly conferred.” 1 McQuillan Mun. Corp. § 2:10 (3d ed.). By contrast, “[a] presumption exists that the exercise of power by a home rule municipal corporation is valid if no restriction is found in the constitution, the charter itself, or the acts of the general assembly.” 2A McQuillan Mun. Corp. § 10:16 (3d ed.). In other words, a non-charter municipality generally may do only what the state expressly authorizes; a charter city generally may do anything that the state does not expressly forbid. That is a significant difference in authority. At the same time, it is unsurprising that a subdivision of the state would not have the power to override the powers of the state itself.

¶82 The Court today performs a salutary service by clarifying the law as much as the Strode construct permits. The Court reaffirms, for instance, that the state retains all police powers to the exclusion of charter cities. Likewise, it usefully disavows the distinction between governmental and proprietary functions, whose foundation is completely lacking in the relevant constitutional text.

¶83 The Court also observes that the subject matter at issue here is addressed by our state’s constitutional protection of the right to keep and bear arms in article 2, section 26 of the Arizona Constitution. In my view, that necessarily elevates the subject matter to statewide concern. Tucson contends that its regulation does not limit the constitutional right to “bear arms.” Ariz. Const. art. 2, § 26. The inquiry under current precedents is not whether the charter enactment implicates a constitutional right, but whether it implicates a matter of statewide concern. The state may reasonably determine that destroying firearms limits the quantity of firearms in the market, so that its statute addresses a matter of statewide concern not only pursuant to the state’s police powers but its power to enforce the right to bear arms. Cf. City of Scottsdale v. State, 237 Ariz. 467, 472 ¶¶ 20–21 (App. 2015) (state is authorized to protect free speech rights,

(App. 1999); City of Tucson v. Rineer, 193 Ariz. 160, 163 ¶¶ 7–9, 164 ¶ 11 (App. 1998).


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which prevails over conflicting charter enactment).

¶84 Although the Court draws the correct lines here, the Constitution makes that exercise unnecessary and improper. I look forward to the day when we no longer have to draw lines between such conflicting enactments, because we finally accept that our Constitution has drawn that line for us.

STATE V. CITY OF TUCSON JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ,

Concurring in Part and in the Result

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JUSTICE GOULD, joined by JUSTICE BOLICK and JUSTICE LOPEZ, concurring in part and in the result.

¶85 I concur in Parts I, II, IV, and V of the majority opinion. 4 I also agree with Part III to the extent the majority concludes we do not have to impose a bond pursuant to A.R.S. § 41-194.01(B)(2). However, I disagree with the majority’s reasoning that imposing the bond “would displace this Court from its constitutionally assigned role under article 6.” Supra, ¶ 33. Rather, I conclude the bond provision is unenforceable because it is incomplete and unintelligible.

¶86 I also disagree with the majority’s suggestion that we should defer ruling on the bond provision until there is a case “where that issue is specifically raised.” Supra, ¶ 35. The parties have had a full opportunity to address the enforceability of the bond provision; indeed, both parties have discussed the issue in their briefs. It is squarely before this Court and we must address it.

¶87 The bond provision contains two clear directives. First, section (B)(2) requires this Court to impose a bond when a special action is filed by the Attorney General. The statute states that the “court shall require the county, city or town to post a bond equal to the amount of state shared revenue [(“SSR”)] paid to the county, city or town pursuant to section 42-5029 and 43-206 in the preceding six months.” (emphasis added.) By using the word “shall,” the legislature clearly intended the bond provision to be mandatory. See Ins. Co. of N. Am. v. Superior Court, 166 Ariz. 82, 85 (1990) (“The use of the word ‘shall’ indicates a mandatory intent by the legislature.”).

¶88 Second, compliance with the bond provision is not a prerequisite for judicial review. Section (B)(2) requires this Court to determine whether a local ordinance violates state law. The statute does not state, nor does it imply, that our ruling is contingent on a party posting the bond.

¶89 Despite these directives, the bond provision fails to provide any direction as to how — or why — this Court should impose the bond.

4 My concurring colleague, Justice Bolick, does not join Part III of the Court’s opinion. See ¶¶ 66-84, supra.



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Of greatest concern is the fact that section (B)(2) does not prescribe what occurs if a party fails to post the bond. For example, the statute does not authorize this Court to enter a default in favor of the Attorney General, or to strike the City’s response. In short, the text of the statute does not state, either expressly or impliedly, that failing to post a bond deprives the City of its right to defend the Ordinance before this Court.

¶90 The bond provision is incomplete in a number of other areas. Unlike most bond statutes, section (B)(2) contains no provision for reducing the amount of the bond on the basis of economic hardship. Cf. A.R.S. § 12-2108(C) (allowing for reduction of a supersedeas bond upon a showing that the appellant will suffer substantial economic harm). Additionally, section (B)(2) does not identify the conditions for forfeiting or exonerating the bond. Contra, e.g., A.R.S. § 12-1537 (stating that a replevin bond posted by a defendant is exonerated if the attachment is vacated or a judgment is entered for the defendant); A.R.S. § 14-5419(I) (a conservator’s bond is exonerated upon filing of a closing statement); A.R.S. § 13-3974 (stating the conditions for exonerating an appearance bond); A.R.S. § 13-3858 (providing for forfeiture of an appearance bond if a defendant fails to appear in court).

¶91 Section (B)(2) also does not state the bond’s purpose. If its purpose is to ensure that a city or county complies with state law during the pendency of the Attorney General’s special action, then this is a valid reason for imposing the bond. See Porter v. Commercial Standard Ins. Co., 112 Ariz. 491, 492-93 (1975) (stating a supersedeas bond is intended to maintain “the status quo [of the parties] until the appellate process is completed”). But if this is the purpose of the statute, we are left with a puzzling result: under section (B)(1), when the Attorney General determines a local ordinance does violate state law, no bond is required during the thirty-day cure period. However, under section (B)(2), when no final determination has been made regarding a potential violation, a party is required to post a substantial bond while the Attorney General’s special action is pending.

¶92 It is difficult to understand why section (B)(2) requires a bond, and section (B)(1) does not. In practice, section (B)(2) creates a greater financial burden when the Attorney General concludes an ordinance “may violate” state law than when the Attorney General concludes an ordinance “does violate” state law. Under section (B)(1), a city or county suffers no economic penalty until there has been a “final” determination that its



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ordinance violates state law and it has been given thirty days to cure the violation. In contrast, under (B)(2), when the Attorney General determines there may be a violation of state law, the city or county is automatically required to post a bond equal to six months of its SSR.

¶93 The parties recognize that the bond provision, as written, is likely unenforceable. The City contends that imposing a bond consisting of six months’ SSR creates an insurmountable financial burden. The City argues that imposing such a large bond would effectively prevent it from defending its Ordinance before this Court. Ariz. Const. art 2, § 13. In contrast, the State asserts that given the City’s agreement to suspend enforcement of its Ordinance pending this litigation, the purpose of the bond is satisfied, and therefore imposing the bond is unnecessary. In the alternative, the State argues that even if the bond is unconstitutional, it is severable from section (B)(2).

¶94 In considering these arguments, the majority expresses concern that section (B)(2) places an undue financial burden on the City. Based on this concern, the majority generally agrees with the City that the bond provision may be unconstitutional. Specifically, the majority contends that imposing such a large bond “would likely dissuade” the City from defending its Ordinance, which in turn would “displace this Court from its constitutionally assigned role under article 6 of interpreting Arizona’s constitution and laws.” Supra, ¶ 33; Ariz. Const. art 6, § 1.

¶95 If the majority is indeed concerned that the bond provision may be unconstitutional on this basis, I disagree. Generally, we afford statutes a presumption of constitutionality. Cf. Gallardo v. State, 236 Ariz. 84, 87 ¶ 9 (2014) (discussing presumption of constitutionality generally afforded legislative enactments). Additionally, the record is undeveloped as to the actual bond amount the City will have to post. There has been no evidentiary hearing in this case. We have no testimony from witnesses, no exhibits or any other evidence showing the actual financial impact on the City. All we have are allegations by the City that it lacks the financial means to post the bond. And these allegations appear to be based on the assumption that section (B)(2) requires the City to post the full amount of the bond as a cash bond. However, section (B)(2), by its terms, does not prohibit the City from posting a security bond to satisfy the bond requirement. We have no evidence before us as to whether the City could post such a security bond.



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¶96 The majority also concludes that based on the City’s agreement to suspend enforcement of its Ordinance, imposing the bond is unnecessary in this case. I recognize this is a practical approach to dealing with the deficiencies of the statute. However, section (B)(2) does not, by its terms, authorize waiving the bond requirement based on such an agreement. In the face of such a mandatory provision, we must either impose it, or explain why it is unenforceable.

¶97 At bottom, the problem with the bond provision is not ambiguous language or undefined terms. Rather, it is, in several material respects, so incomplete as to be unintelligible. The result is a partial, unfinished legislative directive that is impossible for this Court to enforce. Cf. Cohen v. State, 121 Ariz. 6, 9 (1978) (stating “it is the duty of a court in construing a statute to strive to uphold it whenever possible.”).

¶98 Under these circumstances, I would declare the bond provision unintelligible and unenforceable, and provide the Legislature with an opportunity to fix it. The unintelligibility doctrine is a well-established doctrine that has been applied in several states. See Board of Trustees of Judicial Form Retirement System v. Attorney General of Com., 132 S.W. 3d 770, 779-81 (Ky. 2003); Yeik v. Dept. of Revenue and Taxation, 595 P.2d 965, 968-69 (Wyo. 1979); State ex rel. Miller v. Brown, 150 N.E.2d 46, 48 (Ohio 1958); Davidson Bldg. Co. v. Mulock, 235 N.W. 45, 54-56 (Iowa 1931); Midwest Hotel Co. v. State Board of Equalization, 273 P. 696, 697-99 (Wyo. 1929); State ex rel. Hughes v. Reusswig, 126 N.W. 279, 280 (Minn. 1910); Ward v. Ward, 37 Tex. 389, 392 (1872); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 134-138 (2012) (discussing the “Unintelligibility Canon” of statutory construction, which holds that an unintelligible, incomplete statute is unenforceable).

¶99 A careful reading of Ethridge v. State Bd. of Nursing, 165 Ariz. 97, 104 (App. 1989) and State Compensation Fund v. De La Fuente, 18 Ariz. App. 246, 251-52 (1972) also supports the existence of the unintelligibility doctrine in Arizona. In Ethridge, the court stated that “[a]n indefinite and incomplete statute may be held invalid on three bases: (1) the language used may not have sufficient legal significance to be capable of intelligent execution; (2) the statute may unduly delegate legislative powers in violation of the separation of powers doctrine under article 3 of the United States Constitution, and (3) as applied, the statute may violate due process under the Arizona Constitution.” (emphasis added) Id., 165 Ariz. at 104.



36

Importantly, the first category mentioned — “the language used may not have sufficient legal significance to be capable of intelligent execution” — is identified as a separate, distinct basis from the other two grounds. Similarly, De La Fuente lists “three bases upon which a statute without the requisite definiteness and completeness may be held invalid,” including “the language used may not have sufficient legal significance to be capable of intelligent execution.” Id., 18 Ariz. App. at 251-52 (emphasis added).

¶100 Generally, if a statute is ambiguous, courts apply a void-for-vagueness analysis. The unintelligibility doctrine, however, is distinct from this doctrine. See, supra ¶ 103. The void-for-vagueness doctrine is typically applied to ambiguous or indefinite statutes involving criminal or punitive civil laws, or laws involving First Amendment rights, that are applied to members of the general public. See, e.g., State v Holle, 240 Ariz. 300, 310 ¶ 46 (2016) (holding that statutes defining crimes for sexual abuse and child molestation provided sufficient notice to the public of the proscribed conduct, and are not void for vagueness); Western Waste Serv. Sys. v. Superior Court, 120 Ariz. 90 (1978) (holding that Arizona Uniform Antitrust Act provision imposing treble damages for a “flagrant” violation of the statute was not void for vagueness). In contrast, the unintelligibility doctrine is reserved for incomplete, non-punitive civil statutes that are oftentimes directed at judicial procedures. Board of Trustees, 132 S.W. 3d at 778; cf. De La Fuente, 18 Ariz. App. at 251-52 (statute concerning authority of Industrial Commission to determine death benefits lacked any standards or regulations to govern Commission’s decision; as a result, the statute was declared unenforceable on multiple grounds, including unintelligibility).

¶101 For example, in Yeik a statute provided that before a person could appeal a driver’s license suspension to the district court, he was first required to file an appeal with the “revenue and tax commission.” The statute, however, provided no regulations or directions as to how to pursue an appeal to the commission. In holding the statute was unenforceable as incomplete and unintelligible, the court stated:

Those wishing to seek review from the tax commission are given no guidance by the rules and regulations as to: 1. Within what time frame must the appeal be effected? 2. What notice of appeal is required? 3. Is the decision of the hearing examiner stayed during the pendency of the review process or must the party seeking review specifically ask for such a



37

stay? 4. Must the party seeking review write a brief? 5. Does the party seeking review have a right or obligation to present oral argument to the tax commission? There are a host of other unanswered procedural questions that the state tax commission must answer in the form of Reasonable rules and regulations before s 31-7-105(c) can have any real meaning.

Yeik, 595 P.2d at 968. See also Ward, 37 Tex. at 391-92 (statute was unenforceable because the procedures for filing an appeal from an interlocutory order were incomplete and unintelligible); Midwest Hotel, 273 P. at 697 (procedures for filing an appeal from the board of equalization were incomplete, and therefore unenforceable); Davidson, 235 N.W. at 54-56 (statute was unenforceable because procedures for appealing from a tax board of review decision were so indefinite and incomplete as to be unintelligible).

¶102 The unintelligibility doctrine is perhaps the quintessential example of how a court, acting with restraint, observes its constitutional role under the separation of powers. See Board of Trustees, 132 S.W. 3d at 781 (stating “the unintelligibility rule has its foundation in the constitutional requirement of separation of powers”); see also U.S. Const. art. I-III; Ariz. Const. art. 3. When faced with an incomplete, unintelligible statute, a court may either attempt to re-write the statute, or declare it unenforceable. Id. The first option is a clear violation of the separation of powers. Courts lack the constitutional authority to legislate, and this limitation is perhaps most acute when a court attempts to enforce a statute that, by virtue of its incompleteness, is really no law at all. See Ballesteros v. Am. Standard Ins. Co. of Wis., 226 Ariz. 345, 349 ¶ 17 (2011) (stating “[i]f the legislature desires to add [ ] a requirement [to A.R.S. § 20–259.01], it may do so . . . but it is not our place to rewrite the statute”). In contrast, when a court declares an incomplete, unfinished statute unenforceable on the grounds of unintelligibility, it refrains from stepping outside its judicial authority, and provides the legislature with an opportunity to address the infirmities in the statute.

¶103 Thus, I conclude that because the bond provision is incomplete and unintelligible, it is unenforceable.

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§ 9-463.02. Subdivision defined; applicability, AZ ST § 9-463.02

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

Arizona Revised Statutes AnnotatedTitle 9. Cities and Towns

Chapter 4. General PowersArticle 6.2. Municipal Subdivision Regulations (Refs & Annos)

A.R.S. § 9-463.02

§ 9-463.02. Subdivision defined; applicability

Currentness

A. “Subdivision” means improved or unimproved land or lands divided for the purpose of financing, sale or lease,whether immediate or future, into four or more lots, tracts or parcels of land, or, if a new street is involved, any suchproperty which is divided into two or more lots, tracts or parcels of land, or, any such property, the boundaries ofwhich have been fixed by a recorded plat, which is divided into more than two parts. “Subdivision” also includes anycondominium, cooperative, community apartment, townhouse or similar project containing four or more parcels, inwhich an undivided interest in the land is coupled with the right of exclusive occupancy of any unit located thereon, butplats of such projects need not show the buildings or the manner in which the buildings or airspace above the propertyshown on the plat are to be divided.

B. The legislative body of a municipality shall not refuse approval of a final plat of a project included in subsection Aunder provisions of an adopted subdivision regulation because of location of buildings on the property shown on theplat not in violation of such subdivision regulations or on account of the manner in which airspace is to be divided inconveying the condominium. Fees and lot design requirements shall be computed and imposed with respect to such platson the basis of parcels or lots on the surface of the land shown thereon as included in the project. This subsection doesnot limit the power of such legislative body to regulate the location of buildings in such a project by or pursuant to azoning ordinance.

C. “Subdivision” does not include the following:

1. The sale or exchange of parcels of land to or between adjoining property owners if such sale or exchange does notcreate additional lots.

2. The partitioning of land in accordance with other statutes regulating the partitioning of land held in commonownership.

3. The leasing of apartments, offices, stores or similar space within a building or trailer park, nor to mineral, oil or gasleases.

CreditsAdded by Laws 1973, Ch. 178, § 2, eff. Jan. 1, 1974.

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Notes of Decisions (1)

A. R. S. § 9-463.02, AZ ST § 9-463.02Current through the First Regular Session of the Fifty-Third Legislature (2017)

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

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Notes Of Decisions (1)

Construction and application City is voluntary organization, whereas county is merely arm of state government; accordingly, provision of § 9-463.01 granting municipalities power to regulate dividing of land within their corporate limits, which sectioncontains no 36-acre limit in its definition of subdivision, and provision of § 11-806.01 that county board ofsupervisors shall regulate subdivision of all lands within its corporate limits, except subdivisions regulated bymunicipalities, are not in pari materia and thus definition of “subdivision” of this section should not be appliedto § 11-806.01. Transamerica Title Ins. Co. v. Cochise County (App. Div.2 1976) 26 Ariz.App. 323, 548 P.2d416 . Counties 1 ; Municipal Corporations 1.1

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FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

CONTEST PROMOTIONS, LLC,Plaintiff-Appellant,

v.

CITY AND COUNTY OF SAN

FRANCISCO,Defendant-Appellee.

No. 17-15909

D.C. No.3:16-cv-06539-SI

OPINION

Appeal from the United States District Courtfor the Northern District of California

Susan Illston, Senior District Judge, Presiding

Argued and Submitted July 12, 2017San Francisco, California

Filed August 16, 2017

Before: Susan P. Graber and Michelle T. Friedland, CircuitJudges, and Consuelo B. Marshall,* District Judge.

Opinion by Judge Graber

* The Honorable Consuelo B. Marshall, Senior United States DistrictJudge for the Central District of California, sitting by designation.

CONTEST PROMOTIONS V. SAN FRANCISCO2

SUMMARY**

Civil Rights

The panel affirmed the district court’s Fed. R. Civ. P.12(b)(6) dismissal of an action brought pursuant to 42 U.S.C.§ 1983 challenging San Francisco’s sign-related regulations.

Through its Planning Code, San Francisco prohibits newbillboards but allows onsite business signs relating toactivities undertaken on the premises, subject to various rules. Noncommercial signs are exempt from the rules. Plaintiff, anadvertiser that rents the right to post signs on the premises ofthird-party businesses, alleged that the City’s Planning Codeviolates the First Amendment by exempting noncommercialsigns from its regulatory ambit.

The panel held that the distinction drawn betweencommercial and noncommercial signs in the City’s PlanningCode survived intermediate scrutiny under Central HudsonGas & Electric Corp. v. Public Service Commission, 447 U.S.557 (1980). The panel held that the distinctions directlyadvanced the City’s substantial interests in safety andaesthetics and was not impermissibly underinclusive.

** This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.

CONTEST PROMOTIONS V. SAN FRANCISCO 3

COUNSEL

Michael F. Wright (argued), Los Angeles, California, forPlaintiff-Appellant.

James M. Emery (argued) and Victoria Wong, Deputy CityAttorneys; Dennis J. Herrera, City Attorney; Office of theCity Attorney, San Francisco, California; for Defendant-Appellee.

OPINION

GRABER, Circuit Judge:

Plaintiff Contest Promotions, LLC, rents advertisingspace from businesses in cities around the country, includingSan Francisco, and places third-party advertising signs in thatspace, framed by text inviting passersby to enter the businessand win a prize related to the sign. Through its PlanningCode, San Francisco prohibits new billboards but allowsonsite business signs subject to various rules. Noncommercial signs are exempt from the rules. In this, thelatest of several challenges that Plaintiff has mounted to SanFrancisco’s sign-related regulations, Plaintiff argues that thedistinction between commercial and noncommercial signsviolates the First Amendment. The district court dismissedthe complaint. Reviewing the order of dismissal de novo,Friedman v. AARP, Inc., 855 F.3d 1047, 1051 (9th Cir. 2017),we affirm.


BACKGROUND

Like other local governments, the City and County of SanFrancisco, Defendant here, uses its Planning Code to regulateoutdoor advertising, including billboards. The purposes ofPlanning Code Article 6, which contains the advertising rules,include “promot[ing] the aesthetic and environmental valuesof San Francisco,” “protect[ing] public investment in and thecharacter and dignity of public buildings, streets, and openspaces,” “protect[ing] the distinctive appearance of SanFrancisco,” and “reduc[ing] hazards to motorists, bicyclists,and pedestrians.” S.F., Cal., Planning Code (“PlanningCode”) § 601.

The Planning Code draws two distinctions that arerelevant here. First, the Planning Code distinguishes between“general advertising signs” and “business signs.” A generaladvertising sign is

[a] Sign, legally erected prior to the effectivedate of Section 611 of this Code, whichdirects attention to a business, commodity,industry or other activity which is sold,offered or conducted elsewhere than on thepremises upon which the Sign is located, or towhich it is affixed, and which is sold, offeredor conducted on such premises onlyincidentally if at all.

Id. § 602 (emphasis added). By contrast, a business sign isdefined in part as

[a] Sign which directs attention to the primarybusiness, commodity, service, industry or


other activity which is sold, offered, orconducted on the premises upon which suchSign is located, or to which it is affixed.

Id. (emphasis added). In other words, general advertisingsigns, like traditional billboards, refer primarily to offsiteactivities, whereas business signs refer to the activitiesundertaken on the same premises as the sign. The Codedecrees that “[n]o new general advertising signs shall bepermitted at any location within the City as of March 5,2002.” Id. § 611(a). By contrast, business signs arepermitted, subject to other limitations related to neighborhoodand development type.

Second, the Planning Code distinguishes betweencommercial and noncommercial signs. The latter areexempted from Article 6 altogether. See Planning Code§ 603(a) (explaining that “[n]othing in this Article 6 shallapply to . . . Noncommercial Signs”).1 Article 6 does notdefine “noncommercial” except by reference to a non-exhaustive list that includes “[o]fficial public notices,”“[g]overnmental signs,” “[t]emporary display posters,”

1 An earlier version of the sign ordinance exempted a long list oftypes of noncommercial signs without categorically exempting them all. In response to state and federal court decisions that interpreted theordinance to exempt all noncommercial signs in order to preserve itsconstitutionality, see Metro Fuel LLC v. City of San Francisco, No. C 07-6067 PJH, 2011 WL 900318, at *9 (N.D. Cal. Mar. 15, 2011) (soholding); City of San Francisco v. Eller Outdoor Advert., 237 Cal. Rptr.815, 828 (Ct. App. 1987) (same), Defendant recently amended theordinance to formally exempt noncommercial signs, full-stop. SeeEnactment No. 218-16, File No. 160553, San Francisco Board ofSupervisors, eff. Dec. 10, 2016 (exempting all noncommercial signs fromArticle 6).


“[f]lags, emblems, insignia, and posters of any nation orpolitical subdivision,” and “[h]ouse numbers.” Id.

Plaintiff is an advertiser that rents the right to post signson the premises of third-party businesses. Taking theallegations in the complaint as true, Plaintiff’s signs advertisecontests in which passing customers can participate by goinginside the business and filling out a form. Plaintiff allegesthat the signs depict prizes that customers may win inPlaintiff’s contests. No party disputes that Plaintiff’s signsare “commercial” under Article 6. In September and Octoberof 2016, and in January of 2017, Defendant issued severalNotices of Enforcement, accusing Plaintiff’s signs ofviolating various requirements of Article 6.

Although the San Francisco Charter sets forth anadministrative process for challenging the denial of permitsfor signs, see S.F., Cal., Charter § 4.106(b), Plaintiff did notavail itself of that process. Instead, Plaintiff responded byfiling suit under 42 U.S.C. § 1983 alleging, inter alia, thatArticle 6 of the Planning Code violates the First Amendmentby exempting noncommercial signs from its regulatoryambit.2 Plaintiff moved for a preliminary injunction, whichthe district court denied. Plaintiff then filed the operative firstamended complaint, and Defendant moved to dismiss theaction under Federal Rule of Civil Procedure 12(b)(6). The

2 This is one of several actions that Plaintiff has filed againstDefendant, challenging various aspects of its billboard regulations. In aseparate memorandum disposition, we affirm the dismissal of an earlier-filed suit raising different First Amendment issues under the PlanningCode. And in a second memorandum disposition, also filed this date, wedismiss as moot Plaintiff’s appeal from the denial of its motion for apreliminary injunction in this case.


district court granted Defendant’s motion and entered ajudgment of dismissal, and Plaintiff timely appeals.

DISCUSSION

A. Level of Scrutiny

Our First Amendment analysis begins by determining thelevel of scrutiny that applies to the Planning Code’s Article6. Because noncommercial signs are exempted from itsregulatory framework, Article 6 is a regulation of commercialspeech. Restrictions on commercial speech are subject tointermediate scrutiny under Central Hudson Gas & ElectricCorp. v. Public Service Commission, 447 U.S. 557 (1980). Citing Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), andReed v. Town of Gilbert, 135 S. Ct. 2218 (2015), Plaintiffargues that review more searching than Central Hudson’sintermediate scrutiny standard should govern our analysis ofDefendant’s billboard laws. But we recently held that“Sorrell did not mark a fundamental departure from CentralHudson’s four-factor test, and Central Hudson continues toapply.” Retail Dig. Network, LLC v. Prieto (“RDN”),861 F.3d 839, 846 (9th Cir. 2017) (en banc).

In RDN, we rejected the plaintiff’s argument that a liquoradvertising rule “imposed a content- or speaker-basedburden” and therefore merited “heightened scrutiny.” Id. at847. We held that the speaker- or content-based nature of aregulation merely meant that such a regulation “implicatesthe First Amendment, which requires scrutiny greater thanrational basis review.” Id. (citing Sorrell, 564 U.S. at 567). In those situations, the proper level of scrutiny was thelongstanding commercial speech doctrine, which calls forintermediate review. Id. at 848.


We have likewise rejected the notion that Reed alteredCentral Hudson’s longstanding intermediate scrutinyframework. See Lone Star Sec. & Video, Inc. v. City of LosAngeles, 827 F.3d 1192, 1198 n.3 (9th Cir. 2016)(“[A]lthough laws that restrict only commercial speech arecontent based, such restrictions need only withstandintermediate scrutiny.” (citing Reed and Central Hudson)). We thus reject Plaintiff’s argument that review moresearching than intermediate scrutiny applies here.

Under that standard, we undertake our analysis in foursteps. First, the speech “must concern lawful activity and notbe misleading.” Central Hudson, 447 U.S. at 566. Second,“we ask whether the asserted governmental interest issubstantial.” Id. Then, “[i]f both inquiries yield positiveanswers, we must determine whether the regulation directlyadvances the governmental interest asserted, and whether itis not more extensive than is necessary to serve that interest.” Id.

B. Central Hudson Analysis

“Applying the Central Hudson test in the context ofbillboard regulations is not new for the Supreme Court or us.” Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 610 (9thCir. 1993). At the first step, neither party disputes that, asalleged, Plaintiff’s advertisements concern lawful, non-misleading activity. And at the second step, the SupremeCourt and this court have long held—and today, wereaffirm—that a locality’s asserted interests in safety andaesthetics, see Planning Code § 601 (describing the purposeof Defendant’s sign controls), are substantial. SeeMetromedia, Inc. v. City of San Diego, 453 U.S. 490, 507–08(1981) (plurality) (explaining that there was no “substantial


doubt that the twin goals that the ordinance seeks tofurther—traffic safety and the appearance of the city—aresubstantial governmental goals”); accord Metro Lights,L.L.C. v. City of Los Angeles, 551 F.3d 898, 904 (9th Cir.2009) (noting that “[i]t is well-established that traffic safetyand aesthetics constitute substantial government interests”);Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895,905 (9th Cir. 2007) (noting that “both the Supreme Court andour circuit have endorsed these rationales as substantialgovernmental interests”); Ackerley Commc’ns of Nw. Inc. v.Krochalis, 108 F.3d 1095, 1099 (9th Cir. 1997) (reaffirmingthat “a city’s interest in avoiding visual clutter suffices tojustify a prohibition of billboards”); Nat’l Advert. Co. v. Cityof Orange, 861 F.2d 246, 248 (9th Cir. 1988) (same). Wetherefore proceed to the last two steps of Central Hudson.

“The last two steps of the Central Hudson analysisbasically involve a consideration of the ‘fit’ between thelegislature’s ends and the means chosen to accomplish thoseends.”3 United States v. Edge Broad. Co., 509 U.S. 418,427–28 (1993) (internal quotation marks omitted). The thirdCentral Hudson step asks whether “the restriction . . . directlyadvance[s] the state interest involved.” Valle Del Sol Inc. v.Whiting, 709 F.3d 808, 821 (9th Cir. 2013) (internal quotationmarks omitted). In considering that question, “we must lookat whether the City’s ban advances its interest in its generalapplication, not specifically with respect to [the defendant].”

3 As we have observed before, “[i]t has not always been clear howthis basic inquiry differs with respect to the last two steps of the CentralHudson analysis, and indeed the Supreme Court has observed that thesteps of the analysis are ‘not entirely discrete.’” Metro Lights, 551 F.3d at904 (quoting Greater New Orleans Broad. Ass’n v. United States,527 U.S. 173, 183 (1999)).


Metro Lights, 551 F.3d at 904. The regulation also must notbe underinclusive, such that it “‘undermine[s] andcounteract[s]’ the interest the government claims it adoptedthe law to further.” Id. at 905 (quoting Rubin v. CoorsBrewing Co., 514 U.S. 476, 489 (1995)). The fourth step“guards against over-regulation rather than under-regulation.” Id. at 911. It “does not require that the regulation be theleast-restrictive means to accomplish the government’s goal. Rather, what is required is a reasonable fit between the endsand the means, a fit ‘that employs not necessarily the leastrestrictive means, but a means narrowly tailored to achievethe desired objective.’” Outdoor Sys., 997 F.2d at 610(alteration omitted) (quoting Bd. of Trs. v. Fox, 492 U.S. 469,480 (1989)).

Relying on City of Cincinnati v. Discovery Network, Inc.,507 U.S. 410 (1993), Plaintiff argues that Article 6 falters atthe last two steps of the Central Hudson analysis because itexempts noncommercial signs for reasons unconnected toDefendant’s asserted interests in safety and aesthetics. Wedisagree for two reasons.

First, Discovery Network is materially distinguishable. There, the Supreme Court considered a First Amendmentchallenge to a city’s ordinance that “completely prohibit[ed]the distribution of commercial handbills on the public right ofway” using newsracks, while leaving unaffected a far greaternumber of newsracks that distributed noncommercialmaterial. Id. at 414. In particular, the record showed that“the number of newsracks dispensing commercial handbillswas ‘minute’ compared with the total number (1,500–2,000)on the public right of way.” Id. The Court held that theordinance’s distinction between commercial andnoncommercial speech “b[ore] no relationship whatsoever to


the particular interests that the city has asserted,” making theordinance “an impermissible means of responding to” thecity’s “admittedly legitimate interests” in safety andaesthetics. Id. at 424; see also id. at 428 (concluding that “thedistinction [the city] has drawn has absolutely no bearing onthe interests it has asserted”).

The Court’s conclusion rested in significant part on thedetails of the record before it and on the empirically poorconnection between the ordinance and the asserted problem. For example, the Court noted that, “[w]hile there was sometestimony in the District Court that commercial publicationsare distinct from noncommercial publications in theircapacity to proliferate, the evidence of such was exceedinglyweak,” id. at 425, and that if the “aggregate number ofnewsracks on its streets” was the real concern, then“newspapers are arguably the greater culprit because of theirsuperior number,” id. at 426. Thus, “the fact that theregulation ‘provide[d] only the most limited incrementalsupport for the interest asserted,’—that it achieved only a‘marginal degree of protection,’ for that interest—supported[the Court’s] holding that the prohibition was invalid.” Id. at427 (first alteration in original) (quoting Bolger v. YoungsDrug Prods. Corp., 463 U.S. 60, 73 (1983)). As the Courtemphasized: “Our holding, however, is narrow. As shouldbe clear from the above discussion, we do not reach thequestion whether, given certain facts and under certaincircumstances, a community might be able to justifydifferential treatment of commercial and noncommercialnewsracks. We simply hold that on this record [the city] hasfailed to make such a showing.” Id. at 428.

Unlike in Discovery Network, Article 6 is notimpermissibly under-inclusive. The text of Article 6 explains


why such a rule is necessary. It explains that, when theordinance was adopted, the “increased size and number ofgeneral advertising signs” in particular were “creating apublic safety hazard,” that such signs “contribute to blightand visual clutter as well as the commercialization of publicspaces,” that there was a “proliferation” of such signs in“open spaces all over the City,” and that there was “currentlyan ample supply of general advertising signs within the City.” Planning Code § 611(f). These are statements of legislativepurpose specific to commercial signs. In contrast to a ban oncommercial sidewalk newsracks affecting only a tiny fractionof the overall number of newsracks, Defendant’s choice toregulate commercial signs (but not noncommercial signs) hasa substantial effect on its interests in safety and aesthetics. Accordingly, Article 6 is not constitutionally underinclusive. Its exceptions ensure that the regulation will achieve its end,and the distinctions that it makes among different kinds ofspeech relate empirically to the interests that the governmentseeks to advance. Metro Lights, 551 F.3d at 906.

Outdoor Systems is not to the contrary. Defendant relieson that case to argue that Defendant impermissibly“discriminate[s] against commercial speech solely on theground that it deserves less protection than noncommercialspeech.” 997 F.2d at 610. As explained above, that is not thereason for the distinction drawn by Article 6, which focusesinstead on the unique risks to Defendant’s interests thatcommercial signs pose. Plaintiff also contends that, unlikethe billboard regulations that survived intermediate scrutinyin Outdoor Systems, the ones at issue here are not neutral asbetween commercial and noncommercial speech. But neitherwere the regulations that we approved in Outdoor Systems. As we observed—in a factual recitation that is admittedly insome tension with other analysis in the opinion—Mesa’s


regulations “contain[ed] a provision that except[ed] allnoncommercial signs from the Code’s definition of offsitesigns.” Id. at 608–09.

More generally, a second principle supports ourconclusion. It is well established that a law need not dealperfectly and fully with an identified problem to surviveintermediate scrutiny. The Supreme Court long ago rejectedthe notion “that a prohibition against the use of unattractivesigns cannot be justified on [a]esthetic grounds if it fails toapply to all equally unattractive signs.” Members of CityCouncil v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984)(noting that “[a] comparable argument was categoricallyrejected in Metromedia”). Instead, for example, “the validityof the [a]esthetic interest in the elimination of signs on publicproperty is not compromised by failing to extend the ban toprivate property.” Id. at 811. And in Metromedia, theSupreme Court noted with approval that the city “ha[d] goneno further than necessary in seeking to meet its ends,” whenit declined to ban all billboards and instead “allow[ed] onsiteadvertising and some other specifically exempted signs.” 453 U.S. at 508.

We therefore hold that the distinctions drawn in Article 6between commercial and noncommercial speech directlyadvance Defendant’s substantial interests. We find noconstitutional infirmity in the ordinance’s failure to regulateevery sign that it might have reached, had Defendant (or itsvoters) instead enacted another law that exhausted the fullbreadth of its legal authority.


CONCLUSION

The distinction drawn between commercial andnoncommercial signs in Article 6 of the Planning Codesurvives intermediate scrutiny under Central Hudson. Accordingly, we affirm the dismissal of Plaintiff’s FirstAmendment claims.4

AFFIRMED.

4 Plaintiff also argues that the district court erred by refusing to enjointhe accrual of penalties while this litigation is pending, in violation of thedue process principle set forth in Ex Parte Young, 209 U.S. 123, 147–48(1908). For the reasons given by the district court, see ContestPromotions, LLC v. City of San Francisco, No. 16-cv-06539-SI, 2017 WL1493277, at *5 (N.D. Cal. Apr. 26, 2017) (order), we affirm the dismissalof that claim as well.

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2017 LEAGUE ANNUAL CONFERENCE ARIZONA CITY … · 2017-08-21 · the 2000 changes to § 39121.01 would be superflu- ous. Moreover, the Arizona Supreme Court said long before the 2000