Keeping state funds in gun dispute illegal, Tucson tells court
By Howard Fischer
CAPITOL MEDIA SERVICES
Calling the measure unconstitutionally punitive, attorneys for Tucson on Monday asked a judge to void the law that allows Attorney General Mark Brnovich to order the community's revenue sharing withheld if it does not bend to the state's will.
Lead attorney Rick Rollman said the legislation, approved earlier this year, amounts to illegal coercion of local officials to abandon measures they adopted in what they believe is the best interests of their residents.
More to the point, Rollman said that violates provisions in the Arizona Constitution that gives charter cities like Tucson and 17 other communities the right to set their own policies and establish their own laws on matters of strictly local concern.
'In doing so, the Arizona Constitution intended to allow the charter city residents to elect officials to govern the city free from punitive threats from the legislature and state officials,' Rollman wrote in his pleadings to Pima County Superior Court Judge Catherine Woods.
He said that right to govern includes the ability to decide that handguns and assault rifles that are seized or found should be destroyed.
And Rollman said if the law is not voided, it means elected officials are 'coerced into not supporting an action they believe to be lawful and in the city's best interests' simply because the attorney general disagrees with that conclusion.
The city also is filing similar proceedings with the Arizona Supreme Court in a bid to block the lawsuit Brnovich filed last week seeking to deprive Tucson of its approximately $115 million a year in state revenue-sharing dollars.
Aside from seeking to void or limit the scope of the new state law, the lawsuit asks the court to specifically rule that how Tucson disposes of personal property, including guns, 'is a matter of local concern and as a result, is a lawful exercise of the city's charter authority and not a violation
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of state law.' And Rollman wants the court to order state Treasurer Jeff DeWit to make the city's regular revenue-sharing payments without any withholding.
The fight surrounds a 2013 law that bars law enforcement agencies from destroying operable seized firearms. The statute spells out they must instead be sold.
Despite that, the city continued to follow its 2005 ordinance that says the Police Department 'shall dispose of such firearm by destroying the firearm.'
So earlier this year, Senate President Andy Biggs pushed through a law that allows any legislator to ask the attorney general to investigate whether a city is violating any state law. And if the attorney general agrees, he or she is empowered to direct the treasurer to withhold state funds until the city comes into compliance.
Rep. Mark Finchem, R-Oro Valley, complained to Brnovich about Tucson's gun-destruction regulations. And when Brnovich concluded the ordinance probably violates state law, he asked the Supreme Court to step in and hear arguments - after the city puts up the bond.
Rollman, in his Superior Court lawsuit, said immediate action is necessary to stop Brnovich in his tracks, saying city residents and businesses 'will suffer irreparable harm' unless the judge immediately stops further efforts to strip the city of its revenue-sharing dollars.
He said stripping the funds will result in longer response times for police and fire 'and the associated increased risk to the health and safety of the city's residents, including the risk of increased crime and property damages.' What also will happen, Rollman told the court, is transit services, including those for the disabled, will be cut, parks and pools will be closed and there will be 'dramatic reductions in criminal prosecutions.'
Rollman most immediately wants the court to set aside the requirement that Tucson post a bond of half of its revenue-sharing funds as a condition of even being able to fight Brnovich's attempt to withhold all of it.
Put simply, Rollman said, the city's current fund balance is only about $51 million, less than the law requires Tucson to put up to fight what Brnovich is trying to do.
'The bond is an unconstitutional filing fee, serving as a barrier to the city's access to judicial relief and is intended to prevent the city from presenting its positions and arguments in a special action brought by the attorney general,' Rollman said.
Brnovich is arguing that the question of what happens to seized and found weapons is more than a local concern.
In his own legal briefs, he said allowing cities to destroy firearms is contrary to the public interest because it decreases the supply of guns and makes them more expensive.
He also said that allowing guns to be destroyed runs contrary to the Legislature's belief 'that increasing the supply of legal firearms is in the interest of public safety' because it helps fight crime.
The Supreme Court will decide whether the justices will even look at Brnovich's complaint on Jan. 10.
On Twitter: @azcapmedia
Mark Finchem
