Plastics & Energy Efficiency -- more GOP legislative overreach?

Just yesterday (Tuesday, September 29), this blogger captured an image of a truck that had picked up some trash (what looked conspicuously like a plastic grocery bag). I was sitting at a red light on Priest Drive in Tempe, waiting to turn left to enter the Loop 202 freeway, when I snapped the pic.

Perhaps filing a lawsuit challenging the legislature for another illegal law it passed (and Ducey signed) doesn't automatically prove anything. But it does get the ball rolling. That's exactly what Tempe City Councilwoman Lauren Kuby did today. From a press release dated today,

Phoenix, AZ -- The Arizona Center for Law in the Public Interest filed a lawsuit today on behalf of Lauren Kuby (Plaintiff), a member of the Tempe City Council, to challenge Arizona Senate Bill 1241, signed by Arizona Governor Ducey on April 13, 2015. Kuby has filed this lawsuit in her individual capacity and not as a member of the Council.

Senate Bill 1241 blocks cities and towns from limiting the use of plastic bags, particularly in grocery stores as the town of Bisbee has done and which the cities of Tempe and Flagstaff were considering at the time SB 1241 was enacted. SB 1241 also prohibits cities from enacting “energy benchmarking” ordinances. Such benchmarking involves similar businesses reporting and comparing energy consumption to identify opportunities for energy efficiency and has been shown to save millions of dollars on energy bills nationwide.

Kuby's complaint alleges three violations of the Arizona Constitution,

1. The single subject provision in Article 4 Part 2, § 13.
2. The title provision in the same section of the Constitution.
3. The home rule provision in Article 13 § 2.

From Article 4, Part 2:

Section 13. Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.

Article 13, Section 2 sets forth the process for cities establishing Home Rule, which is defined generally as,

Home rule cities are those cities which have adopted a home rule charter for their local self governance. The citizens of a home rule city are free to choose their own form of municipal government, choose between a large or small city council, fix the terms of office of council members, decide on the method of election of the Mayor, provide for creation of more boards and commissions which they feel is essential for proper city functioning, etc. In US, most of the states have home rule cities. For example Michigan legislature has enacted the Home Rule City Act which provides the frame work by which a new city can become incorporated and have its own government, by adopting a city charter. In Texas, a city with more than 5,000 people can choose to become a home rule city. The home rule city can take any actions which are not prohibited by the state or federal laws and the constitution of US and Texas.

Home rule cities are not burdened by the limitations of Dillon’s rule which is a doctrine that says that a unit of local government may exercise only those powers that the state expressly grants to it.

Recent Arizona case law demonstrates that the state constitution permits cities to effectively challenge legislative preemption, which is what SB1241 attempted to do regarding regulation of plastic bags and energy benchmarking.

The legislature attempted to prohibit the City of Tucson from having partisan council elections. That might be a reasonable thing to do, but Tucson is a charter city, it challenged the preemption and the AZ Supreme Court agreed.

¶ 46 Determining the method for electing city council members necessarily involves a weighing of competing policy concerns.   Our opinion neither involves policy choices nor endorses one method of election over another;  instead it considers whether Arizona's Constitution entrusts those issues to the voters of charter cities or the state legislature.

¶ 47 Given Article 13, Section 2, the intent of Arizona's framers, and the history of municipal government in our state, we hold that electors in charter cities may determine under their charters whether to constitute their councils on an at-large or district basis and whether to conduct their elections on a partisan basis.   In so doing, they must of course comply with the Arizona Constitution and federal law.   But the local autonomy preserved for charter cities by Arizona's Constitution allows Tucson voters to continue electing their council members pursuant to the city's 1929 charter notwithstanding A.R.S. § 9–821.01(B) and (C).

Even more recently, the legislature attempted to prevent cities and towns from conducting elections on their own schedules. The Court of Appeals struck down that legislative overreach, concluding,

In light of the foregoing, we affirm the trial court's grant of a permanent injunction enjoining the State of Arizona from requiring the City of Tucson and the City of Phoenix to comply with the candidate election scheduling requirements of § 16-204, as amended.

In other words, other cities and towns are still subject to 16-204. I suppose that if a charter city wishes to be exempted, they could successfully sue the State on the same grounds.

When I wrote about this subject after Councilwoman Kuby appeared on Arizona Horizon with the bombastic John Kavanagh, I embedded video of that interview. Reviewing the video this afternoon, I transcribed this quote by Kavanagh (starting at the 3:25 mark),

All levels of government have to live within the constitutional constraints that are imposed on us.

Is it any surprise that Kavanagh, a highly educated (holds a Ph.D., supposedly) long time public servant was conveniently unaware of the constraint imposed by the Arizona Constitution on him (and his GOP co-conspirators) by Article 13 Section 2? I wonder if the Home Rule provision of the state constitution will be included in the newly mandated civics test required for high school graduation.