Arizona’s Attorney General issued a letter to the Bisbee City Council stating that the Civil Union Ordinance is unconstitutional and requires the Attorney General’s office to initiate an action in the Courts to enjoin, or stop it. Tuesday evening, the Council voted 5-2 in favor of the ordinance.
All three members of the legislature representing Bisbee have expressed concerns about the constitutionality of the ordinance. The Arizona Attorney General’s Office sent a letter to the Bisbee City Attorney and City Council members stating that they have no authority to pass the ordinance in response to a complaint received from all three state legislators representing Bisbee: Senator Gail Griffin, Representative David Gowan and Representative David Stevens.
The ordinance seeks to change seven separate State statutes within the boundaries of the city, dealing with issues such as community property, inheritance of property, and appointment of personal representatives. “The only proper way to change a statute is through the Legislature, not through actions of the City Council attempting to change a State statute within its boundaries,” said the Tom Horne in a statement released Tuesday. “I emphasize that I am not expressing any opinion on the policy of the ordinance. My job is to enforce the laws that exist and I am obligated to respond to complaints from state legislators.”
The embattled Horne, who is facing charges legal action due to a hit-and-run accident he had while spending time with his mistress, said if the ordinance is passed, the AG’s office will initiate a special action in the Courts to enjoin it.”
Letter sent to Bisbee City Attorney:
Mr. John MacKinnon
Bisbee City Attorney
118 Arizona St.
Bisbee, AZ 85703
Mayer and Members of the City CouncilDear Mr. MacKinnon, Mayor, and Members of the City Council:
On behalf the State of Arizona, I would like to express our concern that the proposed Ordinance O-13-05 (“Ordinance”) as currently drafted, exceeds the municipal powers of the City’s legislative body. Cities and towns are municipal corporations created by the state and possess no greater powers than those delegated to them by the Constitution and general laws of the state. It is fundamental that a municipality has no inherent police power. City of Scottsdale v Superior Court, 103 Ariz. 204, 439 P.2d 290 (1968). They may not exercise powers that are inconsistent with the Arizona Constitution or the general state laws. State v Jacobson, 121 Ariz. 65, 588 P.2d 358 (App. 1978).
The proposed Ordinance adopts a municipal procedure that legally recognizes a ‘civil union’ between two parties, as defined by the Ordinance, and then confers on the parties to the ‘civil union’, all benefits and responsibilities relating to:
Ownership and acquisition of community property, as prescribed by A.R.S. § 25-201, et seq;
Inheritance of property, as provided by A.R.S. § 14-2102;
Priority of appointment as a personal representative, as prescribed by A.R.S. § 14-3203;
Priority of appointment as a guardian or conservator, pursuant to A.R.S. § 14-5311 and A.R.S. § 14-5410;
Right to procure life insurance for the other partner, pursuant to A.R.S. § 20-1104;
Right and obligation to provide for the disposition of the remains upon the death of one party, pursuant to A.R.S. § 36 831 and A.R.S. § 32-1365.02;
Rights to adoption, as prescribed by A.R.S. § 8-103.While it is our understanding that the City Council’s intent is that the impact of the Ordinance will be limited to the jurisdictional boundaries of the City of Bisbee, the impact goes beyond those boundaries. This is evidenced by constitutional and statutory provisions pertaining to marriage, community property, inheritance of property, priority of appointment of personal representative, priority of appointment as a guardian, life insurance, disposition of remains, and rights of adoption. These are areas of state-wide concern and exceed the authority and powers of the City of Bisbee to regulate by ordinance.
Please consider these matters prior to any adoption of the proposed Ordinance. Depending on the action taken by the City Council, my Office may be required to take appropriate legal action to enforce existing State constitutional and statutory provisions.
Sincerely,
Attorney General Tom Horne