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In the five years since Arizona initiated one of the nation’s most extreme laws to clamp down on cities and towns, the law’s impact ranged from entangling efforts by cities to ban single-use plastic bags to instigating a legal battle over conspiracy theories related to the 2020 presidential election.
Senate Bill 1487, signed into law in 2016, proved to be one of the most consequential bills of Gov. Doug Ducey’s administration. It allows a single lawmaker to file a complaint against a city, town or county alleging a local ordinance violates a state law, which kicks off an attorney general investigation of that ordinance and threatens a city’s state-shared revenues1, typically millions of dollars cities rely on to fund local services.
No city, town or county has actually lost state-shared revenue because of the law — the amount of money is so substantial for a city budget, it isn’t an option for them to forgo it. But complaints from lawmakers in the past five years have overturned some local ordinances, including ones related to a pot farm in Snowflake, short-term rental regulations in Sedona and gun-destroying in Tucson.
The latest complaint, filed last week, alleges Paradise Valley’s short-term rental regulations violate state law. The lawmaker who complained, Sen. Warren Petersen, owns an Airbnb in Gilbert.
Local leaders say the law chilled local governments, especially those without the money to mount a legal defense for a complaint, preventing them from putting ordinances in place that they believed would help their communities.
But Republicans who have used the law say it’s often the only recourse their constituents have to blow a whistle on municipalities that are violating state law, and that without it, the Attorney General’s Office wouldn’t prioritize investigations at the city level.
Opponents argue the law, sponsored by then-Senate President and now Republican U.S. Rep. Andy Biggs, became a way for the red state Capitol to punch down at mostly bluer cities, like Tucson and Phoenix.
“They've taken a giant club to a mosquito, and it's damaging to our communities,” Phoenix Mayor Kate Gallego said.
No Democratic lawmaker has ever filed a 1487 complaint. And not that many Republicans have either. In fact, one lawmaker’s name is on six of the 22 complaints filed in the past five years: SaddleBrooke Republican Sen. Vince Leach. Leach did not return multiple calls for comment.
The next largest tally comes from Republican Sen. Kelly Townsend of Apache Junction, who said the law has been a useful tool to draw attention to local issues and help voters find some recourse when their rights are being infringed.
“1487 sought to get the attorney general to look at issues that were ignored, especially when it came to the city level,” she said. “Whether or not he takes action is up to him. But at least we can require him to look at a situation where he may not have otherwise in the past.”
An effort to expand the law to apply not just to official actions by a city governing body, but any action by any department of a city, was wedged into the state budget last year and passed into law. But it was subsequently overturned by one of the lawsuits over the state budget, which successfully argued that lawmakers threw too many unrelated provisions into budget bills.
And as parents and politicians increasingly turn their eyes to “rogue” school districts that institute mask mandates and teach racial justice, Republican lawmakers want to expand the law to cover school boards as well. House Bill 2009, sponsored by Republican Rep. Steve Kaiser, threatened to withhold state education funds to schools if a school board was found to run afoul of state law, failed in the Arizona House of Representatives earlier this month.
Lawmakers who supported the bill railed against rouge subdivisions of the state. But Republican Rep. Michelle Udall argued that because the bill would take money from the classroom site fund, lawmakers would be effectively holding students’ success and teacher pay back because of a school board’s decisions. Still, in the Arizona Legislature, no idea has truly failed until the body adjourns for the session.
Sen. Paul Boyer, who voted against SB1487 in 2016, became the first lawmaker to file a complaint under the new law once it passed. His vote agains SB1487 earned him the title of “champion of the cities” and got him invited as a speaker at an Arizona League of Cities and Towns conference; his complaint got him disinvited and the award rescinded, he said.
He still believes Snowflake was breaking the law, which he alleged in his complaint against a pot farm and city actions that enabled it.
“The tool was there,” he said. “I’m gonna use it (against) something that I vehemently disagree with.”
But he said he wouldn’t have allowed the expansion to schools to be heard in the Senate Education Committee, which he chairs. And in other instances where he thought a city might be breaking state law, he was told by staff not to file a complaint because it wasn’t really a 1487 issue. He doesn’t see himself ever filing a complaint again.
And, in fact, in the five-plus years since his complaint, he’s changed his mind about the law.
“If I could repeal it, I would. And here's why: I didn't realize how much of a local control guy I really am until last year,” Boyer said.
SB1487, often referred to as the mother of all local preemption laws, hasn’t spread to other states, as opponents feared, though some lawmakers elsewhere have proposed similar ideas. But it has cost cities and towns an uncountable dollar amount — likely in the millions — and a ton of man-hours to respond to complaints.
“I've spoken with my counterparts in other leagues across the country, and every time we get together, they point out this bill and say that they're so happy that it hasn't spread to their state yet,” Tom Belshe, executive director of the Arizona League of Cities and Towns, said. “I have not found a state yet that has anything close to it.”
City and town councils now debate whether their plans interfere with a state law, and it’s often not easy to know because legal interpretations can differ, resulting in more attorney hours spent deliberating on ordinances. And a complaint ignites a fast turnaround time for city responses, even if a lawmaker eventually withdraws their complaints, as has happened several times.
Mike Rankin, the city attorney for Tucson, estimates that the law has cost taxpayers more than $1 million, just for the complaints against the City of Tucson. One complaint taken before the Arizona Supreme Court against the City of Phoenix resulted in about $350,000 in legal fees.
“Ultimately, the ones who suffer are the taxpayers,” Nancy Davidson, general counsel for the Arizona League of Cities and Towns, said.
But Townsend argued that 22 complaints in six years is not outrageous. And in the largest plurality of cases, the AG has either found that the local ordinance in question did violate state law, or a city has voluntarily repealed the ordinance voluntarily before the investigation’s conclusion.
“I don’t think any of us have submitted 1487 complaints without being thoughtful,” she said. “A lot of times I would have (filed a complaint), but I don't want to overload the AG, and I think there's other ways we can handle it. But it has been a useful tool in situations where our constituents are seeking recourse when they're bringing us their grievances.”
How it actually works, and how that’s abnormal
Any single lawmaker can file what’s become known as a 1487 complaint to the Attorney General’s Office, kicking off an investigation into a city ordinance.
In practice, the AG then allows cities and towns about two weeks to respond in writing to the complaint. The law doesn’t specifically require that, though. It does require the AG to release findings within 30 days of the complaint, deciding whether an ordinance violates, may violate or doesn’t violate a state law.
If the attorney general does find the ordinance violates state law, the town gets 30 days to resolve the violation, usually by repealing or amending its ordinance. If they don’t resolve it, the state treasurer will withhold state-shared money.
If the ordinance might violate state law, the AG files a special action with the Arizona Supreme Court, which has to give the action precedence over any other cases before them. And a city or town must post a bond equal to the state-shared revenues the city or town received in the previous six months.
The law doesn’t provide cities with due process, the Arizona League of Cities and Towns contends. It puts one office, the AG, in charge of investigating and enforcing, with limited response from cities. The state Supreme Court gets the initial case, which isn’t normally how the judicial process works, Gallego pointed out. Typically, a lower court would hear an initial case and assess evidence, and appeals and Supreme Courts then review decisions on appeal2.
“The idea that a single legislator who is upset about a speed bump could take over the time of the Supreme Court seems very mistaken to me,” Gallego said.
The bond requirement prevents most cities and towns from challenging the complaint at all; they can’t afford it, much less any potential attorney fees for appearing before the State Supreme court. While Republican lawmakers see those cases where cities repealed challenged ordinances as an admission that the city was breaking the law, local officials say it’s simply a cost-benefit analysis in a system stacked against them.
Bisbee faced one of the earliest and most memorable 1487 complaints: The town banned single-use plastic bags, and the Legislature then banned plastic bag bans, then Sen. Warren Petersen filed a 1487 complaint against the town. Bisbee repealed its ban rather than face a loss of revenue that could have bankrupted the town, the mayor said in 2017.
“When your back’s up against the wall, and the Legislature tells you to do something, you just do it,” Stephen Pauken, city manager of Bisbee, said.
The AG’s office doesn’t keep an estimate of how much time it has spent on 1487 investigations, which are conducted by attorneys in the Solicitor General’s Office, spokeswoman Katie Conner said via email.
Only three of the 22 complaints went to the high court: Phoenix challenged a complaint against ride-share fees at the airport, and Tucson challenged two complaints, one over gun-destruction policies and one over off-year elections. Only the gun-destruction policies were found to violate state law in court.
Of the 12 cities, towns or counties that have received complaints, Tucson has faced the most.
“The state Legislature and legislators do not agree with the policies that the mayor and the council here in the City of Tucson have favored and voted for, so they invented 1487 to micromanage our city, and that is directly affecting what Tucsonans want our city to look like in terms of policies,” Tucson Mayor Regina Romero said.
During the pandemic, lawmakers filed multiple complaints against Tucson over its policy requiring employee vaccination. While two of these complaints were ultimately withdrawn by the lawmakers, the city still did an “extraordinary amount of work” to respond, city attorney Rankin said. He estimated these complaints alone took at least $75,000 in city resources to address.
Townsend said she understands the argument that local governments should be allowed to recoup some of the resources they spend defending policies challenged if they win. But she had little sympathy for cities that have to pay for lawyers to defend illegal policies they enact.
“The best way to save money is to follow the law,” she said.
From plastic bags to election conspiracies
While some complaints over the past five years stemmed from minor policy differences, others were born out of hot-button, big-ticket issues like the 2020 election.
It was a 1487 complaint from Sen. Sonny Borrelli that forced the Maricopa County Board of Supervisors to provide some access to routers and logs related to the Arizona Senate’s faulty election audit. Attorney General Mark Brnovich determined the supervisors violated state law by not complying with a Senate subpoena for the items, and the supervisors settled the issue by installing a high-priced special master to oversee the election data.
If the county lost at the Arizona Supreme Court, it could have lost more than 40% of its annual budget. Instead, the largely Republican supervisors, some of the few stalwarts upholding voters’ decisions in 2020 in the face of intense calls from their own party, settled before the complaint went to court.
The 1487 process basically enabled lawmakers to send subpoenas based on unfounded claims and conspiracies, the lone Democratic supervisor, Steve Gallardo, said. He wanted to take the matter to court instead of settling.
“It allows for any lawmaker, with no evidence, no proof, just based on lies and conspiracies and unfounded claims, to force the Attorney General's Office to investigate. And what ends up happening is, it becomes a fishing expedition,” Gallardo said. “I think 1487 should be repealed or challenged, if anything.”
The law was never innocuous, but the idea that it could be used for election-denialism went far beyond the scope of the typical city vs. state battles the Arizona Legislature is known for.
And, while repealing SB1487 is an ongoing goal for cities and towns, they haven’t gained many allies in that quest.
“There's a fairly long history of the Arizona Legislature acting like city councils when they want to be and stepping all over us, and then ignoring us, of course, when we make suggestions where we may need their help,” Pauken, of Bisbee, said.
The Arizona League of Cities and Towns has tried to change the bond requirements, which are onerous, or to make it so a lawmaker must represent the city or town they file a complaint against, with the thinking being that a lawmaker would be reluctant to offend their own constituents. Most of the 22 complaints were filed by lawmakers who don’t represent the cities or towns they’re forcing into investigations.
Cities and towns now worry about getting slapped with a complaint over something even if they don’t believe they’ll violate state law, so it quells their ability to meet their voters’ needs, city officials said. And there’s a ripple effect, too, where a city may avoid an ordinance or topic if another town ran into a complaint with it, Belshe, of the League, said.
Republicans who have used the 1487 process say it gives them a way to enforce state laws when localities defy them. Otherwise, the laws they pass have no teeth.
But for Boyer, who filed the first complaint but now wants to repeal the law, elections provide the ultimate recourse.
“Residents of whatever city they happen to live in, if they don't like the way that their city council is governing, then they can get rid of them, just like our constituents can get rid of us,” he said. “And maybe in Bisbee, they like banning plastic bags. Who cares?”
For the uninitiated, Arizona collects some of the taxes you pay at the state level, then redistributes them to cities and towns based on a few factors.
Supreme Courts, including Arizona’s, can have both original and appellate jurisdiction by law, but operate more often as appellates. The Arizona Supreme Court is typically the “court of last resort” after a case goes through superior court, then the Arizona Court of Appeals.
This is a great, big-picture summary of a really important issue.