What have the courts been up to?? Arizona City Attorneys’ Association – May 2019

What have the courts been up to??Arizona City Attorneys’ Association – May 2019 Ellen Van Riper, Chief Deputy City Attorney Surprise AZ

First Amendment – Public Forum Amer. Freedom Defense Initiative v. King County – 9th Circuit (2018) 42 USC 1983 challenge public transit agency rejection of advertisement HELD: • Bus advertising program is nonpublic forum • Prohibition against ads “false, fraudulent, misleading, deceptive” not as applied violation Free Speech clause • Prohibition against ads “demean or disparage” facially invalid • Rejecting ad providing photos and names of wanted terrorists violated First Amendment

First Amendment -- Retaliation Lozman v. City of Riviera Beach, FL – US Sup. Ct. (2018) 42 USC 1983 challenge for retaliation for criticizing municipal development project to use eminent domain to seize waterfront homes • Plaintiff owned floating home • Had filed lawsuit alleging open meeting law violations • Refused to stop speaking during public comment session and councilmember told police to “carry him out” • Arrested for violating rules of procedure; conceded probable cause HELD: Existence of probable cause to arrest does not bar First Amendment retaliation claim

First Amendment – Political Speech & Association Minnesota Voters Alliance v. Mansky – US Sup. Ct. (2018) 42 USC 1983 facial and as-applied First Amendment challenge to statute prohibiting wearing of political badge, political button, or other political insignia inside polling place. HELD: • Political apparel ban form of expression protected by 1st Amendment • Polling place qualified as non-public forum • Political apparel ban pursued permissive objective of setting polling place as island of calm where voters peacefully contemplate choices • But apparel ban not capable of reasoned application

Public Records -- Nondisclosure Johnson Utilities v. Town of Queen Creek – Ariz. App. (2019) Action to enforce nondisclosure agreement to prevent production of documents in response to a public records request HELD: Affirmed ruling that documents were public records subject to production; • utility company failed to show release would adversely affect right to privacy, confidentiality or State’s best interests • Nondisclosure agreement does not control over Public Records Law.

Public Records – Fees and Costs Paradigm DKD Group v. Pima County Assessor – Ariz. App. (2019) County Assessor challenged: (1) award of fees and costs; and (2) that party “substantially prevailed.” HELD: “Substantially prevail” to recover fees and costs only to extent action necessary to accomplish purpose of original records request and only so long as public entity is adversarial. Consider: • nexus between action and surrender; • whether entity acts in good faith or continually resists; and • Whether entity acts reasonably and diligently

Elections -- Initiative Molera v. Reagan -- AZ Supreme Court (2018) • Initiative to increase K-12 education funding by raising income taxes • Challenge to sufficiency of 100-word description HELD: • Tax indexing changes were “principal provisions”; omission from 100-word description rendered initiative invalid • Petition description of tax increase on wealthy taxpayers created danger of confusion

Elections -- Initiative AZ Chap. General Contractors v. City of Phoenix – Maricopa County Superior Court (2019) • Initiative petition regarding light rail funding • Challenge to 100-word description UPHELD INITIATIVE “Unreasonable to expect 100-word summary to fully describe the complex funding process for light rail projects. . . . [T]he 98 word summary here fairly describes the matters of primary importance.”

Compare 100-word description Molera v. Reagan – Initiative removed from ballot “The Invest in Education Act increases the classroom site fund by raising the income tax rate by 3.46% on individual incomes over a quarter million dollars (or household incomes over half a million dollars), and by 4.46% on individual incomes over half a million dollars (or household incomes over a million dollars); designates 60% of new funds for teacher salaries and 40% for operations; adds full day kindergarten and pay raises for student support services personnel as permitted fund uses; requires governing boards seek teacher and personnel input on fund use plans; defines teacher and student support services personnel.”

Compare 100-word description AZ Chap. Assoc. General Contractors v. City of Phoenix – Initiative upheld “This initiative measure amends the City Charter to terminate construction of all future light rail extensions and redirect the funds toward infrastructure improvements. Revenues from terminating light rail extensions other than the South Phoenix extension will fund infrastructure improvements throughout the City. Revenues from terminating the South Phoenix light rail extension will fund infrastructure improvements in South Phoenix (defined as South Mountain Village plus the area between Seventh Street, Seventh Avenue, Jefferson Street and the Salt River). A Citizens Transportation Committee will solicit public input, make recommendations to the City Council regarding infrastructure improvements, and review transportation expenditures.”

Elections -- Recall Morales v. Archibald – AZ Sup. Ct. (April 25, 2019) affirmed Maricopa Cty. Sup. Ct. disqualifying recall • Recall Councilman Nowakowski • ARS 19-208.04 challenge: (1) “text” not attached to sheets during circulation; (2) committee failed to file copy of petition form when submitted serial number application; and (3) caption did not contain averment signers qualified electors of Nowakowski district.

Elections -- Recall Morales v. Archibald – holding • General principle – ARS 19-208.04 only allows challenge to validity and number of signatures • ARS 19-208.04 does not allow private right of action challenging failure to attach a petition sheet when filing for serial number or not including required language on petition • Private right to challenge not as broad as for referendum and initiative • Recall proponents failed to substantially comply with statutes • Did not consider whether new strict compliance requirement ARS 19-201.01 unconstitutional

Intergovernmental Cooperation (or lack thereof) City of Surprise v. Ariz. Corp. Comm’n. – AZ Sup. Ct. (246 Ariz. 206) (2019) • Special action alleging ACC lacked jurisdiction to enter order requiring water utility to apply to Commission for approval of City’s proposed condemnation • ACC claimed it had jurisdiction under ARS 40-285(A): • “A public service corporation shall not lease, assign, mortgage or otherwise dispose of or encumber the whole or any part of its … system.” HELD: Statute doe not give Commission power over a city’s exercise of the power of eminent domain.

Intergovernmental Cooperation (or lack thereof) Kingman Airport Authority v. City of Kingman – D. Ariz. 42 USC 1983 action by Airport Authority alleging City exercise of eminent domain to condemn Authority’s interest in an airport lease violated the Contracts Clause of the United States and Arizona Constitutions. HELD:Contracts Clause cannot be used to enforce a contract that prevents a state actor from exercising its eminent domain power. Under reserved powers doctrine, Kingman’s condemnation of the leasehold does not contravene the Contracts Clause.

Social Media -- Twitter Campbell v. Reisch – W.D. Mo. (2019) 42 USC 1983 action for violation of First Amendment against state rep who blocked voter from commenting on Twitter account HELD: denied motion to dismiss • Public forum document applies to social media account; • Allegations sufficient to plead acted under color of state law; and • Voter sufficiently alleged act in blocking him from social media done in exercise of right or privilege created by state.

Social Media -- Facebook Davison v. Randall, 4th Circuit (2019) 42 USC 1983 action for violation of First Amendment and due process against Chair of County Board of Supervisors for blocking from social media page. HELD:Affirmed judgment in favor of resident on 1st Amendment; dismissed due process claim: • Chair acted under color of state law; • Government official webpage on Facebook a public forum; • Chair engaged in viewpoint discrimination by banning resident; • County not liable under 42 USC 1983 for one-off, unilateral decision by Chair – “heat of the moment” and reconsidered before county aware

Social Media -- Twitter One Wisconsin v. Kremer – W.D. Wi (2019) 42 USC 1983 action alleging violation of First Amendment by state legislators who blocked advocacy group HELD:Granted plaintiffs motion for summary judgment: • Legislators acted under color of state law; • Interactive portions of accounts “designated public forum”; and • Legislators violated First Amendment by blocking group

Social Media -- Facebook Woolsey v. Ojeda – S.D. W. Va. (2019) 42 USC 1983 action for First Amendment retaliation arising out of employment termination after posting on Facebook video criticizing Senator’s driving HELD:Denied motion to dismiss • Senator acted under color of state law; • Allegations sufficient establish actions adversely effected 1st Amendment rights; • Causal relationship Senator’s alleged actions and termination

Land Use Knick v. Township of Scott – 3rd Circuit 42 USC 1983 challenge under 4th Amendment and takings to ordinance that (1) authorized town to enter upon property to determine existence and location of a cemetery; and (2) required property owners to hold private cemeteries open to the public during daylight hours. HELD: Upheld dismissal of 4th Amendment claim with prejudice; dismissed takings claim without prejudice pending exhaustion of administrative remedies as required by Williamson County. US Supreme Court granted cert. to decide whether to overrule Williamson County

Land Use Amer. Furniture Warehouse v. Town of Gilbert – AZ App. Challenge to traffic signal fee as alleged taking and for abuse of discretion in categorizing proposed business as a retail use, not mixed use or non-residential HELD: • Signal fee not an unconstitutional taking • Town properly exercised discretion in categorizing facility as retail • Applicant had right to an exaction administrative appeal hearing under ARS 9-500.12(A)(1)

Homelessness Issues Martin v. City of Boise – 9th Circuit 42 USC 1983 action by homeless persons challenging public camping prohibition as contrary to Eighth Amendment as cruel and unusual punishment. HELD: • Homeless person standing even after city challenged protocol to not enforce ordinance with available shelters full • 8th Amendment prohibits criminal penalties for sitting, sleeping, or lying outside on public property on homeless persons who could not obtain shelter

Homelessness Issues Miralle v. City of Oakland – N.D. Cal. • Homeless person established camp on city-owned property • City posted “Notice to Vacate Illegal Encampment” • City offered temp housing and relocation assistance • Suit filed to enjoin city from removing encampment alleging violation of 8th Amendment and Equal Protection DISTINGUISHED MARTIN • Not faced with punishment for acts inherent to unhoused status they cannot control

Homelessness Issues Miralle v. City of Oakland – Denied injunction • Plaintiffs not faced with punishment for acts inherent to their unhoused status that they cannot control. • Nor are plaintiffs unable to obtain shelter other than encampment • Plaintiffs theory would require extension of Martin v. City of Boise • Martin does not establish a constitutional right to occupy public property indefinitely at plaintiffs’ option • No likelihood of success on 8th Amendment claim • BUT city required to afford due process

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What have the courts been up to?? Arizona City Attorneys’ Association – May 2019