Judge likely to rule new Arizona law barring civilian police oversight is unconstitutional

Oct 26, 2021, 5:00 PM
(Pexels photo)...
(Pexels photo)
(Pexels photo)

PHOENIX (AP) — A judge on Tuesday told lawyers that he will likely rule that a new Arizona law that prevents a majority of civilians from serving on police oversight panels is unconstitutional.

But Maricopa County Superior Court Judge John Hannah indicated that he was unlikely to strike down the whole state budget bill containing the police oversight provision that was challenged by the city of Phoenix.

The law took effect on Sept. 29 and is preventing Phoenix from appointing a director for its new police oversight office. Phoenix also is challenging a part of the criminal justice funding bill that expands an existing law that allows a single lawmaker to request an attorney general investigation into city or county laws.

The city alleged that the Republican-controlled Legislature violated provisions of the state constitution that require all bills to cover a single subject and that their titles reflect the bill’s contents. The challenged parts were neither described in the title nor related to the subject matter in the criminal justice budget bill, the city said.

“The very likely result is there’s going to be something for everybody,” Hannah said. “I do think the legislation violates the single subject rule, but I’m not inclined to strike down the whole bill, just the parts that the city has challenged.”

Hannah said a ruling is imminent, possibly by the end of the day. His comments came at the start of a brief hearing where he quizzed lawyers on details of handling an attorney fee request.

The judge’s announcement of the expected ruling comes just a week before the Arizona Supreme Court hears arguments in a fast-tracked case involving four other acts that were part of the 11-bill budget package enacted by the Legislature in June.

Another judge blocked provisions in three of those budget bills because those items weren’t identified in the bill title and declared another one completely void because it violated the constitution’s rule requiring bills to cover just a single subject. Those rules were designed to prevent lawmakers from “logrolling,” or compiling a mish-mash of policy provisions into one bill and forcing lawmakers opposed to one part to back the bill while limiting public knowledge or debate.

Judge Katherine Cooper’s Sept. 27 ruling prevented several parts of the budget package from taking effect as scheduled on Sept. 29, including a state ban on local school mask mandates and bans on other local COVID-19 restrictions.

The Arizona Supreme Court has accepted the state’s direct appeal and will hear the case on Nov. 2.

The Legislature in the case Hannah is considering targeted civilian oversight offices and boards that Phoenix and other cities are creating to boost police accountability.

Republican lawmakers acted after Phoenix created a new “Office of Accountability and Transparency” designed to be led by a civilian to provide independent oversight of Phoenix police. The new ordinance passed in May also created a civilian oversight board to review police actions and policies.

The city ordinance barred any current or former Phoenix police officer from serving as the director of the office or on the oversight board.

The Legislature included provisions in the state budget criminal justice budget bill requiring at least 2/3 of any oversight board be certified police officers working for the agency it regulates. Phoenix contends that completely guts the new accountability office’s independence.

The city also challenged a provision in the same budget bill that allows any lawmaker to request an attorney general’s investigation into “any written policy, written rule or written regulation adopted by any agency, department or other entity of the county, city or town.”

The provision is an expansion of an existing law known as SB1487 that penalizes local governments by withholding their state-shared revenues if they pass ordinances laws conflicting with state statutes. Cities and counties get a large part of their revenue from a share of sales and income taxes collected by the state.

“Regardless of one’s position on police oversight and S.B. 1487, those amendments deserved our Legislature’s proper (and constitutional) consideration,” according to the city’s complaint.

Burying them in a massive budget bill covering eight subjects and 28 sections violated the state’s constitutional mandate that bills be debated and passed on their merits, Phoenix attorney Jean-Jacques Cabou wrote.

The attorney representing the state, Patrick Irvine, told the court in his response that the city doesn’t have the right to sue and that the issue is political in nature and does not belong in the courts. Irvine also said the provisions rightfully related to “criminal justice” and a more detailed title isn’t required.

Judge Hannah called Irvine and Cabou into court Tuesday to discuss how he can handle the attorney fees request in the case if he issues a ruling now that allows the parties to ask the Supreme Court to consider his ruling. The state and city agreed to let the attorney fee question await the high court’s resolution of the other case.

If the Supreme Court upholds Cooper’s ruling and the one expected from Hannah, it will have far-reaching ramifications for the GOP-controlled Legislature.

Lawmakers have long ignored the constitutional requirement that budget bills only deal with spending items, instead packing them with unrelated policy item. This year majority Republicans were especially aggressive, but that no longer would be possible.

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Judge likely to rule new Arizona law barring civilian police oversight is unconstitutional