PHOENIX — A Republican state senator wants Attorney General Mark Brnovich to investigate Bisbee for what she claims is a decision to ignore state law prohibiting local laws on plastic bags.
Gail Griffin of Hereford noted that earlier this year, lawmakers re-enacted a statute that specifically blocks any regulations, fees or deposits on bags, bottles, aluminum or other “auxiliary containers.” That law took effect this past Saturday.
In a letter to the attorney general, she cited another statute, which became effective the same day, requiring Brnovich to investigate any complaint by a lawmaker that a local government is violating any state law.
If Brnovich finds a violation, that law requires him to give the community 30 days to withdraw the regulation. If the local government balks, the state treasurer is mandated to withhold that city or county’s state-shared revenues, money that can make up a substantial part of the local budget.
While this complaint is specific to Bisbee, the way it is handled and resolved is important.
This is the first complaint filed under the new law on local control.
If Brnovich sides with Griffin, it could sideline similar restrictions on bags and containers being weighed in other communities, including Tucson and Flagstaff.
It also could result in litigation over how much power state lawmakers have over issues that cities — and particularly charter cities like Bisbee — contend are strictly of local concern.
This particular dispute involves a Bisbee ordinance imposing a nickel-a-bag tax on disposable bags.
Retailers get to keep 2 cents for the cost of the bags and administering the fee; the balance goes to a fund that can be used to provide reusable carryout bags and to promote conservation and recycling efforts.
Shortly after the local law was enacted in 2012, Bisbee City Attorney Britt Hanson wrote to Brnovich.
In that letter, Hanson cited several court rulings where judges have voided state laws that improperly interfere with the rights of charter cities to have final say on matters of local concern. He said the city’s bag ordinance fits within that category.
“One of the several purposes of Bisbee Ordinance O-13-14 was to eliminate the unsightly litter along Bisbee roads and elsewhere that resulted from plastic bags blown and caught on trees,” Hanson wrote. “Accordingly, the city regards the ordinance as in full force and effect.”
Griffin, in her letter to Brnovich, said she has been told that the city council and others operate from the position “that they are grandfathered and that the new law that took effect Aug. 6 does not apply to them.”
“The Bisbee City Council is choosing to ignore these new laws,” she said, of both the prohibition on bag ordinances as well as the statute requiring cities to bend to the will of the Legislature or face financial penalties.
She wants Brnovich to clarify that cities and towns cannot make their own laws that have been precluded by lawmakers, and to tell her “what steps you will be taking to enforce the Arizona statutes.”
Hanson said late Tuesday he could not comment on Griffin’s letter.
Griffin said her letter is the result of a complaint from constituents in Bisbee.
Brnovich may not get the last word: There already is a lawsuit pending in Maricopa County Superior Court filed by Tempe Council member Lauren Kuby.
Tempe, along with Bisbee, Tucson, Flagstaff and 15 other Arizona communities, are charter cities. Attorney Tim Hogan of the Arizona Center for Law in the Public Interest, who filed Kuby’s lawsuit, said the Arizona Constitution “gives charter cities certain rights and privileges in local matters to legislate free from interference by the Legislature.”
Hogan said the question of recycling fits that definition. “Waste has always been a local issue,” he said.
Griffin disagreed. “I think it’s a matter of statewide control because there are several other cities that are contemplating and have contemplated this particular issue,” she said.
