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Brnovich's ruling against Tucson housing law a final parting shot
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What the Devil won't tell you

Brnovich's ruling against Tucson housing law a final parting shot

  • A Tucson effort to fight homelessness has been nixed by Arizona Attorney General Mark Brnovich. But for how long?
    bill85704/FlickrA Tucson effort to fight homelessness has been nixed by Arizona Attorney General Mark Brnovich. But for how long?

Outgoing Attorney General Mark Brnovich left me a holiday present — something to go with the snickerdoodles and cheap New Year's champagne.

His finding that the city of Tucson's ban on using source of income as a disqualifying factor in whether to rent to a tenant is right in step with his down-the-line partisan tenure as state AG. I should amend: almost down the line.

All during the pandemic, I had my keyboard aimed at Gov. Doug Ducey's near-cheerleading of the coronavirus, as far as public policy went. No city or town could do anything to save lives if it meant one MAGA ever had to do something that person didn't wanna do. So 30,000 deaths were an acceptable price for "'Murican fridom."

But Brnovich has been a favorite target in this space since his insistence that needs-based financial aid was "government picking winners and losers."

It was awful nice of him to give me this parting gift, which is a chance to send him a parting shot as he ends his tenure as the state's top lawdog.

His decision kiboshing the city's source-of-income rules fits the mission statement of his tenure: "All policy or personal preference he disagrees with are outright illegal or crimes waiting to happen."

I must include the caveat that I'm not a lawyer but this isn't really about the law, anyway. 

Brnovich is executing the right-wing two-step. Strip local leaders the power to address a visible problem and let Republicans run against the incompetence. 

It's not unlike the border. When government fails to address a visible problem, people want less of it and taxes on the rich stay low. Voters elect Republicans whose social policy scapegoats the dispossessed and looks for quick ways to toss them in county jails.

The law

Let's start with the ordinance itself. 

In November, the Tucson City Council amended its 1988 Fair Housing Code to prevent landlords from refusing to rent units to prospective tenants solely based on source of income. The idea is to give recipients of Section 8 vouchers to get a fair shake when they go looking for a place to live.

What's Section 8? Fair question. In the old days, governments would build massive public housing projects that turned out troublesome for all sorts of socioeconomic reasons. So the Reagan administration came up with a plan to switch out projects with vouchers. 

That way, renters had a choice and affordable homes weren't limited to a single part of town.

Lately, property managers and owners have just started saying "no" to Section 8 vouchers. The program has a stigma. I know when I went to re-up with my lease, the first thing I got asked was "you aren't Section 8, are you?" Nope. So I was told I was fine.

Forbidding landlords from denying tenants solely because of source of income is not the same as forcing landlords to accept all comers.

Rentees can still deny renters with vouchers, so long as it's not just for that reason.

And a hell of a lot more needs to be done than just handling Section 8 to address the city's growing homeless problem.

The complaint

To be fair to Brno, though, he did not start the state's bigfooting of the city's amendment to its Fair Housing Ordinance.

That honor belongs to state House Minority Leader Ben Toma. The Peoria real estate agent filed a complaint against Tucson, arguing the city lacked the power to enact the amendment and that the entire topic of fair housing was a state concern.

The city has no place in this part of law, Toma argues.

The timing

Toma may be completely nuts, but his argument isn't based on Cesar Chavez's ghost or space lasers of the Jewish or Italian variety.

There's real-life law involved.

In 1991, the Legislature passed and Gov. Rose Mofford signed a law conferring on cities and towns the ability to pass fair housing laws. Then in 1992 the Legislature pumped the brakes and restricted the authority to cities with populations larger than 150,000 in the 1990 census and told municipalities they had until Jan. 1, 1995 to enact a fair housing ordinance and could not do so later than that date.

"Got ya covered," the Tucson City Attorney's Office responded to Toma's complaint. The housing ordinance was enacted prior to Jan. 1, 1995. What the Council approved in 2022 wasn't an ordinance. It was an amendment to an ordinance passed in 1988.

Um... (chuckle, look aside while scratch chin)... OK.

That seems to a layman a bit of a stretch, except it is how the law works. It's all about defining your terms.

The crux

Here's another term: Statewide concern.

Conservatives like to talk up limited government and government closest to the people governing best. Yet states are increasingly becoming totalitarian regimes with boundless authority to regulate and limit everything with in its boundaries as if people, cities and towns are wholly owned subsidiaries. 

The Supreme Court has for years decided that states have power to enact any law if there's a "compelling state interest" in regulating an activity. Individual rights be damned.

And Republican legislatures like little more than telling Democratic localities "you can't do that lefty stuff."

Statewide concern gets invoked when a policy is so paramount it requires a uniform policy.

Cities do operate under charters, which give them broad authority to pass ordinances of local concern. 

The Legislature can stomp on local authority claiming jurisdiction for itself. "No, no, no. That's a statewide concern, we have absolute power. "Mwah. Hawh. Hawh." Cue finger wags at meddling kids.

The City Attorney's Office argues the Arizona Supreme Court has ruled the Legislature must explicitly declare for itself a topic is a statewide concern. Absent that, a local government is good to go.

It is possible both concerns – statewide and local – are in play and both the state and local governments can act.

The ruling

Both sides submitted their arguments to Brnovich's office. Let me be more specific. A right-wing lawmaker and a progressive city submitted their arguments to a right-wing attorney general. 

So, I sarcastically wonder how this is going to play out?

Shocker! Brnovich sided with the wingnuts over the progressives.

Deputy Solicitor General Michael Catlett wrote the opinion and he's clearly a good lawyer who will command a good salary when he returns to the private sector any moment now.

First off, Catlett dispenses with the idea that an amendment is any different than an ordinance. And he points out that "had the Legislature intended to allow some fair housing ordinances—for example, those amending code structures—the Legislature was perfectly capable of drafting (the 1992 law) accordingly."

Well, that's true but had the Legislature sought to prohibit amendments, they could have drafted the law to do so. They didn't.

If the law is to be interpreted as allowing amendments, he argues it would be "completely toothless." Not true. To make amendments, the law would have had to be passed prior to Jan. 1, 1995. Those are some serious teeth if a city failed to meet the deadline.

Situations can change after a date requiring certain laws be updated. It's clear the law meant to protect people from the most flagrant and common forms of discrimination as they existed at that time.

The idea that future forms of harmful discrimination could be deemed hunky dory would appear to be in conflict with the direction of anti-discrimination laws.

Say there was a rash of landlords refusing to rent to meat eaters because vegetarians can't stand the smell of steak and cows are bad for the climate. No such discrimination existed in 1992 so the law was not crafted to protect against it.

Who among us believes Brnovich's office wouldn't suddenly find a right protecting carnivores from housing discrimination? It would take eight seconds.

We know this because the right recently discovered the right to publicly bare one's mouth, chin and jawline during a pandemic as ordained by The Creator. It was a right MAGAs claimed for themselves.

Catlett also declared the issue itself is not a local concern but a statewide imperative: 

The statutes at issue in this matter concern providing equal opportunity and access to housing and eliminating discrimination based on certain protected characteristics. This subject matter clearly implicates state interests. Courts have repeatedly concluded that states have a compelling interest in eliminating discrimination.

Yes. This may be true. But the AG's office is seeking to protect discrimination. So Brnovich's office is seeking to undermine the statewide imperative Brnovich's team is seeking to claim for his own. 

Homelessness is very much a local concern because the homeless exist immediately to us. Local businesses and residents are complaining to local leaders that something has to be done.

Well, there's a waiting list several hundred names long of Tucsonans in line for Section 8 vouchers. If they are increasingly worthless, then what's the point of having a federal housing program at all? 

Local governments are left to figure out what to do about their homeless problem. It ain't state lawmakers who are going to lose elections because of homelessness. 

Tucson's homeless problem is its own. The whole community is coming to grips with a housing shortage as homebuilding shut down here since 2000.

The city and Pima County are both launching initiatives to deal with the problem. They've got plans, plans to plan and are right now asking for volunteers to help count the homeless.

What the hell is the state trying to do about it? Don't tell me... cut taxes on the rich?

The newcomer

Now we arrive at the final point. Brnovich did this in his final days in office. He's now out.

Incoming Attorney General Kris "Landslide" Mayes will get a chance to review this controversy and do so – if she chooses – with her own deputy solicitor general replacing Catlett.

They might rule differently.

The city shouldn't hold out all their hope on the transition from a Republican to a Democrat.

First off, Mayes was a longtime Republican before switching parties. Second, she's not going to come in and start quashing legal cases and findings right, left and center. 

No one can tell me Tucson City Attorney Mike Rankin doesn't have an intern still detailed to chasing down the 1997 Casas Adobes incorporation that Rankin sued into oblivion. 

Legal cases develop inertia and weirdness could ensue if the new AG starts putting an end to a bunch of cases awaiting trial and appeal. What kind of weirdness? Well, career prosecutors could start resigning.

A crusading new attorney general may be girded for that kind of battle. A moderate like Mayes may not.

This amendment is hardly an undo burden. It's not even going to stop discrimination. Landlords only need to find one extra reason not to rent to a voucher holder to pass city muster.

"I'm not refusing your application because you hold a Section 8 voucher. I'm refusing you because of that yellow shirt. We don't cotton to your kind here."

Nor does a landlord have to accept an applicant who shows up with a Section 8 voucher in one hand and a bloody axe in the other.

The real deal

God. OK. I hate to do this but I have to be fair to Brnovich's team. 

I get the legal theory they are working off of because to argue that laws are more than their words can get real dangerous real fast. Broad interpretations of criminality or civil infractions can, in the wrong hands, lead to tyranny.

I mean, it's like Title 42. Would Brnovich want a public health tool used at the border to interpreted broadly as a permanent block on migrants seeking the lawful right to asylum? Of course he would. And he's no fan of increased government spending to assist in handling the influx of migrants.

Even with the best of intentions, interpretation of the law depends more on whether the interpreter agrees with a given law's purpose.

It's natural for business types to want fewer rules governing them. The problem is that a bunch of businesses making a similar decision can create a societal problem people turn to government to solve.

These problems can be solved with social or criminal justice. The right tends to prefer the latter.

So homelessness is as useful to conservatives as a border crisis.

Both are signs of government failure that whet the public appetites for a crackdown if an abundance of people living outdoors makes people less empathetic. Empathy can lead to higher taxes if people want something done and know they have to pay for it. 

So guys like Brnovich can exacerbate a problem and exhaust the public of its sense of common humanity.

No, I don't have change. Just leave me alone and get a job before I call the cops.

That's the response the Right wants to people living without shelter, even if that person has a federal homeless voucher landlords won't accept and does no good.  

Blake Morlock is an award-winning columnist, who worked in daily journalism for nearly 25 years and is the former communications director for the Pima County Democratic Party. Now he’s telling you things that the Devil won’t.


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