Elections matter: AG Mayes upholds Tucson's 'source of income' protection for renters

Renters with federal housing assistance are again free from being discriminated against just because they get that help.

Tucson has felt the first tangible results of the 2022 midterms, as the office of Arizona Attorney General Kris Mayes city officials that "source of income" protection for renters is kosher under state law, reversing one of her Republican predecessor's final acts.

In December, AG Mark Brnovich told the city that the ordinance violated state law and threatened to withhold Tucson's shared sales tax revenue should the rule be enforced.

The city pushed pause on the new law, then last month asked Mayes, a Democrat, if the ruling should stand. She said no and it's a whole new world for Tucson and Southern Arizona.

The city of Tucson and Pima County's elected leaders report to Democratic voters. Arizona governors, attorneys general and the Legislature have long represented Republican voters, who prefer the state be free from any and all powerful progressives.

The state of Arizona can't control local election results (yet) but they can strike down popular rules and regulations passed by left-leaning city councils and boards of supervisors.

They've been doing it for years. Back in the 1990s, the Legislature would so much as sniff a trendy new land-use ordinance out of Pima County and change the law, making the move illegal under state statutes. The Legislature and AG's Office have taken turns taking swipes at Tucson gun laws.

Brnovich's ruling on the housing ordinance represents a parting torpedo fired at Tucson's ship of state. However, new AG Mayes hit the self-destruct button on that fish in the water before it could strike home.

The ordinance is safe for now but a challenge may be coming, because the Arizona Multifamily Association is considering its legal options.

“The Tucson source of income ordinance was unlawful when enacted, was recognized as unlawful by the Attorney General's Office after a thorough investigation, and it remains unlawful today," said Courtney LeVinus, executive director of the landlords' lobbying group. "Under this ordinance, families who have invested in real estate are losing control of their own property. That’s unfair and, more importantly, it’s illegal. We will continue to work protect their property rights."

OK, power down, Courtney. Landlords are still perfectly free to reject tenants based on total income, credit score or any other number of intangible reasons.

If this were an actual encumbrance on landlords, I might be more excited about it.

The ordinance

The story of the source of income ordinance is so emblematic of Tucson's eternal struggle against Phoenix and the changing nature of the state.

In the fall, the City Council passed an amendment to its fair housing ordinance that barred landlords from rejecting applicants just because they were recipients of federal rental vouchers offered under the Section 8 program.

It's worth pointing out that Tucson has a housing crisis. The government has long tried to address the issue. At one point, federal housing assistance came in the form of building "the projects."

That didn't work out well for a number of reasons. It was Ronald Reagan's administration that stopped building housing and started just handing out Section 8 vouchers to subsidize renters so they could find their own rentals in the private sector (and then woefully underfunded the program). Money that used to build government apartment blocks instead went to private landlords.

If society isn't building local housing anymore and the private sector stops accepting federal vouchers, then the government no longer has any housing help to offer.

One can expect to see more people living on the streets, especially when rents increase 30 or 40 percent over a couple years.

Well, the city thought the source of income protection was something it could do. So it did it.

Sometimes you just gotta spit into the wind... or other verbs.

Brno v. Mayes

Then came House Speaker Ben Toma. If Ben Toma's name doesn't sound familiar, it's because no one in Tucson ever voted for him. He's a Phoenix Republican. 

Yet he is the one who filed a complaint with Brnovich.

Brnovich handed it off to one of his erstwhile staff attorneys, who was also a political appointment. Michael Catlett wasn't one of those career AG's lawyers climbing the ranks and protected by civil service laws. When Brno went, he went.

Toma argued that a 1992 revision to a 1991 state law required all housing ordinances be enacted prior to Jan. 1, 1995. 

In case you went to a lower-ranked Arizona charter school, 2022 comes after 1995.

Therefor, Catlett decreed the ordinance to be null and void.

He wrote "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."

Also, Catlett ruled the source of income protection had no equivalent in federal fair housing laws. Section 8 recipients are not a federally protected class, they couldn't receive fair housing protections in Tucson.

Then a strange thing happened on Tucson's road to scuttled frustration. Democrats swept into power in Arizona's three top statewide posts. Mayes' 280-vote victory was still a win.

There was a new law woman in the AG's office and she wasn't beholden to guys like Toma.

So the Tucson City Attorney's Office asked Mayes give the ordinance a look, while Toma protested the AG's office lacked the authority to rescind a ruling.

Mayes issued a ruling this week under her name. That means she either wrote the opinion herself or someone else did but she just put her JoAnn Hancock on it because she is still digging how "Attorney General Kristin Mayes" looks in print.

Mayes took the same approach as Catlett, but with a twist. She ruled that the Brnovich's staffer was wrong to assert that the law forbade any amendments or modifications to housing ordinances after Jan. 1, 1995.

"If the Legislature had intended to prohibit such adaptation, it would have clearly stated its intent," Mayes wrote.

See what she did there? Catlett ruled state law did not specifically empower cities or towns to amend their housing laws, therefor no such authority exists. Mayes ruled, the state law did not specifically preclude cities from amending their housing ordinance, therefore no such prohibition exists.

God. I love lawyers.

This is the the argument about whether absence of evidence is evidence of absence. What isn't in the law? One person can read a law and say "nothing says we can't" and consider an action legal. Another (maybe a cop) can say "nothing says you can" and decide that person is breaking the law.

Also, the idea that a law can't be changed after a certain date just doesn't fly. Does anyone think Toma would have complained if Tucson rolled back fair housing protections?

Hell no.

Mayes took a similar path in nixing Catlett's finding that Tucson's ordinance is not "substantially equivalent" to federal and state laws.

Brnovich's office decided source of income exists nowhere in state law or federal protections. So Tucson's law is null and void. 

Mayes found that nothing in state law prohibits Tucson from enacting the ordinance and federal law does include cases of protecting foster families and those receiving child support.

It's a bit of a judgment call but there's a reason our legal system includes people called "judges."

The author matters

I get all weird about quoting a source, when I don't think that's who said or wrote what I'm quoting. No, we don't make up the news.

The bigger problem is that the issue may be headed to the courts and that's why I kind of hope that Mayes didn't write the opinion herself.

She didn't win the election because she's a great legal scholar. Her big legal experience is serving on the Arizona Corporation Commission. I'm not questioning her chops as a lawyer, she's just not a Lawrence Tribe or Michael Luttig.

That's fine. It's not why voters elected her. She won she was seen as a far more responsible steward of the law than her Trumpophile, election-denying opponent Abe Hamadeh. 

LeVinus calling it "illegal" means they must think its ripe for legal challenge. The law isn't safe forever.

To withstand the court system, the opinion had best have been crafted by one of her subject matter experts. Mayes should be running the department and calling shots, not writing 27-page legal opinions.

Elections have consequences

Anyway, it matters who gets elected. Entire interpretations of the law can change.

Arbitrary? Maybe. Capricious? Not necessarily.

The legal powers-that-be all come with personal approaches to the law, which determine how they they interpret the law and define for all of us what the law is.

What does this teach us about Mayes' approach to the law? I gotta be honest. It reads to me like "Tucsonans helped elect me. I side with them on close calls."

Typically, that's not the best way to go about law enforcement. The law can't be defined as whatever is sends my political opponents into a skin-peeling rage. On the other hand, anyone to the left of John McCain has been on the losing side of those rulings since Terry Goddard left the Attorney General's Office in 2011.

Those of us not on the Right can understand if Toma and LeVinus feel trolled by Arizona elected officials exercising power contrary to their political preferences. 

To quote that great legal scholar W. Axl Rose: "Welcome to the jungle. We got fun and games."