Bisbee Civil Unions Ordinance

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The Bisbee City Council has approved an ordinance allowing same-sex civil unions in the southeastern Arizona city. Arizona Attorney General Tom Horne says that is unconstitutional, and has threatened to take the issue to court. Horne and attorney Tim Nelson will discuss the legality of the ordinance.

Ted Simons: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. The sky train made its public debut today at Sky Harbor. The passenger train runs hours a day, seven days a week from the east economy lot to terminal . Phoenix mayor Greg Stanton presided over a ribbon cutting ceremony this morning. The train opened to the public at noon. And a state lawmaker has canceled plans for a bulletproof vest demonstration at the Capitol. Representative Bob Thorp cancelled after legislative staff attorneys advised it was improper to conduct sales pitches to lawmakers on state property. The "Flagstaff Republican" today called his idea "A rookie mistake." He says he will simply provide contact information to colleagues interested in buying the vests, saying that he wants to provide safety options for lawmakers in light of the shooting of former Congresswoman Gabrielle Giffords and a Texas prosecutor.

Ted Simons: The city of Bisbee passed an ordinance last week that created same-sex civil unions. Attorney general Tom Horne says the ordinance is unconstitutional and may take the city to court. Tonight we look at both sides of the issue with attorney general Tom Horne and Tim Nelson, a Phoenix attorney and former chief deputy attorney general. Good to have you both here. Thank you for joining us.

Tom Horne: Tim Nelson: Great to be here.

Ted Simons: Let's start with why you want to -- why would you want to go to court over this ordinance?

Tom Horne: I will to go court. Not might but will go to court. The reason is because it violates statute statutes. I have made it clear in every single interview I have done. I have nothing against civil unions. I have pointed out the Phoenix civil union is perfectly acceptable. It's a registry for people to visit each other in hospitals. It doesn't violate any state laws. But the Bisbee statute has seven separate paragraphs, each paragraph with a statute that they say will be enforced differently in Bisbee than elsewhere around the state and a city doesn't have the power to do that. Those of us who are in elected office and Tim was the chief deputy at attorney general's office, know that there are limitations to our powers. We have to understand those limitations. It would be really bad if I exceeded my powers. I could make life bad for some people. The same is true for city council members. They can't change statute statutes. Only the Legislature has the power to do that. I will defend to death their right to urge they develop civil unions but the City does not have that ability. It can adopt civil unions that don't violate city law you this we don't have the law to violate state statute.

Ted Simons: How is this constitutional?

Tim Nelson: The city of Bisbee is taking enormous steps to make sure they don't exceed their powers. They talk specifically about the current Arizona law that defines marriage and they make clear what they are talking about here are civil unions. And keep in mind, Ted, the voters of Arizona have voted on this issue twice, in they voted on a broader ban on gay marriage that would have also specifically prohibited civil unions. The voters rejected that. And two years later, they passed a law that said marriage is between a man and a woman but it didn't address the issue of civil unions and it specifically left open the opportunity for cities like Bisbee to pass the ordinance that they did.

Ted Simons: At that opportunity was there, what's wrong with Bisbee taking that opportunity?

Tom Horne: No, no, I agree that. They can have civil unions. They can't it have in the way they have written it. As I mentioned, Phoenix adopted a civil union statute that I totally have no problem with. Because it doesn't violate state statutes. They can't do is violate a specific state statute. We are dealing with community property, inheritance of property. So on. These are things where there are state statutes that are matters of statewide concern that the Legislature has passed a statute by definition a state statute applies throughout the state. And Bisbee wants to say within Bisbee, the state statute will be different. You can't do that. That's beyond their powers.

Ted Simons: Can a city do that? Is it beyond their power?

Tim Nelson: It is not beyond their powers. What they have said is that to the extents that the law permits they want to afford equality to a civil union. And they recognize that there are limitations on what they can do in that regard, imposed by the state law but they want to go to the maximum extent possible to afford equality to civil unions and they are allowed to do that within the confines of their city.

Ted Simons: Why can't they do that within the confines of their city? I know you mentioned this could somehow affect other areas of Arizona. It sounds like it's not going to impact areas --

Tom Horne: They can't change state statutes within the city. The city has no sovereignty. A state has sovereignty and the Federal government has sovereignty. Cities only have powers given to them by Arizona statutes. They can deal with matters of local concern Parking, peat tickets, zoning, public works. Those are within the powers of the city council. They do not have the power to change a state statute. If a matter is not of local concern but statewide concern, the Legislature pass as statute, that apply through the state and no city can opt out and say the state statute will be different. Tim and I both have the statute in front of us. It says that the parties to the civil union will have the same benefits pursuant to title 25 as married people including the following. And then it mentions community property, inheritance and so on. What they are saying is that the statute that gives certain benefits such as community property only to married couples will now be as a matter of law isn't the City given to people, civil union. They don't have the power to do that.

Tim Nelson: They do have the power to control how they function as a city government, what benefits they confer to their own city employees. They can choose to provide benefits to civil union partners who are employed by city government and again, this ordinance says on its face it applies only within the city limits and it applies only with respect to laws that do not conflict with the constitution. The attorney general talks about you can't rewrite the state law. This doesn't do that. It doesn't do it. It makes no reference to any state laws other than to point to the fact they are going to interpret their ordinance in harmony with state law to the extent possible.

Ted Simons: So community property rights only within city boundaries, guardianship, adoption, these sorts of things, only within city? What happens when you leave Bisbee?

Tim Nelson: Well, so there are issues. Any time you write a statute or an ordinance there are going to be ambiguities that will have to be decided on a case by case basis. What I object to is the trying to take a challenge where we have seen how this will be applied to particular people within the City of Bisbee. Once Bisbee has had an opportunity to operate under the ordinance if there are cases where someone believes there is a conflict between the ordinance and state law we can adjudicate that separately. This ordinance should be allowed to go into effect and should be allowed to operate until there is such time as an actual conflict.

Ted Simons: The thought you are too eager-

Tom Horne: Let me mention I have no problem with them giving benefits to members of civil unions. That's within their power. What's not within their power is to change the statutes I have mentioned. It's important we do it right off the bat. Let's assume you have two people in a civil union. And they think because of this ordinance they have community property. And that if one of them dies the other will get that property or will inherit or be an executor or so on. When it comes to court, they won't get that because the power doesn't have the power to change the statute. They need, they can make contractual arrangements. They can write wills and contract. They can deal with that with if they know they need those. If they think the City has changed the statute, so they will automatically get the community property or the inheritance, they are being deceived by the City because the City does not have the power to change the community property law or the inheritance.

Ted Simons: That is one of the criticisms here that this confuses the issue. That it makes less clear what people can, can't do, and can and cannot expect.

Tim Nelson: Well, keep in mind that our courts require that you actually have a case or controversy and you have standing. In other words, you have to have actually suffered an injury. So if there is a person who lives in Bisbee who wants to get a judicial declaration related to the scope of the ordinance, that's something that they are free to do. But to try to strike the ordinance down in its entirety before it even takes effect is not constitutionally proper.

Tom Horne: As the attorney general, it's my job to enforce the law. I need to be sure public officials don't exceed their powers. And so it becomes my responsibility. And this was analyzed before I made the decision by lawyers in our office saying, this is unconstitutional. It's contrary to statutes. You have got to put a stop to it. First thing we did was write a letter to tell them. But they said if they don't accept your ideas, you have got to go to court. Because people will think that they have these rights that they don't have and so you have to stop these people from being deceived. If the City is saying it has a civil union that grants community property rights or inheritance rights, that it has no power to grant, people are not going to take other actions that they could have taken to protect themselves.

Ted Simons: Are there other city ordinances out there that also are going too far in terms of their authority? And if so, are you looking to take them to court?

Tom Horne: There are none that I know of. There was the city of Phoenix as I mentioned passed a civil union statute that I think is perfectly fine. Because all it does is establish a registry for visitation. That doesn't violate any state laws.

Ted Simons: What about other ordinances that have nothing to do with civil unions but just are city ordinance that is some would say go too far?

Tom Horne: It would have to be brought to my attention. I might need to take action but this is the only one I am aware of.

Ted Simons: The idea that, again, it's -- is it fair to Bisbee couples for them to think that this is applicable? And when it really doesn't exist out of town? I am getting back to that confusion thing. Because that does is that factor.

Tim Nelson: What is not fair to Bisbee couples some of them are being denied benefits that other couples are entitled to under state law. We have equality throughout the law throughout our U.S. and state constitutions and that's an important concept that is really what the Bisbee council is trying to address here. They are trying to say to the maximum extent possible under Arizona law, we want to guarantee equality for civil union couples that equivalent to the rights that are they made available to married couples & that's what they are really after. So the fundamental fairness is addressing the fact that the status quo is one that is very unfair to civil union couples.

Tom Horne: If you want to make that argument to the Legislature, you have perfect right to do it and I have no problem with that. But the Legislature is the place to make the argument. You can't make the argument to a city council to change a state statute. That's beyond their powers. They don't have the power to do that.

Tim Nelson: With all do respect, there attorney general, I think our legal history is complete with people having to go to court to enforce equality under the law. That's been true with the civil rights movement and it's certainly true in this case.

Ted Simons: Is it something you see buy bee -- Bisbee trying as a test case?

Tim Nelson: Perhaps though sow. I think that's exactly right.

Tom Horne: There's a case before the U.S. Supreme Court dealing with this issue right now and the Supreme Court may decide the constitution requires gay marriage. That's within their powers. But the city council doesn't have the power to change a state statute. That's what I am dealing with. The city council has certain limited delegated powers. They can deal with parking and speeding tickets. They cannot deal with state statutes dealing with community property and inheritance. That is simply the law.

Ted Simons: Last question. We kind of referred to this earlier with perhaps an eagerness on your participate that's politically driven on this particular point, this particular issue. Is this worth your office's time and effort to go after something like this?

Tom Horne: The politics went the other way, actually. When it first came up I said I don't want to deal with this. 90% of people support civil unions. The politics aren't good but I got a memo from the lawyers dealing with the issue. They did the research and they said, this is contrary to Arizona constitution statutes. You have to send the city a letter and they don't accept the lawyer you need bring an action. Should I say I will ignore what the lawyers say because 90% of the people support civil unions? No. I am the chief law enforcement officer. I have to do what's right.

Ted Simons: Would the attorney general be dare elect in his duties not to pursue?

Tim Nelson: No. I don't think that's the case at all. The attorney general has to look at the ordinance, they need to look at the state statute but also need to look at the constitution and the equal protection clause of the constitution. I think what we have a situation here is an effort by Bisbee to address an inequality that exists in Bisbee and other places in Arizona as well and to do as much as possible within the confines of state law and again without changing any state statute to address that inequality. And the attorney general should support that.

Tom Horne: The U.S. Supreme Court is dealing with the constitutional issues. The city council of the city of Bisbee does not have the power to make those judgments. They have only those delegated powers to deal with local issues. They are changing state statutes on community property, inheritance and the other seven subjects. They don't have the power to do that.

Ted Simons: We need stop right there. Good discussion. Good to have you both here. Thank you for joining us.

Tom Horne: Tim Nelson: Thank you.

Tom Horne:Attorney General, Arizona; Tim Nelson:Attorney;

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