Ariz. AG to sue Bisbee over new same-sex civil union ordinance

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by Catherine Holland

GMAZ interview by Javier Soto and Kaley O'Kelley

Posted on April 3, 2013 at 10:58 AM

Updated Thursday, Apr 4 at 8:37 AM

PHOENIX and BISBEE -- Just hours after the Bisbee City Council approved an ordinance recognizing same-sex civil unions in its jurisdiction, Arizona Attorney General Tom Horne said a court date is imminent.

"We'll be going to court to put a stop to it," Horne told 3TV's Javier Soto and Kaley O'Kelley Wednesday morning, explaining that the City Council only has the right to deal with "purely local" matters, not state issues.

"Matters of statewide importance are dealt with by state statutes passed by the state Legislature. A state statute, by definition, applies throughout the state. A city council doesn't have the power to say it applies elsewhere in the state but doesn't apply in our town."

In a letter he sent to the Bisbee City Council prior to Tuesday night's vote, Horne cited seven different state statutes the new ordinance addresses and changes, something he says the town cannot do. It's unconstitutional.

"We'll file an action in court to put a stop to the City Council exceeding their powers," he continued.

When asked why this situation is different from the ongoing battle with the federal government over the supremacy clause in the fight over Arizona's controversial immigration law known as SB 1070, Horne said it comes down to sovereignty.

"Towns don't have sovereignty," he said. "Only two things have sovereignty. The federal government and the states have sovereignty. Towns are creations of the state, like a state agency. They have only those powers that are created either by the Arizona Constitution or by statute. They are given powers over purely local matters. … Towns do not have power to change those [state] statutes within their borders."

Bisbee City Attorney John MacKinnon said Tuesday that the ordinance would only affect things that the city controls, such as its personnel practices and the city cemetery.

Bisbee wasn't changing state law and was acting within its authority, MacKinnon said.

The ordinance said the city of about 5,600 people wants to end "discriminatory practices against members of the lesbian, bisexual, gay and transgender community" so that couples could have lasting and meaningful relationships regardless of sexual orientation.

MacKinnon, who also has a private law practice, said he would take on the anticipated state legal challenge at no charge to the city. Bisbee resident and retired attorney Margo McCartney, also offered her services, the Sierra Vista Herald reported.

Horne was quick to say he is not expressing a view on same-sex marriage or civil unions.

"It's simply my job to enforce the law," he said. "If they want to change the law, they have every right to go to the Legislature and urge the Legislature to change the law."

Horne said the only issue he is concerned with is "governmental bodies understanding what the limits of their powers are." He says it is his duty and obligation as the Arizona's chief law-enforcement officer to pursue the matter in court.

It's not exactly clear when Horne will file his action to quash Bisbee's newly passed ordinance, which is slated to take effect in 30 days.

Seven state statutes addressed in Bisbee's ordinance

The Associated Press contributed to this report.

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