Metropolitan News-Enterprise


Thursday, August 21, 2003


Page 3


Ninth Circuit Finds No Equal Protection Violation in Law Permitting Neighbors to Veto Incorporation


From Staff and Wire Service Reports


State laws giving nearby communities veto power over bids to incorporate do not violate equal protection, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court’s decision upheld previous state and federal court rulings invalidated an attempt by a small Arizona community called Tortolita to become an incorporated town.

A three-judge panel of the appellate court based in San Francisco upheld a 1961 Arizona statute requiring a community of 1,500 or more to obtain the consent of all existing municipalities of more than 5,000 residents within six miles before it can incorporate.

The statute, it said, does not violate equal protection rights, affirming a U.S. District Court ruling that granted summary judgment to the city of Tucson, which opposed Tortolita’s incorporation.

Earlier, the Arizona Supreme Court also refused to consider whether the would-be town of Tortolita should be allowed to exist.

Judge Raymond C. Fisher wrote:

“Although Arizona has created a constitutionally protected right to vote on municipal incorporation, [the statute] does not unconstitutionally burden that right. In the absence of a suspect classification, the Supreme Court has applied strict scrutiny only to voting regulations that prohibit

some residents in a given electoral unit from voting, or that dilute the voting power of some residents in a given electoral unit....[The statute] treats all residents of the relevant electoral unit, Tortolita, equally....[It] admittedly draws geographical distinctions between those unincorporated communities that are near existing municipalities and those that are not, but we decline to extend strict scrutiny to this type of voting regulation. We conclude that [the statute] is rationally related to Arizona’s legitimate interest in regulating the establishment of new municipalities and in protecting

the interests of existing ones.”

Six residents in Tortolita, a rural community in northwestern Pima County, claimed that the state’s consent requirement violated the Equal Protection Clause of the 14th Amendment, unjustifiably burdening their right to vote on municipal incorporation.

They contended that the requirement placed a condition on their right to vote while not doing so for those in unincorporated communities more than six miles from municipalities of 5,000 or more residents.

In 1997, the Arizona Legislature suspended the consent requirement in Pima County for two years; proponents of Tortolita’s incorporation submitted a petition for direct incorporation to Pima County’s supervisors signed by more than two-thirds of Tortolita’s qualified voters.

Tucson sued, challenging the suspension. A Superior Court judge upheld its constitutionality, and the county supervisors declared the town incorporated.

But the Arizona Court of Appeals reversed that ruling, calling the 1997 statute an unconstitutional special and local law and voiding the incorporation. Tortolita’s proponents then sued in federal court.

The case is Green v. City of Tucson, 02-16700.


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