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AZ Supreme Court Says Citizens Can Sue to Prevent the Government from Harming Them

January 6, 2023

The Arizona Supreme Court issued an order yesterday reversing a lower court decision that barred property owners from filing a lawsuit to prevent the government from violating their rights. The Goldwater Institute filed a brief arguing that the decision was so egregiously wrong that the state’s highest court should take the unusual step of immediately overturning the ruling without holding a hearing—and the justices agreed, releasing a one-page order that requires the lower court to reconsider the case.

The lawsuit involves property owners in Sierra Vista, who argued that the city’s zoning law is unconstitutional. The trial court threw the case out, on the grounds that the city had not yet enforced the code against them. As we argued in our brief, that makes no sense, because people have always been allowed to ask judges to prevent future injustices. Yet things only got worse when the property owners appealed, because the appellate court said there was no basis for an appeal, given that the trial judge had said the dismissal was “without prejudice”—a phrase that means the plaintiff could file another lawsuit in the future. Since the property owners were free to sue again, the judges declared that they had no grounds for appealing. That, too, didn’t make sense, because the whole purpose of the lawsuit was to prevent an injury—and forcing the property owners to wait would mean forcing them to suffer the very injury they were trying to stave off.

Just six months ago, the Arizona Supreme Court released a decision that involved a similar issue. That case, called Mills v. Board of Technical Registration, said that a man who sued to prevent the government from prosecuting him under state licensing laws “is not required to suffer an actual injury before his claims become justiciable. The key inquiry in the absence of actual injury is whether an actual controversy exists between the parties.” In other words, as long as the government has threatened to enforce the zoning laws, property owners are allowed to sue to prevent that.

In yesterday’s ruling, the justices summarily reversed the lower court, ordering it to reevaluate its decision in light of the Mills case. It’s extremely rare for the state Supreme Court to simply reverse a decision without hearing arguments, but as we wrote in our brief, this “is the rare case in which both the superior court and court of appeals abused their discretion and committed clear legal error.” Now that the justices have agreed with our position, the case will return to the court of appeals for a new round of briefing and argument—an important victory for everybody in Arizona who’s seeking to prevent the government from violating their rights.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.



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