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Can Arizonans Sue to Prevent the Government from Harming Them?

November 16, 2022

The Goldwater Institute filed a brief in the Arizona Supreme Court yesterday urging the justices to review the question of when people can sue the government for violating their rights. The case, which began as a lawsuit challenging certain city zoning ordinances, involves vital questions about whether Arizonans can ask courts to protect them against future injustices, or whether they must wait for the government to violate their rights before they can sue.

The case started when officials in Sierra Vista threatened to enforce the zoning restrictions against a group of city residents. When they objected that the zoning law was unconstitutional, the city suggested that it might be willing to amend the rules. But it failed to do so, and the residents filed a lawsuit—only to have a state trial court judge throw out their case on the grounds that the city had not yet done anything to them.

The problem with that—as we explain in our brief—is that the law has always allowed people to sue the government even before it actually enforces a law, if they believe that the law is unconstitutional. State and federal courts have held for centuries that people can seek so-called prospective relief, by asking a judge to issue an injunction to prevent the government from implementing unconstitutional laws.

But the case didn’t end there. When the residents appealed, the Arizona Court of Appeals upheld the dismissal on the grounds that the residents were still free to file a new lawsuit in the future, if the city did end up enforcing the unconstitutional law against them. Or, in lawyers’ terms, the dismissal was “without prejudice,” and a dismissal “without prejudice” can’t be appealed. The problem with that is that the non-appealability rule only applies if the trial judge hasn’t decided the vital issue in the case. And by declaring that the Sierra Vista residents lacked the power to bring their lawsuit, the trial court did decide the vital issue: namely, whether they could bring suit in the first place.

As our brief explains, these questions are crucial because if courts cannot determine the constitutionality of a law until after it’s been enforced, people will face severe obstacles to vindicating their rights in court. In many instances, once the government enforces a law, it’s too late for the person to bring a lawsuit—which can, after all, be expensive and time-consuming. That’s why courts have always allowed people to sue to prevent the violation of their rights. This decision, as we write, is like a case in which someone asks a court to prevent a neighbor from polluting her land, only to have the court throw out the lawsuit saying, “come back after your property has been ruined.” That’s never been the law—and it shouldn’t be.

You can read our brief here.

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



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