Attorney General Kris Mayes reversed former Attorney General Mark Brnovich’s opinion that city ordinances banning income source-based discrimination violate state law, but it’s not clear if she has the authority to do so.
Landlords argue that they should filter prospective residents by the nature of their income and have the power to reject applications if the resident would be paying rent using Section 8 vouchers or other assistance.
Tucson passed a city ordinance to ban income source-based discrimination in 2022, which was immediately challenged by current House Speaker Ben Toma, R-Peoria, by way of an SB1487 complaint, requesting a ruling from Brnovich.
Brnovich found on Dec. 21 that the ordinance violates state law, but Mayes issued a new ruling on Wednesday saying it does not.
Brnovich’s main point is that the ordinance goes against statute stating municipalities of a certain size may “adopt a fair housing ordinance not later than January 1, 1995.”
Mayes argues that Tucson isn’t violating that rule because it isn’t creating a new fair housing ordinance, it is just amending its existing one.
But Brnovich argued in his initial opinion that this could open the door to more stark overhauls of housing policy.
“Under Tucson’s view, it could simply re-write its entire fair housing code with the explanation that doing so merely constitutes an amendment to the existing code structure,” Brnovich wrote.
Mayes also said that the law isn’t imposing a condition on municipalities, it’s an “express savings clause for preemption purposes.” A savings clause stops state law from preempting local law.
This also affects Phoenix, which recently passed an anti-income source-based discrimination ordinance of its own. Both Phoenix and Tucson city leaders applauded Mayes, but others called the legality of the new ruling into question.
Republican Attorney Kory Langhofer said of Tucson’s ordinance, “it was unlawful when it was passed as it remains unlawful today. … It doesn’t matter how many reports are issued trying to rescind the acts of predecessors.”
As the opinion from Mayes came more than a month after Brnovich’s ruling, Langhofer said it has no statutory authority.
Law requires the attorney general to issue a report on an SB1487 complaint within 30 days of receiving the request. In Toma’s case, the response had to be issued by Jan. 16 and it was. But Tucson City Attorney Mike Rankin wrote a request for reconsideration on Jan. 13, and Mayes responded more than 30 days later on March 8.
Attorney General Communications Director Richie Taylor said that the attorney general’s office responded to the request for reconsideration in January, but the law states that the “findings and conclusions” need to be reported within 30 days.
Mayes attempts to contend with this in the opinion. She asserts her office, “has authority to withdraw or amend the legal opinions…the authority, while not explicitly granted, is implicit in the Office’s statutory authority to issue legal opinions.”
She hinges this on the fact that Brnovich’s report was, “based on misinterpretations and misapplications” of the law.
Toma said in a text on Thursday that he’s “looking at all options, including legal options as a response” to Mayes’ report.
Arizona’s fair housing laws date back to the passage of the Arizona Fair Housing Act in 1988.
The act barred discrimination based on characteristics like race, religion or sex. The law expressly preempted local governments from enacting housing discrimination and enforcement procedures unless they did so in compliance with federal law.
But three years later, the legislature replaced the entirety of AFHA, and the express local preemption clause did not make it through, granting local jurisdictions some authority.
And in 1992, the law was amended again, where added provisions allowed cities and towns to adopt and enact ordinances equivalent to federal law and the revised fair housing law passed by the state legislature, if it was done by the 1995 deadline.
Tucson adopted fair housing laws in May 1988, which remained unchanged until September of last year.
If Tucson, Phoenix, or any other cities move forward with an ordinance that violates state law, they risk losing a significant portion of their state funding.
Tucson plans to reenact the ordinance in accordance with Mayes’ opinion. Tucson Housing and Community Development director Liz Morales said, “the participants of the various housing programs will have more opportunities to secure housing because of this decision.”
And Phoenix is cleared to move forward with a mirror ordinance passed by the council March 1.
Phoenix Mayor Kate Gallego said in a statement the passage will help the city, “move closer to our goal of housing more residents with an eye towards equity.”