The Scottsdale City Council voted to take the first steps toward filing a lawsuit challenging a state law that circumvented a voter referendum and paved the way for Axon to build a new global headquarters in the city. But some council members said they aren’t ready to go to court yet.
At a special meeting on Sept. 12, the City Council voted 6-1 to authorize interim City Attorney Luis Santaella and outside counsel to file a notice of claim against the state regarding Senate Bill 1543.
Mayor Lisa Borowsky indicated the city could challenge the constitutionality of the so-called “Axon bill” legislation backed by the homegrown Taser and body camera manufacturer that Gov. Katie Hobbs signed into law earlier this year.
Borowsky referred to the notice of claim as a “notice of constitutional challenge.”
Axon officials lobbied heavily for SB 1543 after critics collected enough signatures to put the company’s development plans on the ballot over opposition to the thousands of apartments it wants to build alongside its planned headquarters.
Since the bill started to gain traction at the Legislature, opponents have argued it violates Arizona’s Gift Clause, a constitutional provision banning legislation that benefits a particular individual or business.
“This bill is nothing more than a corporate handout designed to benefit one company, Axon,” resident Yvonne Cahill told the council.
A notice of claim is not a lawsuit. It is a formal notification that must be filed before filing suit.
To sue or not to sue?
The council voted 6-1 to authorize Santaella and outside attorneys to file the notice of claim, with only Councilwoman Kathy Littlefield voting against the direction.
Littlefield had supported a more aggressive plan — to immediately file suit against the state — that did not have the votes to pass.
“This is what the citizens have asked us for,” she said.
But Borowsky said she had open questions about a potential lawsuit that she wants answered before suing the state.
“Should we be the plaintiff? Should we wait and be the defendant? Should we wait and be a co-defendant?” she said.
And Councilwoman Solange Whitehead said the notice of claim will preserve the city’s ability to negotiate with Axon over how many apartments it ultimately includes in the project, even though negotiations have borne little fruit since the company initially offered to drop the number of units to around 1,700 in June.
“Litigation is a failure of negotiation. We're not done negotiating. In my mind, there's a lot we can still do. We want to keep every single option open,” Whitehead said.
Councilman Adam Kwasman indicated negotiations are still taking place.
“I could confirm that we are smack dab in the middle of high-stakes negotiations with a massive employer in order to guarantee a serious reduction of apartments for Scottsdale residents,” he said.
An Axon spokesman declined to comment on Kwasman’s characterization of negotiations.
One vote deserves another
The vote to file the notice of claim came just days after the City Council chose to table a vote over whether it should sue the state over SB 1543.
Officially, the council, in a 4-3 vote, chose to pull an item off the Sept. 9 meeting agenda rather than vote on whether to give Santaella the authority to file suit against the state.
That led to criticism from residents supporting the voter referendum, who claimed the council failed to defend residents’ right to call voter referendums and determine the future of their city.
“Basically, they just didn't have the courage to stand up to act,” said former Councilman Bob Littlefield, Kathy Littlefield’s husband and head of the group that spearheaded the referendum.
But Borowsky, the mayor, called that a mischaracterization.
“Contrary to what you've read from many different sources … we did not, in fact, vote no to a lawsuit defending your constitutional rights,” Borowsky said.
She said the vote on Sept. 12 simply formalized the direction the council already gave to its attorneys during a private executive session at the Sept. 9 meeting.
City councils can’t actually authorize their attorneys to file litigation in an executive session.
That must be approved during a public vote, Jim Barton, an attorney not involved in the case, told KJZZ.
And there was also some confusion among the councilmembers themselves over exactly what direction they gave Santaella on Sept. 9.
Borowsky withdrew a motion to “to proceed with legal action against the state of Arizona challenging the constitutionality of SB 1543,” after Whitehead called a new executive session to clear up the confusion.
“I'm concerned that the motion does not match my understanding of the executive session,” Whitehead said in response to Borowsky’s motion.
After that session, the council ultimately adopted Whitehead’s motion to file the notice of claim.
But not before Councilman Barry Graham tried to push through the more aggressive plan to file suit immediately.
Graham admitted the councilmembers were not on the same page.
“When you're in an executive session, a lot of discussions, topics get discussed, and formal votes don't get taken,” he said. “So there's ambiguity about what the panel wants.”
