Goldwater Institute attorney responds to Sedona Mayor Scott Jablow’s proposed OHV ban

Adam Shelton, the attorney for the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, has sent a letter to Sedona Mayor Scott Jablow, City Administrator Karen Osburn and District Attorney Kurt Christianson warning that the mayor’s proposed OHV ban in Arizona could be invalid state law.

Adam Shelton, the attorney for the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute

“We believe that the proposed regulation is likely to be prevented by state laws that allow OHVs to be legally driven on roads and highways as long as they are equipped with the legally required equipment,” Shelton wrote.

“Chapters three, four and five of Title 28 ‘applicable throughout the State and in all political subdivisions of that State and are uniform,'” Shelton wrote.[Arizona Revised Statute] § 28-626(A). In addition, local authorities cannot make or enforce any ordinance or regulation that conflicts with this [chapter 3] or Chapter 4 or 5 of this title, unless specifically authorized [chapter 3] or chapter 4 or 5 of this title.’ ARS § 28-626(B)(1).”

“While municipalities may enact “regulations for the control and movement of traffic” (ARS §28-626(B)(3)), this proposed regulation does not address the control or movement of traffic, but rather the equipment that an OHV does to do so required are considered safe enough to drive on the road in Sedona,” Shelton wrote.

Shelton writes: “Article 20 of Chapter Three is devoted exclusively to OHVs. This article defines a “freeway” as “the entire width between the boundary lines of all public thoroughfares that are publicly maintained by the federal, department, city, locality, or county when a portion of the highway is open to general use.” “. the public for the purpose of transportation by conventional two-wheel drive vehicles” in ARS §28-1171(3).

The chapter applies to all properties in the state, except for “private and Indian properties,” explains Shelton.

According to Shelton, the chapter allows a person “to obtain a motor vehicle registration if the vehicle meets all the equipment requirements for operation on a highway” and that “a person may obtain this registration by filing an affidavit certifying that the OHV meets the requirements. “Equipment requirements for highway use and after receipt of the affidavit”. If a person meets the qualifications, the law requires the agency to “allow the vehicle to drive on the road.”

Shelton then argues, “These regulations also demonstrate that the legislature intended to allow the use of OHVs on Arizona highways so long as the OHVs are equipped with the safety equipment required by law.” The definition of highway used in Chapter 20 includes all roads in Sedona. Since state law has specified the equipment requirements for safe operation on motorways, a regulation that prescribes other equipment is ruled out by state law.”

Shelton writes that “there are other potential legal flaws in Jablow’s proposed regulation” that make it unconstitutional:

“…there is concern that the regulation involves an unconstitutional delegation of government powers by shifting the legality of driving OHVs on the road to a private manufacturer. The ordinance does not contain any specific standards regulating the exercise of state authority or procedural guarantees. It merely delegates governmental authority to a non-governmental organization, which is unconstitutional…”

Shelton made his legal expertise available to Jablow and his staff: “Our staff is always available to discuss the legal issues raised by this proposed regulation. We appreciate your quick and diligent review of these matters and look forward to confirmation that Sedona has decided not to issue this legally questionable regulation.”

Founded in 1988 with support from former US Senator Barry M. Goldwater [1909-1998]who ran for president in 1964, the Goldwater Institute is “a conservative and libertarian public policy think tank based in Phoenix, whose stated mission is to “defend and strengthen the liberty afforded to all Americans in the constitutions of the United States and of all fifty states.” .’”

The Sedona City Council has scheduled to discuss Jablow’s proposed OHV ban at the Tuesday, May 23 council meeting.

The full letter is below: