IN THE

SUPREME COURT OF THE STATE OF ARIZONA

____________________________________________

STATE OF ARIZONA, EX REL. MARK BRNOVICH, ATTORNEY GENERAL,

Petitioner,

v.

CITY OF PHOENIX,

Respondent.

______________________________________________

No. CV-20-0019-SA

Filed August 3, 2020

______________________________________________

SPECIAL ACTION

JURISDICTION ACCEPTED; RELIEF DENIED

DECLARING STATUTORY BOND PROVISION UNENFORCEABLE

COUNSEL:

Mark Brnovich, Arizona Attorney General, O. H. Skinner, Solicitor General, 

Brunn W. Roysden III, Linley Wilson, Keena Patel, Assistant Attorneys 

General, Phoenix, Attorneys for State of Arizona

Jean-Jacques Cabou, Alexis E. Danneman, Matthew R. Koerner, Margo R. 

Casselman, Perkins Coie LLP, Phoenix, Attorneys for City of Phoenix

Mary R. O’Grady, Joseph N. Roth, Osborn Maledon, P.A., Phoenix, 

Attorneys for Amicus Curiae League of Arizona Cities and Towns

Patrick Irvine, Fennemore Craig, P.C., Phoenix, Attorneys for Amicus 

Curiae Arizona Association of Realtors

Grady Gammage Jr., Cameron C. Artigue, Gammage & Burnham, P.L.C., 

Phoenix; Daniel Reimer, Daniel S. Reimer LLC, Denver, CO, Attorneys for 

Amici Curiae Airports Council International-North America, American 
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

2

Association of Airport Executives, Airlines for America

Erin Adele Scharff, Phoenix, Attorney for Amici Curiae Law Professors

Timothy Sandefur, Matthew R. Miller, Scharf-Norton Center for 

Constitutional Litigation at the Goldwater Institute, Phoenix, Attorneys for 

Amicus Curiae Ride-Sharing Drivers and Passengers

W. Eric Pilsk, Kaplan Kirsch & Rockwell LLP, Washington, D.C.; Susan M. 

Freeman, Lewis Roca Rothgerber Christie LLP, Phoenix, Attorneys for 

Amicus Curiae Phoenix-Mesa Gateway Airport Authority, The Arizona 

Airports Association

Ian Heath Gershengorn, Devi M. Rao, Noah B. Bokat-Lindell, Jenner & 

Block LLP, Washington, D.C.; Mark Ogden, Littler Mendelson, Phoenix; 

Joshua Wilkenfeld, Uber Technologies, Inc., Washington, D.C., Attorneys 

for Amicus Curiae Rasier, LLC

Mark S. Kokanovich, Daniel A. Arellano, Ian O. Bucon, Ballard Spahr LLP, 

Phoenix, Attorneys for Amici Curiae Cities of Mesa, Scottsdale, Tempe, 

Flagstaff, and Sedona

Andrew J. McGuire, Trish Stuhan, Samantha Winter McAlpin, Gust 

Rosenfeld P.L.C., Phoenix, Attorneys for Amicus Curiae Tucson Airport 

Authority, Inc.

John “Jack” D. Wilenchik, Joshua C. Offentartz, Wilenchik & Bartness, P.C., 

Phoenix, Attorneys for Amicus Curiae Phoenix City Councilman Sal 

Diccicio

____________________

VICE CHIEF JUSTICE TIMMER authored the Opinion of the Court, in 

which CHIEF JUSTICE BRUTINEL, JUSTICES BOLICK, GOULD, LOPEZ, 

BEENE, and MONTGOMERY joined.

____________________
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

3

VICE CHIEF JUSTICE TIMMER, Opinion of the Court:

¶1 Article 9, section 25 of the Arizona Constitution prohibits the 

state and local governments from imposing or increasing taxes or other 

“transaction-based” fees on services. We are asked here to decide whether 

this prohibition extends to “trip fees” imposed by the City of Phoenix 

(“City”) on commercial ground transportation providers who transport 

passengers to and from Phoenix Sky Harbor International Airport 

(“Airport”). We hold that because these fees are not “transaction-based,” 

they are not constitutionally prohibited.

¶2 This is a special action filed pursuant to A.R.S. 

§ 41-194.01(B)(2), which provides that this Court must require the local 

government whose law is challenged to file a substantial bond. We declare 

this bond provision unenforceable.

BACKGROUND

¶3 Cities in Arizona are empowered by the Arizona Constitution 

to engage in business to the same extent as private parties. See Ariz. Const. 

art. 13, § 5. Exercising that authority, and as permitted by state law, the City 

owns and operates the Airport. See A.R.S. § 28-8411(A) (authorizing cities 

to own and operate airports).

¶4 The City authorizes third-party commercial use of Airport 

property by lease, permit, or license agreement. See Phx., Ariz., Code ch. 4, 

art. 1, § 4-4; see also A.R.S. § 28-8419(B) (authorizing cities to “establish fees 

and charges” for use of airport facilities). All monies paid to the City for

commercial activity must be used exclusively to maintain or operate the 

Airport. See 49 U.S.C. § 47107(a)(13)(A), (k)(3), (requiring revenue 

reinvestment to make an airport “as self-sustaining as possible” as a 

condition for receiving federal funding); id. § 47133(a) (restricting 

expenditure of “revenues generated by an airport that is the subject of 

Federal assistance” to “capital or operating costs” related to the airport); see 

also id. § 40116(d)(2)(A)(iv) (requiring all taxes, fees, and charges on 

businesses operating as permittees at an airport be “wholly utilized for 

airport or aeronautical purposes”). According to the City, more than one 

thousand businesses pay fees to use the Airport. 

¶5 Commercial ground transportation providers operating at the 

Airport must obtain authorization permits from the City’s aviation director. 

See Phx., Ariz., Code ch. 4, art. 4 § 4-68(A). “Transportation network 
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

4

companies” (“TNCs”) are a type of commercial ground transportation 

provider. TNCs, such as Uber and Lyft, use “a digital network or software 

application” that permits passengers to arrange rides with TNC drivers. See

id. § 4-67 (defining “transportation network company”). The City maintains 

that TNCs started operating at the Airport in 2016, quickly expanded, and

now provide more than two-thirds of all ground transportation passenger 

pick-ups at the Airport.

¶6 In 2016, the Phoenix City Council amended the Phoenix City 

Code to require most commercial ground transportation providers, 

including TNCs, to pay a “trip fee” each time a driver picked up one or 

more passengers from the Airport. See id. § 4-78 (rev. 2016). The trip fee 

varied from $2.25 to $9.00, depending on when the provider was authorized 

to operate at the Airport and the vehicle’s passenger capacity, and it 

automatically increased annually through January 1, 2019. See id. The 

Council simultaneously directed the City’s aviation department to 

complete a study of trip fees imposed at comparable airports by January 1, 

2020. For ease of reference, we collectively refer to TNCs and non-TNCs

subject to trip fees, like taxis and limousines, as “providers.” 

¶7 In 2018, Arizona voters passed Proposition 126, ”The Protect 

Arizona Taxpayers Act” initiative, amending the Arizona Constitution to 

prohibit the state, cities, and other political subdivisions from imposing 

new taxes on services. Ariz. Const. art. 9, § 25 (“Section 25”). Proposition 

126 also amended other constitutional provisions to remove any conflicts 

with Section 25. See id. art. 13, § 2 (providing that a city charter cannot grant 

authority that violates Section 25); id. art 9, § 6 (vesting cities with power to 

impose special assessments or special taxes to make improvements 

“[e]xcept as provided by section 25”). The proposition’s stated purpose was 

to prevent governmental entities from following other states’ leads and 

“taxing these vital everyday services,” ranging from medical treatments

and child care to haircuts “and much more,” thereby increasing expenses 

for these services for both consumers and small businesses. See The Protect 

Arizona Taxpayers Act, Proposition 126, § 2 (2018).

¶8 Section 25’s prohibition applies only to taxes, fees, and other 

assessments imposed on or after January 1, 2018. See Ariz. Const. art. 9, 

§ 25. Because the City’s imposition of a pick-up trip fee with annual 

increases was in place before that date, Section 25 does not affect that fee, at 

least as to the fee schedule established in 2016.
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

5

¶9 In December 2019, the City Council adopted Ordinance G6650 (“Ordinance”), which is the subject of the dispute before us. The 

Ordinance revised several Phoenix City Code provisions addressing 

commercial ground transportation at the Airport. Pertinent here, the 

Ordinance adjusted passenger pick-up fees and imposed new trip fees for 

dropping off departing passengers at the Airport. See Phx., Ariz., Code 

§ 4-78. Adoption of the Ordinance followed the aviation department’s

study, which concluded that comparable airports consistently collected 

more revenue from ground transportation providers than the City. See

Phx., Ariz., City Council Report, Item No. 42, at 1 (Agenda Date: 

12/18/2019). The new fees were reportedly intended to recoup the City’s 

costs for the providers’ “proportionate share of existing and future groundtransportation infrastructure, improvements, and operation/maintenance 

of this infrastructure, including maintenance of the PHX Sky Train, and to 

comply with federal law requiring [the Airport] to achieve and maintain 

economic self-sufficiency.” Id.

¶10 The new fee structure imposed by the Ordinance, which was 

scheduled to commence on February 1, 2020, treats TNCs differently from

non-TNCs. The pick-up and drop-off trip fees for TNCs now start at $4.00, 

increase annually to $5.00 by 2024, and automatically increase each 

subsequent year by at least 3%. Phx., Ariz., Code § 4-78(A)(1). The trip fees 

for non-TNCs decrease initially, ranging from $1.75 to $5.00, depending on 

passenger capacity, until 2021, when they automatically increase each 

subsequent year by at least 3%. Id. § 4-78(A)(2). Trip fees for both TNCs 

and non-TNCs are discounted when drivers use alternative-fuel-powered 

or zero-emission vehicles or pick-up/drop-off passengers at PHX Sky Train 

stations located away from terminals. Id. § 4-78(A)(6).

¶11 Trip fees apply one of two ways, depending on the triptracking technology used by providers at the Airport. See id. § 4-72

(requiring such technology). Providers using GPS technology track trips 

themselves and report the number of trips monthly. See id. 4-78(A)(5). Trip

fees apply each time a driver enters a “geofence,” makes one or more stops, 

and picks up or drops off a passenger. Id. § 4-78(A)(3); see also id. § 4-67

(defining a “geofence” as marking “an electronic perimeter” or “subperimeter” on Airport property). If the GPS system fails, the City assesses 

fees based on historical usage. See § 4-78(A)(4). The City invoices providers 

monthly for outstanding trip fees. See id. § 4-78(A)(7).
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

6

¶12 Providers using the Airport’s system of radio frequency 

readers, which identify and track a vehicle’s physical location in the Airport 

by “reading” an affixed tag, are tracked automatically. See id. §§ 4-67,

4-78(A)(3). Fees apply each time a driver enters or exits the Airport and 

stops at one or more sites dedicated to picking up or dropping off 

passengers. Id. § 4-78(A)(3), (5). If providers use designated pick-up or 

drop-off locations without radio frequency readers, they must report trips 

to the City. Id. § 4-78(A)(5). The City also invoices these providers monthly 

for outstanding trip fees. See id. § 4-78(A)(7).

¶13 The Ordinance dedicates specified linear feet of Airport 

terminal curb space to TNCs for picking up and dropping off passengers. 

TNCs were given 30% of available curb space starting January 1, 2020, 

which annually increases to 50% in 2022. Id. § 4-78(A)(10). Thereafter, curb 

sharing adjusts proportionately with TNCs’ usage. Id. The City’s aviation 

department also dedicates curb space for non-TNC pick-ups and drop-offs. 

See City of Phoenix Aviation Dep’t, No. 8-01, Rules & Regulations, at 12–

12.2, Exhibits A, C–E (2016).

¶14 Before the Ordinance took effect, an Arizona legislator asked 

the Attorney General to investigate whether it violates Section 25. The 

request triggered § 41-194.01(A), which requires the Attorney General, “[a]t 

the request of one or more members of the legislature,” to “investigate any 

ordinance, regulation, order or other official action adopted or taken by the 

governing body of a county, city or town that the member alleges violates 

state law or the Constitution of Arizona.” Within thirty days, the Attorney 

General must make a written report finding either that the challenged 

action violates, may violate, or does not violate state law or the Arizona 

Constitution. § 41-194.01(B). Consequences flow from each finding. Id.

¶15 The Attorney General found that the Ordinance may violate 

Section 25. Thus, he filed a special action asking this Court to resolve the 

issue. See § 41-194.01(B)(2) (providing that upon a finding that a challenged 

action “may violate” state law or the constitution, “the attorney general 

shall file a special action in [the] supreme court to resolve the issue”). 

Pursuant to the parties’ stipulation, we stayed enforcement of the 

Ordinance pending a decision.

¶16 We have jurisdiction pursuant to article 6, section 5(6) of the 

Arizona Constitution and § 41-194.01(B)(2). After considering briefs filed 

by the parties and amici, this Court previously issued an order holding the 

Ordinance constitutional. We therefore denied relief and lifted the stay, 
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

7

stating that an Opinion explaining our reasoning would follow. This is that 

Opinion.

DISCUSSION

I. Does the Ordinance violate Section 25?

¶17 We review the constitutionality of the Ordinance de novo as 

an issue of law. See Saban Rent-a-Car LLC v. Ariz. Dep’t of Revenue, 246 Ariz. 

89, 92 ¶ 8 (2019). Because the challenge does not involve fundamental 

constitutional rights or suspect-classification distinctions, we presume the 

Ordinance complies with Section 25 “unless it clearly [does] not.” Id. 

(quoting Cave Creek Unified Sch. Dist. v. Ducey, 233 Ariz. 1, 5 ¶ 11 (2013)).

¶18 Section 25 provides, in relevant part, as follows: 

[1] The state, any county, city, town, municipal 

corporation, or other political subdivision of the 

state, or any district created by law with 

authority to impose any tax, fee, stamp 

requirement, or other assessment, shall not [2] 

impose or increase [3] any sales tax, transaction 

privilege tax, luxury tax, excise tax, use tax, or 

any other transaction-based tax, fee, stamp 

requirement or assessment [4] on the privilege 

to engage in, or the gross receipts of sales or 

gross income derived from, [5] any service 

performed in this state.

No language makes these elements disjunctive. Therefore, Section 25 is 

violated only if all five identified elements exist.

¶19 The parties agree that if the Ordinance violates Section 25 it 

does so by imposing or increasing a “transaction-based . . . fee” on the 

privilege of engaging in a service. Deciding whether the trip fees imposed 

by the Ordinance are “transaction-based,” as that term is used in Section 25, 

depends on the meaning of “transaction,” which our constitution does not 

define. The Attorney General argues “transaction” means “any activity 

involving two or more persons.” He asserts that entering and exiting the 

Airport is “any activity” engaged in by two or more persons (drivers and 
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

8

passengers), making the trip fees based on entry and exit “transactionbased.” 

¶20 The City counters that, read in context, “transaction” refers to 

“a commercial agreement or an exchange of consideration.” By contrast, 

because trip fees are not based on the fare paid by passengers to providers, 

and they apply whether or not a fare is paid, the City argues those fees are 

not “transaction-based.” The City instead characterizes the trip fees as 

“user fees” for Airport property, which are not encompassed by Section 25.

¶21 In interpreting Section 25, our primary goal is to effectuate the 

electorate’s intent in adopting it. See Saban Rent-a-Car LLC, 246 Ariz. at 95 

¶ 21. To determine that intent, we give the words their ordinary meaning, 

unless the context suggests a different one. See Am. Fed’n of State Cty. &

Mun. Emps. AFL-CIO Local 2384 v. City of Phoenix. (AFL-CIO Local 2384), ___ 

Ariz. ___, ___ ¶ 13 (2020). We will not apply “fine semantic or grammatical 

distinctions” or “parse sentences,” however, as doing so “may lead us to 

results quite different from the objectives which the framers intended to 

accomplish.” See Saban Rent-a-Car LLC, 246 Ariz. at 95 ¶ 21 (quoting United 

States v. Superior Court, 144 Ariz. 265, 275–76 (1985)). If the provision has 

only one reasonable interpretation, we apply it. See AFL-CIO Local 2384, ___

Ariz. at ___ ¶ 13. But if more than one reasonable interpretation exists, we 

will examine secondary principles to identify the correct interpretation. See 

id.

¶22 As the parties note, “transaction,” in isolation, has alternate 

meanings. It may refer to “an exchange or transfer or goods, services, or 

funds,” or “a communicative action or activity involving two parties or 

things that reciprocally affect or influence each other.” Transaction, 

Merriam-Webster, https://www.merriam-webster.com/dictionary/transaction 

(last visited July 28, 2020); see also Transaction, Black’s Law Dictionary (10th

ed. 2014) (defining the term variously as “[t]he act or an instance of 

conducting business or other dealings,” “the formation, performance, or 

discharge of a contract,” or “[a]ny activity involving two or more persons”).

¶23 The context in which “transaction-based” is used in Section 

25 reveals the meaning intended by voters. “Transaction-based” appears 

in Section 25’s “catch-all” provision after a list of enumerated taxes. See 

Ariz. Const. art. 9, § 25 (prohibiting imposing or increasing specific 

categories of taxes and extending that prohibition to “any other transaction-
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

9

based tax, fee, stamp requirement or assessment” (emphasis added)).

Under the ejusdem generis canon, the term “transaction-based” should be 

interpreted as referring to the same type of taxes as those specifically 

enumerated. See City of Phoenix v. Glenayre Elecs., Inc., 242 Ariz. 139, 146–47 

¶ 30 (2017) (“[E]jusdem generis applies ‘where general words follow the 

enumeration of particular classes of things.’” (quoting Bilke v. State, 206 Ariz. 

462, 465 ¶ 13 (2003))); see also Williams v. Pipe Trades Indus. Program of Ariz., 

100 Ariz. 14, 20 (1966) (applying ejusdem generis canon to a constitutional 

provision and concluding that “[t]he phrase ‘other public purposes’ must, 

accordingly, have been intended to restrict the purpose in some manner 

similar to those enumerated”). Application of the closely related canon 

noscitur a sociis, which “holds that words grouped in a list should be given 

related meanings,” leads to the same result. See Normandin v. Encanto 

Adventures, LLC, 246 Ariz. 458, 460–61 ¶¶ 11–12 (2019) (quoting Antonin 

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 195–

96 (2012)) (applying noscitur a sociis canon in interpreting “manager” as 

including characteristics shared with other entities listed in statute).

¶24 Section 25 prohibits governmental entities from imposing or 

increasing “any sales tax, transaction privilege tax, luxury tax, excise tax, 

[or] use tax” on the privilege to engage in services or on the sales or income 

generated by those services. These taxes are all calculated based on

consumer spending in commercial dealings with persons engaged in a 

business or occupation. See A.R.S. § 42-3052 (imposing luxury taxes at rates 

tied to quantities of luxury items sold to consumers); id. § 42-5008(A) 

(measuring transaction privilege taxes, which include sales and excise 

taxes, “by the amount or volume of business transacted” and in amounts 

determined by applying “rates against values, gross proceeds of sales or 

gross income”); id. § 42-5155(A) (levying a use tax on tangible personal 

property purchased from out-of-state vendor “as a percentage of the sales 

price”). The exchange of consideration between a consumer and a business, 

e.g., money for shoes, is the “transaction” on which these taxes are “based.”

See Base, Merriam-Webster, https://www.merriam-webster.com/dictionary/base

(last visited Jul. 12, 2020) (defining the verb “base” as “to find a foundation 

or basis for” or “to make, form, or serve as a base for”). Consequently, 

applying the ejusdem generis and noscitur a sociis canons, “any other 

transaction-based” fee, as provided in Section 25, can only reasonably mean 

a fee based on consumer spending for delivered goods or services.

¶25 Applying this definition, we agree with the City that the trip 

fees here are not “transaction-based.” The “transaction” subject to Section 
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

10

25 is a passenger’s payment of money to a provider in exchange for a ride 

to or from the Airport. Section 25 prohibits the City from taxing or 

imposing fees and the like on such transactions. But the Ordinance’s trip 

fees are not based on the transaction between providers and passengers. 

Neither imposition of the fee nor its amount depends on whether a 

passenger takes the ride, cancels it, or even pays for it. Instead, the trip fees 

are based on the providers’ use of Airport property in picking up and 

dropping off passengers at designated sites as recorded by technologybased trip-tracking or provider reports. Cf. Jacksonville Port Auth. v. Alamo 

Rent-A-Car, Inc., 600 So.2d 1159, 1162, 1165 (Fla. App. 1992) (concluding that 

a 6% gross receipts fee was “tied exclusively” to off-site car rental agency’s 

use of airport facilities to conduct its business and was therefore an 

“authorized user fee” rather than a tax).

¶26 The Ordinance’s trip fees are best characterized as 

“authorized-user fees” paid in exchange for the providers’ privilege to use 

Airport property, including dedicated curb space, for conducting business

with Airport travelers. See id.; Ace Rent-A-Car, Inc. v. Indianapolis Airport 

Auth., 612 N.E.2d 1104, 1108 (Ind. App. 1993) (characterizing fee imposed 

on off-site car rental agency as “authorized user fee” based on use of airport 

roadways to pick up customers in courtesy shuttles, even though fee 

amount is based on revenues generated by those customers’ rentals). The 

fees are not imposed on trips in the City that do not originate or terminate 

at the Airport, as would be expected for broadly imposed transaction-based

taxes like those specifically enumerated in Section 25. Instead, the fees are 

imposed only when providers access the Airport and stop at Airport 

property dedicated to their exclusive use to pick up or drop off passengers.

Also, the fee amount differs depending on how usage affects Airport 

property, further demonstrating that trip fees are tied to property use rather 

than provider-passenger transactions. Specifically, trips starting or ending 

at the less-congested PHX Sky Train stations and those using energy 

efficient vehicles pay discounted fees, while large capacity vehicles 

operated by non-TNCs pay greater fees. See Phx., Ariz., Code § 4-78(A)(2), 

(6).

¶27 We recognize that a fine line may exist between imposing a 

fee on a commercial transaction and imposing an authorized-user fee tied 

to the number of commercial transactions occurring. But that line exists 

here, and the City falls on the constitutional side. Fees paid for the privilege 

of using Airport property for commercial purposes must fairly reflect the 

value for that use. See Policy and Procedures Concerning the Use of Airport 
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

11

Revenue, 64 Fed. Reg. 7696, 7721 (Feb. 16, 1999) (“[T]he FAA interprets the 

self-sustaining assurance to require that the airport receive fair market 

value for the provision of nonaeronautical facilities and services, to the

extent practicable considering the circumstances at the airport.”); see also 

Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 906 F.2d 516, 518 

(11th Cir. 1990) (stating that for Commerce Clause purposes, user fee 

imposed on off-site rental car agency renting vehicles to airport travelers 

must reflect a fair approximation of the agency use of airport facilities and 

must not be excessive in relation to the airport’s costs for that use). The 

number of trips made by a provider picking up and dropping off 

passengers evidences usage. Imposing fees tied to that number rather than 

imposing a monthly or yearly flat fee therefore fairly measures usage value.

¶28 Tying trip fees to the number of trips made by providers to 

and from the Airport reflects the fair value for accessing and using Airport 

property, depending on the amount of the fee, just as a toll collected at an 

Airport booth for each trip would. Courts have long recognized tolls as 

mechanisms for charging commercial entities for use of government 

property. See, e.g., Sands v. Manistee River Imp. Co., 123 U.S. 288, 293–94 

(1887) (describing per-log toll for floating logs down improved waterway 

as “compensation for benefits conferred” and rejecting analogy to taxes, 

which are “levied for the support of government”); Huse v. Glover, 119 U.S. 

543, 548 (1886) (“The exaction of tolls for passage through the locks is as 

compensation for the use of artificial facilities constructed, not as an impost 

upon the navigation of the stream.”); Am. Trucking Ass’ns, Inc. v. Alviti, 944 

F.3d 45, 47–52 (1st Cir. 2019) (holding that per-trip fees collected for 

commercial trucking companies’ use of state-owned bridges were properly

described as tolls, not taxes).

¶29 Other user fees at the Airport are similarly measured. For 

example, the City imposes landing fees on commercial aircraft on a perlanding rate. See Phx., Ariz., Code ch. 4, art. 9, §§ 4-177, 4-179–180. Similar 

to the providers here, commercial aircraft operators must report their

number of landings and related information monthly, which the City’s 

aviation director uses to invoice those operators for landing fees. See id. 

Landing fees, like the trip fees here, are triggered by the use of Airport 

property and not the transactions between carriers and their passengers 

that gave rise to the trip. Cf. Evansville-Vanderburgh Airport Auth. Dist. v. 

Delta Airlines, Inc., 405 U.S. 707, 714 (1972) (stating that regardless whether 

per-passenger fee imposed by airport on commercial airlines is passed on 

to passengers, “it is the act of enplanement and the consequent use of 
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

12

runways and other airport facilities that give rise to the obligation”), 

superseded by statute on other grounds as recognized in Nw. Airlines, Inc. v. Cty.

of Kent, Mich., 510 U.S. 355, 363 (1994).

¶30 The Attorney General argues that the trip fees “are not 

triggered by one’s use of Airport curb space, given that thousands of 

persons daily use curb space in the exact same manner to drop off or pick 

up friends or family without having to pay any ‘use’ fee whatsoever.” But

neither he nor amici making the same argument offer authority for their

implicit premise that a user fee only exists if it is imposed on all users. 

Reasons exist for not imposing trip fees on non-providers. Friends and 

family do not individually use Airport property as frequently as providers, 

they do not commercially benefit from that use, and although they use curb 

space, it is not dedicated for their exclusive use. The City could impose 

access fees on non-providers if it so chooses. But whether or not fees are 

imposed on non-providers, it does not change the fact that the trip fees here 

are imposed on providers for use of Airport property. Cf. EvansvilleVanderburgh Airport Auth. Dist., 405 U.S. at 717–18 (concluding that 

exempting per-person enplanement fee for certain class of passengers, e.g. 

active military members, was not unreasonable and recognizing that 

“[c]ertainly passengers as a class may be distinguished from other airport 

users”).

¶31 In sum, we hold that “transaction” in Section 25, when read 

in context, plainly means consumer spending for goods or services. Paying 

fees to use Airport property for commercial purposes is not “transactionbased,” as that term is used in Section 25. For this reason, the City did not 

violate Section 25 by imposing and increasing trip fees as established in the 

Ordinance. Because we resolve the constitutional challenge on this basis 

alone, we need not address the parties’ other arguments. We also do not 

address the reasonableness of the trip fee amounts, as that issue is not 

before us.

II. Is the bond provision in § 41-194.01(B)(2) enforceable?

¶32 If the Attorney General petitions this Court to determine 

whether a local law violates state law or the constitution, “[t]he court shall 

require the [local government] to post a bond equal to the amount of state 

shared revenue paid to the [local government] pursuant to § 42-5029 and 

43-206 in the preceding six months.” § 41-194.01(B)(2). This provision is 

mandatory. State ex rel. Brnovich v. City of Tucson, 242 Ariz. 588, 596 ¶ 32 
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

13

(2017). Regardless, we have not yet ordered such a bond, and the City did 

not post one here.

¶33 In City of Tucson, the only other case involving § 41-194.01, we 

expressed “concerns regarding the bond’s purpose, basis, practical 

application, and constitutionality” but ultimately did not pass on its 

enforceability given that case’s procedural posture. Id. at 596–97 ¶¶ 32–35; 

see also id. at 608 ¶ 85 (Gould, J., concurring) (concluding the bond 

requirement is “unenforceable because it is incomplete and unintelligible”). 

The parties here agree that no bond is required because the Ordinance was 

stayed, although the bond requirement does not specify such an exception. 

Regardless, for future guidance, we asked them to brief whether the bond 

requirement is enforceable.

¶34 The City argues the bond requirement is either an 

unconstitutional “obstacle to judicial review” or is unenforceable as 

“incomplete and unintelligible.” The Attorney General presumes that the 

legislature required a bond to “ensure that a municipality or county does 

not benefit from receiving state-shared revenue while possibly violating 

state law.” He asserts that because staying implementation of the 

challenged law fulfills that purpose, we should interpret the bond 

requirement as applying only in the absence of a stay. He also contends 

this Court may reduce the bond amount in appropriate circumstances.

These interpretations, however, are untethered to any language in 

§ 41-194.01 or legislative history and would require us to rewrite the statute.

¶35 When a statute is so incomplete or unintelligible that we 

cannot divine its purpose and intent, or how to implement it, it is invalid

and unenforceable. See Sw. Eng’g Co. v. Ernst, 79 Ariz. 403, 414 (1955) 

(stating that a statute imposing a duty on a public official “must be 

prescribed in terms sufficient and definite to serve as a guide” for 

“intelligent execution”); Cohen v. State, 121 Ariz. 6, 9 (1978) (“[S]tatutory 

language must be sufficiently definite so that those who are to execute the 

law may do so in a rational and reasoned manner.”). Otherwise, it could

violate due process by failing either to provide sufficient notice of what the 

law requires or to restrict the discretion of administrative agencies or public 

officers charged with applying the statute. See Ernst, 79 Ariz. at 412–13; 

CAVCO Indus. v. Indus. Comm’n of Ariz., 129 Ariz. 429, 434 (1981). Or it

might require the Court or agencies to effectively “legislate” by supplying 

material and necessary missing terms not suggested, either expressly or 

impliedly, by the statutory language, which would violate separation-of-
STATE EX REL. BRNOVICH V. CITY OF PHOENIX

Opinion of the Court

14

powers principles. See Ernst, 79 Ariz. at 413–14. Before declaring a statute 

invalid as incomplete or unintelligible, however, we must “us[e] every 

authorized means to ascertain and give the [statute] an intelligible 

meaning.” Coggins v. Ely, 23 Ariz. 155, 161 (1921); see also City of Tucson, 242 

Ariz. at 610–11 ¶¶ 97–102 (Gould, J., concurring) (discussing the 

“unintelligibility doctrine”).

¶36 The bond requirement in § 41-194.01(B)(2) is so incomplete 

that we cannot enforce it. Neither the statutory language nor legislative 

history reveals the bond’s purpose or the conditions on which it is based. 

Does the local government have to post the bond to defend its challenged 

law in this Court? What happens if no bond is posted? We aren’t told. If 

the local government posts a bond, what does it have to do or refrain from 

doing to avoid forfeiture? The statute doesn’t say. What conditions must 

exist to exonerate the bond? Does that occur when we issue our decision 

or, assuming we find a violation, when the local government resolves the 

violation? We are left guessing. The list of unanswered questions goes on 

and on.

¶37 The bond provision in § 41-194.01(B)(2) is incomplete and 

unintelligible and therefore unenforceable. To be clear, we are not 

declaring the provision unconstitutional. Instead, we simply refrain from 

attempting to enforce the bond requirement or pass on its constitutionality 

unless and until the legislature completes it. See CAVCO Indus., 129 Ariz. 

at 434 n.3 (acknowledging “the simple common law rule that courts will not 

apply unintelligible laws”). The defects in the bond provision do not 

impact the remaining provisions in § 41-194.01. Cf. State Comp. Fund v. 

Symington, 174 Ariz. 188, 195 (1993) (explaining severability doctrine). In 

light of our holding, we do not address the City’s additional argument that 

the bond provision is an unconstitutional “obstacle to judicial review.”

CONCLUSION

¶38 We accept jurisdiction as required by § 41-194.01(B)(2) and 

hold that the Ordinance does not violate Section 25. We therefore deny the 

Attorney General’s request to declare the Ordinance null and void. We 

additionally hold that the bond provision in § 41-194.01(B)(2) is 

unenforceable. Finally, pursuant to A.R.S. § 12-348.01, a mandatory fee 

provision, we award the City its reasonable attorney fees as the successful 

party.