Sensing v. Harris
In Sensing v. Harris, 217 Ariz. 261, 263,6, 172 P.3d 856, 858 (App. 2007), a storeowner filed a complaint seeking a writ of mandamus to compel a police chief to enforce a city ordinance prohibiting persons from soliciting employment or contributions from vehicle occupants while standing in or adjacent to a street. 217 Ariz. at 262-63,3-4, 172 P.3d at 857-58.
The city code provided that the police chief "shall be responsible for the enforcement" of city ordinances. Id. at 263,4, 172 P.3d at 858.
After the trial court granted a motion to dismiss for failure to state a claim, the plaintiff storeowner appealed. Id. at 263,5, 172 P.3d at 858.
The storeowner argued that the police chief had no discretion to refrain from enforcing the ordinance because the city code provided that the police chief "shall be responsible" for enforcing city ordinances.
The Court disagreed, noting that the city code did not impose a mandatory "duty to act under a clearly defined set of circumstances" and finding that the language imposed a "general duty to enforce the Ordinance" but left the police chief "with discretion to choose what, if any, enforcement actions will be taken." Id. at 264,8, 172 P.3d at 859.
The Court also found that the police chief had discretion to not enforce the ordinance, whether based on a lack of resources, conflicting priorities, or "concerns about the legality or wisdom of enforcing the Ordinance," and that mandamus could not be used to compel the police chief to act. Id. at 265,12, 172 P.3d at 860.