Mecham v. Gordon, CV-88-0044-SA
| Decision Date | 09 March 1988 |
| Docket Number | No. CV-88-0044-SA,CV-88-0044-SA |
| Citation | 751 P.2d 957,156 Ariz. 297 |
| Parties | Evan MECHAM, Governor of the State of Arizona, Petitioner, v. Frank X. GORDON, Jr., Presiding Officer of the Senate of the State of Arizona sitting as a Court of Impeachment; Heinz Hink, Chairman, Henry Evans, Benjamin Hanley, Chris Herstam and Jim Miller, Members, Board of Managers of the Arizona House of Representatives; Lela Alston, Jan Brewer, Peter Corpstein, Bill De Long, Tony Gabaldon, Jaime P. Gutierrez, A.V. "Bill" Hardt, John Hays, James Henderson, Jr., Jesus "Chuy" Higuera, Jeffrey J. Hill, Peter Kay, Carl J. Kunasek, Greg Lunn, Carol MacDonald, John T. Mawhinney, Jones Osborn, Manuel "Lito" Pena, Jr., Peter Rios, S.H. "Hal" Runyan, James J. Sossaman, Jacque Steiner, Alan Stephens, Wayne Stump, Jack J. Taylor, Doug Todd, Robert B. Usdane, Carolyn Walker, Tony West and Pat Wright, Members of the Senate of the State of Arizona sitting as a Court of Impeachment, Respondents. |
| Court | Arizona Supreme Court |
Hiner, Crowe & Scott by Thomas N. Crowe, Phoenix, for petitioner.
Gallagher & Kennedy, P.A. by John E. Lundin, and Brown & Bain, P.A. by Paul F. Eckstein, Storey & Ross by William P. French, Phoenix, for respondents.
Nathan S. McCay, and Alice L. Bendheim, for amicus curiae Arizona Civil Liberties Foundation.
REVISED OPINION
Evan Mecham, Governor of Arizona, has petitioned this Court for injunctive relief against the Arizona Senate and others. This Court generally has jurisdiction to enjoin acts of state officers. Ariz. Const. art. 6, § 5. The Governor asks us to enjoin the Senate of the State of Arizona sitting as a "Court of Impeachment" from proceeding at this time with the trial of articles of impeachment against Governor Mecham. We denied the application for an interlocutory stay, but reserved consideration of the merits of the petition. We now decline to issue the requested injunction.
In November 1986 Evan Mecham was elected Governor of Arizona and took office in January 1987. In January 1988 the Arizona State Grand Jury indicted the Governor for perjury (A.R.S. § 13-2702), willful concealment (A.R.S. § 13-2311) and filing a false campaign contributions and expenses report (A.R.S. § 16-912). Those criminal charges are now pending in Maricopa County Superior Court. Not long after the indictment, petitions were filed with the Secretary of State seeking recall of the Governor under the provisions of art. 8, pt. 1 of the Arizona Constitution. The Secretary of State certified that there were enough valid petition signatures to require a recall election and officially notified the Governor that he could resign from office and avoid the election. A.R.S. § 19-208.03. Because Governor Mecham refused to resign, the Secretary of State has ordered a special recall election. A.R.S. § 19-209.
On another front, the Arizona House of Representatives directed special counsel to investigate the Governor's activities. House special counsel reported that the Governor had committed several impeachable offenses. The House convened a select committee to review the documentary evidence and take the sworn testimony of several key witnesses, including the Governor. After considering the evidence, the House of Representatives adopted articles of impeachment. A.R.S. § 38-312.
Under the Arizona Constitution, impeachment by the House of Representatives temporarily removes the Governor from office and the Secretary of State becomes acting Governor. Ariz. Const. art. 5, § 6; but see A.R.S. § 38-322. The impeachment is then tried by the Arizona Senate. Ariz. Const. art. 8, pt. 2, § 1; A.R.S. § 38-314. If convicted by a two-thirds vote of all elected senators, the Governor is removed from office. Conviction "shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit in the State." Ariz. Const. art. 8, pt. 2, § 2; see also A.R.S. § 38-321. Impeachment is permitted for "high crimes, misdemeanors, or malfeasance in office." Whether convicted or acquitted in the Senate, the officer impeached "shall, nevertheless, be liable to trial and punishment according to law." Ariz. Const. art. 8, pt. 2, § 2.
The Governor is obviously in a serious predicament. First, he must undergo an impeachment "trial" in the Senate. That trial has already begun and is expected to continue for some time. Second, the Governor faces a criminal trial in superior court, based on some of the same matters that are the subject of the impeachment. The criminal trial is presently scheduled to begin on March 22, 1988. Finally, he confronts a recall election, in which the Governor intends to run as a candidate against anyone who has filed valid nominating petitions. The election is set for May 17, 1988.
The Senate granted the Governor a delay of approximately one week from the date on which the impeachment trial was originally scheduled to begin. It has several times denied other requests for delay. The Governor claims that the Senate's refusal to delay the impeachment trial until the criminal trial concludes infringes his constitutional rights. In essence, these are the Governor's constitutional arguments:
1. The additional publicity generated by the impeachment trial will make it impossible to obtain an impartial jury at the subsequent criminal trial.
2. At the very least, a substantial delay will be required to let publicity subside before the criminal trial begins. This hiatus will necessarily interfere with the Governor's right to a speedy trial and his need to "clear his name" in the courthouse, the one forum he claims will truly protect his rights and give him a just hearing.
3. Delay will also be unavoidable because the Governor cannot simultaneously be in both the Senate and the county courthouse. Thus, one forum must give way to the other. The Governor argues that the only fair solution is to suspend the impeachment proceedings until the criminal trial is done.
4. The Governor will be unlawfully compelled at the impeachment proceedings to give testimony and produce evidence, all of which could later be used against him in the 5. These, and other alleged constitutional violations, are so fundamentally unfair that they will deprive the Governor of due process of law.
criminal trial, thus violating his privilege against self-incrimination under the federal and state constitutions.
The context in which the constitutional issues raised by the Governor presently appear is unique in our state's history and may be without precedent in American jurisprudence. Arizona's chief executive has brought suit in the state's highest court against the Senate, each senator, and the Chief Justice of the Supreme Court, as presiding officer of the Senate impeachment trial. His petition to this Court raises questions at the heart of our system of government. The basic issues revolve around this country's unique contribution to the theory of ordered democracy--the concept of dividing governmental power between three separate branches of government, each independent of the other, but each requiring the cooperation of the other to attain the objects of enlightened government.
Nowhere in the United States is this system of structured liberty more explicitly and firmly expressed than in Arizona. Our Constitution contains a specific clause dealing with separation of powers. In its entirety, art. 3 provides:
The powers of the government of the State of Arizona shall be divided into three separate departments, the Legislative, the Executive, and the Judicial; and, except as provided in this Constitution, such departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.
Despite this explicit delineation of governmental power, Governor Mecham argues that the Arizona Supreme Court has jurisdiction to issue the requested injunction against the Arizona Senate and its members. The Governor concedes that the separation of powers doctrine makes the legislature independent of the judiciary and free from its interference when carrying out the legislative function. However, the Governor argues that the Senate exercises judicial power once it organizes itself into a "court of impeachment" to try a public officer. This, the Governor claims, subjects the Senate to the constitutional power of the judicial branch, enabling this Court to control the Senate's actions, at least to the extent of ensuring basic fairness, applying the due process clause and forcing adherence to the rights guaranteed by the fifth and sixth amendments of the federal Constitution and this state's own Declaration of Rights.
There are two problems with the Governor's argument. First, the argument misconstrues the nature of the Senate proceedings. Second, the Governor's argument incorrectly assumes that his constitutional rights will be infringed unless this Court intervenes in the Senate proceedings.
The Arizona Constitution contains two brief paragraphs describing impeachment. After stating that the state House of Representatives "shall have the sole power of impeachment," the Constitution provides:
All impeachments shall be tried by the Senate, and, when sitting for that purpose, the Senators shall be upon oath or affirmation to do justice according to law and evidence, and shall be presided over by the Chief Justice of the Supreme Court.
Ariz. Const. art. 8, pt. 2, § 1.
The Constitution also states:
No person shall be convicted without a concurrence of two-thirds of the Senators elected. The Governor and other State and judicial officers, except justices of courts not of record, shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office, but judgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit in the State. The party, whether...
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