Barlow v. Blackburn

• Decision Date: 03 April 1990
• Docket Number: CA-CIV,No. 1,1
• Citation: 165 Ariz. 351,798 P.2d 1360
• Parties: Samuel S. BARLOW, Petitioner-Appellee, v. John A. BLACKBURN, Carol Brown, Robert K. Corbin, Clarence W. Dupnik, Sam Lewis, Ralph Milstead, Joe Richards, Peter Ronstadt, Donald L. Skousen, Philip Lee Severson, and A. Wade Smith, members of and constituting the Arizona Law Enforcement Officer Advisory Council (ALEOAC), and M.L. Risch, ALEOAC Business Manager, Respondents-Appellants. 88-529.
• Court: Arizona Court of Appeals

Page 1360

798 P.2d 1360

165 Ariz. 351

Samuel S. BARLOW, Petitioner-Appellee, v.John A. BLACKBURN, Carol Brown, Robert K. Corbin, Clarence W. Dupnik, Sam Lewis, Ralph Milstead, Joe Richards, Peter Ronstadt, Donald L. Skousen, Philip Lee Severson, and A. Wade Smith, members of and constituting the Arizona Law Enforcement Officer Advisory Council (ALEOAC), and M.L. Risch, ALEOAC BusinessManager, Respondents-Appellants.

No. 1 CA-CIV 88-529.

Court of Appeals of Arizona Division 1, Department C.

April 3, 1990.

Review Denied Oct. 31, 1990. ^*

[165 Ariz. 352] Charles A. Ditsch and Marc C. Cavness, Phoenix, for petitioner-appellee.

Robert K. Corbin, Atty. Gen. by William S. Jameson, Jr., Asst. Atty. Gen., Phoenix, for respondents-appellants.

OPINION

McGREGOR, Judge.

AppellantArizona Law Enforcement Officer Advisory Council(ALEOAC) appeals from the trial court's order enjoining ALEOAC from conducting administrative proceedings to consider revoking or suspending the certified law enforcement officer status of appelleeSamuel S. Barlow(Barlow).The issue on appeal is whether the right to religious freedom guaranteed by the first amendment to the United States Constitution and the Arizona Constitution prohibits ALEOAC from considering whether Barlow's certification to serve as a peace officer should be revoked or suspended because his open practice of polygamy "tend[s] to disrupt, diminish or otherwise jeopardize public trust and fidelity with regard to the law enforcement profession."A.A.C. R13-4-07(A)(6).We hold that ALEOAC may proceed with the administrative hearing and reverse the judgment of the trial court.

I.

Barlow served as a deputy sheriff for Mohave County, Arizona, from 1966 to 1985.From 1985 to the present, Barlow has been deputy town marshal for Colorado City, Arizona.In accepting that position, Barlow took an oath to support the Constitution of the United States and the constitution and laws of the State of Arizona.¹

Colorado City, previously known as Short Creek, is a small community in northern Arizona that adjoins the city of Hilldale, Utah, at the Utah/Arizona border.Many of the residents of these two communities are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints (Fundamentalist Mormon Church).Fundamentalist Mormons believe that their religion requires the practice of polygamy.Pursuant to the teachings of the Fundamentalist Mormon Church, a man enters into one licensed marriage valid under the laws of Arizona.With the permission of his legal wife, the man then takes one or more "plural wives" in permanent relationships that the Fundamentalist Mormon Church recognizes as "celestial marriages."

Like many other Colorado City residents, Barlow is a member of the Fundamentalist Mormon Church.In accordance with his religious beliefs, Barlow practices polygamy.Barlow's family consists of one legal wife, two plural wives, and thirty-six children by these relationships.

II.

On March 17, 1987, ALEOAC ² voted to consider revocation of Barlow's status as a certified law enforcement officer pursuant to A.A.C. R13-4-07(A)(6)³ which states:

Each of the following constitutes cause for the Council to revoke, refuse or suspend certified status of any person as a peace officer, including a reserve peace officer.

....

6.Any conduct or pattern of conduct that would tend to disrupt, diminish or otherwise jeopardize public trust and fidelity with regard to the law enforcement profession.

As a specific ground of misconduct, ALEOAC alleged that Barlow

[o]penly admitted the practice of polygamy in Arizona having three wives and have [sic] sired 36 children; and whether such conduct violates your oath of office.

On March 10, 1988, Barlow filed a special action in the Maricopa County Superior Court, requesting that the court(1) enjoin ALEOAC from considering the revocation, refusal, or suspension of Barlow's certification on account of his practice of polygamy; (2) order ALEOAC to dismiss the pending administrative proceedings; and (3) award Barlow his attorneys' fees and costs.Barlow argued that the free exercise of religion clause of the first amendment prevents ALEOAC from inquiring into or threatening to revoke his peace officer certification because of his practice of polygamy.

The trial court concluded that the state could enforce Arizona's constitutional prohibition of polygamy only when doing so would not interfere with genuine religious practices.The court also found that ALEOAC failed to show a compelling state interest sufficient to outweigh Barlow's first amendment right to religious freedom.The court ordered ALEOAC to dismiss the pending administrative proceedings against Barlow and to reimburse Barlow for his attorneys' fees and costs.

ALEOAC filed a timely notice of appeal in this court.We have jurisdiction pursuant to A.R.S. §§ 12-120.21and12-2101.

III.

On appeal, ALEOAC argues that the free exercise clause of the United States Constitution does not prohibit it from considering whether the effects of Barlow's practice of polygamy justify revoking or suspending his peace officer certification.Barlow urges this court to affirm the decision of the trial court on the ground that ALEOAC's proposed action violates his right to the free exercise of his religion.Additionally Barlow argues that Arizona's constitutional prohibition of polygamy cannot support the proposed revocation proceedings because (1) the anti-polygamy clause conflicts with Arizona's "perfect toleration of religion" clause; (2) the anti-polygamy clause does not express the state's public policy; and (3) the anti-polygamy clause is void under the "equal footing" doctrine.We first address Barlow's contention that Arizona's anti-polygamy clause is invalid because, if Barlow is correct, we need not reach the free exercise argument.

A.The Arizona Constitution: Religious Freedom and Polygamy

The Arizona Constitution, which Barlow swore to uphold, expressly forbids polygamous or plural marriages and polygamous cohabitation.Ariz. Const. art. XX, par. 2.Barlow concedes that his practice of polygamy is contrary to that constitutional provision.He argues, however, that the anti-polygamy provision is invalid and thus cannot provide a basis for the proposed administrative proceeding.We disagree.

Barlow first maintains that the anti-polygamy clause directly conflicts with Arizona's "perfect toleration of religion" clause, which provides:

Perfect toleration of religious sentiment shall be secured to every inhabitant of this State, and no inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same.

Ariz. Const. art. XX, par. 1.The anti-polygamy clause, which immediately follows the perfect toleration clause, provides:

Polygamous or plural marriages, or polygamous co-habitation, are forever prohibited within this State.

Ariz. Const. art. XX, par. 2.

The two provisions directly conflict only if we assume the conclusion that Barlow urges, i.e., that the perfect toleration clause precludes the prohibition against polygamy.When constitutional provisions appear to conflict, however, this court must construe each provision to harmonize it with others "so that the intent of the framers may be ascertained and carried out and effect given to the instrument as a whole."State v. Osborne, 14 Ariz. 185, 204, 125 P. 884, 892(1912).

In this instance, we can harmonize and give effect to both paragraphs one and two of Article XX.The juxtaposition and contemporaneous approval of the two provisions indicate that the framers of our constitution did not intend the perfect toleration clause to protect the practice of polygamy.Barlow has pointed to no authority that suggests that the framers were unaware of the combined effect of these two clauses or intended to approve plural marriages if based upon religious beliefs.

Furthermore, the Arizona Constitution was drafted and adopted subsequent to the United States Supreme Court's decision in Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244(1879).In Reynolds, the Court refused to extend the first amendment guarantee of religious freedom to the practice of polygamy by a member of the Church of Jesus Christ of Latter Day Saints.98 U.S. at 167.Barlow proposes no basis for concluding that the drafters intended to extend more protection to the practice of polygamy under the Arizona Constitution, which expressly forbids polygamy, than that provided under the United States Constitution, which does not directly address the practice.

Barlow next argues that the constitutional prohibition against polygamy does not express the public policy of this state because the legislature has never enacted statutes imposing a criminal penalty for the practice of polygamy.⁴The constitution itself, however, is the expression of the will of the people; no legislative enactment is necessary to validate a constitutional expression of public policy:

The sovereign people speak in the language of their constitution.Their will expressed in the constitution is the will of the sovereign itself....

....

[N]o other power than the people can superadd other limitations; neither can any other power than the people strike from the fundamental law any limitations which the people have prescribed therein.

....

The sovereign people, in whom is vested all governmental power, have spoken in their organic law, and their mandate, so expressed, must be enforced by the courts....

State v. Osborne, 14 Ariz. at 191, 192, 125 P. at 887.See alsoWagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 378, 710 P.2d 1025, 1033(1985)(state's constitution and statutes articulate public policy and "embody the public conscience of the people of this state").

Barlow further argues that the constitutional prohibition of polygamy is void under the equal footing doctrine, reasoning that Arizona included the...