Green v. Osborne, CV-88-0142-SA

• Decision Date: 14 June 1988
• Docket Number: No. CV-88-0142-SA,CV-88-0142-SA
• Citation: 157 Ariz. 363,758 P.2d 138
• Parties: Elinor GREEN and Joel Hunter III, husband and wife, taxpayers and electors, Petitioners, v. Karen E. OSBORNE, in her capacity as Acting Secretary of State of the State of Arizona, Respondent. Jack LONDEN; Rose Mofford; John (Jack) Oertle, Sr.; John Jay Rhodes; Bernie Senter; Carolyn Warner; and Evan Mecham, Real Parties in Interest.
• Court: Arizona Supreme Court

Page 138

758 P.2d 138

157 Ariz. 363

Elinor GREEN and Joel Hunter III, husband and wife, taxpayers and electors, Petitioners, v. Karen E. OSBORNE, in her capacity as Acting Secretary of State of the State of Arizona, Respondent Jack LONDEN; Rose Mofford; John (Jack) Oertle, Sr.; John Jay Rhodes; Bernie Senter; Carolyn Warner; and Evan Mecham, Real Parties in Interest.

No. CV-88-0142-SA.

Supreme Court of Arizona, In Banc.

June 14, 1988.

Lewis & Roca by Andrew S. Gordon, Phoenix, for petitioners.

Robert K. Corbin, Atty. Gen. by Steven J. Twist, Chief Asst. Atty. Gen., Jessica Gifford Funkhouser, Special Counsel, Chip Wagoner, Asst. Atty. Gen., Phoenix, for respondent.

Dioguardi, Poli & Ball, Ltd. by Mark D. Dioguardi, James B. Ball, Phoenix, for Jack Londen.

Meyer, Hendricks, Victor, Osbo by David G. Campbell, Phoenix, for Rose Mofford.

Law Offices of Howard, DeRoon & Seyffer by Michael E. Riikola, Phoenix, for John J. Rhodes.

Bill Stephens & Associates, P.C. by William H. Anger, Phoenix, for Carolyn Warner.

Cromwell & U'Ren by Stephen A. U'Ren, Phoenix, for intervenors.

John C. Oertle, Sr., Tempe, pro se.

Bernie Senter, Phoenix, pro se.

HOLOHAN, Justice.

The petitioners filed a petition for special action in this court to enjoin the acting Secretary of State from proceeding with the recall election for Governor scheduled for May 17, 1988. We have original jurisdiction of an action for an injunction or other extraordinary writs to state officers. Art VI, § 5(1). ¹ Also named as respondents in the petition were the former governor and the several candidates who had filed nomination papers to appear in the May 17 election. We granted an accelerated hearing on the petition, heard oral argument by the parties, and issued a ruling. By written order we ruled that the relief sought in the petition was granted, and we stated that a written opinion would be filed at a later date. We now submit that opinion.

The essential facts are not in dispute. Evan Mecham was elected Governor of the State of Arizona at the general election in November, 1986. He assumed his duties as Governor on January 5, 1987. After serving six months in office, a group known as the Mecham Recall Committee filed an application, pursuant to A.R.S. § 19-202.01, with the Secretary of State, to undertake the circulation of petitions demanding the recall of the governor. Within the time required by statute 387,157 signatures were gathered and submitted to the Secretary of State for verification. A.R.S. § 19-205. On January 26, 1988, the Secretary of State filed the petition after having determined that 301,032 petition signatures were those of qualified electors and exceeded the minimum number required by the Arizona Constitution for requiring the holding of a recall election. Art. VIII, pt. 1 § 1; A.R.S. § 19-208.03. Upon filing the petition, the Secretary of State notified the Governor that he had five days to resign or a recall election would be ordered. Art. VIII, pt. 1 § 3. The governor declined to resign. On February 1, 1988, the Secretary of State ordered that a special election be held on May 17, 1988, to determine whether the Governor should be recalled. Id. Candidates who wished to be included on the recall election ballot were required to file their nomination papers not less than 60 days prior to the recall election. A.R.S. § 19-212(D).

While the recall process was in progress, the Arizona House of Representatives had commenced an investigation of the activities of the governor which ultimately led to the House voting on February 5, 1988, to impeach the governor.

The governor was tried in the Arizona Senate on the Articles of Impeachment filed by the House, and, on April 4, 1988, the governor was convicted on two of the Articles. Pursuant to Art. VIII, pt. 2 § 2, his conviction by the Senate resulted in his removal from the office of Governor.

Pursuant to Art. V, § 6, the Secretary of State, Rose Mofford, succeeded to the Governorship, and on April 5, 1988, she took the oath of office as Governor. Pursuant to Art. V, § 6, the taking of the oath of office as governor by Rose Mofford constituted resignation from the office of Secretary of State.

On April 7, 1988, the acting Secretary of State, Karen Osborne, acting on the advice of the Attorney General, deleted the name of former Governor Mecham from the recall ballot. In addition she deleted from the ballot the statement of reasons for demanding recall and the officeholder's "justification of his course in office." See Art. VIII, pt. 1 § 3. ²

On April 8, 1988, the present petition was filed in this court to enjoin the acting Secretary of State from proceeding with the recall election because the Governor's removal by the Senate had mooted the recall election.

Elections are political matters to be decided by the electorate, but the legality of holding an election is a judicial question to be decided according to the requirements of the constitution. State v. Osborne, 14 Ariz. 185, 125 P. 884 (1912). The issues in this case raise important questions involving the proper interpretation of conflicting provisions of the Arizona Constitution. The courts have the duty of ensuring that the constitutional and statutory provisions protecting the electoral process are not violated. Tilson v. Mofford, 153 Ariz. 468, 737 P.2d 1367 (1987).

Preliminarily, however, we are met by the claims of several of the real parties in interest, who are candidates certified to appear on the recall ballot, that it is not necessary for the court to resolve the conflicting provisions of the state constitution applicable to this situation because the state is estopped from cancelling the election. The candidates contend that they, as well as many voters, justifiably relied to their detriment upon the Secretary of State's order calling the special election and the Attorney General's opinion stating that the election "shall be held even if the Governor later resigns or is removed from office prior to the election date." Ariz.Atty.Gen.Op. I88-015 (January 21, 1988). In reliance thereon, "[t]hese voters and candidates have expended considerable amounts of time, effort and money, and have made commitments and incurred obligations, and otherwise acted in a manner detrimental to their lives." Brief for Real Party in Interest Jack Londen at 3.

Ordinarily, a claim of equitable estoppel is made out when a person justifiably relies on the conduct of another to their detriment. Heltzel v. Mecham Pontiac, 152 Ariz. 58, 730 P.2d 235 (1986). Generally, however, the defense of estoppel does not apply against the state in matters affecting governmental or sovereign functions. Mohave County v. Mohave-Kingman Estates, 120 Ariz. 417, 586 P.2d 978 (1978). Nor may the state be estopped by the unauthorized acts of its officers or employees. Freightways, Inc. v. Arizona Corporation Commission, 129 Ariz. 245, 248, 630 P.2d 541, 544 (1981). Furthermore, reliance on an Attorney General opinion does not support a claim of estoppel. While we have said that citizens may, in good faith, rely on such opinions until the courts have spoken, Marston's, Inc. v. Roman Catholic Church, 132 Ariz. 90, 644 P.2d 244 (1982), such opinions are advisory only and do not bind courts of law, and they are not a legal determination of what the law is at any certain time. State v. Deddens, 112 Ariz. 425, 542 P.2d 1124 (1975).

Despite the Attorney General's opinion there was considerable speculation and division of opinion among attorneys whether a recall election would be proper in the event that the governor was removed from office. The speculation surrounding the subject was reviewed in the media. In circulating their nomination petitions while the Senate was trying the governor the candidates must, surely, have realized that there was a question being raised about the inevitability of the election if the governor was convicted.

We do not believe that the candidates have established a case of estoppel. Additionally, we point out that the state is not estopped from cancelling an illegal election. The provisions of the constitution control in such matters, and although the candidates may have relied in good faith upon the Attorney General's opinion, that opinion cannot negate the provisions of the constitution nor the authority of this court to interpret it.

Some of the candidates also assert that to cancel the election would deny them the right to run for public office which would be a violation of their due process rights under the state and federal constitutions. The federal cases relied upon by the candidates do not deal with situations relevant to this case. Contrary to the assertion of the candidates, the right to a state political office is not a property right or liberty interest secured by the due process clause of the Fourteenth Amendment. Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 400, 88 L.Ed. 497 (1944). Nor does every denial of a right conferred by state law involve a denial of equal protection of law unless there is shown to be present in the denial an element of intentional or purposeful discrimination of person or class of person. Id. The candidates are not denied due process or equal protection under law by the cancelling of the recall election.

Nor does the state constitution require a different conclusion. Elections, whether general or special, may not be held if they would conflict with the requirements of the constitution. Hudson v. Cummard, 44 Ariz. 7, 33 P.2d 591 (1934). It has long been recognized in this state that the judiciary has the constitutional authority to intervene and prevent the holding of an election which is proceeding in violation of law. Abbey v. Green, 28 Ariz. 53, 235 P. 150 (1925); Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131 (1936). There is no constitutional right for a candidate to run in an illegal election. Hudson v. Cummard, supra. This principle has been recognized by other...