Jennings v. Woods

• Decision Date: 09 June 1999
• Docket Number: No. CV-98-0586-SA.,CV-98-0586-SA.
• Citation: 982 P.2d 274,194 Ariz. 314
• Parties: Renz JENNINGS, Commissioner, Arizona Corporation Commission, Petitioner. v. J. Grant WOODS, Attorney General, State of Arizona, Respondent, Tony West, Arizona Corporation Commissioner Elect, Real Party in Interest.
• Court: Arizona Supreme Court

982 P.2d 274

194 Ariz. 314

Renz JENNINGS, Commissioner, Arizona Corporation Commission, Petitioner. v. J. Grant WOODS, Attorney General, State of Arizona, Respondent, Tony West, Arizona Corporation Commissioner Elect, Real Party in Interest.

No. CV-98-0586-SA.

Supreme Court of Arizona, En Banc.

June 9, 1999.

Anthony B. Ching Phoenix, Attorney for Petitioner.

Janet A. Napolitano, Attorney General, by Thomas I. McClory, Assistant Attorney General, Thomas J. Dennis, Assistant Attorney General, Phoenix, Attorneys for Respondent.

Irvine Van Riper, P.A., by Thomas K. Irvine Ellen M. Van Riper, Phoenix, Attorneys for Real Party in Interest.

Snell & Wilmer, by Steven M. Wheeler, Martha E. Gibbs, Jeffrey B. Guldner, Phoenix, Attorneys for Amicus Curiae Arizona Public Service.

OPINION

JONES, Vice Chief Justice.

¶ 1 This action challenges the eligibility of Tony West to be elected to the office of Commissioner of the Arizona Corporation Commission in the November 3, 1998 general election. The action was filed originally as a Special Action Petition for Writ of Mandamus against the attorney general. Pursuant to petitioner's separate application filed subsequently, we treat the matter as a statutory action in quo warranto.

¶ 2 We hold Mr. West ineligible by reason of the express language of A.R.S. § 40-101: "A person in the employ of, or holding an official relation to a corporation or person subject to regulation by the commission ... shall not be elected ... to ... the office of commissioner."¹

¶ 3 As used in the statute, the word "person" must be construed to include natural persons, and the phrase "person in the employ of, or holding an official relation to a corporation or person subject to regulation," includes natural persons registered as securities salespersons with the corporation commission. At the time of the election, West was a registered securities salesperson licensed to a registered securities dealer. Both West and the dealer were subject to regulation by the commission. Under the plain language of the statute, he was not eligible to be elected.

¶ 4 The principle which governs our opinion is fundamental and lies at the core of representative government. Our three corporation commissioners are representatives of the people, elected to office with specific constitutional and statutory duties. They must be free of conflicts both at the point of election and during tenure in office. The purpose of section 40-101 is to promote ethics in government and avoid conflicts of interest. Our duty is to interpret and apply the statute in order to effectuate that purpose. Public confidence in government officers is vital. Section 40-101 provides clear legislative direction in the resolution of this case and permits no other result.

¶ 5 By reason of today's decision, West must relinquish the office to the incumbent commissioner, Renz Jennings, until a replacement is appointed by the Governor in accordance with procedures established by article V, section 8 and article XXII, section 13 of the Arizona Constitution.

¶ 6 The court's jurisdiction exists pursuant to Ariz. Const. art. 6, § 5(1), (4). See State ex rel. Sawyer v. LaSota, 119 Ariz. 253, 254, 580 P.2d 714, 715 (1978)

(the Supreme Court's original jurisdiction over quo warranto actions directed at state officers has existed since statehood); State ex rel. Smith v. Bohannan, 101 Ariz. 520, 521, 421 P.2d 877, 878 (1966).²

I. Factual and Procedural Background

¶ 7 West defeated Paul Newman in the general election to replace outgoing Commissioner Jennings.³ The Secretary of State issued West a certificate of election on November 23, 1998. On December 3, 1998, news reports revealed that West, during the course of the campaign and throughout the election process, held registered status with the corporation commission as a securities salesperson under the securities laws of Arizona. As required by law, he was licensed to a registered securities dealer. West surrendered his registration, i.e., his "license,"⁴ to the commission December 4, 1998, one month after the election.

¶ 8 On December 9, 1998, Newman wrote a letter to then Attorney General Grant Woods relying on the prohibition against election pursuant to section 40-101, and requesting that Woods advise the Secretary of State that West was ineligible to take the oath of office in a ceremony scheduled to take place January 4, 1999. Newman asserted that section 40-101 explicitly prohibits election to the corporation commission of any person holding an active securities license issued by the commission. Newman and West's counsel subsequently sent letters to the attorney general's office arguing their respective views on the interpretation and application of section 40-101. On December 18, 1998, by letter, the attorney general declined Newman's request.

¶ 9 Meanwhile, on December 16, 1998, Jennings requested, pursuant to A.R.S. § 41-193(A)(7), that the attorney general issue an opinion regarding the proper interpretation of section 40-101 in order to determine whether he must continue to hold office or simply hand over the seat to West upon administration of the oath. On December 22, 1998, the attorney general responded to Jennings' request by attaching a copy of the December 18 letter sent to Newman.

¶ 10 On December 24, 1998, Jennings filed a "Special Action Petition for Writ of Mandamus" in this court, seeking to force the attorney general to issue an opinion interpreting section 40-101 before West took the oath of office. We granted West permission to intervene as the real party in interest.

¶ 11 On December 30, 1998, West responded, claiming the mandamus action was in reality an election contest that was barred by the limitations provision of A.R.S. § 16-673(A) which allows five days from certification of the canvass—November 23, 1998 in West's case—to challenge an election result based on a candidate's eligibility to hold office. Further, West argued that section 40-101 applied only to public service corporations and their employees. Under such a narrow interpretation section 40-101 would not apply to West or to any other securities salesperson or dealer. The attorney general did not respond to the special action petition before the January 4 administration of the oath.

¶ 12 On January 5, the day after West took the oath and officially began serving as a commissioner, Jennings filed a reply brief with this court. The reply countered West's assertion that the mandamus action was barred by the elections statute of limitations. It also urged this court to treat the case, initially styled in mandamus, as an action in quo warranto under A.R.S. § 12-2043⁵ since West, by then, had assumed office.

¶ 13 On January 15, 1999, this court ordered that the mandamus action be treated as a petition in quo warranto. Supplemental briefs were filed by both Jennings and West. The attorney general's response to the petition reaffirmed its decision to decline a quo warranto action against West on behalf of the state. The court heard the oral arguments of counsel on February 22, 1999.

II. Appropriateness of Quo Warranto

¶ 14 West asserts that Jennings' quo warranto claim must fail under section 12-2043 and is barred by the statute of limitations pertaining to elections challenges.

¶ 15 The history of quo warranto is important. A.R.S. § 12-2041, dating to Arizona's Civil Code of 1913, is our quo warranto statute authorizing the attorney general to bring the action in the name of the state.⁶ Like most American common law and statutory quo warranto provisions, section 12-2041 is derived from the English common law high prerogative writ of quo warranto. This extraordinary writ, literally translated as "by what authority" or "by what warrant," see Black's Law Dictionary 1256 (6th ed.1990), allowed only the king to bring a public proceeding to correct the wrong caused by someone unlawfully holding or misusing the king's power. The theory of the writ was that all governmental privileges ultimately derived from the king. See State ex rel. Hess v. Boehringer, 16 Ariz. 48, 58, 141 P. 126, 130 (1914) (Franklin, C.J., dissenting). English common law briefly abandoned the writ in favor of an "information in the nature of quo warranto " brought by the king's attorney general, a purely criminal provision that resulted in ouster of the unauthorized office holder and criminal punishment. See 65 Am.Jur.2d Quo Warranto § 2 (1972). Later, the civil quo warranto writ was reinvigorated and dramatically expanded through passage of the Statute of Anne. See id.; Boehringer, 16 Ariz. at 59, 141 P. at 130.

¶ 16 Arizona's private quo warranto statute, section 12-2043, further expands the common law writ from its limited roots to allow "any person claiming such office" to force a determination of the rightful office holder between the claimant and the occupant.⁷See Abbey v. Green, 28 Ariz. 53, 74, 235 P. 150, 157 (1925); Boehringer, 16 Ariz. at 60, 141 P. at 131 (Franklin, C.J., dissenting) (noting the legislature's power to extend or modify the common law writ of quo warranto).

¶ 17 In Skinner v. City of Phoenix, 54 Ariz. 316, 95 P.2d 424 (1939), we held that an individual may use section 12-2043 "when he, himself, claims the office or franchise in question." Id. at 323, 95 P.2d at 427. Further, "[t]he rule of law is well established ... that a claimant to an office may have judgment only on the strength of his own title and not upon any infirmity or weakness in the defendant's title." Tracy v. Dixon, 119 Ariz. 165, 166, 579 P.2d 1388, 1389 (1978). Tracy emphasized that a quo warranto petitioner also must have a present right to the office. See id.; see also Crouch v. City of Tucson, 145 Ariz. 65, 67, 699 P.2d 1296, 1298 (App.1984)

(a personal interest in the office has been deemed a condition precedent to maintenance of a quo warranto action); Campbell v. Harris, 131 Ariz. 109, 111, 638 P.2d 1355, 1357 (App.1981) ("[T]he right to...