Joyner v. Mofford

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before GOODWIN and SNEED; SNEED
• Citation: Joyner v. Mofford, 706 F.2d 1523 (9th Cir. 1983)
• Decision Date: 23 May 1983
• Docket Number: No. 82-5552,82-5552
• Parties: Conrad JOYNER, Plaintiff-Appellee, v. Rose MOFFORD, Secretary of State, State of Arizona; Robert K. Corbin, Attorney General, State of Arizona, Defendants-Appellants.

Page 1523

706 F.2d 1523

Conrad JOYNER, Plaintiff-Appellee, v. Rose MOFFORD, Secretary of State, State of Arizona; Robert K. Corbin, Attorney General, State of Arizona Defendants-Appellants.

No. 82-5552.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 14, 1983.

Decided May 23, 1983.

Andrew M. Federhar, Bilby, Shoenhair, Warnock & Dolph, Tucson, Ariz., for plaintiff-appellee.

Russell A. Kolsrud, Asst. Atty. Gen., Phoenix, Ariz., for defendants-appellants.

Appeal from the United States District Court for the District of Arizona.

Before GOODWIN and SNEED, Circuit Judges, and REED ^*, District Judge.

SNEED, Circuit Judge:

This case involves a challenge by Joyner to a provision of the Arizona Constitution which forbids certain state officials from remaining in office if they run for an elected federal position before the final year of their state term. The case was brought by Joyner to enjoin its enforcement against him. ¹ The district court granted the relief Joyner sought and held that the Arizona provision is unconstitutional because it conflicts with the Qualifications Clause of Article I, Section 2 of the United States Constitution. 539 F.Supp. 1120. The State appeals. We reverse.

I. FACTS

Conrad Joyner is a member of the Board of Supervisors for Pima County, Arizona. His present term of office began on January 1, 1981, and ends on January 1, 1985. In 1982, Joyner ran an unsuccessful campaign in the Republican primary for nomination to the United States House of Representatives.

Article 22, Sec. 18 of the Arizona Constitution was proposed by the Arizona Legislature in 1979, and approved by the voters at the 1980 general election. It provides:

Except during the final year of the term being served, no incumbent of a salaried elective office, whether holding by election or appointment, may offer himself for nomination or election to any salaried local, state or federal office.

Under Arizona Revised Statutes Secs. 12-2041 and 12-2042, the Arizona Attorney General and County Attorney may bring a quo warranto action against a state official who runs for federal office in violation of Article 22, Sec. 18 to force him to resign from the state position and to declare that position to be vacant.

Joyner contended that Article 22, Sec. 18 is unconstitutional. The district court granted Joyner's motion for summary judgment, holding that Article 22, Sec. 18 is unconstitutional as it relates to salaried elective state officials offering themselves for federal office. The court ordered that Joyner be allowed to run for the House of Representatives without having to resign from the Pima County Board of Supervisors.

The State of Arizona appeals the district court's order and also argues that Joyner did not have standing to bring his action. Joyner, in addition to claiming that Article 22, Sec. 18 is unconstitutional, also contends that we should dismiss the appeal because the case is now moot. We address the standing and mootness issues first, and then turn to the merits.

II. STANDING

The State asserts that Joyner did not have standing to challenge the constitutionality of Article 22, Sec. 18, except as applied to Joyner's own candidacy for federal office.

The standing doctrine derives from the "case or controversy" requirement of Article III of the United States Constitution, and "is the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). Courts require a plaintiff to have a "personal stake" in the outcome of a case "to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Id. at 498-99, 95 S.Ct. at 2204-05 (emphasis in original). To have such a "personal stake," a plaintiff must allege a "distinct and palpable injury to himself." Id. at 501, 95 S.Ct. at 2206. Such an injury can arise even from the burden of a statutory obligation. Orr v. Orr, 440 U.S. 268, 273, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979). In the present case, Joyner alleges a potential injury which is sufficient to meet the standing requirement--his obligation under Article 22, Sec. 18 to resign or be removed from his state position if he runs for federal office.

The question then arises whether Joyner has standing to assert that Article 22, Sec. 18 is unconstitutional as it applies to third parties, i.e., all salaried elective officeholders who might seek state or federal elective office. The State relies on Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), for the proposition that absent a few limited exceptions, id. at 611, 93 S.Ct. at 2915, appellants may not assert jus tertii standing. In that case, the Supreme Court held that a litigant may not assert the rights of third persons where he did not engage in the allegedly protected activity. Id. at 610, 93 S.Ct. at 2914. See H.L. v. Matheson, 450 U.S. 398, 405-06, 101 S.Ct. 1164, 1169, 67 L.Ed.2d 388 (1981). Although in the light of our disposition of this case on the merits, it is doubtful that our resolution of this standing issue will be of great significance, we hold that Joyner has standing to assert claims only with respect to himself and others in the State of Arizona who serve on Boards of Supervisors and who wish to stand for election to a federal office. Only with respect to that category of officials can it be said both that Joyner did in fact engage in the protected activity in which they might wish to engage, and that Joyner's complaint is identical to the complaint that they would assert when and if confronted by Arizona's bar to running for federal office before the final year of their state term. We adopt this position in the belief that it best accords with the prudential objective thought to underlie the restraints on assertions of jus tertii. See Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 454, 50 L.Ed.2d 397 (1976).

Nonetheless, the rule we enunciate in this case by its terms would embrace situations other than that presented by Joyner. To enunciate such a rule does not involve an issue of standing. When a rule by which a plaintiff's conduct is governed is broad enough to cover others engaged in somewhat similar activities, the fact that the plaintiff can assert only his rights under the rule does not thereby narrow the rule so as to make it not applicable to others when properly invoked. Joyner's lack of standing to assert all possible jus tertii merely means that those who rightfully assert them later are neither encumbered nor aided by res judicata or, perhaps, by collateral estoppel.

III. MOOTNESS

Turning to the mootness issue, Joyner contends that this case has become moot since he lost the primary election and is no longer a candidate for Congress. He argues that this case is not covered by the principal exception to the mootness doctrine, that applicable to cases that are "capable of repetition, yet evading review." See Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998 n. 2, 31 L.Ed.2d 274 (1972). This case, he argues, is "capable of repetition" because the constitutionality of Article 22, Sec. 18 could be tested, and thus not "evade review," whenever another elected Arizona official stands for federal office. We are not convinced.

Election cases like the present one come within the type of controversy that is "capable of repetition, yet evading review." "Evading review" for the purpose of the exception need not mean that review is impossible. It only means that in the ordinary course of affairs it is very likely to escape review. Appellate courts are frequently too slow to process appeals before an election determines the fate of a candidate. If such cases were rendered moot by the occurrence of an election, many constitutionally suspect election laws--including the one under consideration here--could never reach appellate review. Id.; Rosario v. Rockefeller, 410 U.S. 752, 756 n. 5, 93 S.Ct. 1245, 1249 n. 5, 36 L.Ed.2d 1 (1973). This is enough to escape the brand of "mootness."

IV. CONSTITUTIONALITY OF ARTICLE 22, SECTION 18

Joyner's complaint specifically alleges that Article 22, Sec. 18 violates the Qualifications Clause of Article I, Section 2 of the United States Constitution, as well as the Equal Protection Clause of the Fourteenth Amendment. ² The district court concluded that Article 22, Sec. 18 is unconstitutional under the Qualifications Clause and did not reach the Equal Protection claim. We reverse the district court, and also hold that Article 22, Sec. 18 does not conflict with the Equal Protection Clause.

A. Qualifications Clause Claim

According to the Qualifications Clause, Article I, Section 2, Clause 2 of the United States Constitution:

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

From the beginning of the Republic, commentators have asserted that the three qualifications contained in the Clause--age, citizenship, and residency--are exclusive, and that neither Congress nor the states may require more of a candidate. See, e.g., 1 J. Story, Commentaries on the Constitution 453-63 (5th ed. 1891). ³ In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the Supreme Court accepted this restrictive view of the Qualifications Clause--at least as applied to Congress--and held that members of Congress may not set extra-constitutional qualifications for taking a seat in the House of Representatives. In addition, as the district court observed in the present case, the same principle has frequently been applied to state laws imposing additional qualifications on candidates for federal office. 539 F.Supp. at 1121-22 & n. 1.

Neither Joyner nor the State disagrees with...