Joyner v. Mofford, CIV-82-196-TUC-ACM.

• Decision Date: 24 May 1982
• Docket Number: No. CIV-82-196-TUC-ACM.,CIV-82-196-TUC-ACM.
• Citation: 539 F. Supp. 1120
• Parties: Conrad JOYNER, Plaintiff, v. Rose MOFFORD, Secretary of State, State of Arizona; et al., Defendants.
• Court: U.S. District Court — District of Arizona

539 F. Supp. 1120

Conrad JOYNER, Plaintiff, v. Rose MOFFORD, Secretary of State, State of Arizona; et al., Defendants.

No. CIV-82-196-TUC-ACM.

United States District Court, D. Arizona.

May 24, 1982.

Andrew M. Federhar, Bilby, Shoenhair, Warnock & Dolph, P. C., Tucson, Ariz., for plaintiff.

Alan S. Kamin, Asst. Atty. Gen., Phoenix, Ariz., Mark R. Christensen, Deputy County Atty., Tucson, Ariz., for defendants.

ORDER

MARQUEZ, District Judge.

Plaintiff has brought this action in the United States District Court praying that this court declare unconstitutional Article XXII, § 18 of the Constitution of the State of Arizona and to enjoin the defendants from enforcing that provision against the defendant. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §§ 2201 and 2202.

Defendant Rose Mofford is the Secretary of State for the State of Arizona and is statutorily required to accept petitions of candidates for federal office. Defendant, Robert Corbin is the Attorney General of the State of Arizona and is authorized under A.R.S. § 12-2041 to bring an action against any person who unlawfully holds any public office within the State of Arizona. Defendant, Steven Neely, is the duly elected County Attorney for the County of Pima, State of Arizona, and is empowered, pursuant to A.R.S. § 12-2042, to bring an action in the Superior Court of the State of Arizona against any person who unlawfully holds any public office within the county.

The plaintiff, Conrad Joyner, is a member of the Pima County Board of Supervisors, the governing body politic for Pima County. He won re-election to that seat in 1980 and his current term expires in January of 1984. Joyner has announced his intention to seek office in the newly created Fifth District of Arizona for the United States House of Representatives. He desires to retain his elected position while campaigning for Congress so he may complete his term as supervisor in the event he is unsuccessful in his pursuit of the Congressional office.

Article XXII, § 18, of the Constitution of the State of Arizona reads as follows:

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

The parties are in agreement that because the plaintiff is not in his final year of office, the defendants could bring an action against the plaintiff forcing him to either resign or declaring his office vacant.

Recognizing this possibility, Joyner has brought this action alleging that the provision of the Arizona Constitution in question is unconstitutional insofar as it prevents him from seeking a federal office without resigning his position as supervisor.

The qualifications clause of the United States Constitution provides:

No person shall be a representative who shall not have attained to the age of 25 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.

U.S. Constitution, Art. I, § 2, clause 2.

The Supreme Court of the United States has held that the qualifications enumerated in this clause are exclusive. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the Supreme Court held that Congress cannot add to, subtract from, or modify these qualifications. In Powell, supra, the House of Representatives voted to exclude Adam Clayton Powell from the house and declared his seat vacant. Powell had been elected to the 90th Congress from the Eighteenth Congressional District of New York. A special committee had been investigating expenditures in Powell's committee during the 89th Congress. There was strong evidence that certain illegal salary payments had been made to Powell's wife at his direction. Powell brought an action in federal court alleging that the action by the House of Representatives violated the qualifications clause and that the House could not legally refuse him his seat in Congress. The Supreme Court, in a lengthy opinion, reviewed the history of the qualifications clause. The court pointed out that "a fundamental principal of our representative democracy is that the people should choose whom they please to govern them." The court went on to hold that in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the United States Constitution.

The same principal that Congress cannot add to, subtract from, or modify these qualifications, applies with equal force to the states. Numerous state laws have been invalidated for imposing additional qualifications for nomination or election to Congress in violation of the Clause.¹

Defendants have cited no authority and the court is aware of no case which has held constitutional a provision as broad as Arizona's. Those cases that have approved a regulation were concerned with provisions which are, as will be seen below, far more narrowly drawn.²

The legislature of the State of Arizona has on two previous occasions passed legislation strikingly similar to the provision in question before the court now. In both Stockton v. McFarland, supra, and State, ex rel. Pickrell v. Senner, 92 Ariz. 243, 375 P.2d 728 (1962), the Arizona Supreme Court noted the statutes were violative of the United States Constitution with regard to regulation of federal officers. In Stockton, supra, the Court examined a statute far more narrowly drawn than the statute Joyner challenges, a statute which has found some support in the judiciary in the past several years. See generally, Signorelli v. Evans, 637 F.2d 853 (2d Cir. 1980). In Stockton, the court was asked to determine the constitutionality of the following statute:

Judges of the Supreme Court and judges of the superior courts shall not be eligible to any office or public employment other than a judicial office of employment, during the term for which they shall have been elected.

In Stockton, the defendant, McFarland, had met the qualifications as established by the United States Constitution to become a candidate for the United States Senate. However, because McFarland was also a superior court judge in the state of Arizona, the plaintiff alleged that McFarland should be disqualified from running for the federal office. The Arizona Supreme Court held that the precise question, determinative of the issue, was whether a state, through its Constitution or statutes, can add to or take away from the qualifications for a member of Congress prescribed by the Constitution of the United States. The Arizona Supreme Court relying on Section 5, Article 1 of the United States Constitution, wrote, "It is obvious that those qualifications of which they are to judge must be those prescribed by the Constitution of the United States and by them alone. A Representative is an officer, not of the state but of the federal government," citing Lamar v. United States, 241 U.S. 103, 36 S.Ct. 535, 60 L.Ed. 912 (1915). The office of representative being created by the Constitution and his power being such as therein defined, there can be no other qualifications than those contained in the Constitution itself, and, in respect to those matters, the provisions of the Constitution are the supreme law of the land. Ekwall v. Stadelman, 146 Or. 439, 30 P.2d 1037 (1934). In reaching this decision the Arizona court found the intent of the drafters of the Constitution to be in accord with their decision. Quoting Alexander Hamilton in the Federalist LX, the court agreed with Hamilton when he wrote:

The qualifications of the persons who may choose, or be chosen, as has been remarked upon another occasion, are defined and fixed in the Constitution, and are unalterable by the legislature.

The State has responded to this clear line of authority by arguing first, that they have not added a qualification to running for federal office by the constitutional provision in question but have only sought to control the activities of their state office-holders, and secondly, that the state has a legitimate and valid interest in controlling the activities of their state officeholders.

In State v. Senner, supra, the Arizona Supreme Court dealt summarily with the question of qualifications. The court found that language which in effect required a person to leave his present public office in order to seek another public office to be a clear and unambiguous affirmation of qualification requirements for candidates to public office. The court wrote that "to qualify for an office other than the one held the candidate must resign from his present position. It is no less clear in meaning than a provision which says that before a man can run for an office he must attain the age of twenty-five years."

Alternatively the state argues that the constitutional provision in question seeks only to control the activities of state office-holders, a legitimate state interest, and that this legitimate interest is sufficient to sustain the validity of the provision. The state has cited four cases, all of which involve the control of state judicial officeholders from running for federal office while still holding their positions in the judicial system. However, in the case at bar, the state provision applies to all salaried elected officeholders within the state of Arizona. As the court noted in Signorelli,³ supra, in sustaining a narrower provision:

We believe there is a distinction to be drawn between restrictions upon a broad range of occupations, which, if attempted, would indirectly impose added requirements for Congressional office upon large categories of people, and restrictions upon specified state offices peculiarly within the essential regulatory authority of the state.

Here, the state legislature of Arizona has attempted to limit the potential of every salaried elected officeholder in the...