Laos v. Arnold, 2

• Court: Arizona Court of Appeals
• Writing for the Court: BIRDSALL
• Citation: Laos v. Arnold, 685 P.2d 115, 141 Ariz. 50 (Ariz. App. 1984)
• Decision Date: 27 February 1984
• Docket Number: CA-SA,No. 2,2
• Parties: Roy B. LAOS, Petitioner, v. The Hon. Jack T. ARNOLD, Judge of the Superior Court; and State of Arizona, ex rel. Robert K. Corbin, Attorney General, Real Party in Interest, Respondents. 033.

Page 115

685 P.2d 115

141 Ariz. 50

Roy B. LAOS, Petitioner, v. The Hon. Jack T. ARNOLD, Judge of the Superior Court; and State of Arizona, ex rel. Robert K. Corbin, Attorney General, Real Party in Interest, Respondents.

No. 2 CA-SA 033.

Court of Appeals of Arizona Division 2.

Feb. 27, 1984.

Review Granted May 22, 1984.

Reuben Moses Emanuel and Hecker, Phillips & Hooker by Robert J. Hooker, Tucson, for petitioner.

Robert K. Corbin, Atty. Gen. by Russell A. Kolsrud, Asst. Atty. Gen., Phoenix, for respondents.

OPINION

BIRDSALL, Chief Judge.

In November 1980 the voters of this state approved the amendment of the state constitution by the addition of Article 22, § 18, which 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."

On June 24, 1982, petitioner Laos filed nominating papers with the Arizona secretary of state, seeking election to the United States House of Representatives for the Second District of Arizona. On that date, Laos was serving the first year of a four-year term as a member of the Tucson City Council, a salaried elective office.

Two months prior to that date, a declaratory judgment action had been commenced in the United States District Court by Conrad Joyner, a Pima County supervisor who also desired to run for Congress, seeking a judicial determination that the above-quoted amendment violated the qualifications clause of the United States Constitution. On May 24, 1982, the district court granted summary judgment in favor of Joyner. Joyner v. Mofford, 539 F.Supp. 1120 (D.Ariz.1982). The judgment was appealed and ultimately reversed by the Ninth Circuit in a decision rendered on May 23, 1983, upholding the constitutionality of Article 22, § 18. Joyner v. Mofford, 706 F.2d 1523 (9th Cir.1983). Joyner's petition to the United States Supreme Court for a writ of certiorari was denied on November 28, 1983.

Laos did not resign from his position as councilman prior to initiating the 1982 congressional campaign, which was unsuccessful, and he has remained in that office until the present. On December 13, 1983, two weeks after the Supreme Court's denial of certiorari in the Joyner case, supra, and over a year and a half after Laos filed his nominating petitions, the respondent attorney general filed a Petition in Quo Warranto seeking to remove Laos as a councilman on the ground that by offering himself for election to Congress, he was disqualified from his office by Article 22, § 18 and was thereafter holding his office unlawfully. Simultaneously, the attorney general filed a Motion for Summary Judgment of Ouster, which was granted on January 23, 1984, giving rise to this special action.

Although the issue of the compatibility of Article 22, § 18 with the United States Constitution has been decided in the federal courts, questions concerning the construction and enforcement of this provision have not previously been presented to the appellate courts of this state. Because this case presents issues of great public importance and of first impression, and because Laos' remedy by way of appeal is inadequate, we accept jurisdiction.

Under A.R.S. § 12-2041, the attorney general is authorized to bring an action in quo warranto "against any person who usurps, intrudes into or unlawfully holds or exercises any public office or any franchise within this state." The purpose of this action is to protect the public interest by preventing one who is not entitled to an office from exercising it. State of Arizona ex rel. Sullivan v. Moore, 49 Ariz. 51, 64 P.2d 809 (1937). An action in quo warranto is an appropriate means of determining not only whether a person is eligible to hold an office to which he has been elected or appointed, State ex rel. Jones v. Lockhart, 76 Ariz. 390, 265 P.2d 447 (1953), but also whether a person who lawfully entered an office has subsequently become disqualified. State ex rel. DeConcini v. Sullivan, 66 Ariz. 348, 188 P.2d 592 (1948). It is into this latter category that the present case falls.

The attorney general argues that Article 22, § 18 effectively creates a qualification for public office, that is, an incumbent desiring to run for another office must first resign his position. By not resigning, it is argued, Laos has violated this qualification and is holding office unlawfully, and the attorney general is obligated to seek his removal through quo warranto proceedings. The attorney general relies almost exclusively on the circuit court's decision in Joyner, supra, as authority for his conclusions. In its statement of the "facts," that court stated:

"Under Arizona Revised Statutes §§ 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, § 18 to force him to resign from the state position and to declare that position to be vacant." 706 F.2d at 1526.

Contrary to the attorney general's contentions, the decision in Joyner is not "decisive" on the issue of the appropriateness of quo warranto as a remedy for violations of the constitutional provision. The sole issue before the court was the constitutionality of Article 22, § 18 and any language in the opinion pertaining to the appropriate means of enforcing the provision was therefore mere dicta. It further appears that this language resulted from the agreement of the parties to the action, reflected in the district court's opinion, that Joyner was faced with the possibility of an action by the state to force him to resign or to declare his office vacant. 529 F.Supp. at 1121. Even assuming that this issue had been decided in Joyner, we are not bound by the construction placed upon our constitution and statutes by a federal court. As our supreme court has recently stated, "... the concept of federalism assumes the power, and duty, of independence in interpreting our own organic law. With all deference, therefore, we cannot and should not follow federal precedent blindly." Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984).

The first issue we must address is whether Article 22, § 18 is applicable to officers of a chartered city. Laos argues that since the City of Tucson has been given the constitutional right to "home rule" by adopting a charter pursuant to Article 13, § 2 of the constitution, the provisions of the charter supersede any general laws relating to municipalities. He further argues that the qualifications of elected officials of chartered cities are matters of purely local concern, relying on the supreme court's decision in Strode v. Sullivan, 72 Ariz. 360, 236 P.2d 48 (1951).

In Strode, the petitioners challenged the refusal of the city clerk of Phoenix to certify the creation of a new political party and to designate the identity of the party on the ballot for a primary election in the city, in compliance with the state's general election laws. These laws were adopted pursuant to Article 7, § 10 of the constitution, which provides:

"The Legislature shall enact a direct primary election law, which shall provide for the nomination of candidates for all elective State, county, and city offices including candidates for United States Senator and for Representative in Congress."

While the Phoenix charter included a provision for primary elections, in contrast to the state law, it expressly prohibited any indication on the ballot "of the source of the candidacy or the support of any candidate." Ch. XII, sec. 9, Charter, City of Phoenix. In holding that the charter provisions were controlling, the court stated: "We can conceive of no essentials more inherently of local interest or concern to the electors of a city than who shall be its governing officers and how they shall be selected." 72 Ariz. at 368, 236 P.2d 48. However, the Strode court was not faced with an alleged conflict between different sections of the constitution, or between a charter and the constitution, but rather a conflict between the city charter and a state statute. The court specifically noted that the charter provision was consistent, as it must be, with the constitution. 72 Ariz. at 365, 236 P.2d 48.

Strode, therefore, does not provide authority for the proposition that, merely by adopting a charter pursuant to Article 13 of the constitution, a city is thereby taken outside the ambit of any other constitutional provisions pertaining to elected officials. The fact that Tucson, as a chartered city, has been granted certain governmental powers over local matters, does not mean that those powers are exclusive. To the contrary, Article 13, § 2 specifically requires that a city charter be "consistent with, and subject to, the Constitution ...." Further, there is nothing in the language of Article 22, § 18 which would suggest that it was not intended to apply to officials of chartered cities. Both its language and its position in the "Schedule and Miscellaneous" portion of the constitution indicate that it was intended to apply generally to all salaried elected officials in the state.

Laos also argues that the due process and equal protection clauses of the state and federal constitutions are violated if Article 22, § 18 is construed to apply to officials of chartered cities, on the ground that as applied to such officials the provision has no rational connection to a valid state interest. This argument has no merit. It cannot be seriously contended that the people of this state have no legitimate interest in determining the qualifications of their elected officials and their tenure in office, nor the authority to provide for such matters in their constitution. That they have chosen to delegate this authority to some degree to the electors of chartered cities, with regard to their elected officials, does...