Barlow v. Blackburn
798 P.2d 1360
Ariz. Ct. App.
1990
Check Treatment

*1 supposed timely state’s failure to dis- close evidence. herein,

For the reasons stated the convic-

tions are reversed and the case is remand-

ed for new trial.

JACOBSON, Acting P.J., and

CLABORNE, J., concur.

798 P.2d 1360 BARLOW,

Samuel S.

Petitioner-Appellee, BLACKBURN, Brown,

John A. Carol Corbin, Dupnik,

Robert K. Clarence W. Lewis, Ralph Milstead,

Sam Joe Rich

ards, Ronstadt, Peter Donald L. Skous

en, Philip Severson, Lee and A. Wade

Smith, constituting members of and

Arizona Law Enforcement Officer Ad

visory (ALEOAC), Council and M.L.

Risch, Manager, ALEOAC Business Re

spondents-Appellants.

No. 1 CA-CIV 88-529. Appeals Arizona,

Court of 1, Department

Division C.

April

Review Denied Oct. 1990.* * Gordon, C.J., Cameron, J., nandez, C.J., Livermore, V.C.J., Supreme of the Court Court, partic- Two, recused themselves and did not Appeals, Division sat their stead. matter; ipate in the determination of this Fer- *2 conducting pro-

OAC from administrative ceedings revoking suspend- to consider or ing the certified law enforcement officer appellee (Bar- status of Samuel S. Barlow low). appeal The on issue is whether right guaranteed by freedom the first amendment to United States Constitution and the Arizona Constitution prohibits considering ALEOAC from whether certification to as a serve suspend- should revoked open practice ed because his disrupt, diminish or otherwise “tend[s] jeopardize public fidelity trust and regard profession.” to the enforcement law R13-4-07(A)(6). A.A.C. hold that ALE- proceed OAC hearing judgment and reverse the of the court. trial I. deputy sheriff

Barlow served as Arizona, County, Mohave from 1966 to present, From 1985 to the Barlow for Colorado deputy has been town marshal accepting position, City, Arizona. In support Barlow took an oath Consti- States and the consti- tution United and of Arizona.1 tution laws City, previously known as Short Colorado Creek, community is a northern small Hilldale, city adjoins Arizona that Utah, Many at the Utah/Arizona border. of these two communities the residents Cavness, A. and Charles Ditsch Marc C. are members of the Fundamentalist Church Phoenix, for petitioner-appellee. (Fun- Day of Latter Saints Jesus Christ Corbin, Atty. by K. Gen. William Robert Church). Fundamen- damentalist Mormon Gen., Phoenix, Jameson, Jr., Atty. S. Asst. religion their talist Mormons believe that respondents-appellants. polygamy. Pursu- requires teachings of the Fundamentalist ant to the OPINION Church, a man enters into one Mormon McGREGOR, Judge. marriage valid under the laws of licensed permission legal Law Arizona. With the his Appellant Arizona Enforcement Of- (ALEOAC) wife, “plu- appeals the man then takes one more Advisory Council ficer permanent relationships enjoining the trial ALE- ral wives” from court’s order enemies, office, foreign against and prescribed all 1. The oath of A.R.S. defend them 38-231, domestic, faithfully impar- states: I will and § and that Barlow, I, (or solemnly tially discharge the duties of the office of Samuel do swear S. affirm) support according that I will the Constitution Officer to the best of Reserve Police affirm). (or United Constitution and States my ability, help I do so me God so Arizona; I same, laws of State of that will bear Samuel S. /s/ allegiance true faith and recog- polyga- Fundamentalist Mormon Church tification because my. marriages.” nizes as “celestial court trial concluded that the state residents, many City Like other Colorado pro- could enforce Arizona’s constitutional *3 Barlow is a member of the Fundamentalist polygamy doing only hibition of so when In Mormon his Church. accordance with religious genuine would not interfere with religious beliefs, practices polyga- Barlow practices. The court that ALE- also found my. family legal consists of one compelling to state in- OAC failed show a

wife, wives, plural chil- thirty-six two and outweigh to Barlow’s first terest sufficient relationships. dren these right to freedom. amendment ordered dismiss the The court ALEOAC to pending proceedings against II. administrative to for his Barlow and reimburse Barlow On to March ALEOAC2 voted attorneys’ fees and costs. consider as a revocation Barlow’s status appeal filed timely notice ALEOAC certified pursuant law enforcement officer pursu- jurisdiction this court. We have R13-4-07(A)(6)3 to A.A.C. which states: ant to A.R.S. 12-120.21 and 12-2101. §§ following Each of cause constitutes revoke, for the Council refuse or sus- III. pend any person certified status of as a appeal, argues On that ALEOAC peace officer, including peace a reserve free clause exercise of the United States officer. it prohibit Constitution does not from con-

sidering the effects of Barlow’s whether practice polygamy revoking justify Any pattern conduct or of conduct peace suspending his officer certification. disrupt, that would tend dimmish or urges this court to affirm deci- jeopardize public otherwise trust and fi- ground sion trial court on the delity regard to the law enforce- proposed violates ALEOAC’s action his profession. ment right religion. to the free exercise his specific ground misconduct, As a ALE- argues Additionally Barlow that Arizona’s alleged OAC that Barlow prohibition polygamy can- constitutional proposed [o]penly practice support pro- polyga- admitted revocation (1) ceedings anti-polygamy because my in having Arizona three wives and “perfect clause conflicts with Arizona’s to- children; have sired 36 and whether [sic] clause; religion” (2) anti-po- leration of your such conduct violates oath of office. lygamy express does not clause state’s 10,1988, special On March Barlow filed a (3) public policy; and anti-polygamy Maricopa action in the County Superior footing” “equal clause is void under the Court, (1) enjoin requesting the court doctrine. We first con- address Barlow’s revocation, considering ALEOAC from anti-polygamy tention that Arizona’s clause refusal, suspension of Barlow’s certifica- because, correct, is if invalid Barlow is tion on account of his polygamy; argument. need not the free reach exercise (2) pending order ALEOAC to dismiss the Religious A. The Arizona Constitution: proceedings; and award and Polygamy Freedom attorneys’ Barlow his fees and Bar- costs. argued reli-

low free exercise of Constitution, The Arizona which Barlow gion pre- clause first amendment uphold, expressly polyga- swore to forbids inquiring vents from into or ALEOAC marriages polygamous plural mous or and Const, threatening peace XX, cer- par. to revoke cohabitation. art. legislature suspend 2. The established ALEOACin 1968. refuse or the certified of a status officer. See A.R.S. ALEOAC’sduties include § 41-1821. prescribing qualifications reasonable minimum regulations 3. ALEOAC were renumbered on reviewing constantly officers March 1989. The text of A.A.C. R13-4- those § standards. A.R.S. 41-1822.3. Barlow 07(A)(6) now found is at A.A.C. R13-4- revoke, dispute authority ALEOAC’s 109(A)(8). Furthermore,. polyg- Barlow concedes that his Arizona Constitution adopted subsequent was drafted amy contrary provi- constitutional Supreme United States decision in Court’s argues, however, anti-po- He sion. States, Reynolds v. United lygamy provision thus cannot is invalid and In Reynolds, L.Ed. the Court provide proposed a basis adminis- for the extend refused to the first amendment proceeding. disagree. trative prac- guarantee freedom to the polygamy by tice of a member of the Barlow first maintains that the anti- Day of Jesus Christ of Latter Church directly clause conflicts with Ari proposes 98 U.S. at Saints. 167. Barlow “perfect religion” zona’s toleration *4 concluding for that the drafters no basis clause, provides: which protection intended to extend more Perfect toleration sentiment polygamy practice of under the Arizona every be inhabitant of shall secured to Constitution, po- expressly which forbids State, and this no inhabitant of this State provided lygamy, than that under the Unit- person prop- in or shall ever molested Constitution, does not di- ed States which erty on account his or her mode of practice. rectly address the the same. worship, or lack of argues next consti Barlow that the Const, XX, par. anti-po- art. The prohibition against polygamy Ariz. 1. does tutional clause, express public policy the of this state lygamy immediately follows not which legislature the enacted because has never clause, perfect provides: the toleration imposing penalty a statutes criminal Polygamous plural marriages, poly- polygamy.4 The constitu the co-habitation, prohib- gamous are forever however, itself, expression the tion is ited within this State. people; legislative of the no enact the will Const, XX, art. par. Ariz. necessary to a constitu ment is validate expression public policy: tional provisions only directly The two conflict sovereign in the lan- people speak The if assume the that Barlow conclusion guage their Their will constitution. i.e., urges, perfect that toleration the in the the will expressed constitution is precludes against po- prohibition clause the itself____ sovereign of the lygamy. provisions When constitutional conflict, however, must appear to this court people can power other than the [N]o provision it construe each to harmonize limitations; neither can superadd other the fram- others “so that the intent of power people strike any other than the out and may ers be ascertained and carried any limita- from the fundamental law given to the instrument as a whole.” effect prescribed people have tions which Osborne, 125 P. v. State therein. 884, 892 instance, harmonize and In this we can sovereign people, in whom is vested The one and two give paragraphs effect to both power, spoken governmental have all and con- juxtaposition Article XX. The law, mandate, so organic their their approval provi- temporaneous of the two must expressed, courts____ be enforced that framers of our con- sions indicate perfect not tolera- stitution did intend Osborne, 14 Ariz. at v. protect polyg- clause to

tion Wagenseller also Scotts- P. at See authority has no amy. pointed Barlow Hospital, 147 Ariz. Memorial dale were un- suggests the framers (state’s (1985) 710 P.2d of these two public of the combined effect aware and statutes articulate constitution approve plural “embody public mar- conscience policy clauses or intended to state”). people of this upon religious if beliefs. riages based action, cedes, bigamous marriages. for this he has not violated prohibit at least does 4. Arizona participates Barlow A.R.S. 13-3606. Because statute. § that criminal only marriage, con- the state one licensed coercion, premise a argues further the constitu- from unlawful Barlow provides support, Arizona no prohibition polygamy tional is void under the Act repealed any portion have could doctrine, reasoning equal footing it Arizona has once achieved statehood. anti-polygamy provi- Arizona included the Indeed, fact that not done so. requirements solely satisfy sion anti-polygamy part of our clause remains Enabling gain Act5 order state- that, contrary Bar indicates constitution argument. reject hood. We argument, policy expressed there low’s of this state.6 people remains the will of the footing” “equal doctrine re Murray City, also 760 F.2d Potter v. that, although Congress flects the fact has (10th denied, Cir.1985), cert. U.S. power states into the to admit new Const, Union, power U.S. art. its see § (similar upheld against Enabling Act Utah Congress is not without limitation. must challenge prac who by plaintiff identical equal footing admit new states on an plural marriage). ticed deprive the other states and hold constitutional that Arizona’s any newly-admitted power state “of against prohibition valid and *5 by States, constitutionally possessed other pre- the Arizona Constitution States, by the terms in as reason of proceeding with an vent ALEOAC from hearing. admitting the acts them to the Union have Smith, 221 Coyle been framed.” v. U.S. B. The Free Exercise Clause of the 688, 691, 853, 31 55 L.Ed. S.Ct. First Amendment United (1911). 859 States Constitution Having anti-po- concluded that Arizona’s that, argues En because the valid, must con- lygamy clause is we next abling required Act Arizona to include an whether the free exercise clause of sider anti-polygamy provision, Arizona lacked first amendment the United States the power possessed by the other states to prohibits ALEOAC from con- Constitution legitimize practice plural marriage the of sidering potential of effect Barlow’s by legislatures. a vote of their his practice polygamy upon of argument is persuasive. Supreme not The analysis, making In certification. that, Court’s in Coyle decision established practice po- determine of first whether the imposed by whatever the limitations area of lygamy falls within the constitu- Act, Enabling power Arizona has had full so, protection. If and if the chal- tional repeal anti-polygamy since statehood to lenged state action burdens or interferes 579, provision. 221 at 31 S.Ct. at 695. U.S. rights, Barlow’s free exercise we must Hence, Enabling challenged even if the Act resulted determine whether the action is Enabling history judicial provision provides part: The The recall Act pow- typifies Arizona’s provide, Arizona Constitution by And said convention shall an ordi- despite nance er to amend the federal irrevocable without consent of the its constitution Const, people United government’s disapproval. States and the of said State— See Ariz. art. religious perfect Constitution, 8, 1, First. That toleration of sen- pt. The § 1. Arizona secured, and timent shall be itant person that no inhab- 9, adopted by February the territorial on voters ever be of said state shall molested in 1911, subjecting provision included a members property or account of his her on or judiciary to recall. President William H. religious worship; polyga- mode of and that recall, however, opposed judicial Taft and ve- marriages, plural polygamous mous or cohabitation, or Congress providing joint toed the resolution of sale, barter, cohab- and the Cong.Rec. for Arizona’s statehood. 62 3964-66 itation, sale, giving and the barter or of intoxi- (1912). judicial After Arizona recall deleted Indians, cating liquors and the introduction provision, approved President Taft the constitu- liquors country into are forever Indian following Immediately Arizona’s admis- tion. prohibited. statehood, voters sion to Arizona reinstated 1910, 310, 20, Enabling Act of June c. 36 U.S. judicial provision constitution. recall in the 557, added). (emphasis Stat. The corre- 569 Bakken, generally The Constitutional Arizona Constitution, sponding provisions Arizona in the 1, Convention 1978 Ariz.St.LJ. 8-10. XX, commonly article referred to as the are "irrevocable ordinance.”

356 achieving an 2641 15

the least restrictive means n. 463 n. unusually important compelling in state (“[sjtatutes making surely bigamy a crime Review terest. See Thomas v. Board cut associ- into an individual’s freedom to Employment Security the Indiana Divi ate, today such seriously but few claim sion, U.S. statutes violate the First Amendment Gove, (1981); Marriage L.Ed.2d In any provision”).7 constitutional a other (App.1977). 572 P.2d 458 decision, again recent indicated the Court argument government may The marriages those plural fall outside regulate practice religiously motivated practices legitimate that can make claim a For is not new. more than protection: to first amendment years, Supreme States the United may bigamy held that be forbid have protection Court has refused to extend den, is dictated even when the free clause to the exercise Reyn religious sincere convictions. polygamy. In the Court affirmed States, (8 Otto) olds v. United 98 U.S. felony of a member of conviction (1879). bigamist L.Ed. 244 If a Day of Jesus Christ Latter Church practicing polygamy may Saints for accord jail despite sent to beliefs but violation misconduct, surely motivation for States, Reynolds United federal law. pay unemployment refuse to L.Ed. 244 The marriage compensation to a counselor Reynolds Court reasoned that “Congress discharged he or she who because was power deprived legislative was of all over bigamous relationship. into a entered free opinion, mere was left to reach but protection that the First Amendment *6 in of social actions were violation free “legitimate provides to claims to the good of order.” 98 duties subversive see Hobbie Un religion,” of exercise [v. concluded, Indeed, at 164. the Court U.S. Appeals Flor employment Comm’n of practice excuse of Reynolds’ S.Ct., ida], [136], 142, at 107 480 U.S. religious on the basis of his belief would be (1987)] [1046], at 1050 L.Ed.2d 190 [94 added), to con does not extend (emphasis professed religious make doctrines validly proscribed. has duct that a State land, superior belief to the law the every in effect citizen to permit be- Division, Human Dept. Employment come a law unto himself. Government Smith, 671, 660, 108 v. 485 Resources U.S. only in name under such cir- could exist 753, 1444, 1451, 99 L.Ed.2d 764 S.Ct. cumstances. (emphasis original). in at 98 U.S. protec- decide whether the We need not Although has the Court modified ever ex- tion of free exercise clause dichotomy set out strict belief/action practice polygamy, how- tends to the Reynolds testing whether a burden ever, that, assuming Bar- find for we religion justi- free upon the exercise of is polygamy is constitution- practice low’s Yoder, 205, fied, see Wisconsin v. 406 U.S. compelling state ally protected, Arizona’s (1972), 1526, 15 92 S.Ct. below, an interest, justifies as described Reynolds reasoning underlying remains religiously-mo- infringement upon Barlow’s See, I v. e.g., Paris Adult Theatre valid. Slaton, 15, 2628, 49, 413 68 n. 93 tivated conduct. U.S. S.Ct. (1972); City, Murray 760 Reynolds providing 32 L.Ed.2d 15 Potter v. Courts to cite as continue 849, Cir.), denied, (10th example out- a viable of a state interest cert. 474 U.S. F.2d 1065 right weighs 145, (1985); to free an individual’s exercise United L.Ed.2d 120 106 S.Ct. 88 See, religion. University e.g., Jones v. Unit- Cir.1977); Bob Carroll, (10th F.2d 567 955 States v. States, 574, 2017, Cir.1982), 103 76 ed 461 U.S. S.Ct. Dickens, (3rd 765 v. 695 F.2d United States Lee, (1983); L.Ed.2d 157 United States v. 455 1792, 1092, denied, S.Ct. 460 U.S. 103 rt. ce 252, 1051, (1982); 102 71 L.Ed.2d 127 U.S. S.Ct. (1983). 76 L.Ed.2d 359 205, 1526, Yoder, v. Wisconsin 406 U.S. 92 S.Ct.

357 Although the first amendment and times conduct himself a manner which protect the Arizona absolutely bring himself, Constitution discredit to beliefs, religious protection Department, extended to City. or the religiously-motivated conduct is not abso Civil Service Commission Tucson v. lute, and religion not all burdens on are Ariz.App. 183, 187, 22 Livingston, 525 P.2d See, e.g., unconstitutional. Bob Jones 949, (1974), denied, 951, 953 cert. 421 U.S. States, 574, University 461 v. United U.S. 1685, (1975). 95 S.Ct. 44 L.Ed.2d 105 2017, (1983); 103 S.Ct. 76 L.Ed.2d 157 surely overriding The state has an inter- 252, Lee, United States v. 455 U.S. 102 assuring est in law enforcement offi- (1982); S.Ct. 71 127 L.Ed.2d Mar require- cers fulfill reasonable certification Gove, riage 117 Ariz. 572 P.2d 458 ments, which ALEOAC has defined re- (App.1977). may justify The state a bur that, essence, quiring conduct evidences upon sincerely den aof held respect very for the laws and constitution regula showing belief that the uphold. officers have sworn to accomplish compelling tion is essential to The incompatibility public between a flout- state interest. Bob University Jones v. ing of the constitution and the duties of a States, 461 United U.S. at at S.Ct. requires state address 2034; Yoder, v. at Wisconsin 406 U.S. problems they such when gener- arise. See 1532; 92 S.Ct. at State Whittingham, ally Marquardt, Matter 161 Ariz. Ariz.App. (1973), 504 P.2d (1989) (judge disciplined 778 P.2d 241 denied, 110 review P.2d conduct that violated his oath of office and (1974), denied, cert. brought judicial disrepute). office into L.Ed.2d authority regulate of the state to dispute The state does not that Bar public employees unques- conduct of is plural low’s marriage based tioned, though the even first amendment upon a sincere belief might prohibit regulation the same if im- proposed outcome of the posed upon general public. Although proceedings place a burden on the free government may unreasonably *7 religion. exercise of his Before state the compel employees its to relinquish first therefore, hearing, conduct a it must rights employ- amendment as a condition of demonstrate sufficiently compelling a inter ment, some restrictions on the exercise of justify imposing est to that burden. We rights justifiable. those are Pickering find the state has a compelling interest Education, 563, v. Board 391 U.S. in enforcing qualifications reasonable for 1731, (1968). S.Ct. L.Ed.2d its officers.8 In Pickering, example, the school Law enforcement unique officers hold a public board dismissed schoolteacher who position society. within The state entrusts submitted letters critical of the school power them with upon enforce the laws newspapers. board to local The school society depends much and demands justified by asserting board its action from them: the letters detrimental were to the efficient operation and administration of the schools police

A conspicuous officer is the most considering of the district. In the teacher’s representative government, and argument that the school board’s dismissal majority people symbol of the he is a rights, first violated his amendment stability authority upon they and whom Court stated: rely____ can Since of an the conduct officer, duty, may upon on off gainsaid reflect cannot be has [I]t Department, an officer at all employer regulating must interests an in challenge prescribed 8. Barlow does not the "reasonable low the standard for continued certi- qualifications" prescribed by minimum ALE- fication as a Barlow’s conduct pursuant OAC A.R.S. § 41-1822.3. The issue allegedly has violated. apply us before is whether ALEOACcan to Bar- purpose hearing cation. The before employees that differ speech of its possesses in from those it significantly ALEOAC is to determine whether Barlow’s speech regulation of the connection jeopardize public and conduct tends to trust general. problem citizenry in respect fidelity with to the law enforce- at a balance any case is to arrive in so, ALEOAC, If profession. ment it is teacher, as a the interests between instance, to determine the effect in the first citizen, commenting upon matters of in upon showing should have such a interest of the public concern and the argue that Barlow does not certification. State, promoting in employer, as an restrictive any utilize less the state could per- public services it efficiency of the express objective. its means to achieve through employees. forms its the likelihood opinion no as to 568, 88 S.Ct. at 391 U.S. at required to showing can make state regu compelling interest The state’s of Bar- suspension or revocation justify employees, even lating conduct of its low’s certification. first amendment doing so burdens when in other areas as well. rights, is reflected governments have a com IV. state

Federal and justify restrict sufficient to pelling interest reasons, we reverse foregoing For the par public speech and ing employees’ their trial court. judgment of the partisan politics, a restriction ticipation in imposed upon members that could not be See, Kennedy, public. e.g., Arnett v. P.J., CONTRERAS, concurs. 94 S.Ct. 416 U.S. (1974); Com Civil Service United States GERBER, concurring. Judge, specially Letter National Association

mission v. that, first to underscore specially I write 2880, 37 Carriers, 413 U.S. 93 S.Ct. view, of this decision my the essence (1973); Broadrick v. Okla L.Ed.2d 796 right, on these simply to affirm ALEOAC’s homa, 413 U.S. 93 S.Ct. facts, to conduct the Barlow (1973); Seraphim, Matter L.Ed.2d 830 secondly, dispel any de seem- hearing 294 N.W.2d cert. 97 Wis.2d. nied, ALE- of the thrice-cited ing endorsement L.Ed.2d 291 (whether conduct “would test OAC jeop- or otherwise disrupt, diminish tend to cho- practicing polygamy, Barlow has By fidelity regard public trust ardize disregard the Arizona Constitution’s sen to Men- profession”). enforcement marriage and to the law polygamous proscription of view, test, judicial is no uphold my and his oath of this cohabitation tion *8 suffi- That conduct workability. constitution. of its endorsement conclude that permit ALEOAC to cient to mini- the reasonable does not meet required offi- qualifications

mum The state’s interest certification.

cer requirements enforcing its certification interest in the Barlow’s

overrides justi- to the extent polygamy, at least hearing that is the

fying the administrative appeal.9

subject of this consideration question for our

The final least has selected the the state

is whether objective. its- means to achieve

restrictive certifi- officer’s

necessarily affect exclusively upon practice system based compel- relations it has a also contends that The state holding upon interest, statutory monogamy). our rests Because ling Arizona’s evidenced scheme, monogamous assuring relation- preserving compelling interest in the state’s Murray City, 760 ships. generally quali- Potter v. reasonable meet officers law enforcement Cir.1985) (state (10th compel- has a fications, argument. F.2d 1065 ling need not reach to domestic in and commitment interest