Elinor GREEN and Joel Hunter III, husband and wife, taxpayers and electors, Petitioners, v. Karen E. OSBORNE, in her capacity as Acting Secretary of State of the State of Arizona, Respondent. Jack LONDEN; Rose Mofford; John (Jack) Oertle, Sr.; John Jay Rhodes; Bernie Senter; Carolyn Warner; and Evan Mecham, Real Parties in Interest.
No. CV-88-0142-SA
Supreme Court of Arizona, En Banc.
June 14, 1988.
758 P.2d 138 | 157 Ariz. 363
Dioguardi, Poli & Ball, Ltd. by Mark D. Dioguardi, James B. Ball, Phoenix, for Jack Londen.
Meyer, Hendricks, Victor, Osbo by David G. Campbell, Phoenix, for Rose Mofford.
Law Offices of Howard, DeRoon & Seyffer by Michael E. Riikola, Phoenix, for John J. Rhodes.
Bill Stephens & Associates, P.C. by William H. Anger, Phoenix, for Carolyn Warner.
Cromwell & U‘Ren by Stephen A. U‘Ren, Phoenix, for intervenors.
John C. Oertle, Sr., Tempe, pro se.
Bernie Senter, Phoenix, pro se.
HOLOHAN, Justice.
The petitioners filed a petition for special action in this court to enjoin the acting Secretary of State from proceeding with the recall election for Governor scheduled for May 17, 1988. We have original jurisdiction of an action for an injunction or other extraordinary writs to state officers.
The essential facts are not in dispute. Evan Mecham was elected Governor of the State of Arizona at the general election in November, 1986. He assumed his duties as Governor on January 5, 1987. After serving six months in office, a group known as the Mecham Recall Committee filed an application, pursuant to
While the recall process was in progress, the Arizona House of Representatives had commenced an investigation of the activities of the governor which ultimately led to the House voting on February 5, 1988, to impeach the governor.
The governor was tried in the Arizona Senate on the Articles of Impeachment filed by the House, and, on April 4, 1988, the governor was convicted on two of the Articles. Pursuant to
Pursuant to
On April 7, 1988, the acting Secretary of State, Karen Osborne, acting on the advice of the Attorney General, deleted the name of former Governor Mecham from the recall ballot. In addition she deleted from the ballot the statement of reasons for demanding recall and the officeholder‘s “justification of his course in office.” See
On April 8, 1988, the present petition was filed in this court to enjoin the acting Secretary of State from proceeding with the recall election because the Governor‘s removal by the Senate had mooted the recall election.
Elections are political matters to be decided by the electorate, but the legality of holding an election is a judicial question to be decided according to the requirements of the constitution. State v. Osborne, 14 Ariz. 185, 125 P. 884 (1912). The issues in this case raise important questions involving the proper interpretation of conflicting provisions of the Arizona Constitution. The courts have the duty of ensuring that the constitutional and statutory provisions protecting the electoral process are not violated. Tilson v. Mofford, 153 Ariz. 468, 737 P.2d 1367 (1987).
Preliminarily, however, we are met by the claims of several of the real parties in interest, who are candidates certified to appear on the recall ballot, that it is not necessary for the court to resolve the conflicting provisions of the state constitution applicable to this situation because the state is estopped from cancelling the election. The candidates contend that they, as well as many voters, justifiably relied to their detriment upon the Secretary of State‘s order calling the special election and the Attorney General‘s opinion stating that the election “shall be held even if the Governor later resigns or is removed from office prior to the election date.” Ariz.Atty.Gen.Op. I88-015 (January 21, 1988). In reliance thereon, “[t]hese voters and candidates have expended considerable amounts of time, effort and money, and have made commitments and incurred obligations, and otherwise acted in a manner detrimental to their lives.” Brief for Real Party in Interest Jack Londen at 3.
Ordinarily, a claim of equitable estoppel is made out when a person justifiably relies on the conduct of another to their detriment. Heltzel v. Mecham Pontiac, 152 Ariz. 58, 730 P.2d 235 (1986). Generally, however, the defense of estoppel does not apply against the state in matters affecting governmental or sovereign functions. Mohave County v. Mohave-Kingman Estates, 120 Ariz. 417, 586 P.2d 978 (1978). Nor may the state be estopped by the unauthorized acts of its officers or employees. Freightways, Inc. v. Arizona Corporation Commission, 129 Ariz. 245, 248, 630 P.2d 541, 544 (1981). Furthermore, reliance on an Attorney General opinion does not support a claim of estoppel. While we have said that citizens may, in good faith, rely on such opinions until the courts have spoken, Marston‘s, Inc. v. Roman Catholic Church, 132 Ariz. 90, 644 P.2d 244 (1982), such opinions are advisory only and do not bind courts of law, and they are not a legal determination of what the law is at any certain time. State v. Deddens, 112 Ariz. 425, 542 P.2d 1124 (1975).
Despite the Attorney General‘s opinion there was considerable speculation and division of opinion among attorneys whether a recall election would be proper in the event that the governor was removed from office. The speculation surrounding the subject was reviewed in the media. In circulating their nomination petitions while the Senate was trying the governor the candidates must, surely, have realized that there was a question being raised about the inevitability of the election if the governor was convicted.
We do not believe that the candidates have established a case of estoppel.
Some of the candidates also assert that to cancel the election would deny them the right to run for public office which would be a violation of their due process rights under the state and federal constitutions. The federal cases relied upon by the candidates do not deal with situations relevant to this case. Contrary to the assertion of the candidates, the right to a state political office is not a property right or liberty interest secured by the due process clause of the Fourteenth Amendment. Snowden v. Hughes, 321 U.S. 1, 7, 64 S.Ct. 397, 400, 88 L.Ed. 497 (1944). Nor does every denial of a right conferred by state law involve a denial of equal protection of law unless there is shown to be present in the denial an element of intentional or purposeful discrimination of person or class of person. Id. The candidates are not denied due process or equal protection under law by the cancelling of the recall election.
Nor does the state constitution require a different conclusion. Elections, whether general or special, may not be held if they would conflict with the requirements of the constitution. Hudson v. Cummard, 44 Ariz. 7, 33 P.2d 591 (1934). It has long been recognized in this state that the judiciary has the constitutional authority to intervene and prevent the holding of an election which is proceeding in violation of law. Abbey v. Green, 28 Ariz. 53, 235 P. 150 (1925); Kerby v. Griffin, 48 Ariz. 434, 62 P.2d 1131 (1936). There is no constitutional right for a candidate to run in an illegal election. Hudson v. Cummard, supra. This principle has been recognized by other jurisdictions even in reference to recall elections. Davis v. Friend, 507 So.2d 796 (Fla.App.1987); State ex rel. Palmer v. Hart, 201 Mont. 526, 655 P.2d 965 (1982); Pederson v. Moser, 99 Wash.2d 456, 662 P.2d 866 (1983).
The real issue in this case is whether the recall election scheduled for May 17, 1988, could be held when the officeholder sought to be recalled has been removed from office by conviction in the Senate on Articles of Impeachment.
The Attorney General argues that there is no express language in the Arizona Constitution which permits the cancelling of a recall election ordered pursuant to
The Attorney General relies entirely on the literal provisions of
The unusual sequence of events which have occurred in this case are ones which, we can safely say, were never envisioned by the drafters of the Arizona Constitution. It is the duty of the court to review the several constitutional provisions which have become applicable to the situation since the conviction of the governor, and
The former governor‘s removal from office by conviction in the state senate has placed the Secretary of State in the Governor‘s chair.
To resolve the conflict it is important to consider the primary purpose of the recall provision of the constitution. Over fifty years ago this court in Abbey v. Green, supra, described the purpose of the recall provision “to permit the electorate to get rid of an obnoxious and unsatisfactory officer with whom, for any or no reason whatever for that matter, they may have become displeased.” Id., 28 Ariz. 63, 235 P. 160. We are aware that the Arizona recall system also provides that not only is the officer removed but the voters choose his successor.
Under the unusual chain of events in this case, the State Senate by convicting the former governor under the impeachment provisions of the constitution,
Whenever possible to do so, each provision of the constitution must be construed so that it harmonizes with all others without distorting the meaning of any such provision so that the intent of the framers may be given effect and carried out. State v. Osborne, supra. We conclude that the only sensible construction to be given to the constitutional provision applicable to this situation is that the action of the State Senate in convicting and removing the former governor from office accomplished the primary purpose of the recall election. The officeholder, the subject of the recall, had been removed from office; there was no one to recall. The constitution had provided for the installation of a new governor. There was no purpose to be served by the recall election. The target of the recall had been removed under another provision of the constitution and a successor had been installed by yet another provision of the constitution. The former governor having been removed pursuant to the constitution, the recall election to remove that individual became impossible. Recall of the new governor being prohibited by the Constitution, we granted the relief prayed for in the petition and enjoined the acting Secretary of State from proceeding with the recall election of May 17, 1988.
FELDMAN, V.C.J., MOELLER, J., and FRED C. STRUCKMEYER, Jr., Retired Justice, concur.
Chief Justice FRANK X. GORDON, Jr. did not participate in this decision; pursuant to
CAMERON, Justice, dissenting:
Our Constitution specifically provides when a recall election shall be held.
If he [the officer being recalled] shall not resign within five days after a Recall Petition is filed as provided by law, a
special election shall be ordered to be held as provided by law, to determine whether such officer shall be recalled.
The duty to order a recall election is based upon the determination of the sufficiency of the recall petitions and is mandatory. Abbey v. Green, 28 Ariz. 53, 59, 235 P. 150, 153 (1925). In this case, Governor Evan Mecham did not resign and an election was properly called.
The recall provisions in the Constitution under
In the instant case, Evan Mecham‘s name was removed from the recall ballot by operation of law since, after the recall petitions had been filed, he was impeached and removed from office. Because Evan Mecham has been removed from office by way of impeachment, he is not eligible for election to the office of Governor during the term of office for which he was originally elected and from which he was removed. See Coleman v. Rose, 74 Kan. 262, 86 P. 296 (1906); Childs v. Dart, 57 Minn. 261, 59 N.W. 190 (1894); State ex rel. Danforth v. Alford, 467 S.W.2d 55 (Mo. banc 1971); Gelch v. Rhode Island, 482 A.2d 1204 (R.I. 1984); Thompson v. Crump, 134 Tenn. 121, 183 S.W. 505 (1915); accord People v. Ahearn, 196 N.Y. 221, 89 N.E. 930 (1909); Recall Bennett Committee v. Bennett, 196 Or. 299, 249 P.2d 479 (1952).
In this case, Arizona law required the position of Governor be filled by the designated line of succession as found in
The Constitution does not require that the recall election be cancelled if the officer subject to recall is removed from office, or otherwise had his name removed from the ballot. Instead the Constitution provides that after such election, the office of Governor is filled by law under
In the event of the death of the Governor, or his . . . removal from office . . . the Secretary of State, if holding by election, shall succeed to the office of Governor until his successor shall be elected and shall qualify.
Thus, even though the Secretary of State, Rose Mofford, has succeeded to the office of Governor, she holds such office only temporarily until the Governor‘s successor is elected. In this case, the recall election is merely a special midterm election which would fill the vacancy created by Evan Mecham‘s removal from office.
Arizona‘s recall provision is for benefit of the public rather than the officials, and thus its language should be construed liberally in favor of permitting recall elections. Johnson v. Maehling, 123 Ariz. 15, 18, 597 P.2d 1, 4 (1979). As the Washington court recently stated, “the rights of initiative, referendum, and recall form a weighty triumvirate intended to preserve the people‘s most basic right of self-governance and any interference with these rights requires strong justification.” Pederson v. Moser, 99 Wash.2d 456, 460, 662 P.2d 866, 869 (1983). I agree.
The majority opinion states: “There [is] no purpose to be served by the recall election.” This “finding” by the majority is not a justification for this court to deviate from the clear mandate of our Constitution. Once the recall process has properly begun, this court has no power to stop such election regardless of whether we believe “no purpose will be served” by such an election. The recall provision in our constitution is intended as a reservation in the