Wednesday, April 27, 2005

Michael: Former AZ District 7 Representative David Burnell Smith still refusing to obey the law

David Burnell Smith’s motives are clearly not in the public interest based upon his own statements. He said The Clean Elections Commission "stabbed me in the back, and now I’m going to take that dagger and stab it in Clean Elections’ heart." Mr. Burnell Smith’s motives are no longer to vindicate himself, or even to test the constitutional validity of Clean Elections in good faith, but to vindictively hamper or destroy operation of the laws of Arizona and to have revenge upon a bureaucracy he feels has slighted him.

He said, "a group of five un-elected people cannot remove me from office. It’s going to take the Legislature to do that." Mr. Burnell Smith is clearly asserting an argument that the Commission does not have the legal authority to remove him from office; that only the legislature has that power.

Presumably, this contention will be the heart of a legal challenge to his removal. Mr. Burnell Smith is a lawyer himself, a judge in the municipal courts of Peoria and Wickenburg, in fact. He is not legally naive, and his public pronouncements on the matter can fairly be taken as advancing a good-faith legal theory, not just rhetoric.

Burnell Smith’s appeal of the Commissions’ directive to an Administrative Judge is essentially a test of whether the Commission has the legal authority to order Burnell Smith’s removal from office. In essence this is a quo warranto challenge of the Constitutional basis for the Commission’s authority. A Writ of Quo Wanrranto (literally, ‘on whose authority?’) is seldom used, simply because the allegation that a government official doesn’t have the purported authority to act is seldom colorable. Most lawyers won’t waste their time stomping on such well-trodden ground. The question of whether the Commission’s finding is Constitutional would certainly be a case of first impression in Arizona, but the results are quite predictable.

Arizona voters passed clean Elections as a ballot initiative. The law creates penalties for failure to comply with the law that include loss of an elected office. If a factual finding of the Commission triggers those penalties, then the candidate is removed from office by operation of law. The red herring that Burnell Smith is hoping to drag across this very clear authority is the idea that appointed officials don’t have the ability to remove an elected official from office.

The voters vested the administration of the Clean Elections Act in the appointed Clean Elections Commission. The only way that the members of the Commission could lack the Constitutional authority to remove elected officials is if the voters do not have that authority under the Constitution or if there has been an unconstitutional usurpation of power that is textually committed to another branch. This is the line of argument that Burnell Smith invokes when he claims that only the legislature can remove him from office.

Under the Arizona Constitution the legislature is given the power of regulating its membership, removing members upon 2/3rd vote ("Each house may punish its members for disorderly behavior, and may, with the concurrence of two-thirds of its members, expel any member"), or impeaching any official in the House, with a trial to follow in the Senate. Presumably, it is Burnell Smith’s contention that these provisions constitute a textual commitment of removal of elected officials from office to the legislature.

The first possibility, that the voters haven’t the right to remove official from office outside of an election, is patently false. The voters of Arizona are specifically granted the power to remove legislators for any cause by the Constitution. Article 8, Section 1 states, "Every public officer in the state of Arizona, holding an elective office, either by election or appointment, is subject to recall from such office by the qualified electors of the electoral district from which candidates are elected to such office." Thus the Constitution clearly contemplates in it’s most basic structure that the power to remove elected officials is not textually committed to the legislative branch, but is also vested in the voters.

The power of voters to restrict the tenures and remove elected officials is also enshrined by a Constitutional amendment passed by referendum - Term Limits. The voters adopted term limits by which legislators can be removed from office by operation of law at the end of their maximum term. If the voters can remove legislators from office by the effect of a initiative limiting their terms, even should those officials be elected by the people, why should voters not be able to remove officials for violating the State’s election laws as adopted by the people? Presumably, Mr. Burnell Smith will also be challenging his term limitations if the time ever comes as part of his same principled crusade against the tyranny of voters?

Further, the power of the voters to remove officials is made superior to the powers of the legislature in the Constitution. The Constitution specifically denies the legislature the power to deny or repeal voter-made law. Voters restricted the legislature's power to repeal initiative or referendums by amending the Constitution to read, "[t]he legislature shall not have the power to repeal an initiative measure approved by a majority of the votes cast thereon or to repeal a referendum measure decided by a majority of the votes cast thereon."

Not only is the right of voters to remove officials outside of elections textually recognized, but also the people’s own laws passed by initiative are protected from, and superior to, the legislative authority vested in the state legislature. In all ways, the voters of Arizona are Constitutionally superiors to the elected legislature, including in the discipline and removal of elected officials, as there are no predicate conditions required for a recall. Burnell Smith’s contention that Administrative bodies, created by the people’s own laws, cannot remove officials from office is unfaithful to and disparaging of the spirit of our Constitution.

Nor do the discipline and impeachment clauses of the Arizona Constitution in any way exclusively commit the power to remove officials to the legislature, There are many other ways a legislator can be removed from office that are outside of the discipline and impeachment powers. We have already discussed the power of voters themselves to remove officials under the Constitution. In addition, an official could become ineligible by failing to meet one or more constitutional eligibility requirements, or violating restrictions on concurrent office-holding, while in office. For instance, if a member where appointed to another Federal or State office, stopped being a citizen of Arizona, or moved to another county while a member of the legislature, he or she would have to surrender their office by operation of law. The Legislature cannot therefore be said to be the sole arbiters of it own membership outside of the narrow confines of misconduct or impeachment.

No one contends that violation of the Clean Elections law is grounds for impeachment or discipline for misconduct. The violations of the law Mr. Burnell Smith has been found guilty of, and indeed has admitted to, are set outside of the purview of the Legislature’s power by Arizona law. The legislature is not the only body that could discipline Mr. Burnell Smith, indeed, in this case, it is the wrong forum to decide Mr. Burnell Smith’s punishment.

Clearly, removal of legislative officers by operation of law as administered by the Clean Elections Commission does not violate the Arizona Constitution’s design. The powers exercised by the Clean Elections Commission are within the power of voters to mandate and, most importantly, clearly accords with the popular will. Mr. Burnell Smith’s legal challenge will certainly fail. I suspect he knows that, and is just working the clock. Mr. Burnell Smith’s continuing intransigence is not likely to produce any positive results for anyone but himself, which is a betrayal of the trust voters gave him by electing him. Indeed, his stubborness only serves to perpetuate what seems to be an all-to-common dementia of our political leaders in these times: their conviction that they are above the law.

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