Conrad Joyner v. Rose Mofford, Secretary of State, State of Arizona Robert K. Corbin, Attorney General, State of Arizona

706 F.2d 1523, 1983 U.S. App. LEXIS 27458
CourtCourt of Appeals for the Ninth Circuit
DecidedMay 23, 1983
Docket82-5552
StatusPublished
Cited by56 cases

This text of 706 F.2d 1523 (Conrad Joyner v. Rose Mofford, Secretary of State, State of Arizona Robert K. Corbin, Attorney General, State of Arizona) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conrad Joyner v. Rose Mofford, Secretary of State, State of Arizona Robert K. Corbin, Attorney General, State of Arizona, 706 F.2d 1523, 1983 U.S. App. LEXIS 27458 (9th Cir. 1983).

Opinion

SNEED, Circuit Judge:

This case involves a challenge by Joyner to a provision of the Arizona Constitution which forbids certain state officials from remaining in office if they run for an elected federal position before the final year of their state term. The case was brought by Joyner to enjoin its enforcement against him. 1 The district court granted the relief Joyner sought and held that the Arizona provision is unconstitutional because it conflicts with the Qualifications Clause of Article I, Section 2 of the United States Constitution. 539 F.Supp. 1120. The State appeals. We reverse.

*1526 I.

FACTS

Conrad Joyner is a member of the Board of Supervisors for Pima County, Arizona. His present term of office began on January 1, 1981, and ends on January 1, 1985. In 1982, Joyner ran an unsuccessful campaign in the Republican primary for nomination to the United States House of Representatives.

Article 22, § 18 of the Arizona Constitution was proposed by the Arizona Legislature in 1979, and approved by the voters at the 1980 general election. It 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.

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.

Joyner contended that Article 22, § 18 is unconstitutional. The district court granted Joyner’s motion for summary judgment, holding that Article 22, § 18 is unconstitutional as it relates to salaried elective state officials offering themselves for federal office. The court ordered that Joyner be allowed to run for the House of Representatives without having to resign from the Pima County Board of Supervisors.

The State of Arizona appeals the district court’s order and also argues that Joyner did not have standing to bring his action. Joyner, in addition to claiming that Article 22, § 18 is unconstitutional, also contends that we should dismiss the appeal because the case is now moot. We address the standing and mootness issues first, and then turn to the merits.

II.

STANDING

The State asserts that Joyner did not have standing to challenge the constitutionality of Article 22, § 18, except as applied to Joyner’s own candidacy for federal office.

The standing doctrine derives from the “case or controversy” requirement of Article III of the ’United States Constitution, and “is the threshold question in every federal case, determining the power of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). Courts require a plaintiff to have a “personal stake” in the outcome of a case “to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Id. at 498-99, 95 S.Ct. at 2204-05 (emphasis in original). To have such a “personal stake,” a plaintiff must allege a “distinct and palpable injury to himself.” Id. at 501, 95 S.Ct. at 2206. Such an injury can arise even from the burden of a statutory obligation. Orr v. Orr, 440 U.S. 268, 273, 99 S.Ct. 1102, 1108, 59 L.Ed.2d 306 (1979). In the present case, Joyner alleges a potential injury which is sufficient to meet the standing requirement — his obligation under Article 22, § 18 to resign or be removed from his state position if he runs for federal office.

The question then arises whether Joyner has standing to assert that Article 22, § 18 is unconstitutional as it applies to third parties, i.e., all salaried elective officeholders who might seek state or federal elective office. The State relies on Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), for the proposition that absent a few limited exceptions, id. at 611, 93 S.Ct. at 2915, appellants may not assert jus tertii standing. In that case, the Supreme Court held that a litigant may not assert the rights of third persons where he did not engage in the allegedly protected activity. Id. at 610, 93 S.Ct. at 2914. See H.L. v. Matheson, 450 U.S. 398, 405-06, 101 S.Ct. 1164, 1169, 67 L.Ed.2d 388 (1981). Al *1527 though, in the light of our disposition of this case on the merits, it is doubtful that our resolution of this standing issue will be of great significance, we hold that Joyner has standing to assert claims only with respect to himself and others in the State of Arizona who serve on Boards of Supervisors and who wish to stand for election to a federal office. Only with respect to that category of officials can it be said both that Joyner did in fact engage in the protected activity in which they might wish to engage, and that Joyner’s complaint is identical to the complaint that they would assert when and if confronted by Arizona’s bar to running for federal office before the final year of their state term. We adopt this position in the belief that it best accords with the prudential objective thought to underlie the restraints on assertions of jus tertii. See Craig v. Boren, 429 U.S. 190, 193, 97 S.Ct. 451, 454, 50 L.Ed.2d 397 (1976).

Nonetheless, the rule we enunciate in this case by its terms would embrace situations other than that presented by Joyner. To enunciate such a rule does not involve an issue of standing. When a rule by which a plaintiff’s conduct is governed is broad enough to cover others engaged in somewhat similar activities, the fact that the plaintiff can assert only his rights under the rule does not thereby narrow the rule so as to make it not applicable to others when properly invoked. Joyner’s lack of standing to assert all possible jus tertii merely means that those who rightfully assert them later are neither encumbered nor aided by res judicata or, perhaps, by collateral estoppel.

III.

MOOTNESS

Turning to the mootness issue, Joyner contends that this case has become moot since he lost the primary election and is no longer a candidate for Congress. He argues that this case is not covered by the principal exception to the mootness doctrine, that applicable to cases that are “capable of repetition, yet evading review.” See Dunn v. Blumstein, 405 U.S. 330, 333 n. 2, 92 S.Ct. 995, 998 n. 2, 31 L.Ed.2d 274 (1972).

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706 F.2d 1523, 1983 U.S. App. LEXIS 27458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conrad-joyner-v-rose-mofford-secretary-of-state-state-of-arizona-robert-ca9-1983.