Rum, Romanism and Rebellion

Have you ever seen the cereal commercial where a supervisor tries to fire an employee, but the employee won’t leave because he can’t hear over the crunch of his cereal?

Maybe David Burnell Smith has a similar difficulty. You’d think so since, despite being ordered to vacate office on October 4th, he is still there.

Smith has had 14 days to file an appeal of the decision, and failed to do so (although, in an odd move, Smith claims that he did file). Attorney General Terry Goddard is looking to take further action. This may include asking the Seceretary of State to declare a vacancy. What happens if Seceretary Jan Brewer refuses? What happens if the vacancy is declared and an appointed legislator tries to take office while Smith still thinks it is his? What happens if the house speaker refuses to accept that there is a vacancy?

Smith’s contention is that a legislator can only be thrown out by recall, failure to win re-election or impeachment. Smith has failed to look at recent history. Corporation Commissioner Tony West* was thrown out of office in 1999 for what may be considered a minor infraction: it turned out that he held a securities licence, making him inelligible for the office. This sort of violation basically meant that West was never legally elected to the office in the first place. It could be said that something similar is going on here.

Smith is aruguing that removal from office is limited to only a small list of rather extreme circumstances. In 1948, an Arizona attorney general was removed from office in a decision called DeConcini v Sullivan. I wasn’t able to find out anything about that case, but I found it cited, along with two other cases, in an opinion regarding a situation in Oklahoma in 1983. These cases all seem to come to the same conclusion about when an office holder can be removed:

In State v. Musto, 454 A.2d 449 (N.J. Super. L.1982), the Court held that the office of a state senator became vacant automatically upon his conviction of felony crimes under a forfeiture of public office statute. The Senator argued that the exclusive method by which he could be removed from office was through expulsion by a two-thirds vote of the Senate under the New Jersey Constitution. In rejecting that argument the Court said:

“[I]t is illogical to assume that expulsion or impeachment, provided by our Constitution, were intended by the framers of that document to be the exclusive methods for the removal of public officers. They serve as an added safeguard to the public against those officers who may be so powerful as to effectively avoid prosecution for wrongdoing. They could never have been intended to provide a shield for the corrupt official to prevent his removal by other means….” 454 A.2d at 472.

See also, Errichetti v. Merlino, 457 A.2d 476 (N.J. Super. L. 1982); State ex rel. DeConcini v. Sullivan, 188 P.2d 592 (Ariz. 1948).

The 14 day deadline to file an appeal was put into place to prevent an office holder from staying in office for months or even years by legal maneuvering. This is probably Smith’s strategy in this case. If he can drag this out until primary day of 2006, he will have given himself a de facto legal victory as well as rendering the Clean Elections law unenforceable.

Something worth pointing out here is that Smith is a lawyer and probably knows how to read a contract. Barbara Lubin never put a .357 magnum to his head and made him take Clean Elections money. Smith and other violators such as Rep. Colette Rosati agreed to abide by the rules if they took the money. Showing indignance for the “unfairness” of having to follow the law when they hapilly accepted $30,000 from the people of Arizona not only rings hollow, but it is offensive.

Interestingly, one of Smith’s attorneys during this episode has been a fellow named Lee Miller. Miller is also a lobbyist who represents, among others, payday lenders and the towing industry. Both of these groups had major legislation effecting their industry last session, and probably will again next session. What does it mean if the attorney that’s fighting to keep you in office needs your vote on some legislation?

CORRECTION: In my original post, I confused Jim Irvin with Tony West. West was the one that was thrown out in 1999, where Irvin was taken off of the commission for an entirely different set of legal difficulties. Thank you to Greg Patterson of Espresso Pundit for pointing out my mistake. Oddly enough, I originally posted with West’s name, then changed it. R Cubed regrets the error.

It could have been worse: I could have mixed all the affairs up and confused them with Commissioner Buzzard and his infamous Flower Scandal.