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THE ARIZONA CONSTITUTION AND

THE RECALL OF JUDGES

ADDRESS IN THE SENATE OF THE UNITED STATES
AUGUST 7, 1911

In the first decade of the century the movement to secure the recall of public officials made its appearance in various sections of the country, particularly in the West. In some cases the judiciary was included, and in the following states the right to recall judicial officers has been adopted up to 1914: Oregon (1908), California (1911), Nevada (1912), Arizona (1912), Kansas (1914).

On June 20, 1910, President Taft approved an act enabling the people of New Mexico and Arizona to form a constitution and to be admitted as states of the Union. In Arizona a constitution was adopted, containing a provision in its eighth article for the recall of public officers, in which judges would be included unless they were specifically excluded. A joint resolution of the House and Senate provided the following amendment to Article 8:

Every public officer in the state of Arizona, except members of the judiciary, 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. . . .

If a majority of the legal votes cast at said election upon said amendment shall be in favor thereof, . . . the governor of said territory shall, by proclamation, declare the said amendment a part of the constitution of the proposed state of Arizona and thereupon the same shall become and be a part of the said constitution; but if the same shall fail of such a majority, then Section I of Article 8 of the constitution of Arizona, as adopted on February 9, 1911, shall remain a part of the state constitution.

On August 15, 1911, the President vetoed the joint resolution because of the provision permitting the recall of judges. Thereupon, a joint resolution passed the Congress and was approved by the President, August 21, 1911 (Stat. at Large, Vol. 37, p. 39, Pub. Res. No. 8), removing members of the judiciary from the operation of the recall, and making the admission of Arizona depend upon the adoption of such an amendment to Article 8 of the state constitution. The amendment was adopted by the voters on December 12, 1911, and on February 14, 1912, the President issued his proclamation admitting Arizona as a state into the Union “on an equal footing with the other states."

Arizona was thus admitted on a footing of equality and on November 25, 1912, it exercised this equality as a state by repudiating the amendment to its constitution exempting judicial officers from recall.

The movement to subject judicial officers to the operation of recall has not made the progress which its advocates expected, and seems to have spent its force.

When the resolution, afterwards vetoed by President Taft, to admit Arizona as a state of the Union, was before the Senate, Mr. Root spoke as follows:

THE

HE act of June 20, 1910, provides for the adoption of a constitution by the people of Arizona. It is further provided in the twenty-second section of the act:

That when said constitution and such provisions thereof as have been separately submitted shall have been duly ratified by the people of Arizona, as aforesaid, a certified copy of the same shall be submitted to the President of the United States and to Congress for approval, together with the statement of the votes cast thereon and upon any provisions thereof which were separately submitted to and voted upon by the people. And if Congress and the President approve said constitution and the said separate provisions thereof, if any, or if the President approves the same and Congress fails to disapprove the same during the next regular session thereof, then and in that event the President shall certify said facts to the governor of Arizona, who shall, within thirty days after the receipt of said notification from the President of the United States, issue his proclamation for the election of the state and county officers.

The act further provides, in section 23:

When said election of state and county officers, members of the legislature, and representatives in Congress, and other officers above provided for shall be held and the returns thereof made, canvassed, and certified, as hereinbefore provided, the governor of the territory of Arizona shall certify the result of said election as canvassed and certified, as herein provided, to the President of the United States, who thereupon shall immediately issue his proclamation announcing the result of said election so ascertained, and upon the issuance of said proclamation by the President of the United States the proposed state of Arizona shall be deemed admitted by Congress into the Union by virtue of this act on an equal footing with the other states.

The joint resolution which is now before the Senate pro

vides:

That the Territories of New Mexico and Arizona are hereby admitted into the Union upon an equal footing with the original States, in accordance with the terms of the enabling act approved June 20, 1910, upon the terms and conditions hereinafter set forth.

"The terms and conditions hereinafter set forth" are, in substance, the requirement that the people of New Mexico shall again vote upon that provision of their proposed constitution which relates to the amendment of the constitution,

and that the people of Arizona shall again vote upon the provision of the proposed constitution which relates to the recall of the officers, including the recall of judicial officers. The provision is that if the people of Arizona, voting upon this clause of the constitution which relates to the recall of judges, shall vote to amend the constitution so as to omit judicial officers from the recall provision, then that amendment shall become a part of the constitution; but if the same shall fail of such majority, then the section relating to recall shall remain a part of said constitution.

It follows necessarily, sir, from the provisions which I have read, that the constitution of Arizona and the provision of that constitution relating to the recall of judges is now before the Senate for its approval or disapproval. No man can say that his vote here fails to commit him to the approval of a recall of judges or to a disapproval of that recall. We have resolved that the territory of Arizona shall be admitted to the Union if the Congress approve the constitution that its people have framed, and only if the Congress approve or if the President approve and the Congress does not approve. The question is squarely and sharply defined. We cannot in our vote upon this joint resolution escape an expression of the position taken by the Congress of the United States upon the proposal that judges shall be liable to recall by a popular vote. What we say here is of little consequence; what we do here is of vast importance to the people of our country and to the development of our system of government.

The Supreme Court of the United States has decided in the Coyle case, the case relating to the right of the people of Oklahoma to change the location of their state capital, notwithstanding the provision of the enabling act which forbade that change, that after a territory has once been admitted as a state, the provisions of the enabling act do not control the action of the state the court has held that the admission

of the state upon an equality with all the other states of the Union carries with it the power to regulate by constitutional provision and by legislation under the state constitution all the matters which are within the scope of authority of any of the states in the Union. The moment the enabling act is passed, the conditions are complied with, and the proclamation is issued, the power of the national Congress over the great field of local self-control has ended.

In the consideration and action of the Senate upon this joint resolution, we speak the last word that it is competent for us to speak regarding the provisions of the state's constitution. The law of the United States under which this territory is to be admitted has required, and now requires, that the admission shall be only upon the presentation to us of a constitution that we approve. The question before the Senate is: Do we now approve the provisions of the Arizona constitution? If we do, the state will be admitted under that constitution in accordance with the terms of the enabling act; and it will be admitted in accordance with the terms of that act because the constitution has the approval of the Congress of the United States. Are we ready, Mr. President, to approve this provision? If we are, we shall say so by our action upon this joint resolution. If we are not ready to approve this provision of this constitution, we are bound by the law we ourselves have enacted to make that known by our action, and we cannot escape the responsibility for or the consequences of that act.

What is the provision relating to the recall of judges? It is contained in the eighth article of the constitution which is before us for approval or disapproval. The first section of that article provides:

SECTION 1. 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 candi

dates are elected to such office. Such electoral district may include the whole state. Such number of said electors as shall equal twenty-five per cent of the numbers of votes cast at the last preceding general election for all of the candidates for the office held by such officer may by petition, which shall be known as a recall petition, demand his recall.

SEC. 2. Every recall petition must contain a general statement, in not more than two hundred words, of the grounds of such demand, and must be filed in the office in which petitions for nominations to the office held by the incumbent are required to be filed.

Then follow provisions relating to signatures and statements of the residence of the signers.

SEC. 3. If said officer shall offer his resignation, it shall be accepted, and the vacancy shall be filled as may be provided by law. If he shall not resign within five days after a recall petition is filed, a special election shall be ordered to be held, not less than twenty nor more than thirty days after such order, to determine whether such officer shall be recalled. On the ballots at said election shall be printed the reasons, as set forth in the petition, for demanding his recall, and, in not more than two hundred words, the officer's justification of his course in office. He shall continue to perform the duties of his office until the result of said election shall have been officially declared.

SEC. 4. Unless he otherwise request, in writing, his name shall be placed as a candidate on the official ballot without nomination. Other candidates for the office may be nominated to be voted for at said election. The candidate who shall receive the highest number of votes shall be declared elected for the remainder of the term. Unless the incumbent receive the highest number of votes, he shall be deemed to be removed from office upon qualification of his successor.

To summarize these provisions, sir, they amount to this, that at any time after a period of six months one-fourth of the persons who voted at the last election in the state or in the judicial district may, by signing and filing a petition, deprive any judicial officer of the right to his office which he has secured by his election through the casting of a majority of the votes for him in the election. The effect of that is, that onefourth of the electors may decree and effect a reconsideration of the election. That is quite independent, sir, of any action by a majority of the electors at the election which is there

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