Another Term for Governor Brewer?

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Attorneys Joseph Kanefield and Paul Eckstein debate if Arizona law allows Governor Jan Brewer to serve another term.

Richard Ruelas: Good evening, and welcome to "Arizona horizon." I'm Richard Ruelas of the Arizona republic. Filling in for Ted Simons.

Richard Ruelas: Governor Brewer hasn't ruled out running for another term despite language in the state's constitution that seems to prohibit her from doing so. Or does it? Here to tell us why he thinks that Governor Brewer can seek another term is Joseph Kanefield, a partner in the phoenix law firm Ballard Spahr. He is former assistant attorney general, state elections director and had served as general counsel for Governor Brewer, and here to explain why he thinks Governor Brewer is not eligible for another term Paul Eckstein, an attorney with the phoenix law firm Perkins-Cooey. Thanks for joining us this evening. We'll kick this off with the Arizona Republic, last Friday. Briefly lay out the case why you think Governor Brewer is not on her second term, but I guess, term zero, term one, term 1.5?

Joseph Kanefield: Richard, thank you for giving me the opportunity to talk about this. I guess that I should start by saying Governor Brewer hasn't said whether she intends to seek another term. So, a lot of this debate is academic at this point. It's now on the third cycle in the last year, and the reason that I wrote the piece for the Arizona republic was because so many people keep asking me, why can't she? So I thought I would spell it out. And essentially, the reason why is that the, the, although we have term limits from the voters in 1992, and it does say the executive officers shall serve no more than two terms, which includes any part of a term served, the one unique situation that we have is the office of the governor. Where, and the situation here when, when governor for whatever reason, is not able to fill the term. The secretary of state becomes governor by constitutional succession, in other words, the constitution automatically elevates that person to that office. Whether they want to do it or not. And that's important for continuity and government, it's important that we have someone in the office of governor to run the state, times of good and bad, but that's our leader. So, I don't think when the voters drafted this language, put this provision in the constitution, that they were thinking of the situation involving the succession to the office of governor by the secretary of state. And I think that when, when you -- it's important, it's in the constitutional interpretation to read all the provisions together. So, you have to not only look at the term limit provision, but you have to look at the provision that governors succession in office. There is nothing that says anything about a term. It says you become the governor, in fact, when anything happens to the governor, the governor vacates the office, you inherit the powers and duties of the office, but I don't think that the voters have intended to necessarily penalize that person or keep them from serving two elected terms. That's the crux of my position.

Richard Ruelas: There is not ancient history. What did voters think when we passed term limits in 1992?

Paul Eckstein: The voters adopted proposition 107 in 1992. It covered not only the executive offices, but other offices, including congress and the senate, the corporation commission, and the state line inspector, and the legislature. It differentiated between those offices. And in fact, when you look at the proposition, with respect to congress and, and the senate, and with respect to the corporation commission, the language is different than the language with respect to the executive offices. Executive offices, it says, part of any term. That's the language that's used with respect to the legislature, and the language that's used with respect to the state mine inspector. The language that's used with respect to term limits for congress and, and the senate, and the corporation commission, is less than one-half of term. The people knew exactly what they were doing, and Richard, if I could read what, what the, the legislative counsel said, with respect to executive offices, service, service for, for any portion of a term, would count as service for a full term. That's what, what the people had in front of them when they voted on this proposition. And all of these, and, in 1992.

Richard Ruelas: And you mentioned that this is academic, but the governor has, has not just said that she is considering, but she said that she is looking into the possibility of whether it's legal. Have you been asked by the governor to look into this? Or have you been asked by anyone in the executive office to research this on her behalf?

Joseph Kanefield: Any conversations, of course, I have with the governor, regarding this issue -- I'm still her counsel so I would rather not --

Richard Ruelas: You are still serving as counsel for the governor.

Joseph Kanefield: Yes.

Richard Ruelas: Ok.

Joseph Kanefield: But, you know, what she has said is, is this is a, a debatable question. And people assume that she cannot run again, and all she's done is point out, if that's not settle, and I very much disagree with Mr. Eckstein's reading of the constitution. Those -- the provisions that he was just reading, are from the term limit law in 1992. And they cover the office of the attorney general, the secretary of state, the superintendent, but what they don't address is the situation of the governor. None of those officers inherit another office if something happens to the person above them, so I don't think the voters were thinking --

Richard Ruelas: You think the fact that the law did not include, the proposition did not include what-if you can session, means the voters didn't think about it? Instead of just saying, the governor is going to get -- the secretary of state will get the job automatically, and these things will still kick in anyway.

Joseph Kanefield: I went back and looked at the voter panel. What they were concerned about that legislator this is congress, there is no mention about the governor or any of that material.

Paul Eckstein: That's not true. I just read from the section of executive offices. If upped to read it, there it is. Right there.

Richard Ruelas: Does it matter -- this is the law of the land.

Paul Eckstein: It does not matter when the language is clear. And with all respect to, to Mr. Kanefield, and I respect him a lot, where the language is clear, the rule of construction, whether it's a constitution or a statute, is you go with the language. You don't go with what you think the voters intended.

Richard Ruelas: And for you --

Paul Eckstein: If you were going to look at legislative history, you would look at what the pamphlet says, and what the pamphlet says is what i read.

Joseph Kanefield: And he's reading from the general statement about, about all the officers covered under sections five. There is nothing in there that talks about where the voters, that the outline, the arguments raised by legislative leaders -- if counsel, the arguments raised, they were focused on term limits.

Richard Ruelas: But does the focus matter so long as the words, part of any term served, are in the law?

Joseph Kanefield: And he's right. You do read the language, but you also have to read all the language in all the constitution together, and he knows that, that that's -- yes, we start with the language. But, the job of the courts is to harmonize all the provisions of the constitution.

Richard Ruelas: It sounds like your argument would be not just this is not the voters intend, but the voters didn't consider this aspect so we cannot divine the intent if this was not a question they were asked.

Joseph Kanefield: We have to look at the succession and read that provision in harmony with the succession language, and frankly, the holdover language, we have supreme court case interpreting the term limits, and saying when someone holds over, because the, their successor hasn't qualified, that does not violate the term limits even though they serve more than one term so that's analogous of the situation where someone, a secretary of state inherits the office of governor, by virtue of the constitutional succession. That person is not there by choice. Like someone who is appointed or elected. They should not be penalized, and the voters should decide this question, Richard. At the end of the day, if there is ambiguity in the constitution, which there is, the voters are the ones who put the language in there. They created that ambiguity, and they should settle the question. They can decide whether they wish for the governor --

Paul Eckstein: If there is ambiguity in this clause, there is ambiguity in everything. Joe is absolutely wrong. It mentions governor here. And, and in one of the, one of the arguments, against the proposition, it points out that people will not be able to vote for the governor.

Richard Ruelas: The, the -- well, does he have a point about voters not knowing what, what they were voting about? That voters might not have been able to sense the succession question since it was not outlined for them? Or did voters know what they were doing? Should it be put back before them again?

Paul Eckstein: Well, if Mr. Kanefield and others want to put it before the voters, they are perfectly free to do so. But, this was absolutely clear. In the language in article 5, section 1, it uses the term governor, and in the explanation given by legislative counsel, there is no doubt. As I said, in a comment, this may be the law on Mars but not the law in Arizona.

Joseph Kanefield: That's very unfair. I mean, for him to suggest that this is out there, I mean, that's just not true. He's just in denial about this issue, about succession. They just did not consider the issue succession.

Richard Ruelas: What would happen? Let's say the governor does decide does she bring a challenge? Does she bring a case forward? What would be the next step if she wanted to run for governor?

Joseph Kanefield: The next step would be if she -- that's a good point because this issue is not ripe as we call it in the law until the governor decides to do this. And it's not ripe until she walks into the secretary of state's office in 2014.

Richard Ruelas: But she would have to file and others would have to battle her off --

Joseph Kanefield: That's correct.

Paul Eckstein: And they don't have to battle her off the ballot. They can let her run, if she gets elected, then challenge her after she gets elected, and that's the traditional way to do it. And what a mess that would be.

Richard Ruelas: We'll see what happens is this goes forward. Thanks for joining us.

Joseph Kanefield:Attorney; Paul Eckstein:Attorney;

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