Home v. Rothschild

SUPREME COURT OF ARIZONA
In Division

MARSHALL E. HOME, ) Arizona Supreme Court
) No. CV-11-0188-AP/EL
Plaintiff/Appellant, )
) Pima County
v. ) Superior Court
) No. C20114129
JONATHAN ROTHSCHILD, ESQ.; ROGER )
W. RANDOLPH, and DEMOCRATIC ) O P I N I O N
PARTY OF PIMA COUNTY, )
)
Defendants/Appellees. )
)
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable R. Douglas Holt, Judge

AFFIRMED
________________________________________________________________

Marshall E. Home Tucson
In Propria Persona

HARALSON, MILLER, PITT, FELDMAN & MCANALLY, P.L.C. Tucson
By Gerald Maltz
Attorneys for Jonathan Rothschild and Democratic Party
of Pima County

MICHAEL G. RANKIN, TUCSON CITY ATTORNEY Tucson
By Dennis P. McLaughlin, Assistant City Attorney
Attorneys for Roger Randolph
________________________________________________________________

P E R C U R I A M

¶1 Marshall E. Home brought this action to disqualify

Jonathan Rothschild as a Democratic candidate for mayor of the

City of Tucson. The superior court dismissed Home’s complaint.

We have jurisdiction over Home’s appeal under Article VI,

section 5(3) of the Arizona Constitution and A.R.S. § 16-351(A)

(2010).

I.

¶2 Home’s sole argument is that Rothschild is ineligible

to serve as mayor because he is a member of the State Bar of

Arizona. Home contends that because this Court exercises

jurisdiction over “members of the legal profession as officers

of the court,” Ariz. R. Sup. Ct. 32(a)(1), all members of the

State Bar are also automatically members of the judiciary, and

therefore disqualified from non-judicial office by the

separation of powers doctrine in Article III of the Arizona

Constitution.

¶3 This argument fails. Because “the practice of law is

a matter exclusively within the authority of the Judiciary,”

Hunt v. Maricopa County Employees Merit System Commission, 127

Ariz. 259, 261-62, 619 P.2d 1036, 1038-39 (1980), “[l]awyers as

officers of this court are responsible to it for professional

misconduct,” In re Wren, 79 Ariz. 187, 191, 285 P.2d 761, 763

(1955). But being subject to this Court’s authority does not

invest an attorney with judicial power. See Ariz. Const. art.

6, § 1 (vesting judicial power in the judicial department);

Eastin v. Broomfield, 116 Ariz. 576, 582, 570 P.2d 744, 750

(1977) (“Judicial power is the power of the court to decide and

pronounce a judgment and carry it into effect between persons

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and parties . . . .” (internal quotation mark omitted)).

Although Rothschild is a member of the State Bar subject to the

authority of this Court, he is plainly not a member of the

judiciary, nor does he exercise judicial power. Article III

does not prevent members of the State Bar from holding office

outside of the judiciary.

¶4 Home also relies on Arizona Attorney General Opinion

56-11, which opined that under the common law doctrine of

incompatibility, a city councilman cannot also serve as a judge

on the city’s police court because of the council’s control over

a police judge’s appointment, removal, and salary.

¶5 “The Attorney General’s opinions are advisory only and

are not binding on courts of law.” State v. Deddens, 112 Ariz.

425, 428, 542 P.2d 1124, 1127 (1975). However, assuming

arguendo that Opinion 56-11 correctly construes Arizona law, it

is of no aid to Home here. The Opinion did not address whether

an attorney is disqualified from holding municipal office, but

rather only whether a municipal judge could simultaneously serve

on the city council.

¶6 The superior court correctly found Home’s argument

“spurious.” There is no incompatibility between the private

practice of law and serving as the mayor of a municipality.

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II.

¶7 We affirm the judgment of the superior court.

Pursuant to A.R.S. § 12-349(A)(1) and ARCAP 25, we find Home’s

appeal frivolous and award Defendants/Appellees their reasonable

attorney fees and costs upon compliance with ARCAP 21(a).1

_______________________________________
Rebecca White Berch, Chief Justice

_______________________________________
Andrew D. Hurwitz, Vice Chief Justice

_______________________________________
Robert M. Brutinel, Justice

1
In deciding to impose sanctions in this case, we take
judicial notice of the recent order of the United States
Bankruptcy Court for the District of Arizona designating Home as
a vexatious litigant. Docket No. 363, In re U.S. Corp., No.
4:11-bk-06731-EWH (Bankr. D. Ariz. May 18, 2011).
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