Congresswoman Gabrielle Giffords can't be forced from office for not doing her job while she is recovering, at least not by state law.
Matthew Benson, spokesman for Secretary of State Ken Bennett, the state's chief elections officer, said an Arizona law allowing a public office to be declared vacant if someone is absent for three months "doesn't apply to federal offices.''
And Paul Bender, the former dean of the Arizona State University College of Law, said speculation to the contrary is based on a flawed reading of the Arizona law.
Even an aide to Gov. Jan Brewer said the whole question appears to be a media creation that has been blown out of proportion. Paul Senseman said the only queries the governor has received about the statute have been from reporters.
The issue arose Monday when the Washington Post said Giffords, recovering from a gunshot wound to the head at University Medical Center in Tucson, might be removed from office because of the law. The report, which gained Internet traction, said the statute allows the state to conclude that an office held by a federal official from Arizona is vacant.
Untrue, said Benson -- and not just because the statute quoted never once uses the word "federal'' regarding office holders.
That law does spell out what defines a vacancy under Arizona law for a public official. One provision declares an office vacant "from and after the occurrence of "the person holding the offices ceasing to discharge the duties of the office for the period of three consecutive months.''
Benson noted, however, the provision is part of Title 38 of Arizona Revised Statutes. That specifically deals with public offices and officers.
And the definitions section for that entire section of Arizona law spell out that a public office is "any office, board or commission of the state, or any political subdivision thereof.'' That would include local elected officials -- but not those holding federal office.
"A vacancy would have to be declared by the U.S. House, not the state of Arizona,'' Benson said.
Bender said the legal issues are clear.
"When a vacancy exists is up to Congress,'' he said.
Aside from the definition of who holds public office, Bender noted that federal courts have previously limited the ability of states to decide who can serve in federal office.
The most notable of these came in 1995 after Arizona and 22 other states adopted laws and state constitutional provisions limiting how long people could serve in public office. Those law were worded to include not only statewide and legislative officials but also members of Congress.
That year, however, the U.S. Supreme Court, in a 5-4 ruling struck down those laws. Justice John Paul Stevens, writing for the majority, said the court is "firmly convinced that allowing the several states to adopt term limits for congressional service would effect a fundamental change in the constitutional framework.''
Even if the Arizona statute could apply to members of Congress, the law is silent as to who declares an office vacant.
Senseman said any speculation about the law is premature at best.
"With Rep. Gifford's tremendous progress, an answer to many prayers, we've deemed it to be far too early and entirely inappropriate to speculate, analyze, or consider,'' he said.
Bender said even if the statute could be interpreted to apply to members of Congress, the entire question likely is moot.
Under Arizona law, vacancies for members of the U.S. House of Representatives are filled by special primary and general elections.
"She could run again,'' Bender said of Giffords. It would remain to be seen if anyone would contest her.
Aside from that 1995 Supreme Court ruling, the actions of members of Congress themselves suggest they believe the authority to declare a seat in their chambers vacant rests solely with themselves.
In 1980, prior to that year's election, U.S. Rep. Gladys Spellman, a Democrat from Maryland, suffered a severe heart attack and fell into a coma. Despite that, voters in her district reelected her four days later.
She never took the oath of office for her new term, though.
In February 1981 the House voted to declare the seat vacant. That occurred, however, only after getting medical information that she was in a "trance-like state'' and unable to take the oath.
That resolution directed the governor of Maryland to fill the vacancy.
Several factors in this case, however, make it unlikely Congress would follow suit.
One key difference here is that Giffords, who won a new term in November, did take the oath with her colleagues. And unlike Spellman, who died in 1988 without regaining consciousness, Giffords is responsive.
rrjenn posted at 4:02 pm on Thu, Jan 20, 2011.
The honorable thing to do would be to just let Gabby recover and stop this speculation over how and who should replace her.
EmperorSmith posted at 12:36 pm on Thu, Jan 20, 2011.
I was just thinking about being honorable.
rrjenn posted at 8:55 am on Thu, Jan 20, 2011.
Well that sure is a smart thing to do. Lets let her husband serve in her place since we don't have a clue what his politics are. He could even be a republican. Smith, you can never go wrong by disagreeing with the idiot Dale.
EmperorSmith posted at 12:31 pm on Tue, Jan 18, 2011.
I believe the precedent is to let a member serve out the term, it is the honorable thing to do. From what I have been hearing I think she is going to make a near full recovery, one eye less. But Dale made a suggestion which I which I would support. I do not know anything about here husbands political views but he has and does serve this country.
rrjenn posted at 10:48 am on Tue, Jan 18, 2011.
Oh really MrsKinAJ? mmegee616 tells us all how Brewer is hoping to replace Gabby and Dale is drooling over how and who should replace her. Most are discussing how the replacement should go even though Gabby is still on the road to a possible full recovery. None of you have any right to be discussing this idiotic article that is an insult to Gabby and her family at a time when we are all still suffering the shock of this horrible tragedy.
MrsKinAJ posted at 7:09 am on Tue, Jan 18, 2011.
rrjenn - "You all sound like a bunch of vultures fighting over who gets to eat the choice cuts of a dead animal. Why don't you all go back to doing what you do best which is twirling on your thumbs and allow this poor woman a chance to recover."
Hmmm, I'm not seeing that. One, it's not really something that those outside of District 8 have to be too worried about. Two, the tack seems to be that the Washington Post took an AZ State Law that has nothing to do with this situation and made up a story. I don't think there's anyone here who doesn't wish her a complete and speedy recovery.
retired03 posted at 5:54 am on Tue, Jan 18, 2011.
Amen rrjenn
rrjenn posted at 12:12 am on Tue, Jan 18, 2011.
You all sound like a bunch of vultures fighting over who gets to eat the choice cuts of a dead animal. Why don't you all go back to doing what you do best which is twirling on your thumbs and allow this poor woman a chance to recover.
Az1259 posted at 9:42 pm on Mon, Jan 17, 2011.
Out of curiosity, I read the Washington Post Article. They had the same quote from Bender saying the statute does not apply to elected federal positions; they had a quote from Brewer's chief of staff (Paul Senseman) saying it is entirely inappropriate to speculate.
Sounds to me like the media, the Washington Post in this case, is once again using rampant deception to generate revenue with either no verification or ignoring the verified version because they did not like the trurth.
Cerulean posted at 8:41 pm on Mon, Jan 17, 2011.
The other thing I find so interesting about this article is this: " language is located in Title 38 of the Arizona Revised Statutes. And that entire section deals with public officers as defined by state law, meaning statewide and local officials."
This reminds me of a recent article about Russell Pearce and Kirk Adams and the Redistricting Commission. Pearce and Adams claimed that individuals were not legally qualified to serve on the redistricting commission because, Pearce and Adams said they hold or held "public office.'' Russell Pearce and Adams said the term is not clear and we believe it is in the States interest to SPEND TAX DOLLARS to take this issue to court.
http://www.eastvalleytribune.com/arizona/article_3cf6d33e-137f-11e0-ad2f-001cc4c03286.html
[sad] I wonder why they didn't use State Statutes to provide a definition.
MrsKinAJ posted at 8:11 pm on Mon, Jan 17, 2011.
I am sure that federal law provides for replacement of a lawmaker when he or she is unable to serve. However - any such discussion is premature at this point. Give her a few more days. After all, she has survived a gunshot wound to the head.
Cerulean posted at 8:08 pm on Mon, Jan 17, 2011.
It seems that whenever or however a vacancy is determined, IF it is determined, I believe the Constitution provides that a Special Election must be performed.
"When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
"Section 2, Clause 4, provides that when vacancies occur in the House of Representatives, it is not the job of the House of Representatives to arrange for a replacement, but the job of the State whose vacant seat is up for refilling. Moreover, the State Governor may not appoint a temporary replacement, but must instead arrange for a special election to fill the vacancy. The original qualifications and procedures for holding that election are still valid.
https://secure.wikimedia.org/wikipedia/en/wiki/Article_One_of_the_United_States_Constitution#Clause_4:_Vacancies
Dale Whiting posted at 7:29 pm on Mon, Jan 17, 2011.
As typical, we are all asking the wrong questions and making the wrong assumptions. Someone ought to have asked Dean Bender what questions needed to have been asked. For example:
Where the ARS's cannot be used to declare a congressional seat vacant, are there any Federal Statutes that can? If so, what do they say?
Could Gabby resign and be assured that a suitable replacement be named? If so, by whom, Brewer? And is there either tradition or precident to name a replacment from Gabby's own party? I'd love to see it possible for Gabby to resign temporarily and have her husband named to fill in for her. That would be perfect. But he may not be a resident of Gabby's congressional district. Perhaps Gabby has a senior staffer who could stand in.
This is the sort of discussion we ought to be having, but do not. Why? We are all too stupid!
Nice to hear again from Dean Bender.There probably was a time when Bender was dean and now Chief Justice Rebecca White was one of his professors. I do not remember whether their dates overlapped.
MrsKinAJ posted at 5:49 pm on Mon, Jan 17, 2011.
Why would you think such a thing? This has nothing to do with Brewer; this is something the Washington Post came up with.
mmegee616 posted at 4:18 pm on Mon, Jan 17, 2011.
It sounds like maybe Brewer is hoping to replace Giffords, but now can't because it's a Federal office.