Thomas Hansen v. Mark Finchem

SUPREME COURT OF ARIZONA

THOMAS HANSEN, et al., ) Arizona Supreme Court
) No. CV-22-0099-AP/EL
Plaintiffs/Appellants, )
) Maricopa County
v. ) Superior Court
) No. CV2022-004321
MARK FINCHEM, et al., )
)
Defendants/Appellees. )
)
__________________________________) FILED 05/09/2022

DECISION ORDER

Before the Court is an expedited election appeal regarding
Arizona Representative Mark Finchem, U.S. Representative Paul
Gosar, and U.S. Representative Andy Biggs (the “Candidates”).

Pursuant to A.R.S. § 16-351(B), Plaintiffs Hansen, et al.,
filed a Verified Complaint and an Application for Preliminary
and Permanent Injunction in separate proceedings to disqualify
the Candidates from the August 2022 Primary Election Ballot.
Plaintiffs alleged the Candidates fell under Section 3 of the
Fourteenth Amendment to the United States Constitution, known as
the “Disqualification Clause” which provides, “No person shall
be a Senator or Representative in Congress . . . or hold any
office, . . . under any state, who, having previously taken an
oath . . . to support the Constitution of the United States,
shall have engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies thereof.”
Plaintiffs allege that the Candidates are ineligible to run for
office because of their alleged involvement in the events that
occurred in Washington, D.C., on January 6, 2021. Specifically,
Plaintiffs allege that the Candidates engaged in acts that
amounted to an insurrection or rebellion under Section 3. These
proceedings were consolidated in the superior court.

The Candidates filed motions to dismiss, arguing that
Plaintiffs failed to state a claim under Rule 12(b)(6) of the
Arizona Rules of Civil Procedure.

After oral arguments, the superior court issued a ruling
granting the motions to dismiss on April 22, 2022. It
Arizona Supreme Court No. CV-22-0099-AP/EL
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determined that: 1) Congress has not created a civil practice
right of action to enforce the Disqualification Clause, and the
criminal statute prohibiting rebellion or insurrection, 18
U.S.C. § 2382, does not authorize the challenge by a private
citizen; 2) A.R.S. § 16-351 does not provide a private right of
action to argue a candidate is proscribed by law from holding
office; 3) it is unnecessary to decide if the Amnesty Act of
1872 is applicable because no private right of action exists
under the United States Constitution or Arizona law; 4) the
Constitution reserves the determination of the qualifications of
members of Congress exclusively to the U.S. House of
Representatives; 5) the doctrine of laches is not applicable at
this time; 6) Plaintiffs do not satisfy the legal standards for
injunctive relief; and 7) there is no need for an advisory
trial. Plaintiffs timely appealed.

The Court, en banc, has considered the briefs and
authorities in this appeal, and agrees with the superior court
that Plaintiffs have failed to state a claim upon which relief
may be granted. 1 We note that Section 5 of the Fourteenth
Amendment appears to expressly delegate to Congress the
authority to devise the method to enforce the Disqualification
Clause (“The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article”), which
suggests that A.R.S. § 16-351(B) does not provide a private
right of action to invoke the Disqualification Clause against
the Candidates. We further recognize that the Qualifications
Clause, Article 1, Section 5 of the United States Constitution,
which provides that “[e]ach House shall be the Judge of the . .
. Qualifications of its own Members,” appears to vest Congress
with exclusive authority to determine whether to enforce the
Disqualification Clause against its prospective members.
However, we need not decide these issues because we hold that
A.R.S. § 16-351(B), which authorizes an elector to challenge a
candidate “for any reason relating to qualifications for the
office sought as prescribed by law, including age, residency,
professional requirements or failure to fully pay fines . . . ,”
is not the proper proceeding to initiate a Disqualification
Clause challenge. By its terms, the statute’s scope is limited
to challenges based upon “qualifications . . . as prescribed by
law,” and does not include the Disqualification Clause, a legal
proscription from holding office. Therefore,

1
Justice Bolick did not participate in the determination of
this matter.
Arizona Supreme Court No. CV-22-0099-AP/EL
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IT IS ORDERED affirming the superior court’s judgment. The
Candidates are not disqualified from appearing on the ballot for
the 2022 primary election.

IT IS FURTHER ORDERED denying Gosar’s request for
attorneys’ fees.

DATED this 9th day of May, 2022.

/s/
ROBERT BRUTINEL
Chief Justice

TO:

James E Barton
Jacqueline Soto
Craig C Cameron
Scott Matthew Johnson
Allen Hatch Quist
James I Mitchell
John D Wilenchik
Timothy A LaSota
Alexander Michael del Ray Kolodin
Roger W Strassburg
Arno Naeckel
Veronica Lucero
Kory A Langhofer
Thomas J Basile
Amy B Chan
Joshua David Rothenberg Bendor
John S. Bullock
Celeste Robertson
Joseph Young
Christine Roberts
William P Ring
Jefferson R Dalton
Jean Anne Roof
Robert D Gilliland
Ryan Norton Dooley
Joseph Eugene La Rue
Joseph Branco
Karen J Hartman-Tellez
Ryan Henry Esplin
Jason S Moore
Arizona Supreme Court No. CV-22-0099-AP/EL
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Daniel S Jurkowitz
Ellen Ridge Brown
Javier Adalberto Gherna
Kimberly J Hunley
Laura L Roubicek
Colleen Connor
Thomas M Stoxen
William J Kerekes
Hon. Christopher A Coury
Hon. Jeff Fine
Alberto Rodriguez
Alicia Moffatt