Huerta v. Flood , 103 Ariz. 608 ( 1968 )

STRUCKMEYER, Justice

(concurring).

I concur with the majority both in their view that the Statute A.R.S. § 13-1021 tends to deny political rights and that what is sought to be forbidden is so vaguely expressed that men of ordinary intelligence must necessarily guess at the intended meaning.

“Anything of value” necessarily includes labor and services. So, a public officer such as the governor, for example, cannot seek re-election without incurring the risk that anything he might say or do in directing his campaign will be construed as a command or an asking. If his directions reach or are relayed to a public employee who is a volunteer worker in the campaign, and who is employed in a department over which he has direct supervision, then he has violated the Act. Nor can his wife, relatives or friends act for him since this is “indirectly” doing what the statute forbids. A.R.S. § 13-1021 is so inartfully drawn that the literal language provokes the possibility that any public officer bona fide engaging in election activities can be accused of a felony. I am of the opinion that the Act unconstitutionally curtails the right to engage in political activities.

A rule of law frequently applied by courts is that where there are valid and invalid parts in the same section, paragraph or even sentence of an Act, the valid parts may stand and the invalid parts may be rejected. We said in State v. Coursey, 71 Ariz. 227, 225 P.2d 713:

“This court on numerous occasions has held that if part of an act is unconstitutional and by eliminating the unconstitutional portion the balance of the act is workable, only that part which is objectionable will be eliminated and the balance left intact. * * * ”

Conceivably, the members of this court might, by striking out words believed to be intrinsically objectionable and defining others so as to limit their operational effect, salvage a part of the Act. But, this presents the question whether the court should undertake what is in the end a legislative responsibility, that is the designing of a law with such clarity that reasonable men may know what conduct must be avoided. Here, the language of the Act so obscures the reach and scope of the legislative intent in certain areas that I am unsure just exactly what conduct was meant to be prohibited. It is clear that whatever conduct was intended to be prohibited is punishable by confinement in the state prison. Rather than embark on such a perilous voyage with human liberties as the stakes, I join with the majority in their belief that the entire Act should be stricken.