by Jim Nintzel
Democratic mayoral candidate Marshall Home, whose candidacy is likely to face a legal challenge over his eligibility, today filed a preemptive lawsuit to try to knock Democrat Jonathan Rothschild off the ballot.
Home is pinning his legal hopes on the fact that Rothschild is a lawyer.
“I don’t want to see lawyers anywhere in our government,” Home says. “I don’t even want to see them in the judiciary. … My slogan is: Avoid skunks and lawyers.”
In his lawsuit, Home claims that lawyers, because they serve in the judiciary, are ineligible to serve in the executive branch of government.
Rothschild said he hadn’t seen the lawsuit yet, but he said that Home’s argument that lawyers can’t serve in public office “would be a novel legal argument. I guess a judge will have to decide that.”
Home, who has filed so many frivolous lawsuits in federal bankruptcy court that he was legally designated a “Vexatious Litigant” last month, backs up his argument with a brief excerpt from a 1955 opinion written then-Arizona Attorney General Robert Morrison. We’re not lawyers, but at first glance, it doesn’t scan as the type of precedent that courts typically consider.
“All lawyers are licensed and are in judiciary,” Home argues. “Well, if they are in the judiciary, they cannot be in the Legislature or the mayor’s office.”
Home is aware that many lawyers have served on the Tucson City Council and in the Arizona Legislature, “but that doesn’t make it right.”
He imagines his lawsuit will “absolutely” set a groundbreaking precedent.
“No one has ever brought it up,” Home says. “I’m bringing it up.”
Home, who seems a little unclear on the difference between a party endorsement and winning a primary nomination, also says the executive committee of Democratic Party has “completely ignored the rules of the election department” by voting to endorse Rothschild “in a hidden caucus.”
“That violates the constitution in a number of ways,” Home says.
The only problem with that legal argument: While it endorsed Democratic incumbents on the council, the Pima County Democratic Party Executive Committee did not endorse Rothschild until after Home filed his lawsuit.
While he’s upset that party officials have given Rothschild an endorsement, Home himself was a registered Republican from 1993 until 2010, when he changed his registration to an independent at an address outside the city limits (which will be the foundation of the lawsuit to have him kicked off the ballot, according to Pima County Democratic Party Chairman Jeff Rogers). It wasn’t until March 21 of this year, three days after he filed paperwork to run as a Democrat for mayor because Democrats have a significant voter-registration advantage, that he registered as a member of the Democratic Party.
“I’m not a Democrat, I’m not a Republican, I’m an American,” Home says. “I don’t care about those things.”
He adds that “as a businessman, I’d like to straighten out” the city.
“I’d like to get into this Rio Nuevo picture and find out what it’s all about,” Home says. “Three-hundred-million dollars disappear? Ho, ho, ho.”
Home knows that Democratic Party officials are planning a lawsuit to knock him off the ballot, but “they’re kinda late” because he’s filed a lawsuit against them first.
“Their suit is going to look like revenge,” he says.
Home's complete complaint:
COMES NOW, Marshall Home, Democratic Candidate of Tucson to challenge the
professional requirements and qualifications of Jonathan Rothschild, ESQ. an attorney
who is firmly established within the Judiciary for many years, from participating in the
Democratic Primary of August 30, 2011, and to hold the leadership of the Democratic
Party of Pima County accountable for unconstitutional actions, as follows:
1. ARIZONA CONSTITUTION — ARTICLE III DISTRIBUTION OF POWERS
“The powers of government of the State of Arizona shall be divided into three
separate departments, the legislative, the executive, and the judicial; and, except as
provided in this constitution, such departments shall be separate and distinct, and no one
of such departments shall exercise the powers properly belonging to either of the others.”
This separation of powers was explored in Arizona Attorney General Opinion #56-11, Dec.
16, 1955, by Robert Morrison the Arizona Attorney General, and we quote,
“Section 16-211 ACA, 1939, provides that the Mayor shall be the chief executive officer”
“…it will be necessary for us to refer to public policy and the common law for an
Article 3 of the Arizona Constitution divides the powers of the government of the state
of Arizona into three departments, the Legislature, the Executive and the Judicial.
This article refers only specifically to the state government. However, it declares that
which was established by the founding departments of the Union and jealously guarded by
both Federal and State governments since, i.e., the separation of powers, any infringement
of which has ever been deemed most odious by all democratic societies.
It has been shown the common council is empowered to provide by ordinance the
manner in which the magistrate is elected, the way he may be removed, the way an
appointment may be made to fill a vacancy in that office and the salary of that office. It is
the general rule of the common law that a public officer cannot hold two incompatible
offices at the same time. 42 Am Jur., Public Officers, Section 59, 67 C.J.S., Officers, Section
23. More specifically it has been held that the office of mayor and police court magistrate
are incompatible. Howard vs, Harrington, 96 Atl. 769, 30 Am. Jur., Judges, Section 42.
The Arizona Supreme Court, in considering the problem of incompatibility of offices,
has not taken a broad view of the requirements of public policy in this regard. It has been
held that incompatability can be of two types — physical incompatability and those cases
where the nature of the duties of the two officers are such as to render it improper from
considerations of public policy for one man to discharge both. Perkins vs. Manning, 59 Ariz.
60, 122P. 2d 857. In this instance, if we held that incompatibility, we would have a situation
where the maker of the law, and, in some cases, the enforcing agent, would also be the one t
to make the judicial determination. it is not the performance nor the prospective right of
performance of inconsistent duties only that gives rise to incompatibility of facts, but the
acceptance of functions and obligations growing out of the two offices. People, ex rel
Bagshaw vs Thompson, 130P.2d 237, 241. Moreover, it is a general principle of law that
those officers having an appointing power are disqualified for appointment to the offices
which they may appoint, whether or not the vote of the officer involved is essential to a
majority in favor of his appointment. 67 C.J.S. Officers, sec. 20.”
An Attorney is a state officer of the court and is firmly part of the judicial branch. The
attorneys will all tell you they are “licensed” to practice law by the state Supreme Court.
Therefore, it is un-lawful for any attorney to hold any position or office outside of the
judicial branch. There can be no attorney legislators — no attorney mayors — no attorneys
as police — no attorneys as governor. Yes I know it happens all the time, however, this
practice of multiple office holding by attorneys is prohibited by the constitution and is a
felony in most states. And to repeat, “…,and no one of such departments shall exercise
the powers properly belonging to either of the others.”
2. The Democratic Party Leaders appointed Jonathan Rothschild, Esq. to be their
Mayoral Candidate in a closed session, ignoring the Primary Elective process. These
dictatorial actions offends the Arizona Constitution and every registered voter;
Democratic, Republican, Green Party, Libertarian and Independent; and the leaders of the
Democratic Party have to be held to account for their abominable actions.
Specifically, Arizona Constitution, Article II § DECLARATION OF RIGHTS —
§ 1 FUNDAMENTAL PRINCIPLES; recurrence to Section 1. A frequent recurrence to
fundamental principles is essential to the security of individual rights and the perpetuity of
§ 2. Political power; purpose of government Section 2. All political power is inherent in the
people, and governments derive their just powers from the consent of the governed, and
are established to protect and maintain individual rights.
§ 4. Article II Sec.4 — Due process of law Section 4. No person shall be deprived of life,
liberty, or property without due process of law. The leadership of the Democratic Party of
Pima County violated the Due Process of Law of every registered voter.
§ 13 Equal privileges and immunities Section 13 “No law shall be enacted granting to any
citizen, class of citizens, or corporation other than municipal, privileges or immunities
which, upon the same terms, shall not equally belong to all citizens or corporations.”
§ 21. Free and Equal Elections Section 21. “All elections shall be free and equal, and no
power, civil or military, shall at any time interfere to prevent the free exercise of the right
§ 32 Constitutional provisions mandatory
Section 32. The provisions of this Constitution are mandatory, unless by express words
they are declared to be otherwise.
§ 33. Reservation of rights Section 33. The enumeration in this Constitution of certain
Rights shall not be construed to deny others retained by the people.
3. Obligations of Contract — Pima County Democratic Party has breached their contract
with the state, county and elections commissions by committing multiple constitutional
violations by acting in bad faith and fraud, defrauding the people in usurping their
authority given by the Arizona Constitution, for all the above reasons.
The state cannot abridge the obligations of contract. Jonathan Rothschild and the City
Clerk abridged the obligation of contract by permitting the aforementioned petition of
Defendant Rothschild to be filed in the Clerk’s office with the previous endorsement of the
Democratic Party in secret session. The petition is null and void and lacks standing to
appear on the ballot. As a lawyer, Mr. Rothschild, Esq. is an officer of the court and has
taken an oath to support the constitution. He knew or should have known that he is
violating his constitutional oath and perjured himself on the Nomination Paper Affidavit of
Qualification Campaign Finance Laws Statement.
4. And further, that Mesch, Clark & Rothschild, P.C. is possibly the law Firm that have
received payments under City of Tucson contract over the years having been involved with
the Rio Nuevo fiasco and Tucson Water Company, all against individual citizens.
A. Therefore we request subpoena’s from this court for Mesch, Clark & Rothschild to
provide us with the accurate financial information that they received payment
regarding their involvement with Rio Nuevo and the Tucson Water Company.
B. Subpoena the books of Tucson Water Company and whether they made payment to
Mesch, Clark and Rothschild.
C. Subpoena from the beginning of the Rio Nuevo fiasco and the funds received
and the role played by Mesch, Clark & Rothschild.
D. Subpoena the Tucson City Manager’s office to produce the records of payments to
Mesch, Clark & Rothschild, P.C.
E. Subpoena any Pima County officers who authorized payment to Mesch, Clark
& Rothschild and how much they got paid.
Because of these multiple constitutional violations done by deceit and arrogance
of the leadership of the Democratic Party, Marshall Home hereby calls for decertification
of the Democratic Party of Pima County and the awarding of $ 1 Million Dollars in
damages to Marshall Home for the attempted Larceny of my rights and voiding all the
electors rights, and statutory rules.
DATED: June 6, 2011 Respectfully submitted
All Rights Reserved
Primary Candidate for Mayor
Note: An earlier version of this post implied that the Pima County Executive Committee endorsed Jonathan Rothschild before Home's lawsuit was filed.