Arizona AG to file legal challenge to remove Navajo County Recorder David Marshall

A northern Arizona Republican filed a lawsuit to force Attorney General Kris Mayes to take steps to remove Navajo County Recorder David Marshall from office – and Mayes’ office is preparing to do just that.

Last month, the Navajo County Board of Supervisors appointed Marshall, a former state lawmaker, to replace Republican Recorder Timothy Jordan, who resigned earlier this year, despite vocal opposition from critics who argue Marshall was ineligible to fill the vacancy.

That’s because the state Constitution bars legislators from holding other county or statewide elected offices “during the term for which he shall have been elected.”

Marshall, a Republican elected in 2024 to represent Legislative District 7 in the Arizona House, resigned from the legislature in April, shortly before he was sworn in as the county recorder.

But that wasn’t enough to make him eligible for the job, according to the Attorney General’s Office.

“This office has consistently interpreted this constitutional provision to prohibit ‘the taking of any other office or employment during the elective term, whether or not the legislator resigns,’” Mayes wrote in the April 24 letter, obtained by KJZZ under Arizona’s public records law.

That means Marshall isn’t eligible to hold the recorder position until January 2027, when the next legislature takes office, Mayes argued.

She cited a 1977 attorney general’s opinion.

“This office has consistently opined that the foregoing constitutional provision, on its face, clearly prohibits the taking of any other office or employment during the elective term, whether or not the legislator resigns,” then-Attorney General Bruce Babbitt wrote, noting that only school boards and advisory boards are exempt from that rule.

In the letter to Marshall, Mayes indicated she was prepared to challenge the appointment.

“Therefore, unless you resign from your position as Navajo County Recorder, this office will be required to file a quo warranto action in the Arizona Supreme Court,” Mayes wrote. “I encourage you to promptly resign so as to avoid such an outcome.”

Richie Taylor, a spokesman for the Attorney General’s Office, confirmed Mayes will file a quo warranto action, which is a legal challenge against someone accused of holding an elected office illegally.

Taylor did not provide a timeline for when Mayes will file the challenge.

Another lawsuit

Mayes had previously said she was looking into the situation, but her office had not confirmed its plans until now.

That delay prompted Republican Suzanne Hudspeth, a Navajo County real estate agent who also sought the recorder appointment, to ask a judge to force Mayes to take that action.

In a lawsuit filed Monday in Maricopa County Superior Court, Hudspeth made arguments similar to Mayes.

“I don't know what she needs all this time to look at it for because he's taken the oath,” Timothy La Sota, Hudspeth’s attorney, said. “The Arizona Constitution is clear and he's presumably drawing a paycheck every two weeks, so it's unconstitutional, shouldn't happen.”

Hudspeth’s lawsuit isn’t challenging Marshall’s appointment directly, because state law only gives the attorney general the power to file a quo warranto action, La Sota said.

“She's known about this since, well, early to middle April when it first happened, and she's just completely AWOL,” La Sota said.

Marshall’s response
Marshall has no plans to resign.

Linley Wilson, Marshall’s attorney, argued that by resigning from the legislature, Marshall complied with the law, which she says is intended to make sure lawmakers don’t engage in corruption or “self-dealing” by influencing legislation related to other offices they hold.

“Respectfully, your Office’s position is incorrect. The constitutional text, its historical purpose, the relevant Arizona authorities, applicable statutes, and persuasive decisions from other jurisdictions all strongly support the conclusion that Recorder Marshall is lawfully holding the office of Navajo County Recorder and that no quo warranto action lies,” Wilson wrote in a response to Mayes.

She cited several Arizona court cases dealing with similar, though not identical, issues.

That includes a 1961 Arizona Supreme Court decision that allowed Robert Myers to become a superior court judge even though he was elected to the legislature. The justice found that Myers was eligible for the judgeship because he never actually took the oath of office as a lawmaker.

“Accordingly, it is our conclusion that defendant, Robert L. Myers, did not then and never has become a member of the Twenty-fifth Legislature and was, therefore, not within the constitutional disqualification against holding another public office of the state or county during the term for which he was elected,” according to the court.

Wilson argued that, like Myers, Marshall is not a member of the Legislature because of his resignation, so the prohibition against holding another office no longer applies.

Coincidentally, La Sota also cited the Myers case to prove his point, pointing to the court’s statement that the Constitution “makes it plain that the defendant, if he is indeed a member of the Legislature, is disqualified from holding another public office of this character.”

La Sota argued that, unlike Myers, Marshall did take the oath of office.

“Whether he serves for one day or the full term, the term for which former Representative Marshall has been elected runs until January of 2027,” he wrote in Hudspeth’s lawsuit.