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Federal court policies a bad omen for backers of matching funds

A precedent established by the U.S. Supreme Court in the 1980s does not bode well for Clean Elections supporters who are hoping to keep matching funds in place until after this year’s elections.

U.S. District Court Judge Roslyn Silver has declared matching funds to be unconstitutional, but supporters of Arizona’s Clean Elections system are hoping that the U.S. 9th Circuit Court of Appeals, or possibly the U.S. Supreme Court, will allow the practice to continue through the end of the 2010 election cycle. Eliminating matching funds this far into the election cycle, they say, would be unfair to candidates who ran publicly funded campaigns on the assumption that matching funds would be available.

Those who want to keep matching funds in place for another cycle, even if they are eliminated after that, are relying, at least in part, on a legal principle called prospectivity, which comes into play when a court does not apply its ruling to the present case but dictates that it will apply to all cases going forward.

Unfortunately for candidates running under the Clean Elections system, the federal court system no longer issues prospective rulings, according to Andy Hessick, a professor at Arizona State University’s Sandra Day O’Connor College of Law.

Hessick said prospectivity used to be common on the federal level, especially in criminal cases, but was abandoned due to a 1987 U.S. Supreme Court ruling. In Griffith v. Kentucky, the court explicitly stated that it would no longer issue prospective rulings in criminal cases, and suggested that it would avoid such rulings in civil cases as well, Hessick said.

“It’s theoretically possible that the court would apply it only prospectively because that’s a civil case,” Hessick said. “That being said, the Supreme Court has made it extremely clear that the next time it gets a case to consider that issue, it’s probably going to say that prospective rulings are not OK in civil cases.”

If not for the 1987 ruling, the Clean Elections case could be a prime candidate for a prospective ruling. One of the primary criteria used to decide such issues in state courts – which are not bound by the strict rules laid out for the federal system – is fairness. If a court determines that applying a new rule to past or present cases would be unfair, as it did in the CityNorth case, judges can apply the rule only to future cases.

Attorney Lee Miller said the matching funds case is a perfect example of the fairness doctrine often used in applying prospective rulings.

“The Clean Elections case is teeing up for just this type of thing,” Miller said. “(The court could say) ‘Yes, matching funds are unconstitutional, but we’re so far down the road for 2010 that we’ll let it go for ’10. But the day after the general election, no more.’”

Click here to read related story: “High court chooses precedent over direct impact”

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