A judge on June 22 heard attorneys’ opening statements and began taking testimony in a campaign finance case involving a legislator after declining to consider the lawmaker’s argument that a state commission can’t force him from office.

A lawyer for the state said the alleged violations by Rep. David Burnell Smith, R-7, were important because they could give a candidate an unfair advantage, while a lawyer for Mr. Burnell Smith said the first-term lawmaker had tried to clear up problems with his campaign’s finances.

Mr. Burnell Smith is appealing the Clean Elections Commission’s March 25 order that he forfeit his office, pay a $10,000 fine and return $34,625 which the state provided for his publicly funded 2004 campaign.

The commission imposed those sanctions after concluding that first-term Scottsdale Republican knowingly overspent by approximately $6,000 — 17 percent — failed to adequately report his finances and failed to directly pay providers of material and services purchased by his campaigns.

Mr. Burnell Smith’s attorney, Michael Ricard, argued that the commission lacks the legal authority to force Mr. Burnell Smith from office because the Arizona Constitution only provides for removing elected officials through impeachment or recall election.

Administrative Law Judge Daniel G. Martin declined to rule on the constitutional challenge, saying that’s outside his authority as an administrative law judge for a state agency. Judge Martin’s stance effectively leaves the constitutional issue up to a court of law to decide if the case goes beyond what is now an administrative proceeding.

“That is something that must be reserved for the judicial courts,’’ Mr. Martin said.

In other developments as the hearing began, Judge Martin rejected the arguments that the Citizens Clean Elections Commission’s findings were flawed on grounds that they didn’t provide enough specifics on the alleged violations and failed to provide Mr. Burnell Smith with adequate notice.

Attorney: Spending Disclosures Assure Fairness

During her opening statement, a lawyer for the commission said the state requires adherence to spending limits so that one candidate doesn’t have an unfair advantage over another.

Full and accurate disclosures of candidates’ spending are necessary to ensure that publicly provided dollars are spent only on legitimate campaign purposes and to show that publicly funded candidates are not taking illegal private contributions on the side, Assistant Attorney General Diana Verela said.

Violations, Ms. Verela said, “can actually make a difference in who wins a race.’’

Mr. Ricard said Mr. Burnell Smith accepted responsibility for his campaign’s finances but noted that the attorney is not an accountant and was not the campaign treasurer. “He relied on someone else to help him out with that,’’ Mr. Ricard said.

In an effort to straighten things out, Mr. Burnell Smith went to the commission to disclose possible problems with his campaign finances before he knew that an election opponent had filed a complaint, Mr. Ricard said.

“He was forthright,’’ Mr. Ricard said. “He didn’t try to hide anything.’’ —

Copyright 2005 Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.