With the preliminaries over, embattled Rep. David Burnell Smith is warming up for a constitutional test of whether the Citizens Clean Elections Commission has the legal authority to force him from office.

The commission on Aug. 25 approved its final order in the case and the Aug. 22 recommendation of Administrative Law Judge Daniel Martin affirming the commission’s March 25 order that Mr. Smith vacate his office. The order also calls for Mr. Smith to repay $34,625 in campaign funds, and pay a civil penalty of $10,000.

The commission determined, and Judge Martin agreed, that Mr. Smith overspent his campaign limit by about 17 percent, well in excess of the 10 percent that the Clean Elections Act sets for forfeiture of office.

Is he going to resign from the Legislature≠

“I’m not going to do that,” said Mr. Smith, a Republican. “I’m running for re-election [in 2006]. I’ve filed my papers and I’m going to continue representing the people of the Seventh District.”

Evidence submitted during the administrative hearing indicated, according to Judge Martin, that in the 2004 primary Mr. Smith’s spending limit was $24,507, but that he spent $30,545, exceeding the spending limit by more than $6,000.

Furthermore, the sum of the primary and general election spending limits was $35,827, Judge Martin stated. Ten percent of that would be $3,582, but Mr. Martin spent $6,038, “significantly in excess of the $5,382 limit” Judge Martin wrote.

At the June 22-23 hearing, Judge Martin wrote, “Mr. Smith contended that he had not overspent his election spending limit because his bank account was never overdrawn. The contention is misplaced, as the relevant analysis focuses on expenditures within election periods and not on the candidate’s bank account.”

Mr. Smith, a lawyer, appeared at the commission meeting Aug. 25 to see for himself that the panel did what he expected it to do – direct him to leave office and pay a total of $44,625.

He asked the commission to delay any action until he submitted a revised report, which was being prepared by his accountant, former state Sen. Jeff Hill, at that moment. The new report includes sub-vendors that did campaign work for him, and Mr. Smith expressed hope that the new information would lead the commission to drop the $10,000 fine.

“I just want to be treated fairly, like everybody else,” Mr. Smith said, noting that others had submitted revised reports and were absolved of any civil penalties. But the commission rejected his request.

Smith: I’m Their Poster Boy’

Afterward, Mr. Smith was asked why he feels he is being treated differently from others.

“They need a scapegoat,” he said. “I’m their poster boy.”

The only way he will leave office, Mr. Smith said, is if he is impeached in the House, if a court orders him to vacate, or if he loses re-election next year.

On a possible court ruling again him, Mr. Smith said, “Of course I’ll obey a court order. I’m a lawyer, but I will appeal and seek a stay.”

Mr. Smith has the option of seeking a rehearing, probably before the same administrative law judge, within 30 days. Regardless, he said he will take his case to Superior Court.

Having conferred with his attorney Michael Ricard before the commission meeting, Mr. Smith said, “We will file a complaint in Superior Court in a relatively short period of time. We think the administrative law judge erred. After talking with my accountant and my lawyer, we believe he missed the point of our argument.”

Mr. Smith said the latest, corrected campaign spending report he filed with the commission “showed that I didn’t overspend to any degree, but he [Judge Martin] didn’t accept that.”

Mr. Smith said the statute requires that he file an amended report containing accurate information.

“Our complaint [in Maricopa County Superior Court] will show that we never went over 10 percent,” Mr. Smith said.

An earlier report did show spending in excess of 10 percent of the limit, but Mr. Smith said that was in error and subsequently was corrected.

Judge Martin did not address the constitutional issue of whether the commission has the authority to order an elected official from office, but Mr. Smith said his complaint will.

The lawmaker said his suit will contend that the Clean Elections Commission has no authority to order him to vacate his office.

“I intend to bring together heavyweights in constitutional law,” Mr. Smith said. “This is a monumental decision, which is why we need to go through Superior Court. The constitutional issue was not heard [by the administrative law judge].”

In effect, Mr. Smith said he intends to appeal the commission’s order based on evidence that was presented during his case before Judge Martin. He would then present evidence challenging the constitutionality of the act with regard to forcing him from office.

“I think the record is pretty good for us,” Mr. Smith said. “We’ll let the Superior Court review the record. I will be vindicated, and I don’t care how long it takes to get this matter resolved.”

Clean Elections Institute: ‘Welcome’ Settling Issue

Doug Ramsey, spokesman for the Clean Elections Institute, which advocates public funding of political campaigns, said he wouldn’t be surprised if Mr. Smith pursues a constitutional challenge.

“We don’t agree with his position, but we would welcome settling the issue once and for all,” Mr. Ramsey said.

Mr. Smith, who has said he would take his case to the U.S. Supreme Court if necessary, said he would base a federal case on the issue of freedom of speech.

“The issue would be whether Clean Elections can regulate how much a person can spend on a campaign,” Mr. Smith said. “The Supreme Court has said you can regulate how you spend, but not how much you spend. It’s a free speech issue.’

Mr. Smith said he would strongly object to any attempt by the state to take the case directly to the state Supreme Court.

“It has to go through Superior Court,” he said. “I would not waive those rights. The record that goes to the Supreme Court must be clear from the Superior Court. It’s my due process rights.” —