Legal experts see David Burnell Smith’s battle to hang onto his legislative seat taking two distinct courses.

The first is his stated intention to take his case against the Citizens Clean Elections Commission to Maricopa County Superior Court in an effort to show that he did not overspend his campaign in violation of state statute and therefore should not be removed from office.

The second in theory would have the Attorney General’s Office seek a special action before the Arizona Supreme Court to answer the question of whether the commission has the legal authority to order Mr. Smith to vacate his Seventh District seat.

Lawyers versed in constitutional law say the state has a good case and that authority to remove a legislator from office does not have to be spelled out in the Constitution.

Paul Bender, Arizona State University law professor, says the authority to order Mr. Smith to leave office was given to the commission by the voter-approved statute that established public funding of political campaigns under the Clean Elections Act.

“That’s where they think they get the authority,” Mr. Bender says.

He notes, however, that the state Constitution lists several factors that disqualify a person from being a legislator, but violating the Clean Elections Act isn’t one of them.

Attorney Anthony Ching says the initiative that voters approved establishing publicly funded political campaigns has the same standing as laws passed by the Legislature, and that should be enough to force Mr. Smith from office.

Paul Eckstein, who had a hand in drafting the Clean Elections Act, says, “I think it’s an excellent case for the state. I think Mr. Smith is on the losing side.”

Mr. Bender recalls that in 1997, when Governor Fife Symington was convicted by a federal jury of seven counts of fraud in connection with lying on loan applications before he became governor, there was no constitutional challenge of the statute that requires removal from office if convicted of a felony.

“There is nothing in the Constitution that requires someone who is convicted of a felony to leave office,” Mr. Bender says. “It’s in the statute.”

The finding by the commission that Mr. Smith exceeded campaign spending by more than the allowable 10 percent limit in last year’s elections is not considered a felony. Even so, Mr. Bender believes there is ample reason to remove the Republican lawmaker from office.

“The strongest case for kicking him out of office is that the rules he violated got him into office,” Mr. Bender says. “I think his weakest case is that it has to be constitutional for him to forfeit his seat. I feel pretty confident it’s constitutional for Clean Elections to order him to forfeit his office if he violates the rules getting into office. People will say, ‘If you cheated to get into office you shouldn’t stay in office.’”

Mr. Smith contends that earlier financial reports that indicated he had overspent by 17 percent, well in excess of the 10 percent limit, were inaccurate. Reports filed later show he did not exceed the 10 percent limit, Mr. Smith says.

“His case there is plausible,” Mr. Bender says, “and I agree he deserves his day in court.”

It is up to the lower court to determine the facts in the case, and up to the Supreme Court to rule on the authority of the commission, Mr. Bender says.

If the lower court rules against Mr. Smith, he could seek a stay while appealing.

“By the time it gets decided, he could very well finish the term he wasn’t supposed to serve anyway,” Mr. Bender says.

Mr. Bender cited a 1948 case in which the state Supreme Court ousted Attorney General John Sullivan, who was convicted of a felony in violation of state gambling laws.

“Precedent seems to be on Clean Elections’ side,” Mr. Bender says. “The violation is what got him [Mr. Smith] into office. If you have a spending limit of, for example, $10,000, and somebody spends $100,000, buying up all the air time, you can’t permit that.”

He says it is appropriate for the Supreme Court to consider the case if someone, such as the attorney general, files a special action.

“It’s an important issue that is going to come up again,” he says. “My guess is that the court would rule in favor of the state.”

Andrea Esquer, spokeswoman for the Attorney General’s Office, says the agency is waiting until Mr. Smith exhausts his appeal options.

“We’re standing by ready to defend the case,” she says.

She declined to discuss strategy on whether the agency would file for a special action with the Supreme Court.

Mr. Smith says he has been consulting with experts on constitutional law and is close to deciding what course of action to take.

The Order To Vacate

The Clean Elections Commission on Aug. 25 approved its final order in the case and the Aug. 23 recommendation of Administrative Law Judge Daniel Martin affirming the commission’s March 23 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.

Evidence indicates that Mr. Smith exceeded the 2004 spending limits of nearly $36,000 by more than 6,000, roughly 17 percent more than the limit. The act provides that exceeding the limit by more than 10 percent results in forfeiture of office.

Mr. Ching says, “The question is whether the Legislature can by statute regulate the conduct of its own members,” Mr. Ching says. “In my opinion, the [Clean Elections] statute would be sustained by the court because the Legislature has the power to regulate the conduct of its own members. Otherwise, campaign finance laws and other laws would be unconstitutional. It is a proper exercise of legislative power”

If the case is taken directly to the state Supreme Court, the court may decide to wait until the case goes through the lower courts, Mr. Ching says.

“Unless of course the court feels that this is so important and chooses not to wait until the case goes through the slow pace of the lower courts,” he says.

Mr. Eckstein says the issue is whether Mr. Smith can be removed from office for actions that are not part of his legislative qualifications.

That, says Mr. Eckstein, was reasonably settled in 1999 when the state Supreme Court removed Tony West from the Arizona Corporation Commission for having a securities license while running for that office.

The Superior Court and the Court of Appeals would address the factual issues of campaign spending, whereas the Supreme Court would deal with the issue of statewide importance, the authority of the Clean Elections Commission, Mr. Eckstein says.

“It is an issue worthy of the Supreme Court to resolve whether a person who violated a state statute but meets constitutional qualifications should be removed from office,” he says. “But it would be unusual for the Supreme Court to consider whether he violated the ten percent rule.”

Mr. Smith has said he would take his case to the U.S. Supreme Court if necessary based on his First Amendment rights to free speech, but legal experts disagree.

“I can’t conceive of a valid claim in federal court,” Mr. Eckstein says. “There is no First Amendment right to hold office.”

Mr. Bender says he is reluctant to say Mr. Smith could not make a federal case out of his dilemma, but adds: “It’s not a First Amendment issue.” —