A state appellate court has put on hold until mid-January on a commission’s order ousting a legislator from office for overspending in his publicly funded 2004 primary election campaign.

A three-judge Court of Appeals panel scheduled Jan. 9 oral arguments in the case of Rep. David Burnell Smith, R-7, who is challenging the Citizens Clean Election Commission’s order that he leave office and also pay monetary penalties.

Modifying a timetable jointly proposed by lawyers for Mr. Smith and the commission, the Court of Appeals also said Dec. 20 it would issue a ruling by Jan. 17 and that its stay of the commission’s order would remain in effect until five court days after the decision, said Diana Varela, an assistant attorney general representing the commission.

The five-day period gives the losing side time to appeal to the Arizona Supreme Court while the stay remains in effect.

A trial judge on Dec. 7 dismissed Mr. Smith’s lawsuit challenging the commission’s order and granted the state’s request to enforce the order.

The Court of Appeals approved the revised timetable one day before the expiration of a stay, which Judge Mark Aceto of Maricopa County Superior Court issued to give Mr. Smith time to appeal to the midlevel appellate court.

If removed, Mr. Smith would be the first legislator ousted for violation of a state’s public campaign financing system.

The commission found that Mr. Smith’s primary campaign overspent by approximately $6,000 by incurring costs that weren’t paid until he received his general election funding. It also ruled that he didn’t provide enough details on how he spent the money. He was ordered to forfeit his office, pay a $10,000 civil fine and reimburse his public campaign funding of $34,625.

Mr. Smith contends his campaign didn’t overspend, that he cooperated with the state’s investigation, that the commission doesn’t have the authority to oust him and that he wasn’t given his day in court before Judge Aceto ruled.

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