David Burnell Smith

David Burnell Smith may be through with politics, but he is still paying the price for holding, and later being ousted from public office.
Almost two years after voting to investigate Mr. Smith for campaign finance violations, the Citizens Clean Elections Commission on Sept. 28 heard a plea for mercy from the man they levied penalties of $45,000 against for exceeding his 2004 primary campaign spending limit for the District 7 House race.
“Financially this thing has killed me,” said Mr. Smith, whose black Lincoln Town Car parked in front of the CCEC office was ticketed before he addressed the commission.
The Scottsdale attorney had challenged the commission’s authority to impose the so-called “death penalty” — the removal of elected officials who exceed their campaign spending limits by 10 percent of greater — and lost.
His defiance has cost him dearly, Mr. Smith told the commission, adding that in hindsight, he would have resigned his House seat rather than struggle with the commission.
On top of the emotional hardships generated by news of his fall, the West Virginia native said that he estimates he has lost $50,000 in business to his legal practice and the approximate $30,000 salary he would have earned as a legislator.
Mr. Smith, who once promised to put a dagger through the heart of Clean Elections, said that he is now under a mountain of legal bills from his long battle that coursed through the commission, an administrative law judge, the Maricopa County Superior Court, the Arizona Court of Appeals, and finally, the Arizona Supreme Court.
In late January, Mr. Smith’s fate was sealed by the high court. Later, a written opinion invalidated his claim of civil immunity during the legislative session. The court also found that he missed a deadline to appeal the commission’s decision not to reconsider his case and disagreed with his claim that elected officials can only be removed by impeachment or citizen recall.
“That constitutional provision was intended to protect the public by making it easier to remove public officers, not to protect malfeasing public servants,” wrote Vice Chief Justice Rebecca White Berch.
Mr. Smith recalled to the commission his day in late January when he informed colleagues at the House of Representatives that he would obey the high court’s order that he leave office as the saddest day in his life, followed closely by his recent loss in the Republican primary election.
“When you lose that honor, a part of you goes away,” he told commission members.
Last month, Mr. Smith tried to regain his seat as a privately funded candidate, but lost to former seatmate Rep. Ray Barnes and Nancy Barto, who had been appointed to replace him during the session.
He also found himself running against Howard Sprague, a former close friend and campaign volunteer who decided to seek the seat himself —one day after Mr. Smith was ordered to vacate office by the Maricopa County Superior Court.
State elections records show that Mr. Smith placed third in the 2006 Republican House primary from District 7. He trailed Mr. Barnes by just 322 votes, with a total of 4,392 ballots cast in his favor.
He beat Mr. Sprague by more than 1,000 votes and captured 23.5 percent of the 18,665 votes cast.
The CCEC heard Mr. Smith suggest his willingness to drop his current Arizona Court of Appeals lawsuit against the state’s publicly funded campaign system in return for leniency, but Commissioner Gary Scaramazzo immediately rejected the notion, calling it a cave-in to outside pressure.
Mr. Smith also met resistance from commissioner chair Marcia Busching, who contemplated what signal would be sent by granting relief to the former representative.
Eric Ehst, executive director of the Clean Elections Institute, a private advocacy group in favor of publicly funded elections, also advised members to avoid a “snap judgment based on emotion” and reminded them of the high costs to the state resulting from the legal challenges.
Commissioner: ‘Don’t give up’
And although the commission voted unanimously to hold the matter upon further consideration, Mr. Smith did receive words of encouragement from CCEC Commissioner Carl Kunasek, who related his own experience with a political loss.
He described proudly his role as Senate president during the late 1980s, a position he held until it was complicated by the impeachment of Governor Evan Mecham.
Despite his 16-year experience that spanned 10 years in the House, and additional terms in the Senate, he lost his bid for re-election and attributed the defeat to his willingness to impeach the governor.
The loss was unexpected and left him a “basket case” for weeks, but he was able to re-enter the political arena and earn a seat on the Corporation Commission, he told Mr. Smith.
“Don’t give up,” said. Mr. Kunasek. “Look ahead.”
Mr. Smith was also praised by CCEC Executive Director Todd Lang for his conduct during their interactions.
“He has always been absolutely cordial to me and if there is ever a legislator with reason to be rude to me or staff it’s David Smith.”
Smith now has precinct committeeman role
Now, the former lawmaker who ran four unsuccessful campaigns before being elected to the House is reluctant to become politically engaged again. He has a role, not a very active one by his admission, as a precinct committeeman.
And he has also smoothed over his relationship with Mr. Sprague and sent small contributions to the campaigns of both Mr. Barnes and Ms. Barto as a sign of good will for running positive races.
But they also still have one thing in common.
“They’ll agree with me more than I will with the Democrats,” he said.
The commission is scheduled to decide Oct. 12 on David Burnell Smith’s request to reduce the order that he pay a $10,000 fine and repay more than $34,000 he was given to campaign in 2004, said Michael Becker, CCEC voter education manager.