Smith v. Arizona Citizens Clean Elections

• Citation: 212 Ariz. 407,132 P.3d 1187
• Decision Date: 03 May 2006
• Docket Number: No. CV-06-0021-PR/A.,CV-06-0021-PR/A.
• Parties: David Burnell SMITH, a citizen and resident of the State of Arizona, Petitioner/Appellant, v. ARIZONA CITIZENS CLEAN ELECTIONS COMMISSION, an agency of the State of Arizona; State of Arizona, a State of the United States of America; State of Arizona ex rel. Terry Goddard, Arizona Attorney General, Real Parties in Interest/Appellees.
• Court: Supreme Court of Arizona

Page 1187

132 P.3d 1187

212 Ariz. 407

David Burnell SMITH, a citizen and resident of the State of Arizona, Petitioner/Appellant, v. ARIZONA CITIZENS CLEAN ELECTIONS COMMISSION, an agency of the State of Arizona; State of Arizona, a State of the United States of America; State of Arizona ex rel. Terry Goddard, Arizona Attorney General, Real Parties in Interest/Appellees.

No. CV-06-0021-PR/A.

Supreme Court of Arizona, En Banc.

May 3, 2006.

COPYRIGHT MATERIAL OMITTED

Charles M. Brewer, Ltd. by David L. Abney, Phoenix, Attorneys for David Burnell Smith.

Terry Goddard, Arizona Attorney General by Diana L. Varela, Assistant Attorney General, Jessica Gifford Funkhouser, Special Counsel, Phoenix, Attorneys for Arizona Citizens Clean Elections Commission, State of Arizona, Terry Goddard, Arizona Attorney General.

OPINION

BERCH, Vice Chief Justice.

¶ 1 In 2004, David Burnell Smith was elected to serve in the Arizona State Legislature as a Representative from District 7. He chose to run as a publicly funded candidate. In return for the receipt of public funds, he and the other participating candidates each signed a form promising to adhere to the provisions of the Citizens Clean Elections Act, Ariz.Rev.Stat. ("A.R.S.") §§ 16-940 to -961 (Supp.2005), and to the campaign finance rules promulgated by the Arizona Clean Elections Commission. See Ariz. Admin. Code ("A.A.C.") R2-20-215 to -228. The Citizens Clean Elections Act provides sanctions for violations of the campaign finance laws, including fines, criminal sanctions, and, for serious cases, removal from office. A.R.S. § 16-942.

¶ 2 Following an investigation of Smith's campaign expenditures, the Commission determined that Smith violated campaign finance rules by spending approximately seventeen percent more on his election than is permitted by law. See § 16-942(C). For that violation, the Commission decided that Smith should forfeit his office. This is Smith's final review of several determinations — at the administrative level, on review by the superior court, and following a decision by the court of appeals — all affirming the Commission's determination that Smith violated campaign finance laws and must leave office or concluding that Smith did not timely appeal the Commission's decision.

¶ 3 On January 26, 2006, this court issued an order denying Smith's request for a stay of proceedings, granting his petition for review, and affirming the judgment of the superior court. This opinion explains our reasoning. We have jurisdiction over this case pursuant to A.R.S. § 12-120.24 (2005) and Article 6, Section 5(3) of the Arizona Constitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 The factual and procedural background of this case is lengthy. Rather than set it forth in detail here, matters will be set forth as necessary to the resolution of each claim.

II. DISCUSSION

A. Constitutional Privilege

¶ 5 Smith raises a preliminary matter that, if resolved in his favor, would obviate the need to address any other issue. Accordingly, we address it first. Smith claims that this litigation cannot proceed because, as a state legislator, he enjoys a constitutional immunity to civil process during, and for fifteen days preceding, the legislative session. This privilege is set forth in Article 4, Part 2, Section 6 of the Arizona Constitution, which provides as follows:

Members of the Legislature shall ... not be subject to any civil process during the session of the Legislature, nor for fifteen days next before the commencement of each session.

¶ 6 We construe constitutional provisions in light of the purpose of the enactment and the "evil sought to be remedied." Ruth v. Indus. Comm'n, 107 Ariz. 572, 575, 490 P.2d 828, 831 (1971). Although there is little history surrounding the passage of Article 4, Part 2, Section 6,¹ this court has noted that a similar provision in the Federal Constitution was designed to avert an arrest, either criminal or civil, that would prevent a legislator from attending session. See Yuma Greyhound Park, Inc. v. Hardy (Steiger), 106 Ariz. 178, 179, 472 P.2d 47, 48 (1970) (citing Long v. Ansell, 293 U.S. 76, 55 S.Ct. 21, 79 L.Ed. 208 (1934), discussing Article 1, § 6 of the United States Constitution); accord State v. Beno, 116 Wis.2d 122, 341 N.W.2d 668, 676 (1984) (noting that the Wisconsin privilege, worded almost identically to Arizona's, is designed to ensure a legislator's availability to represent his constituents). The federal privilege provision has been described as extending to "a subpoena ad respondendum, aut testificandum, or a summons to serve on a jury" because such seizures of the person would preclude a representative from doing his public duty. Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 857 (1833).

¶ 7 That rationale does not pertain here. Smith is not defending a suit brought by another. Instead, Smith has invoked the jurisdiction of the courts. On January 24, 2006, for example, Smith filed a petition for review urging this court to accept jurisdiction and reverse the court of appeals' memorandum decision, which affirmed the superior court's judgment that Smith should forfeit his seat in the legislature. Had Smith not invoked the jurisdiction of the courts, the Clean Elections Commission's removal order would have become final on September 8, 2005,² and Smith's removal from office would have occurred more than fifteen days before the legislative session began.

¶ 8 A legislator may not seek the court's intercession solely for the purpose of keeping alive a case that would remove him from office, then claim immunity from participating in the very case he has brought. Having participated in the case before the Commission during his last legislative term and lost, and then having instituted suit and appeals in an attempt to overturn the administrative result, Smith cannot claim legislative immunity.

B. The Stay Request

¶ 9 Smith requested that this court stay the effect of the court of appeals' order finding that he had not properly appealed his case. See ARCAP 7(c) (authorizing court to enter a stay to preserve the status quo pending review of a case). While this court has not had occasion to set forth the analytical framework for evaluating requests for stays in the appellate context, Arizona courts have applied to such stay requests the traditional criteria for the issuance of preliminary injunctions, see Shoen v. Shoen, 167 Ariz. 58, 63, 804 P.2d 787, 792 (App.1991) (preliminary injunction standards); Burton v. Celentano, 134 Ariz. 594, 595, 658 P.2d 247, 248 (App. 1982) (same), as did the appellate court and the parties in this case. We find the construct useful and therefore adopt it.

¶ 10 A party seeking a stay on appeal must thus establish the following elements:

1. a strong likelihood of success on the merits;

2. irreparable harm if the stay is not granted;

3. that the harm to the requesting party outweighs the harm to the party opposing the stay; and

4. that public policy favors the granting of the stay.

See Shoen, 167 Ariz. at 63, 804 P.2d at 792; Burton, 134 Ariz. at 595, 658 P.2d at 248. The scale is not absolute, but sliding. Nor should the result turn on counting the factors that weigh on each side of the balance. Rather, "the moving party may establish either 1) probable success on the merits and the possibility of irreparable injury; or 2) the presence of serious questions and [that] `the balance of hardships tip[s] sharply'" in favor of the moving party. Shoen, 167 Ariz. at 63, 804 P.2d at 792 (quoting Justice v. Nat'l Collegiate Athletic Ass'n, 577 F.Supp. 356, 363 (D.Ariz.1983)). The greater and less reparable the harm, the less the showing of a strong likelihood of success on the merits need be. Conversely, if the likelihood of success on the merits is weak, the showing of irreparable harm must be stronger.

¶ 11 We applied these criteria to Smith's request for a stay. Because we concluded, for the reasons set forth below, that Smith would not succeed on his claims and that the judgment of the superior court should be affirmed, we denied his stay request.

C. The Merits

1. Removal only by impeachment or recall

¶ 12 Smith's primary claim is that he can be removed from office only by "impeachment or recall" and then only for the reasons set forth in the constitution. He bases his claim on Article 8, Part 2, Section 1 of the Arizona Constitution, which provides that, on vote of two-thirds of the members of the Senate, a state officer may be removed from office for "high crimes, misdemeanors, or malfeasance in office."

¶ 13 The argument that a state officer may be removed from office only as prescribed in the constitution was squarely raised and rejected in State ex rel. DeConcini v. Sullivan, 66 Ariz. 348, 355, 188 P.2d 592, 596 (1948). In Sullivan, this court observed that while the constitution may limit legislative powers, unless a power is expressly or by implication precluded, the legislature retains power to act. Id. at 356-57, 188 P.2d at 597. The court concluded that Article 8, Part 2 does not limit the power of the legislature to devise additional methods of and causes for removal and therefore does not provide the exclusive means of removal from public office. Id. at 357, 188 P.2d at 598; cf. A.R.S. § 1-253(B) (2002) (permitting "impeachment, removal, deposition or suspension" from office for certain offenses, even if the offense does not specify removal from office as a potential penalty). If, as Smith contends, the constitutional means were exclusive, the legislature would be unable to enact laws allowing removal of one who had become mentally incompetent or physically unable to hold office. As this court noted in Sullivan, that constitutional provision was intended to protect the public by making it easier to remove public officers, not to protect malfeasing public servants. 66 Ariz. at 358-59, 188 P.2d at 599.

¶ 14 In this case, the public, acting in...