PACION v. THOMAS et al/BOWIE v. HUPPENTHAL et al

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SUPREME COURT OF ARIZONA In Division KRISTA PACION, ) ) Plaintiff/Appellant, ) ) v. ) ) BOB THOMAS; KENNETH BENNETT; ) FULTON BROCK; DON STAPELY; ANDY ) KUNASEK; MAX WILSON; MARY ROSE ) WILCOX; and HELEN PURCELL, ) ) Defendants/Appellees. ) __________________________________) ) SEAN BOWIE, ) ) Plaintiff/Appellant, ) ) v. ) ) JOHN HUPPENTHAL; KEN BENNETT, et ) al., ) ) Defendants/Appellees. ) ) __________________________________) Arizona Supreme Court No. CV-10-0179-AP/EL Maricopa County Superior Court Nos. CV2010-017916 CV2010-017814 (Consolidated) O P I N I O N Appeal from the Superior Court in Maricopa County The Honorable Robert H. Oberbillig, Judge AFFIRMED ________________________________________________________________ Bob Thomas In Propria Persona Phoenix PERKINS COIE BROWN & BAIN P.A. By Daniel C. Barr Rhonda L. Barnes Craig A. Morgan Jessica J. Berch Kirstin T. Eidenbach Attorneys for Krista Pacion and Sean Bowie Phoenix SCHMITT SCHNECK SMYTH & HERROD, P.C. By Timothy J. Casey Drew Metcalf Attorneys for John Huppenthal Phoenix BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson By Daniel S. Jurkowitz, Deputy County Attorney Attorneys for Ann Day, Ramon Valadez, Sharon Bronson, Raymond J. Carroll, Richard Elias, and F. Ann Rodriguez ________________________________________________________________ H U R W I T Z, Vice Chief Justice ¶1 The issue in these consolidated cases is whether signatures obtained on nomination petitions before the formation of a candidate s campaign committee pursuant to A.R.S. § 16903(A) (2006) must be stricken. 2010, affirming the opinion to follow. judgment We issued an order on June 28, of the superior court with an This is that opinion. I. ¶2 John Superintendent Huppenthal is of Instruction. Public a Republican Bob candidate Thomas for is a Republican candidate for State Senator in Legislative District 15. Huppenthal and Thomas (the Candidates ) each submitted nominating petitions with the requisite number of signatures. Each collected committee in all signatures accordance with after A.R.S. creating an exploratory § 16-903(B) but before creating a campaign committee pursuant to § 16-903(A). ¶3 Separate special actions were filed in the superior court seeking to enjoin the placement of the Candidates names 2 on the primary Contestants ) ballot. only The plaintiffs contention was (collectively that, by the collecting signatures before forming a campaign committee, the Candidates had violated § 16-903(A). The Contestants conceded that the nominating petitions contained sufficient valid signatures to qualify the Candidates for the primary ballot. ¶4 The superior court actions and denied relief. consolidated the two special The judge found that the Candidates had violated § 16-903(A), but held that the disqualification of signatures on their nominating petitions was not the appropriate remedy. Rather, the court held that the sole consequence for such a violation was the civil penalty prescribed by A.R.S. §§ 16-903(G) and 16-924 (2006). ¶5 appealed. The Contestants appealed and Huppenthal cross- We have jurisdiction under A.R.S. § 16-351(A) (2006) and Article 6, Section 5(3) of the Arizona Constitution. II. A. ¶6 Title 16, Chapter 6, Arizona Revised Statutes (A.R.S. §§ 16-901 to 16-961), is entitled Campaign Contributions and Expenses and contains a comprehensive governing election campaign finance. statutory scheme Most relevant to today s inquiry are two provisions in Article 1 of Chapter 6 requiring formation of political committees 3 by those making campaign expenditures or receiving contributions, A.R.S. §§ 16-903(A) and (B). ¶7 A candidate is defined as an individual who receives or gives consent for receipt of a contribution for his nomination for or election to any office in this state. § 16-901(2) (2006). committee before contributions, A.R.S. A candidate is required to form a campaign making any distributing circulating any petitions. expenditures, any campaign accepting any literature or A.R.S. § 16-903(A). Section 16- 903(B) requires an individual to form an exploratory committee before making any expenditures, accepting any contributions or distributing any campaign literature. The term individual is not separately defined, but in context refers to a subset of persons who do not meet the statutory definition of a candidate. ¶8 The Contestants claim that circulating nominating petitions before the formation of a campaign committee violates § 16-903(A). The Candidates claim that, because it does not mention circulating petitions, § 16-903(B) does not proscribe such activity after formation of an exploratory committee by an individual who has not yet become a candidate. ¶9 We need not resolve this dispute today. We assume, without deciding, that the Contestants violated § 16-903(A) by circulating nominating petitions committees. But, like the superior court, we conclude that the 4 before forming campaign exclusive remedy for such a violation is the civil penalty provided in the campaign finance statutes. B. ¶10 When the secretary of state has reasonable cause to believe that a candidate for statewide office or the legislature is violating any provision of [Title 16, Chapter 6, Article 1], he must notify the attorney general. § 16-924(A). A.R.S. The attorney general then may serve on the person an order requiring compliance with that provision. Id. The alleged violator has twenty days to comply with the order or request an administrative hearing. Id. Absent compliance or appeal, the attorney general shall issue an order assessing a civil penalty of not more than one thousand dollars. A.R.S. § 16-924(B). ¶11 In turn, § 16-903(G) provides: A person who violates this section [§ 16-903] is subject to a civil penalty imposed as prescribed in § 16-924 of up to three times the amount of money that has been received, expended or promised in violation of this section or up to three times the value in money for an equivalent of money or other things of value that have been received, expended or promised in violation of this section. Chapter 6 contains no provision authorizing a court to strike signatures obtained before formation of a campaign committee. In contrast, A.R.S. § 19-114(B) (Supp. 2010), which governs initiatives and referenda, expressly provides that signatures 5 obtained prior to the filing of the committee s statement of organization . . . are void and shall not be counted in determining the legal sufficiency of the petition. ¶12 Election contests are purely statutory and dependent upon statutory provisions for their conduct. Van Ardsell v. Shumway, 165 Ariz. 289, 291, 798 P.2d 1298, 1300 (1990) (quoting Donaghey v. Att y Gen., 120 Ariz. 93, 95, 584 P.2d 557, 559 (1978)) (internal expressly chose quotation in marks § 19-114(B) omitted). to The disqualify legislature signatures on initiative and referendum petitions obtained before formation of a political committee, yet provided only a civil penalty for violations of the campaign candidates, including § finance 16-903(A). We statutes decline governing to infer a statutory remedy into the campaign finance statutes that the legislature eschewed. ¶13 Contestants protection against argue the that § 16-903(G) misconduct alleged provides here because no it calculates the penalty based on the amount of money or other value received or expended in violation of § 16-903, and premature circulation of nominating petitions may not involve any such receipt or expenditure. statutory scheme. This argument misconstrues the Section 16-903(G) simply allows the basic penalty applicable to all violations of Chapter 6, Article 1 under § 16-924(B) a civil penalty 6 of not more than one thousand dollars to be increased to three times the amount received or expended in violation of § 16-903. When there are no such receipts or expenditures, the basic penalty of up to one thousand dollars remains applicable. C. ¶14 Contestants also claim that A.R.S. § 16-351 authorizes injunctive But no relief decision provision in against of this § 16-351 a candidate Court so has violating so held, provide. § 16-903(A). nor Section does any 16-351(A) contemplates challenges to individual signatures on a nominating petition. Such challenges, however, typically attack qualifications of signators, e.g., Lubin v. Thomas, 213 Ariz. 496, 497 ¶ 6, 144 P.3d 510, 511 (2006), the validity of the circulator s verification, e.g., Moreno v. Jones, 213 Ariz. 94, 98 ¶ 22, 139 P.3d 612, 616 (2006), or the form of the petitions, e.g., Bee v. Day, 218 Ariz. 505, 507-08 ¶¶ 11-14, 189 P.3d 1078, 1080-81 (2008). Section 16-351(A) is part of Title 16, Chapter 3, which governs Nomination Procedures, and applies to any court action challenging the nomination of a candidate as provided for in this chapter, not to alleged violations of the campaign finance laws in Chapter 6. ¶15 Nor does A.R.S. sought by the Contestants. § 16-351(B) authorize the remedy That statute allows an elector to challenge a candidate for any reason relating to qualifications 7 for the residency office or sought as professional prescribed by requirements. law, including age, Under that Id. provision, a court may enjoin placement on the primary ballot of a candidate who does not meet the statutory or constitutional requirements for the office sought. See, e.g., Bearup v. Voss, 142 Ariz. 489, 491, 690 P.2d 790, 792 (App. 1984); see generally Ariz. Const. art. 4, pt. 2, §§ 2, 4-5 (stating qualifications for legislative candidates); id. art. 5, § 2 (same for executive candidates); A.R.S. § 16-311(A) (2006) (requiring candidates to be qualified electors). It does not apply to alleged violation of campaign finance laws. D. ¶16 The Contestants contend that signatures collected before the formation of a campaign committee must be stricken to ensure candidates do not circumvent Arizona s resign to run law, under which an incumbent of a salaried elective office cannot offer himself for nomination or election to any other salaried office except during the final year of the term being served. A.R.S. § 38-296(A) (2001). The Contestants argue that if incumbents are allowed to form an exploratory committee and circulate nominating petitions before the final year of their terms, the resign to run law will be rendered a nullity. ¶17 The argument fails. This is not an action seeking to oust an incumbent from public office, but rather an election 8 contest. See A.R.S. § 12-2041 (2003) (authorizing attorney general to bring action against any person unlawfully holding public office); Op. Pima County Att y 09-02 (declining, after attorney general recused himself and assigned matter to Pima County Attorney, to institute action against Huppenthal for a violation of § 38-296). ¶18 with In any event, nothing in our opinion today conflicts § 38-296 case. or prevents its enforcement in an appropriate The legislature has expressly provided that [a]n elected official is not deemed to have offered himself for nomination or election to an office . . . solely candidate campaign committee. Ariz. Att y Gen. I10-005 by his designation of a A.R.S. § 16-903(F); see also Op. (opining that formation of an exploratory committee does not trigger obligation to resign from current office). Moreover, an incumbent is only deemed to have offered for himself nomination . . . upon the filing of a nomination paper . . . or formal public declaration of candidacy for such office whichever occurs first. (emphasis added). will encourage A.R.S. § 38-296(B) There is thus little danger that our decision incumbents to form § 16-903(B) exploratory committees rather than § 16-903(A) campaign committees before circulating nominating petitions strictures of § 38-296. 9 in order to avoid the III. ¶19 For the reasons above, we affirm the judgment of the superior court. _____________________________________ Andrew D. Hurwitz, Vice Chief Justice CONCURRING: _____________________________________ Michael D. Ryan, Justice _____________________________________ A. John Pelander, Justice 10

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