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Unless an Arizona appeals court intervenes, for the first time in the United States an elected official will be removed from office by court order for breaking campaign finance law. In the past, removals have been accomplished by impeachment or recall. Mirrored in Maine and Connecticut, the landmark Arizona Clean Elections Law has thus far withstood seven state and federal constitutional challenges, none of which involved the ouster provision now being challenged. Superior Court Judge Mark F. Aceto recently upheld an order of removal from the Citizens Clean Elections Commission, which is the state agency responsible for administering the clean-elections law. Aceto ordered Representative David Burnell Smith removed from office, but stayed that order until Dec. 21 to allow him time to appeal. Smith v. Arizona Citizens Clean Elections Commission, No. CV 2005-093310 (Maricopa Co., Ariz., Super. Ct.). Aceto found that Smith “has usurped, intruded into, and unlawfully holds . . . the office of District 7 State Representative.” Smith, who is also a Scottsdale, Ariz., solo practitioner, said that they all have gotten it wrong. “I just want the superior court or the court of appeals to review my up-to-date financial statements, which show that I didn’t overspend and that I’m in full compliance with the law,” he said. Smith has filed seven amended campaign finance reports, the last of which was filed after a state administrative law judge held hearings and made a recommendation that supported the commission’s decision. Last week, Smith, who is now represented by Phoenix attorney David Abney of the Law Offices of Charles M. Brewer, filed a petition for special action, a writ. Smith v Aceto, No. SA 05-0292 (Ariz. Ct. App.). The brief alleges, among other things, that the act is unconstitutional on its face and as applied, that Smith is being selectively prosecuted and that the act’s requirements are complex and ambiguous. It says that Smith never intended to violate the law. “What I’m trying to get across is that Representative Smith deserves his day in court-he wants a judge to review the merits of the commission’s decision,” Abney said. Assistant Attorney General Diana Varela said that Smith has already had his day in court. She declined further comment because of the pending litigation. The attorney general’s response is due on Dec. 23. On Dec. 20, the intermediate-level appeals court will consider whether or not to extend the stay. For candidates who choose to participate, the act provides lump-sum public financing for primaries and general elections. It also provides matching funds to participating candidates of monies spent by nonparticipating opponents or independent committees that promote opponents or attack participating candidates. The idea behind the law is to level the playing field between candidates of unequal wealth, and to rid campaigns of special-interest money. A 10% margin Adopted by initiative in 1998, the law mandates that anyone who exceeds spending caps by more than 10% must be removed from office or disqualified from candidacy. In September 2004, the commission received written complaints from both primary and general election opponents of Smith. The commission found that Smith had exceeded his spending cap by 17%. It ordered his removal, fined him $10,000 and said that he must return the $34,625.09 in public monies he received. Barbara Lubin, executive director of the nonpartisan, nonprofit Clean Elections Institute, a self-proclaimed watchdog of the commission, stepped in when the former executive director of the commission agreed to settle the overspending complaint for $2,500. In October 2004, when the full commission could have ratified that deal, the institute objected. “We told them that if someone can overspend and just get a slap on wrist that it would undermine the integrity of the law,”said Lubin. The commission rejected the deal and ordered an audit. That began the still-ongoing process.

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