PHOENIX — The state Court of Appeals has rebuffed a bid by a group that spent $260,000 attacking a 2014 foe of Doug Ducey’s in his first gubernatorial campaign to escape a fine for violating state campaign finance laws.
In a split decision, the judges said the record shows that the Legacy Foundation Action Fund waited too long before appealing a more than $95,000 fine imposed by the Citizens Clean Elections Commission over its commercials targeting former Mesa Mayor Scott Smith. In fact, Judge Randall Howe pointed out that even the state Supreme Court upheld that finding.
Undeterred, attorneys for the conservative political fund then opened a new legal front with this lawsuit, arguing that the commission did not have any legal authority to impose the fine in the first place.
But the majority of the appellate judges said Legacy showed no “manifest abuse of authority” that would now allow it to pursue a new lawsuit after having missed the deadline to appeal the original fine. And that, they said, means it forfeited any right to make new arguments.
There was no immediate response from attorneys for the foundation.
The case stems from a commercial that ran in early 2014 when Smith was pursuing the Republican gubernatorial nomination.
Produced by the Legacy Foundation, it noted that Smith, who was mayor of Mesa, also was president of the U.S. Conference of Mayors. More to the point, it focused on some of the stands the conference had taken.
“They fully endorsed Obamacare from the start,” the commercial said. And it said the conference supported the Obama administration’s efforts to regulate carbon emissions and “backed the president’s proposal to limit our Second Amendment rights.”
It even featured photos of Smith placed next to pictures of a smiling Obama.
Only thing is, Arizona law requires anyone who seeks to influence an election to publicly disclose the spending. The Legacy Foundation, however, did not, leading to a complaint against it by the Clean Elections Commission.
Jason Torchinsky, one of the attorneys for the fund, argued there was nothing improper about the commercial.
He said it was not designed to influence the election but simply to “educate” Arizonans about Smith. And Torchinsky noted that the ad made no reference to Smith’s race against Ducey nor even to Smith’s status as a candidate.
The commission concluded otherwise, saying it was was an attempt to affect the Republican gubernatorial primary, noting the commercial ran just as Smith was stepping down as Mesa mayor to launch his statewide campaign. And the panel imposed that $95,460 fine.
Legacy’s first lawsuit was thrown out by a trial judge for failing to appeal within 14 days as required by law.
That decision was upheld by the Arizona Supreme Court in 2018. But the justices said they were not ruling on whether Legacy could attack the fine with an alternate legal theory.
The result was this case, with attorneys for Legacy raising new arguments about why it was never required to disclose the spending and, by extension, why it doesn’t have to pay the fine.
Some of this is was a rehash of the original arguments.
Attorney Brian Bergin argued that the commission, in concluding the purpose of the commercial was to affect the 2014 GOP primary, ignored the plain language of what viewers saw.
“The Arizona advertisement discusses issues: government spending, Second Amendment rights, and the regulation of carbon emissions,” Bergin wrote, while telling viewers the policies “are wrong for Mesa” and urging them to call Smith “and tell him to support policies that are good for Mesa.”
But Tom Collins, the commissions executive director, said that ignores other facts.
He pointed out that the positions taken by mayors’ organization — the ones that Legacy Foundation said it was educating Mesa voters about — all were taken before Smith became president of the group.
And then there was the fact that by the time the commercials aired Smith was no longer its president. But he was running for governor.
“Taken together, allegations (about Smith) that were not correct, the timing of the ad and other factors, there’s really no way to see the ad as anything other than what it is: an attack ad designed to urge folks to vote against Mayor Smith for the Republican gubernatorial nomination in 2014 because he was ‘Obama’s favorite mayor,’” Collins said.
Bergin also told the Court of Appeals there was a key flaw in the commission’s case against his client. He contends that the commission is required to identify the candidate that the commercial was made “by or on behalf of.”
“Legacy is certainly not a candidate and was not working “on behalf of’’ any candidate,” Bergin said.
The appellate court rejected that claim, saying Legacy showed no “manifest abuse of authority’’ that would allow it a second try to overturn the fine.
Howe similarly dismissed Bergin’s contention that only the secretary of state has the power to enforce campaign finance laws and not the commission which was created by voters in 1998. And the court rebuffed arguments that it should allow Legacy to effectively re-litigate the issue by claiming that the rules on campaign finance reporting infringed on the organization’s free speech rights.
“This is not a situation in which a litigant had no earlier opportunity to litigate the agency’s jurisdiction,” Howe wrote.
Collins said Friday that Legacy still hasn’t paid the fine. He said interest is continuing to accumulate but could not provide a specific figure.
