Goldwater Institute Reacts to Arizona Supreme Court Decision That Respects Due Process

The Arizona Supreme Court released an opinion on the Legacy Foundation (Legacy) v. Clean Elections Commission (CEC) case Thursday, which the Goldwater Institute (GI) celebrated as a victory for due process.

“State bureaucrats cannot simply decide the reach of their own authority,” said GI Vice President of Legal Affairs Timothy Sandefur. “When bureaucrats—who are often not answerable to voters at all—have the power to make the rules, investigate infractions, and punish people for violating those rules, that authority can undermine our most important constitutional values and threaten individual rights.”

Arizona Supreme Court Vice Chief Justice Ann Timmer penned the opinion. According to the document, the issues surrounding Legacy began back in July 2014, when an attorney for former Mesa Mayor Scoith’s gubernatorial campaign filed a complaint with the CEC. The complaint alleged that Legacy violated the Citizens Clean Elections Act (CCEA) by releasing ads “expressly advocating” against Smith without filing required campaign finance reports. Additionally, the complaint alleged that former Gov. Doug Ducey’s gubernatorial campaign coordinated with Legacy to create the advertisements, and in-kind gift reportings were also not filed.

Following the complaint, Legacy responded that the commission did not have subject matter jurisdiction and that the ads did not “express advocacy” for or against anyone. The Ducey campaign mirrored these claims. Legacy then filed a lawsuit challenging the CEC’s jurisdiction.

From here, the commission decided it had jurisdiction to address Smith’s complaint and later voted to start an investigation into Legacy to determine if the CCEA was violated.

A back-and-forth between the entities ensued, with Legacy continuing to argue the CEC did not have jurisdiction. Nonetheless, the commission continued with its investigation, finding probable cause that Legacy had violated the CCEA and assessed a penalty of $95,000.

Legacy then requested an administrative hearing, once again challenging the CEC jurisdiction. In 2015, after hearing arguments, an administrative law judge (ALJ) made a recommendation in Legacy’s favor, stating that the CEC failed to show that Legacy engaged in express advocacy and that the commission’s order was defective for failing to name a candidate responsible for Legacy’s expenditure. However, the ALJ’s decision was not binding.

Despite this hearing, the commission rejected the ALJ’s recommendations and affirmed its previous order and penalties. While it was within the commission’s legal authority to do this, Legacy still attempted to prevent it. The two entities then entered into legal ping-pong leading up to the Supreme Court’s new decision.

The GI entered the picture in 2022 when Sandefur filed an amicus brief with the Arizona Supreme Court, taking issue with the fact that the CEC bypassed the ALJ’s ruling. He argued the commission overstepped its boundaries and violated due process. By allowing this action, Sandefur also argued the courts could set a precedent that could hurt small businesses or anyone subject to enforcement by a regulatory agency like the CEC.

In Timmer’s opinion, she acknowledged that the GI’s brief led to further arguments in the case. In the statement, Timmer addressed the situation of allowing non-neutral decisionmakers to issue a final decision, such as the CEC’s decision to reject the ALJ’s recommendations and move to enforce penalties. In this situation, Timmer wrote that the commission acted as “both prosecutor and final decisionmaker,” which is not in line with the provisions of due process.

Therefore, Timmer ordered the reversal of lower court judgments against Legacy and remanded the case to the superior court to determine if the CEC does have jurisdiction, this time with proper due process.

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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Arizona Supreme Court” by Arizona Supreme Court.


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