Wednesday, March 30, 2005

Michael: Mr. Burnell Smith Distains the Law

Mr. Smith went to the Capitol, unfortunately he broke the rules getting there; now he won’t leave.

David Burnell Smith has been ordered by the Citizen’s Clean Elections Commission to surrender the office of Representative for Arizona’s District 7 for breaking state campaign finance law. Smith also has been ordered to pay restitution to the people of Arizona of over $34K and a fine of $10K more. He has stated through his lawyer his intention not to resign.

There are no facts in dispute here. Mr. Smith admits to the overspending that prompted his removal from office, and his signature is on all the checks. Yet despite clear wrong-doing, he vows he is going to appeal the decision.

Mr. Smith’s defense seems to be that the overspending was not intentional. However, simply reading the law dispenses with that defense. Title 16 Section 942(C) provides that exceeding spending limits by more than 10% “shall result in disqualification of a candidate or forfeiture of office.” There is no requirement that the violation be intentional.

Section 942(D), requires that “[a]ny participating candidate adjudged to have committed a knowing violation of section 16-941, subsections A or C” must make restitution of campaign funds to the people of Arizona. This makes it crystal clear that intent is not required for the Commission to oust an officeholder. There is a rule of interpretation that the expression of one thing implies the exclusion of others. Stating that knowing violations of 16-941(C) will result in restitution, makes it quite clear that even unintentional violations of 16-941(C) shall result in forfeiture of office. Mr. Smith may avoid restitution with an intent defense, but he cannot stay in office that way.

Mr. Smith’s defense that his overspending is unintentional is groundless. He should know this, he’s a lawyer. Claiming a defense that he must know has no merit is ethically dubious.

The only conclusion I can draw is that Mr. Smith simply feels he’s above the law. Perhaps he thinks that he can hold his seat in contempt of the law because of his membership in the Republican caucus. I’d advise his colleagues not to let him presume upon that affiliation. More Republicans have been elected under Clean Elections than Democrats; a viable public campaign finance system benefits Republicans as much as Democrats. And majorities are not forever. It wasn’t all that long ago that Democrats controlled the Arizona legislature. The GOP in Montana and Colorado certainly didn’t expect to be in the minority so soon. The voters giveth and the voters taketh away. A precedent of allowing scofflaws to make our laws serves no one’s interests and is unlikely to endear those responsible to the voters, 65% of whom support Clean Elections.

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