Pacion v. Thomas

SUPREME COURT OF ARIZONA
In Division

KRISTA PACION, ) Arizona Supreme Court
) No. CV-10-0179-AP/EL
Plaintiff/Appellant, )
) Maricopa County
v. ) Superior Court
) Nos. CV2010-017916
BOB THOMAS; KENNETH BENNETT; ) CV2010-017814
FULTON BROCK; DON STAPELY; ANDY ) (Consolidated)
KUNASEK; MAX WILSON; MARY ROSE )
WILCOX; and HELEN PURCELL, )
)
Defendants/Appellees. ) O P I N I O N
__________________________________)
)
SEAN BOWIE, )
)
Plaintiff/Appellant, )
)
v. )
)
JOHN HUPPENTHAL; KEN BENNETT, et )
al., )
)
Defendants/Appellees. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Robert H. Oberbillig, Judge

AFFIRMED
________________________________________________________________

Bob Thomas Phoenix
In Propria Persona

PERKINS COIE BROWN & BAIN P.A. Phoenix
By Daniel C. Barr
Rhonda L. Barnes
Craig A. Morgan
Jessica J. Berch
Kirstin T. Eidenbach
Attorneys for Krista Pacion and Sean Bowie
SCHMITT SCHNECK SMYTH & HERROD, P.C. Phoenix
By Timothy J. Casey
Drew Metcalf
Attorneys for John Huppenthal

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. § 16-

903(A) (2006) must be stricken. We issued an order on June 28,

2010, affirming the judgment of the superior court with an

opinion to follow. This is that opinion.

I.

¶2 John Huppenthal is a Republican candidate for

Superintendent of Public Instruction. Bob Thomas 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 all signatures after creating an exploratory

committee in accordance with A.R.S. § 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

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on the primary ballot. The plaintiffs’ (collectively the

“Contestants”) only contention was that, by 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 consolidated the two special

actions and denied relief. 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 The Contestants appealed and Huppenthal cross-

appealed. 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 statutory scheme

governing election campaign finance. Most relevant to today’s

inquiry are two provisions in Article 1 of Chapter 6 requiring

formation of political committees by those making campaign

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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.” A.R.S.

§ 16-901(2) (2006). A candidate is required to form a campaign

committee “before making any expenditures, accepting any

contributions, distributing any campaign literature or

circulating any petitions.” 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 before forming campaign

committees. But, like the superior court, we conclude that the

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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.” A.R.S.

§ 16-924(A). 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

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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 quotation marks omitted). The legislature

expressly chose in § 19-114(B) to disqualify signatures on

initiative and referendum petitions obtained before formation of

a political committee, yet provided only a civil penalty for

violations of the campaign finance statutes governing

candidates, including § 16-903(A). We decline to infer a

statutory remedy into the campaign finance statutes that the

legislature eschewed.

¶13 Contestants argue that § 16-903(G) provides no

protection against the misconduct alleged here because 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. This argument misconstrues the

statutory scheme. 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 of not more than one

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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 relief against a candidate violating § 16-903(A).

But no decision of this Court has so held, nor does any

provision in § 16-351 so provide. Section 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. § 16-351(B) authorize the remedy

sought by the Contestants. That statute allows an elector to

“challenge a candidate for any reason relating to qualifications

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for the office sought as prescribed by law, including age,

residency or professional requirements.” Id. Under that

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

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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 In any event, nothing in our opinion today conflicts

with § 38-296 or prevents its enforcement in an appropriate

case. 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 by his designation of a

candidate campaign committee.” A.R.S. § 16-903(F); see also Op.

Ariz. Att’y Gen. I10-005 (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 himself for nomination . . . upon the filing of a

nomination paper . . . or formal public declaration of candidacy

for such office whichever occurs first.” A.R.S. § 38-296(B)

(emphasis added). There is thus little danger that our decision

will encourage incumbents to form § 16-903(B) exploratory

committees rather than § 16-903(A) campaign committees before

circulating nominating petitions in order to avoid the

strictures of § 38-296.

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 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

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