from the Superior Court in Maricopa County The Honorable
Crane McClennen, Judge No. LC2015-000172 AFFIRMED
Decision of the Court of Appeals, Division One 1 CA-CV
15-0455 Filed Nov. 15, 2016 VACATED
M. Bergin, Bergin, Frakes, Smalley & Oberholtzer, PLLC,
Phoenix; Jason B. Torchinsky (argued), Holtzman Vogel
Josefiak Torchinsky, PLLC, Warrenton, VA, Attorneys for
Legacy Foundation Action Fund
R. O'Grady, Joseph N. Roth (argued), Nathan T.
Arrowsmith, Osborn Maledon, P.A., Phoenix, Attorneys for
Citizens Clean Elections Commission
JUSTICE authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, JUSTICES
BRUTINEL, TIMMER, and GOULD, and JUDGE PHILIP G. ESPINOSA
This case presents the question whether the fourteen-day time
limit for an appeal of a Citizens Clean Elections Commission
(the "Commission") decision under A.R.S. §
16-957(B) applies when the party challenges the
Commission's personal and subject-matter jurisdiction. We
hold that it does.
Legacy Foundation Action Fund ("Legacy") is a
nonprofit organization that seeks to educate the public on
governmental policy issues. In March and April of 2014,
Legacy funded a television advertisement that aired on
multiple occasions criticizing then-Mesa Mayor Scott
Smith's record as President of the U.S. Conference of
Mayors. Smith had previously announced his candidacy for
A complaint was filed with the Commission alleging that the
ads constituted "express advocacy" against
Smith's campaign for governor and that Legacy failed to
file certain disclosure reports in violation of the Citizens
Clean Elections Act, A.R.S. §§ 16-940 to -961
("CCEA"). The Commission found probable cause to
believe that Legacy had violated the CCEA and assessed a
civil penalty, and Legacy requested an administrative
hearing. The administrative law judge ("ALJ")
concluded that the ads did not constitute express advocacy
and, therefore, the Commission lacked statutory authority to
assess the penalty. The Commission rejected the ALJ's
recommendation, affirmed its earlier order and penalty, and
entered a final administrative decision against Legacy on
March 27, 2015.
Eighteen days after the Commission's final decision,
Legacy filed an appeal in superior court. Legacy argued that
the Commission lacked personal and subject-matter
jurisdiction because the ads did not constitute direct
advocacy. The court dismissed the appeal because it was not
filed within fourteen days of a final Commission penalty
decision as required by A.R.S. § 16-957(B). The court of
appeals affirmed. Legacy Found. Action Fund v. Citizens
Clean Elections Comm'n, 1 CA-CV 15-0455, 2016 WL
6699308, at *1 ¶ 1 (Ariz. App. Nov. 15, 2016) (mem.
Whether § 16-957(B)'s time limit applies to a direct
appeal of the Commission's penalty decision when the
appellant challenges the Commission's jurisdiction is a
recurrent issue of statewide importance. We have jurisdiction
under article 6, section 5(3) of the Arizona Constitution and
A.R.S. § 12-120.24. DISCUSSION
Ordinarily "[w]e review an order granting a motion to
dismiss for abuse of discretion, " Dressier v.
Morrison, 212 Ariz. 279, 281 ¶ 11 (2006), but
"[d]etermining the procedure for review of
administrative decisions involves the interpretation of rules
and statutes, which we review de novo." Smith v.
Ariz. Citizens Clean Elections Comm'n, 212 Ariz.
407, 412 ¶ 18 (2006).
An aggrieved party generally has thirty-five days to appeal a
final administrative decision. A.R.S. § 12-904(A).
However, the CCEA provides a fourteen-day time limit for
appeals from Commission penalty orders. § 16-957(B)
("The violator has fourteen days from the date of
issuance of the order assessing the penalty to appeal to the