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Legacy Foundation Action Fund v. Citizens Clean Elections Commission

Supreme Court of Arizona

January 25, 2018

Legacy Foundation Action Fund, Plaintiff/Appellant,
v.
Citizens Clean Elections Commission, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County The Honorable Crane McClennen, Judge No. LC2015-000172 AFFIRMED

         Memorandum Decision of the Court of Appeals, Division One 1 CA-CV 15-0455 Filed Nov. 15, 2016 VACATED

          Brian 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

          Mary R. O'Grady, Joseph N. Roth (argued), Nathan T. Arrowsmith, Osborn Maledon, P.A., Phoenix, Attorneys for Citizens Clean Elections Commission

          BOLICK 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 joined. [*]

          BOLICK JUSTICE.

         ¶1 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.

         BACKGROUND

         ¶2 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 governor.

         ¶3 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.

         ¶4 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. decision).

         ¶5 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

         ¶6 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).

         ¶7 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 superior ...


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