ALJDEC decisions subject to certification as final

N10A-0001-MCDE · Maricopa County Department of Elections · 2011-02-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 21, 2011. The record was closed on January 25, 2011. APPEARANCES: Re-Elect Joe Arpaio 2012 was represented by its attorneys, Michael J. Rusing, Esq. and Brian Goldberg, Esq. The Maricopa County Department of Elections was represented by its attorneys, Jeffrey Messing, Esq. and Kesha A. Hodge, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ The Committee to Re-Elect Joe Arpaio 2012 appealed the Order Requiring Compliance, Notice of Civil Penalties and Hearing Pursuant to A.R.S. § 16-924, dated August 24, 2010, and the Order Requiring Compliance, Notice of Civil Penalties and Hearing Pursuant to A.R.S. § 16-924, dated September 14, 2010, issued by the Office of Maricopa County Attorney on behalf of the Maricopa County Election Department. The appeal was forwarded to the Office of Administrative Hearings, an independent agency, for a formal hearing. In lieu of an evidentiary hearing, the parties stipulated to the submission of written briefs and oral arguments to the Office of Administrative Hearings. The issues to be addressed at the hearing are whether the Committee to Re-Elect Joe Arpaio 2012 violated the requirements of A.R.S. §§ 16-903, 16-904, 16-905, 16-915.01, 16-917, and 16-924. Based upon the record in this matter, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order:

FINDINGS OF FACT Committee to Re-Elect Joe Arpaio 2012 1. Joe Arpaio is the Sheriff of Maricopa County, Arizona. 2. On December 8, 2008, the Political Committee to Re-Elect Joe Arpaio 2012 (“Arpaio Committee”) filed a Maricopa County Political Committee Statement of Organization with the Maricopa County Department of Elections (“Department”) as an initial registration for a Candidate’s Campaign Committee. 3. The Arpaio Committee’s Chairman is Joe Arpaio. The Arpaio Committee’s Treasurer is Ava J. Arpaio. 4. The last Republican primary and general elections for Maricopa County Sheriff were in 2008. The next Republican primary and general elections for Maricopa County Sheriff will be held in 2012. 5. Mr. Arpaio and the Arpaio Committee were authorized to campaign and to fundraise for the Republican candidacy of William G. Montgomery for Maricopa County Attorney in 2010. Montgomery for County Attorney Political Committee 6. On September 10, 2009, the Montgomery for County Attorney Political Committee (“Montgomery Committee”) filed a Maricopa County Political Committee Statement of Organization with the Department as an initial registration for an Exploratory Committee for William Montgomery. 7. On April 30, 2010, the Montgomery Committee filed a Maricopa County Political Committee Statement of Organization with the Department as an initial registration for a Candidate’s Campaign Committee. 8. On May 26, 2010, Mr. Montgomery filed his Nomination Paper Affidavit of Qualification Campaign Finance Laws Statement with the Department as a Republican candidate for Maricopa County Attorney. 9. Mr. Montgomery won the 2010 Republican primary election and the 2010 general election for Maricopa County Attorney. Candidate Rick Romley for Maricopa County Attorney 10. On May 25, 2010, Rick Romley filed his Primary/General Election Nomination Paper Affidavit of Qualification Campaign Finance Laws Statement with the Department as a Republican candidate for the office of Maricopa County Attorney. 11. Mr. Romley was defeated by Mr. Montgomery in the 2010 Republican primary election for Maricopa County Attorney. Candidate Boyd Dunn for Maricopa County Attorney 12. On May 25, 2010, Boyd Dunn filed his Nomination Paper Affidavit of Qualification Campaign Laws Statement with the Department as a Republican candidate for the office of Maricopa County Attorney. 13. On or about July 29, 2010, Mr. Dunn filed a Statement of Withdrawal with the Department wherein he withdrew as a Republican candidate for the office of Maricopa County Attorney. Candidate Michael Kielsky for Maricopa County Attorney 14. On May 26, 2010, Michael Kielsky filed his Nomination Paper Affidavit of Qualification Campaign Laws Statement with the Department as a Libertarian candidate for the office of Maricopa County Attorney. 15. Mr. Kielsky was defeated by Mr. Montgomery in the 2010 general election for Maricopa County Attorney. Chad Willems and The Summit Consulting Group, Inc. 16. Chad Willems of The Summit Consulting Group, Inc. (“Summit”) is the campaign manager for the Arpaio Committee. 17. Mr. Willems and Summit provided political consulting services to the Arpaio Committee during the 2010 Republican primary election and general election. Mr. Willems continues to serve the Arpaio Committee. 18. Mr. Willems’ company also provided political consulting services to the Montgomery Committee during the 2010 Republican primary election and the general election. 19. Mr. Willems and Summit served as agents for both the Arpaio Committee and the Montgomery Committee.

The Arpaio Committee’s Direct Mailer 20. The Arpaio Committee sent a direct mailer to registered Republican voters prior to the 2010 Republican primary elections. 21. Mr. Willems and Summit were responsible for producing and distributing the direct mailer. 22. Mr. Arpaio was not a candidate for any office in the 2010 Republican primary elections. 23. The color direct mailer measured six inches in height and eleven inches in width. It had two sides with messages on both sides. 24. The side of the mailer containing the address label (“Side 1”) has a picture of Mr. Arpaio in uniform and states that “Sheriff Joe Arpaio Needs Your Vote Today.” It also contained a narrative setting forth a list of accomplishments and states that he “is running for re-election and needs your help.” Side 1 of the mailer directed readers to Arpaio Committee’s website and urged readers to “Help Re-Elect Sheriff Joe.” 25. The reverse side of the mailer (“Side 2”) contains a different message. The header, in contrasting white and boxed red lettering on a black background, states “RICK ROMLEY IS WRONG HIS POLICIES DANGEROUS.” The words “WRONG” and “DANGEROUS” appear in boxed red lettering. 26. Side 2 of the mailer also contains the word “Wrong” again in boxed red lettering on the left side of the body of the mailer, superimposed over a picture of Mr. Romley. 27. The center-to-right of Side 2 of the mailer contains a list of criticisms of “POLITICIAN RICK ROMLEY” which include his alleged opposition to “SB 1070,” and “SHERIFF JOE’S POLICIES ON ILLEGAL IMMIGRATION.” 28. Side 2 of the mailer further states that Mr. Romley “DESPERATELY WANTS SHERIFF JOE OUT OF OFFICE.” 29. At the bottom of Side 2 of the mailer, just above the footer, that reads “Support our Laws, Vote for Sheriff Joe Arpaio,” the mailer reads “RICK ROMLEY,” in all capital red letters, above a line of white text against a black background, which reads “TOO RISKY FOR ARIZONA FAMILIES.” 30. The mailer was mailed to registered Republicans in Maricopa County approximately two years prior to the 2012 Republican primary election and general election for Maricopa County Sheriff. Mr. Romley’s Complaint to the Department 31. Mr. Romley filed a complaint with the Department about the Arpaio Committee’s direct mailer which resulted in the Department conducting an investigation.[1] 32. As a result of its investigation, the Department found reasonable cause to believe that the Arpaio Committee committed statutory violations in the use of the subject direct mailer during the 2010 election cycle. 33. Pursuant to A.R.S. § 16-924, the Department’s finding was forwarded to the law firm of Poli & Ball, PLC, which was engaged by the Maricopa County Office of General Litigation Services to represent the Department in this matter. Order Requiring Compliance, Notice of Civil Penalties and Hearing Pursuant to A.R.S. § 16-924 dated August 24, 2010

34. The Office of the Maricopa County Attorney issued an Order Requiring Compliance, Notice of Civil Penalties and Hearing Pursuant to A.R.S. § 16-924 dated September 24, 2010 (“Compliance Order 1”), the terms of which are incorporated herein by reference. 35. Compliance Order 1 provides: ORDER

39. Under the authority of and in compliance with A.R.S. §§ 16-903, 16-905, 16-915.01, 16-917, and 16-924, the Maricopa County Attorney’s Office hereby orders that:

1. Within twenty days of the issuance of this Order, the Re- Elect Joe Arpaio 2012 Committee shall produce copies of the records necessary to verify the costs it incurred in preparing, printing and delivery of the mailer and the cost of creating and broadcasting the television commercial pursuant to A.R.S. § 16- 904(I). 2. Within twenty days of the issuance of this Order, the Re- Elect Joe Arpaio 2012 Committee shall cease designating itself as the Campaign Committee of Sheriff Joseph “Joe” Arpaio.

The Arpaio Committee’s Costs Involved in the Direct Mailer 36. According to Mr. Willem’s response to Compliance Order 1, the Arpaio Committee’s costs associated with the direct mailer totaled $51,736.00 Order Requiring Compliance, Notice of Civil Penalties and Hearing Pursuant to A.R.S. § 16-924, dated September 14, 2010

37. The Office of Maricopa County Attorney issued an Order Requiring Compliance, Notice of Civil Penalties and Hearing Pursuant to A.R.S. § 16-924, dated September 14, 2010 (“Compliance Order 2”), the terms of which are incorporated herein by reference. 38. Compliance Order 2 provides: ORDER 11. Under the authority of and in compliance with A.R.S. §§ 16-903, 16-904, 16-905, 16-917, and 16-924, the Maricopa County Attorney’s Office hereby imposes the following civil penalty on the Re-Elect Joe Arpaio 2012 Committee: 1. $153,978 pursuant to A.R.S. § 16-905(L).

CONCLUSIONS OF LAW 1. The Department has jurisdiction over the subject matter in this case. The Arpaio Committee’s Direct Mailer Constitutes Express Advocacy 2. The Arpaio Committee’s direct mailer constitutes express advocacy pursuant to A.R.S. §16-901.01 (A) (1). The language contained on side of the mailer reasonably reads as advocating the defeat of Mr. Romley as a candidate. 3. The Arpaio Committee’s mailer constitutes express advocacy pursuant to A.R.S. § 16-901.01(A) (2). The mailer was sent to registered Republicans voters in Maricopa County prior to the 2010 Republican Maricopa County Attorney primary election between Mr. Romley and Mr. Montgomery as the only candidates. A reasonable reading of the direct mailer “can have no reasonable meaning other than to advocate the….defeat of [Mr. Romley], as evidenced by factors such as the presentation of [Mr. Romley] in a[n]….unfavorable light, the targeting, presentation, or timing of the communication.” A.R.S. § 16- 901.01(A) (2). Mr. Arpaio was not a candidate for any office in the 2010 Republican primary election. The reasonable reading of the direct mailer is that if a voter favors Mr. Arpaio, then such a voter will oppose Mr. Romley. The Arpaio Committee’s Direct Mailer Does Not Meet the Requirements of an Independent Expenditure

4. The Arpaio Committee’s direct mailer does not meet the requirement of an independent expenditure pursuant to A.R.S. § 16-901(14) (a) and (c) (i) and (ii). Mr. Arpaio, the chairman and designated candidate of the Arpaio Committee, was authorized to raise monies and, on at least two occasions, solicited contributions on behalf of Mr. Montgomery and the Montgomery Committee. The Arpaio Committee and the Montgomery Committee shared a common agent, political consultant Chad Willems and Summit, who received compensation from both committees. 5. Since the Arpaio Committee’s direct mailer does not meet the requirement of an independent expenditure, it is, therefore, an in- kind contribution to the Montgomery Committee pursuant to A.R.S. § 16- 917(C). Compliance Order 1 6. The Arpaio Committee complied with paragraph 39 (1) of Compliance Order 1. 7. Neither party addressed paragraph 39 (2) of Compliance Order 2. Therefore, it is concluded that the Department no longer wishes to prosecute that issue. Civil Penalty- Compliance Order 2 8. As the Arpaio Committee’s in-kind contribution of the direct mailer exceeded the maximum contribution of $410.00, the Arpaio Committee is “subject to a civil penalty imposed as prescribed in § 16-924 of three times the amount of money that has been received, expended or promised in violation of this section.” A.R.S. §§ 16-905(J) and 16- 924. 9. A.R.S. §§ 16-905(J) and 16-924 establish a range of civil penalty, rather than mandate a civil penalty in the amount of “three times the amount of money….expended.” The words, “subject to,” in A.R.S. § 16- 905(J), particularly in the absence of any qualifier, such as “mandatory,” support this interpretation. Although the Arpaio Committee suggests that the range should be limited by some apportionment between offending and non-offending portions of the mailer, it is the view of this tribunal that the statute does not envision such parsing. As a civil penalty of some amount must be ordered pursuant to A.R.S. §§ 16-905(J) and 16-924, and the total cost of the mailer must be reduced by the allowable in-kind contribution amount of $410.00, the total range of civil penalty is $1.00 – 153,978.00.[2] In determining the civil penalty, this tribunal will consider the mean, $76,989.50, as a presumptive, and then apply any aggravating or mitigating circumstances. 10. The Administrative Law Judge concludes that neither party presented persuasive argument in mitigation or aggravation of the statutory violation. Constitutional Arguments Raised by Mr. Arpaio and the Arpaio Committee 11. Mr. Arpaio and the Arpaio Committee argue that the direct mailer is protected free speech under the First Amendment of the United States Constitution. A review of the applicable statutes and case law does not support that contention. RECOMMENDED ORDER A civil penalty in the amount $76,989.50 is imposed upon the Arpaio Committee pursuant to A.A.C. §§ 16-905(J) and 16-924. The civil penalty shall be paid to the Department no later than 45 days from the effective date of the Order entered in this matter. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification. Done this day, February 14, 2011.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Karen Osborne, Elections Director Maricopa County Department of Elections ----------------------- [1] A complaint made concerning a television advertisement by the Arpaio Committee is not the subject of this proceeding. [2] ($51,736.00 – $410.00) x 3

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826