Free Answer to Amended Complaint - District Court of Arizona - Arizona

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TERRY GODDARD Attorney General Firm Bar No. 14000 Mary O'Grady, No.011434 Solicitor General Tanja K. Shipman, No. 025205 Assistant Attorney General 1275 West Washington Street Phoenix, Arizona 85007-1298 Tel: (602) 542-7993 Fax: (602) 542-8308 Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS, et al., Plaintiffs, v. NO. CV04-0200 PHX EHC DEFENDANTS' ANSWER TO FIRST AMENDED COMPLAINT (Assigned to the Honorable Earl H. Carroll) Defendants, and STEVEN S. POE, and CLEAN ELECTIONS INSTITUTE, INC., DefendantsIntervenors.

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JAN BREWER, et al.

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Defendants Secretary of State Jan Brewer and Citizens Clean Election Commissioners Gary Scaramazzo, Royann J. Parker, Jeffrey L. Fairman, Donald Lindholm and Marcia Busching1 ("Defendants") by and through counsel undersigned, hereby admit and deny Plaintiffs' First Amended Complaint (the "Complaint") as follows: INTRODUCTION 1. Defendants admit that the Complaint seeks declaratory and injunctive

relief. Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 1 of the Complaint. 2. Defendants admit that A.R.S. §§ 16-940 et seq. contain the law entitled

"Citizens Clean Elections Act" (the "Act"). Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 2 of the Complaint. 3. Complaint. 4. Defendants admit each and every allegation contained in paragraph 4 of Defendants deny each and every allegation contained in paragraph 3 of the

the Complaint. JURISDICTION AND VENUE 5. Defendants admit that Plaintiffs claim to bring the Complaint pursuant to

42 U.S.C. §§ 1983 and 1988 and are claiming to seek relief under 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. § 1988. Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 5 of the Complaint. 6. Defendants admit each and every allegation contained in paragraph 6 of

the Complaint. 7. Defendants admit each and every allegation contained in paragraph 7 of

the Complaint. PARTIES 8. Defendants admit that Plaintiff Dean Martin is the current Arizona State

Marcia Busching's term as a commissioner with the Citizens Clean Election Commission has expired and Lori Daniels has replaced Ms. Busching on the Commission.

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Treasurer and a former member of the Arizona State Senate. Except as specifically admitted, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations stated in paragraph 8 and, on that basis, deny each and every remaining allegation contained in paragraph 8 of the Complaint. 9. Defendants admit that a political committee entitled "Arizona Free

Enterprise Club's Freedom Club PAC" was registered with the Arizona Secretary of State on June 16, 2006 and that it reported receiving contributions but reported no independent expenditures during the 2006 election period. As to the remaining allegations, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations stated in paragraph 9 and, on that basis, deny each and every allegation contained in paragraph 9 of the Complaint. 10. Defendants admit that a political committee entitled "Arizona Taxpayers

Action Committee" was registered with the Arizona Secretary of State's office on May 22, 2006 and that it reported receiving contributions and making independent expenditures during the 2006 election period. As to the remaining allegations, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations stated in paragraph 10 and, on that basis, deny each and every allegation contained in paragraph 10 of the Complaint. 11. Defendants admit each and every allegation contained in paragraph 11 of

the Complaint. 12. Defendants admit that Gary Scaramazzo, Royann J. Parker, Jeffrey L.

Fairman and Donald Lindholm are the current members of the Citizens Clean Elections Commission (the "Commission") which is granted rulemaking and enforcement authority under A.R.S. §§ 16-955, 16-956, 16-957. Defendants deny that Marcia Busching is a current member of the Commission and state that Lori Daniels is a current member of the Commission. FACTUAL ALLEGATIONS 13. Defendants admit each and every allegation contained in paragraph 13 of

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the Complaint. 14. Defendants admit that the Act establishes a five member Commission with

rulemaking and enforcement authority under A.R.S. §§ 16-955, 16-956, 16-957. Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 14 of the Complaint. 15. Defendants admit that, in order to qualify for clean election funding under

the Act, a candidate must have been approved as a participating candidate under A.R.S. § 16-947 and have obtained a certain number of $5 qualifying contributions under A.R.S. § 16-950. Defendants also admit that a qualified candidate voluntarily agrees to comply with certain contribution and spending limits and certain reporting requirements and to participate in debates under the Act. Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 15 of the Complaint. 16. Defendants admit that the Act contains the following declaration of the

voters' intent: "The people of Arizona declare our intent to create a clean elections system that will improve the integrity of Arizona state government by diminishing the influence of special-interest money, will encourage citizen participation in the political process, and will promote freedom of speech under the U.S. and Arizona Constitutions. Campaigns will become more issue-oriented and less negative because there will be no need to challenge the sources of campaign money." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 16 of the Complaint. 17. Defendants deny each and every allegation contained in paragraph 17 of

the Complaint. 18. Defendants admit that non-participating candidates are subject to certain

contribution limitations and reporting requirements contained in A.R.S. § 16-941(B). Except as specifically admitted, Defendants deny each and every allegation stated in paragraph 18 of the Complaint. 19. Defendants deny each and every allegation contained in paragraph 19 of

the Complaint.

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20.

Defendants deny each and every allegation contained in paragraph 20 of

the Complaint. 21. Defendants deny each and every allegation contained in paragraph 21 of

the Complaint. 22. Defendants admit that the Act permits inflationary and other adjustments

of dollar values under A.R.S. § 16-959 and that the State Legislature amended the Act by the passage of H.B. 2690 in 2007. Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 22 of the Complaint. 23. Defendants deny each and every allegation contained in paragraph 23 of

the Complaint. 24. Defendants admit that A.R.S. § 16-952(C) provides, in part, that: "1.

Independent expenditures against a participating candidate shall be treated as expenditures of each opposing candidate, for purpose of subsection A of this section, or contributions to each opposing candidate, for purpose of subsection B of this section. 2. Independent expenditures in favor of one or more nonparticipating opponents of a participating candidate shall be treated as expenditures of those nonparticipating candidates, for the purpose of subsection A of this section, or contributions to those nonparticipating candidates, for the purpose of subsection B of this section. 3. Independent expenditures in favor of a participating candidate shall be treated, for every opposing participating candidate, as though the independent expenditures were an expenditure of a nonparticipating opponent, for the purpose of subsection A of this section, or a contribution to a nonparticipating opponent, for the purpose of subsection B of this section." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 24 of the Complaint. 25. Defendants deny each and every allegation contained in paragraph 25 of

the Complaint. 26. Defendants deny each and every allegation contained in paragraph 26 of

the Complaint.

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27.

Defendants deny each and every allegation contained in paragraph 27 of

the Complaint. 28. Defendants admit that A.R.S. § 16-952(C) provides, in part, that: "1.

Independent expenditures against a participating candidate shall be treated as expenditures of each opposing candidate, for purpose of subsection A of this section, or contributions to each opposing candidate, for purpose of subsection B of this section. 2. Independent expenditures in favor of one or more nonparticipating opponents of a participating candidate shall be treated as expenditures of those nonparticipating candidates, for the purpose of subsection A of this section, or contributions to those nonparticipating candidates, for the purpose of subsection B of this section. 3. Independent expenditures in favor of a participating candidate shall be treated, for every opposing participating candidate, as though the independent expenditures were an expenditure of a nonparticipating opponent, for the purpose of subsection A of this section, or a contribution to a nonparticipating opponent, for the purpose of subsection B of this section." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 28 of the Complaint. 29. Defendants admit that A.R.S. § 16-952(B) provides that: "Whenever

during a general election period a report has been filed, or other information comes to the attention of the commission, indicating that the amount a nonparticipating candidate who is not unopposed has received in contributions during the election cycle to date less the amount of expenditures the nonparticipating candidate made through the end of the primary election period exceeds the original general election spending limit, including any previous adjustments, the commission shall immediately pay from the fund to the campaign account of any participating candidate qualified for the ballot and seeking the same office as the nonparticipating candidate an amount equal to any excess of the reported difference over the general election spending limit, as previously adjusted, less six per cent for a nonparticipating candidate's fund-raising expenses. The general election spending limit for all such participating candidates shall be adjusted by

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increasing it by the amount that the commission is obligated to pay to a participating candidate." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 29 of the Complaint. 30. Defendants deny each and every allegation contained in paragraph 30 of

the Complaint. 31. Defendants deny each and every allegation contained in paragraph 31 of

the Complaint. 32. Defendants admit that A.R.S. § 16-952(A) provides: "Whenever during a

primary election period a report is filed, or other information comes to the attention of the commission, indicating that a nonparticipating candidate who is not unopposed in that primary has made expenditures during the election cycle to date exceeding the original primary election spending limit, including any previous adjustments, the commission shall immediately pay from the fund to the campaign account of any participating candidate in the same party primary as the nonparticipating candidate an amount equal to any excess of the reported amount over the primary election spending limit as previously adjusted, less six per cent for a nonparticipating candidate's fundraising expenses and less the amount of early contributions raised for that participating candidate for that office as prescribed by § 16-945. The primary election spending limit for all such participating candidates shall be adjusted by increasing it by the amount that the commission is obligated to pay to a participating candidate." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 32 of the Complaint. 33. Defendants deny each and every allegation contained in paragraph 33 of

the Complaint. 34. Defendants admit that A.R.S. § 16-952 is entitled "Equal funding of

candidates." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 34 of the Complaint. 35. Defendants admit that A.R.S. §§ 16-941(B)(2) and 16-958 are statutes that

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address reporting requirements under the Act. Defendants further admit that A.R.S. § 16-941(C) provides: "Notwithstanding any law to the contrary, a candidate, whether participating or nonparticipating: 1. If specified in a written agreement signed by the candidate and one or more opposing candidates and filed with the citizens clean elections commission, shall not make any expenditure in the primary or general election period exceeding an agreed-upon amount lower than spending limits otherwise applicable by statute. 2. Shall continue to be bound by all other applicable election and campaign finance statutes and rules, with the exception of those provisions in express or clear conflict with this article." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 35 of the Complaint. 36. Defendants admit that certain reports made to the Secretary of State are

used to facilitate payment of funds under the Act. Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 36 of the Complaint. 37. Defendants deny each and every allegation contained in paragraph 37 of

the Complaint. 38. Defendants admit that A.R.S. § 16-941(B)(1) provides that

"[n]otwithstanding any law to the contrary, a non-participating candidate: 1. Shall not accept contributions in excess of an amount that is twenty per cent less than the limits specified in § 16-905, subsections A through G, as adjusted by the secretary of state pursuant to § 16-905, subsection J." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 38 of the Complaint. 39. Defendants deny each and every allegation contained in paragraph 39 of

the Complaint. 40. Paragraph 40 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. Defendants are without knowledge or information sufficient to form a belief as to whether Plaintiff Dean Martin will run for statewide office in 2010 and, on that basis, deny that allegation. Defendants deny each and every allegation contained in

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paragraph 40 of the Complaint. 41. Defendants admit that Plaintiff Dean Martin was a traditional candidate in

the 2006 election for Arizona State Treasurer and that he did not receive funding from the Citizens Clean Election Commission for that election. Defendants also admit that both Plaintiff Dean Martin and his opponent, Rano Singh Sidhu, were unopposed in their primaries for that 2006 election. Defendants admit that Ms. Sidhu received three disbursements from the Clean Election Commission, during the 2006 primary and general election period (and including matching funds), totaling $121,252.62. Except as specifically admitted, Defendants deny each and every remaining allegation contained in paragraph 41 of the Complaint. 42. Defendants admit each and every allegation contained in paragraph 42 of

the Complaint. 43. Defendants deny each and every allegation contained in paragraph 43 of

the Complaint. 44. Defendants admit that H.B. 2690 amended the Act in 2007. Except as

specifically admitted, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations stated in paragraph 44 and, on that basis, deny each and every allegation contained in paragraph 44 of the Complaint. 45. Paragraph 45 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. Defendants admit that Arizona Taxpayers Action Committee reported making independent expenditures during the 2006 election. Defendants deny that Arizona Free Enterprise Club's Freedom Club PAC has reported making any independent expenditures to date. As to the remaining allegations, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations stated in paragraph 45 and, on that basis, deny each and every remaining allegation contained in paragraph 45 of the Complaint. 46. Defendants deny each and every allegation contained in paragraph 46 of

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the Complaint. 47. Defendants deny each and every allegation contained in paragraph 47 of

the Complaint. 48. Defendants deny each and every allegation contained in paragraph 48 of

the Complaint. 49. Defendants deny each and every allegation contained in paragraph 49 of

the Complaint. 50. Defendants deny each and every allegation contained in paragraph 50 of

the Complaint. COUNT I 51. Defendants incorporate and reassert their answers to paragraph 1 through

50 of the Complaint and make them a part hereof as if fully set forth herein. 52. Defendants deny each and every allegation contained in paragraph 52 of

the Complaint. 53. Defendants deny each and every allegation contained in paragraph 53 of

the Complaint. 54. Defendants deny each and every allegation contained in paragraph 54 of

the Complaint. 55. Defendants deny each and every allegation contained in paragraph 55 of

the Complaint. COUNT II 56. Defendants incorporate and reassert their answers to paragraph 1 through

55 of the Complaint and make them a part hereof as if fully set forth herein. 57. Defendants deny each and every allegation contained in paragraph 57 of

the Complaint. 58. Defendants admit that A.R.S. § 16-952(C) provides, in part, that: "1.

Independent expenditures against a participating candidate shall be treated as expenditures of each opposing candidate, for purpose of subsection A of this section, or

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contributions to each opposing candidate, for purpose of subsection B of this section. 2. Independent expenditures in favor of one or more nonparticipating opponents of a participating candidate shall be treated as expenditures of those nonparticipating candidates, for the purpose of subsection A of this section, or contributions to those nonparticipating candidates, for the purpose of subsection B of this section. 3. Independent expenditures in favor of a participating candidate shall be treated, for every opposing participating candidate, as though the independent expenditures were an expenditure of a nonparticipating opponent, for the purpose of subsection A of this section, or a contribution to a nonparticipating opponent, for the purpose of subsection B of this section." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 58 of the Complaint. 59. Paragraph 59 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants admit that A.R.S. § 16941(B)(1) provides that "[n]otwithstanding any law to the contrary, a non-participating candidate: 1. Shall not accept contributions in excess of an amount that is twenty per cent less than the limits specified in § 16-905, subsections A through G, as adjusted by the secretary of state pursuant to § 16-905, subsection J." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 59 of the Complaint. 60. Paragraph 60 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants admit that A.R.S. § 16952(A) provides: "Whenever during a primary election period a report is filed, or other information comes to the attention of the commission, indicating that a nonparticipating candidate who is not unopposed in that primary has made expenditures during the election cycle to date exceeding the original primary election spending limit, including any previous adjustments, the commission shall immediately pay from the fund to the

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campaign account of any participating candidate in the same party primary as the nonparticipating candidate an amount equal to any excess of the reported amount over the primary election spending limit as previously adjusted, less six per cent for a nonparticipating candidate's fund-raising expenses and less the amount of early contributions raised for that participating candidate for that office as prescribed by § 16945. The primary election spending limit for all such participating candidates shall be adjusted by increasing it by the amount that the commission is obligated to pay to a participating candidate." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 60 of the Complaint. 61. Paragraph 61 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants admit that A.R.S. §§ 16941(B)(2) and 16-958 are statutes that address reporting requirements under the Act. Defendants further admit that A.R.S. § 16-941(C) provides: "Notwithstanding any law to the contrary, a candidate, whether participating or nonparticipating: 1. If specified in a written agreement signed by the candidate and one or more opposing candidates and filed with the citizens clean elections commission, shall not make any expenditure in the primary or general election period exceeding an agreed-upon amount lower than spending limits otherwise applicable by statute. 2. Shall continue to be bound by all other applicable election and campaign finance statutes and rules, with the exception of those provisions in express or clear conflict with this article." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 61 of the Complaint. 62. Defendants deny each and every allegation contained in paragraph 62 of

the Complaint. 63. Paragraph 63 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every

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allegation contained in paragraph 63 of the Complaint. 64. Paragraph 64 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 64 of the Complaint. COUNT III 65. Defendants incorporate and reassert their answers to paragraph 1 through

64 of the Complaint and make them a part hereof as if fully set forth herein. 66. Paragraph 66 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 66 of the Complaint. 67. Defendants admit that A.R.S. § 16-952(C) provides, in part, that: "1.

Independent expenditures against a participating candidate shall be treated as expenditures of each opposing candidate, for purpose of subsection A of this section, or contributions to each opposing candidate, for purpose of subsection B of this section. 2. Independent expenditures in favor of one or more nonparticipating opponents of a participating candidate shall be treated as expenditures of those nonparticipating candidates, for the purpose of subsection A of this section, or contributions to those nonparticipating candidates, for the purpose of subsection B of this section. 3. Independent expenditures in favor of a participating candidate shall be treated, for every opposing participating candidate, as though the independent expenditures were an expenditure of a nonparticipating opponent, for the purpose of subsection A of this section, or a contribution to a nonparticipating opponent, for the purpose of subsection B of this section." Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 67 of the Complaint. 68. Paragraph 68 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those

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legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 68 of the Complaint. 69. Paragraph 69 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 69 of the Complaint. COUNT IV 70. Defendants incorporate and reassert their answers to paragraph 1 through

69 of the Complaint and make them a part hereof as if fully set forth herein. 71. Paragraph 71 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 71 of the Complaint. 72. Defendants admit that A.R.S. § 16-952 identifies candidates as either

participating or nonparticipating. Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 72 of the Complaint. 73. Defendants admit that A.R.S. § 16-941 identifies candidates as either

participating or nonparticipating. Except as specifically admitted, Defendants deny each and every allegation contained in paragraph 73 of the Complaint. 74. Paragraph 74 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 74 of the Complaint. COUNT V 75. Defendants incorporate and reassert their answers to paragraph 1 through

74 of the Complaint and make them a part hereof as if fully set forth herein. 76. Paragraph 76 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those

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legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 76 of the Complaint. 77. Paragraph 77 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 77 of the Complaint. COUNT VI 78. Defendants incorporate and reassert their answers to paragraph 1 through

77 of the Complaint and make them a part hereof as if fully set forth herein. 79. Paragraph 79 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 79 of the Complaint. 80. Paragraph 80 of the Complaint contains conclusions of law to which

Defendants are not required to answer but, if required to answer, Defendants deny those legal conclusions. As to the remaining allegations, Defendants deny each and every allegation contained in paragraph 80 of the Complaint. AFFIRMATIVE DEFENSES 1. The Complaint fails to state one or more claims upon which relief can be granted. 2. Some or all Plaintiffs lack standing to assert claims in the Complaint. 3. All or some of the claims in this Complaint are precluded under the doctrine of res judicata or claim preclusion. 4. All or some of the claims in this Complaint are precluded under the doctrine of collateral estoppel or issue preclusion. 5. Defendants reserve the right to amend this Answer to assert additional defenses or claims as permitted. WHEREFORE, Defendants pray for the following relief:

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A. B.

Dismissal of the Complaint with prejudice. Entry of judgment in favor of Defendants, and that Plaintiffs take nothing

as a result thereof, including declaratory relief and injunctive relief; and C. Such other and further relief as the Court deems just and proper.

RESPECTFULLY SUBMITTED this 6th day of June, 2008.
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TERRY GODDARD Arizona Attorney General s/ Tanja K. Shipman Mary O'Grady Solicitor General Tanja K. Shipman Assistant Attorney General Attorneys for Defendants

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108497

CERTIFICATE OF SERVICE I hereby certify that on the 6th day of June, 2008, I caused the foregoing document to be electronically transmitted to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF Registrants: Institute for Justice William R. Mauerer 811 First Avenue Suite 625 Seattle, Washington 98104 [email protected] Institute for Justice Timothy D. Keller 398 South Mill Avenue Suite 301 Tempe, Arizona 85281 [email protected] Timothy M. Hogan Joy Herr-Cardillo Arizona Center for Law in the Public Interest 202 E. McDowell Road Phoenix, Arizona 85004 [email protected] Deborah Goldberg 5th Floor Brennan Center for Justice 161 Avenue of the Americas New York, New York 10013 [email protected]

/s Elizabeth A. Stark

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