The possibility of state reimbursement for the recalled Arizona Senate president has raised a series of legal questions, as Democrats gear up for the possibility of fighting a six-figure payout.
Arizona State Rep. Jack Harper (R-Surprise) started a constitutional debate when he suggested that an obscure sentence in the Arizona constitution would require the state to reimburse recalled state Sen. Russell Pearce (R-Mesa) for his campaign. At least one legal expert and materials from the attempted recall of a governor over 20 years ago place Harper's suggestion in vague constitutional territory. Pearce was recalled during Tuesday's election.
Harper was citing Article 8, Part 1, Section 6 of the document, which states, "laws necessary to facilitate the operation of the provisions of this article shall be enacted, including provision for payment by the public treasury of the reasonable special election campaign expenses of such officer." A law was enacted in 1913 calling for a series of reimbursements in recall elections, capping payments to recalled state legislators and county officials at $200, statewide officials at $500 and local government officials at $150.
According to a 1988 opinion from the Arizona attorney general, the 1913 law was repealed in 1973 and not replaced. The opinion, authored by former state Attorney General Bob Corbin, was written after former Gov. Evan Mecham (R) sought $800,000 in reimbursement from the state for expenses related to a recall against him and his impeachment.
Paul Eckstein, a Phoenix attorney who is writing a book on the Arizona constitution, said that it is possible Pearce could seek some money from the state based on the Corbin opinion, but it would likely not be for the entire $159,587 that his campaign spent. According to state records, Pearce raised $230,282 for his recall campaign.
"I think Pearce has a good argument for some recall expenses, but they would be for personal expenses," Eckstein said. "They would not be from his campaign committee."
Eckstein said the only way Pearce could be reimbursed would be for the state to enact a law covering his request. He said that the constitutional language paves the way for a law to be passed, given that no law is currently on the books addressing the issue. He said that during the Mecham question, the legislature needed to pass a special law covering his expenses. Eckstein said that while another part of the state constitution prohibits laws benefiting one person with state funds, the recall language would allow this type of law to be passed in Pearce's case.
Eckstein said he has not seen a record of the constitutional convention's thinking in terms of the reimbursement issue.
In the Mecham case, the former governor was seeking funds covering both the recall and impeachment trial, which differs a bit from a possible Pearce reimbursement. Mecham was indicted for illegal campaign contributions, and the recall campaign starting after the indictment. Mecham was then impeached by the legislature before the recall election could take place, thus cancelling the recall. He settled with the state legislature for several hundred thousand dollars.
Pearce has not indicated if he intends to seek state funds for the recall. His spokesman Chad Willems said that he has not spoken to Pearce about it. Harper also told HuffPost that he did not discuss the issue with the recalled senator. Pearce, the architect of Arizona's controversial immigration law, is the first state legislator in Arizona history to be recalled.
While Pearce has not indicated that he would seek state funds, Arizona Democrats have said they would likely oppose any legislation to grant him the funds for his recall campaign. State House Minority Leader Chad Campbell (D-Phoenix) said "without a doubt" that Democratic legislators would oppose any money sought by Pearce.
"It would be the height of irony for Russell Pearce, the champion of small government to come back to the legislature to ask for money," said Campbell.
At the same time, Campbell thinks that it is unlikely Pearce would decide to seek the funds.
"It can't ever see Russell doing this," he said.