NOT FOR OFFICIAL PUBLICATION

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE

MEMORANDUM DECISION

THOMPSON, Judge.

¶1 Appellants Tom Horne (Horne), Tom Horne for Attorney General Committee (THAGC), Kathleen Winn (Winn), and Business Leaders for Arizona (BLA) (collectively appellants) appeal from the trial court's order affirming the final decision and order issued in May 2014 by Appellee Special Arizona Attorney General and Yavapai County Attorney Sheila Polk (Polk) affirming her October 2013 order requiring compliance with campaign finance laws. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 Horne ran for the office of Arizona Attorney General in 2010. Winn was a volunteer who worked for the Horne campaign during the primary election. Horne won the Republican primary election in August 2010. Subsequently, in October 2010, Winn decided to cease volunteering for the Horne campaign and "reactivate" BLA, her independent expenditure committee. She then began soliciting contributions for BLA.1 The sole purpose of BLA in relation to the Horne campaign was to raise money to purchase a political commercial. BLA hired Brian Murray (Murray) and Lincoln Strategy Group to produce the commercial. The commercial started running on October 25; it was a negative ad directed against Felecia Rotellini (Rotellini), Horne's Democratic opponent.2 Horne was elected to the office of Arizona Attorney General in 2010.

¶3 In 2013, the Arizona Secretary of State issued a letter to the Arizona Attorney General's Office stating that reasonable cause existed to believe that appellants violated state campaign finance laws during the 2010 general election. Solicitor General Robert Ellman appointed Polk as Special Arizona Attorney General to fulfill the role of Attorney General as set forth in Arizona Revised Statutes (A.R.S.) section 16-924 (2013).3

¶4 After investigation, Polk issued an order in October 2013 requiring compliance concluding that appellants violated campaign finance laws by coordinating their activities in order to advocate for the defeat of Rotellini. The order required Horne and THAGC to amend their 2010 post-general election report to include expenditures by BLA as in-kind contributions, required Winn and BLA to amend their 2010 post-general election report, and required Horne and THAGC to refund $397,378.00, the amount deemed in-kind contributions in excess of legal limits. Appellants filed a request for hearing pursuant to A.R.S. § 16-924(A). Polk set the matter for an administrative hearing, and an administrative law judge (ALJ) held a three-day hearing in February 2014.

¶5 In April 2014, the ALJ issued her decision concluding that Polk failed to prove by a preponderance of the evidence illegal coordination between appellants. The decision recommended that Polk vacate her order requiring compliance.

¶6 In May 2014, pursuant to A.R.S. § 41-1092.08 (B) (2013)4, Polk issued her final administrative decision rejecting the ALJ's recommendation and affirming her order requiring compliance. In her final decision, Polk accepted all of the ALJ's findings of fact, accepted in part the ALJ's conclusions of law, and rejected in part the ALJ's conclusions of law. She found that the evidence showed that Winn and Horne coordinated to develop BLA's commercial on October 20, 2010, and that subsequently, on October 27, Horne directed Winn to raise another $100,000 and expend it in accordance with advice Horne received from Ryan Ducharme (Ducharme), an individual who was working on a different campaign.

¶7 Appellants filed a notice of appeal for judicial review of administrative decision in May 2014. Neither party requested an evidentiary hearing. In October 2014, the trial court affirmed Polk's final administrative decision. Appellants timely appealed from the judgment, and the trial court stayed the case below pending appeal. We have jurisdiction pursuant to A.R.S. § 12-913 (2003).

DISCUSSION

A. Standard of Review

¶8 Section 12-910 (E) (2003) provides that the superior court, in reviewing a final administrative decision, "shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." The superior court defers to the agency's factual findings and affirms them if they are supported by substantial evidence. Gaveck v. Ariz. State Bd. of Podiatry Exam'rs, 222 Ariz. 433, 436, ¶ 11, 215 P.3d 1114, 1117 (App. 2009) (citation omitted). "If an agency's decision is supported by the record, substantial evidence exists to support the decision even if the record also supports a different conclusion." Id. (citations omitted). "On appeal, we review de novo the superior court's judgment, reaching the same underlying issue as the superior court: whether the administrative action was not supported by substantial evidence or was illegal, arbitrary and capricious, or involved an abuse of discretion." Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶ 13, 153 P.3d 1055, 1059 (App. 2007). See also Eaton v. Ariz. Health Care Cost Containment Sys., 206 Ariz. 430, 432, ¶ 7, 79 P.3d 1044, 1046 (App. 2003) ("The court will allow an administrative decision to stand if there is any credible evidence to support it, but, because we review the same record, we may substitute our opinion for that of the superior court.") (citation omitted). We review de novo any legal issues. Comm. for Justice & Fairness (CJF) v. Ariz. Sec'y of State's Office, 235 Ariz. 347, 351, ¶ 17, 332 P.3d 94, 98 (App. 2014) (review denied April 21, 2015).

B. Polk's Final Decision Was Supported by the Evidence and Was Not Arbitrary or an Abuse of Discretion

¶9 Under Arizona's campaign finance laws, independent expenditures are not considered to be contributions to a candidate's campaign. A.R.S. 16-901(5)(b)(vi) (2010). A.R.S. 16-901(14) (2010) defines an "independent expenditure" as:

Under A.R.S. § 16-917(C) (2010), an expenditure by a political committee or person that does not meet the definition of an independent expenditure is considered to be an in-kind contribution to the candidate and a corresponding expenditure by the candidate. Federal guidelines provide further guidance as to coordinated communications and independent expenditures. See 11 C.F.R. 109.21 (2010).

¶10 Appellants argue that Polk's final decision was unsupported by substantial evidence, was arbitrary, or was an abuse of discretion pursuant to A.R.S. § 12-910 (E). We disagree. On October 20, 2010, Winn and Murray designed BLA's political commercial. The evidence showed that Murray emailed Winn a draft script of the commercial at 10:21 a.m. that day. The draft script provided:

Around lunchtime, Winn met with George Wilkinson (Wilkinson), BLA's treasurer, to discuss the commercial. At 2:19 p.m. on the 20th, Horne called Winn and spoke with her for about eight minutes. In the middle of this phone call, Murray emailed Winn an unedited voice-over file of the commercial. At 2:29 p.m., a few minutes after ending the phone call with Horne, Winn emailed Murray the following:

At 2:30 p.m., Murray emailed Winn telling her he would halt production of the commercial. At 2:37 p.m., Winn emailed Murray saying that she would "have it worked out by 5:30," and that:

Also at 2:37, Winn called Horne again and they spoke for eleven minutes. At 2:50 p.m., two minutes after that phone call ended, Winn emailed Murray: "Okay it will be similar message just some changes." At 2:53 p.m. Murray responded:

At 2:59 p.m. Winn responded:

At 3:11 p.m., Winn emailed Murray a revised script of the commercial, stating: "I think I prevailed no mention of [Horne] thanks for what you said. I believe this times out let me know." At 3:13 p.m., Murray emailed Winn that the script was too long. At 3:14 p.m. Winn responded suggesting he remove a sentence. At 3:15 p.m., Winn received a phone call from attorney Harris that lasted three minutes. At 3:16 p.m., Murray emailed Winn that the script was still too long. At 3:21 p.m., Horne called Winn again for about four minutes. At 3:25 p.m., Winn emailed Murray stating:

The final script of the commercial that aired provided:

¶11 The evidence supports Polk's conclusion that Horne and Winn coordinated on October 20, 2010. The content and timing of Winn's emails to and from Murray and the timing of her phone calls with Horne support Polk's findings that Horne and Winn discussed the wording of the commercial on October 20 and that their discussion led to changes in the wording of the commercial.7 Although the record may also support a different conclusion, we must defer to Polk's decision. See Gaveck, 222 Ariz. at 436, ¶ 11, 153 P.3d at 117; Blake v. City of Phoenix, 157 Ariz. 93, 96, 754 P.2d 1368, 1371 (App. 1988). Polk was free to reject Winn and Horne's testimony as to the content of their discussions as "not credible."8 Appellants argue that all of the evidence of coordination was circumstantial rather than direct evidence. However, even if the evidence here was circumstantial we assign no less weight to it. See State v. Harvill, 106 Ariz. 386, 391, 476 P.2d 841, 846 (1970) ("direct and circumstantial evidence are [of] intrinsically similar [probative value]; therefore, there is no logically sound reason for drawing a distinction as to the weight to be assigned each.").

¶12 Additionally, the evidence supports Polk's finding that Horne and Winn coordinated on October 27, 2010. On that day, Ryan Ducharme sent Horne an email stating:

Ducharme followed up with a second email to Horne stating:

Horne forwarded this email chain to Winn at 2:10 p.m. on the 27th stating: "I forwarded this to [C]asey.[9] Maybe with this we can. Try again for the hundred k." Winn forwarded Horne's email chain to Murray at 2:31 p.m., stating, "[t]his just came into me read below."[10] At 2:55 p.m., Murray forwarded the chain of emails to his firm's attorney, stating:

From this evidence, Polk concluded that Horne was trying to get Winn to raise an additional $100,000 and expend it attacking Rotellini.11 Polk further found that the October 27, 2010 email from Horne to Winn "casts grave doubt on the denials of both [Horne and Winn] that coordination occurred on October 20, 2010." Because there was evidence in the record supporting Polk's finding that Horne and Winn coordinated on October 27, 2015, we find no abuse of discretion.

C. Appellants' Due Process Rights Were Not Violated

¶13 Appellants argue that their due process rights were violated because Polk was both an advocate and judge in this case and necessarily biased. It is well established under Arizona law that an agency employee can investigate, prosecute, and adjudicate a case. In Comeau v. Ariz. State Bd. of Dental Exam'rs, 196 Ariz. 102, 108, ¶¶ 26-27, 993 P.2d 1066, 1072 (App. 1999), where the appellant argued that his due process rights were violated because the Board of Dental Examiner's investigator functioned in several capacities in his professional discipline matter, we noted:

Similarly, in Rouse v. Scottsdale Unified Sch. Dist., 156 Ariz. 369, 371, 374, 752 P.2d 22, 24, 27 (App. 1987), we held that due process was not violated when a school board participated in a decision to terminate a teacher, and then reviewed and affirmed the termination, concluding:

In this case, appellants make no showing of actual bias. Accordingly, their due process rights were not violated.

D. Polk Did Not Err By Applying the Wrong Standard of Proof

¶14 Appellants next argue that Polk erred by applying the wrong standard of proof. They maintain that the standard of proof should have been clear and convincing evidence instead of a preponderance of the evidence. They base their argument on the future possibility that, if they do not come into compliance with Polk's order requiring compliance, Polk could then assess a civil penalty pursuant to A.R.S. § 16-924(B) and A.R.S. § 16-905(J) (civil penalty for violating contribution limits). However, the clear and convincing standard of proof does not apply in this case. Arizona Administrative Code R2-19-119(A) (2013) provides that the standard of proof in administrative hearings is a preponderance of the evidence, unless otherwise provided by law. Although appellants cite cases holding that the recovery of punitive damages requires a clear and convincing standard of proof, see e.g., Linthicum v. Nationwide Life Ins. Co., 150 Ariz. 326, 332, 723 P.2d 675, 681 (1986), the order requiring compliance was issued pursuant to A.R.S. § 16-924(A). That section does not provide for civil penalties, nor did Polk's order assess civil penalties. The remedy in Polk's order required a repayment of contributions that exceeded the relevant limits.12 Accordingly, we find no error.

E. Arizona's Campaign Finance Contribution Limits Were Constitutional

¶15 Appellants argue that A.R.S. § 16-905, which limited individual political contributions in Arizona to $840 per election cycle, violated the United States and Arizona Constitutions because the limits were too low.13 They argue that, with a limit of $840 per election cycle (primary and general elections) Arizona really had a "per election" limit of $420.

¶16 In Randall v. Sorrell, 548 U.S. 230 (2006), the United States Supreme Court addressed the constitutionality of Vermont's campaign contribution limits. Vermont limited political contributions to candidates for state office by individuals, political committees and, and political parties ($400 for a candidate running for governor, lieutenant governor or other statewide office, $300 for state senator, and $200 for state representative, per two-year general election cycle with no index for inflation). Id. at 238-39. In Randall, the Supreme Court found that Vermont's contribution limits failed to satisfy the First Amendment's requirement that contribution limits be "closely drawn." Id. at 238, 249, 253.

¶17 The plurality opinion set out a two-part, multi-factor test. First, a court should look for "danger signs" that the limits are too low, such as 1) limits are set per election cycle rather than divided between primary and general elections, 2) limits apply to contributions from political parties, 3) the limits are the lowest in the country, and 4) the limits are below those the Supreme Court has previously upheld. Id. at 249-53 & 268 (Thomas, J., concurring). Then, if danger signs exist, the court must determine whether the limits are closely drawn. Id. at 249, 253. To determine whether the limits are closely drawn, the court considers:

Id. at 253-62. Arizona's contribution limits in 2010 were $840 per election cycle in comparison to Vermont's limit of $400 per two-year election cycle for candidates for governor and lieutenant governor. Section 16-905 provided for higher total contribution limits for candidates to accept contributions from political parties and organizations. Section 16-901(5)(iv)(b) further exempted a volunteer's unreimbursed payment for personal travel expenses from being considered contributions, and A.R.S. § 16-905(H) adjusted contribution limits for inflation. Given all of the factors, and lack of a showing that a candidate for attorney general in Arizona could not run a competitive campaign under the 2010 contribution limits, we find that the contribution limits did not violate the First Amendment.

F. Appellants Waived Their Argument that A.R.S. § 16-901(19) Was Unconstitutional

¶18 Finally, appellants argue that there was no statutory basis for Polk's enforcement action because A.R.S. § 16-901(19), which defines "political committee," is unconstitutional.14 Because appellants failed to raise the argument concerning section 16-901(19) below, they have waived it. See Rand v. Porsche Fin. Servs., 216 Ariz. 424, 434, ¶ 39, n.8, 167 P.3d 111, 121, n.8 (App. 2007) (arguments not raised in the trial court are waived on appeal). We decline to accept appellants' suggestion that we consider this argument even though they failed to raise it because they make a constitutional argument. See Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503, 733 P.2d 1073, 1086 (1987).

G. Attorneys' Fees and Costs

¶19 Appellants request attorneys' fees pursuant to A.R.S. § 12-348 and costs pursuant to A.R.S. § 12-341 and -342. We deny the request for fees and costs.

CONCLUSION

¶20 For the foregoing reasons, the decision of the trial court affirming Polk's final decision and order requiring compliance is affirmed.