Court hands Rep. Jones another victory

PHOENIX - Candidates for public office who falsely swear that they personally witnessed people signing their nominating petitions can't be charged with a crime, the Arizona Court of Appeals ruled Thursday.

In a unanimous decision, the judges said state laws making it illegal to file forged documents apply only when someone presents a document for filing that is itself false. It cannot be used to bring charges against those who falsely swear to the veracity of signatures on an otherwise valid document.

Most immediately the decision is a victory for state Rep. Russ Jones, R-Yuma, who had been charged by the Maricopa County Attorney's Office with breaking the law. Unless overturned, it means Jones will not face felony charges, conviction of any would mean the loss of the House seat he regained last year after losing the 2006 race involving these petitions.

But Barnett Lotstein, a special prosecutor for the agency that brought the charges, said the decision also "creates a large loophole'' in state election laws.

"The electoral system is compromised if false statements can be made on nominating petitions,'' he said.

Lotstein said the Court of Appeals got it wrong and will seek review by the Arizona Supreme Court. And if the state's high court disagrees, Lotstein said his office will ask the Arizona Legislature to make the necessary fixes.

James Belanger, Jones' attorney, said his client does not believe he did anything wrong. If nothing else, Belanger said, the whole law about petition circulators having to be "present'' when signatures are made is vague.

"I believe that he believed he was present for the signing of those petitions,'' he said, though he might not have actually been next to the papers. As to the necessity for changes in the law, Belanger said "it's really kind of up to the Legislature.''

The charges stem from Jones unsuccessful efforts in 2006 to move from the state House of Representatives to the Senate.

State law says anyone who circulates nominating petitions must actually be present to witness the signatures.

Jones turned in various petitions he said he circulated himself, signing an oath on the petitions that all those who signed did so "in his presence.'' He later testified in a related case that he either collected all the signatures himself or at least was present when others circulated the petitions.

But Maricopa County Attorney Andrew Thomas said an investigation later determined Jones was not in Yuma the days signatures were put on some of the petitions - the petitions Jones said he witnessed - but was in Phoenix at the Legislature. That led to nine counts of filing a false instrument; a 10th count charged Jones with purposely concealing his activities.

A trial judge threw out the charges, claiming the statute was unconstitutionally vague as to what it means to be "present.'' Thomas then appealed.

Appellate Judge Diane Johnsen, who wrote Thursday's decision, said the problem with the charges against Jones were more basic. She said the law, at least as written, doesn't seem to cover what he is accused of doing.

The problem, Johnsen said, is the statute Jones is accused of having violated applies to "a false or forged instrument, which, if genuine, could be filed or recorded under law.'' And she said a false document is something that is counterfeit, not authentic or one that pretends to be something it is not.

Here, the judge said, the document itself is genuine. The only thing alleged to be false was Jones' statement that he had personally witnessed people signing it.

"We of course do not condone any false certification or the filing of any instrument knowing it contains a falsehood,'' Johnsen wrote for the court. But she said that the allegations against Jones, even if true, don't violate the law.

It actually is possible that Jones, re-elected to the House in 2008, did what Thomas alleged, even if those actions cannot be prosecuted because of the flawed law.

The Arizona Supreme Court ruled in 2006 there was "substantial evidence'' Jones did not actually witness the signatures on the nominating petitions.

But that ruling came in a civil challenge to keep his name off the ballot. A lower court judge had concluded that Jones' actions amounted to petition forgery, an action the judge said disqualified him from running for office for five years.

The high court, however, said that falsely swearing to have witnessed a signature is not the same thing as forgery. That crime, Justice Ruth McGregor wrote at the time, is reserved only for those who knowingly sign the name of another.

That distinction is critical: A finding of forgery would have barred Jones from continuing his Senate campaign, a race he subsequently lost to Democrat Amanda Aguirre.