Saying Yavapai County Attorney Sheila Polk βhijackedβ the process, the lawyer for former Attorney General Tom Horne has asked the state Court of Appeals to toss her findings that his client violated campaign finance laws.
Michael Kimerer told the three-judge panel that a hearing officer, after reviewing the evidence, concluded that Horne and aide Kathleen Winn had broken no laws in his successful 2010 bid for office. Tammy Eigenheer said there was only circumstantial evidence that Horne, as the candidate, illegally coordinated with Winn to have her independent campaign committee spend money on his behalf.
But Polk overturned those findings, concluding that some of the testimony the pair gave was βnot credible.β Her decision was upheld by a Maricopa County Superior Court judge.
Kimerer told the appellate judges Tuesday he only recently discovered that Polk was actually involved in βpreparation and strategyβ of the case that her staffers were presenting to Eigenheer. He called that a βbombshell.β
Kimerer said that her role in prosecuting the case made it improper for her to then overturn the hearing officerβs findings. He said she is βconducting the prosecution and then choosing to hijack the resultβ after the hearing officer reviewed the evidence, got to hear all the testimony and said there was not enough to show that any laws had been violated.
Kimerer is not claiming that Polk has any particular bias against either Horne or Winn. But he said the motive for her overturning the findings is simple.
βProsecutors want to win,β he said.
Deputy Yavapai County Attorney Benjamin Kreutzberg did not dispute that his boss played a role in preparing the case against Horne and Winn. But he told the appellate judges that nothing in state law required her to stay away.
That drew a surprised reaction from Judge Randall Howe, a former assistant attorney general.
Howe said when there were situations in that office where the attorney general himself needed to make a decision, someone else in the agency prepared the underlying case. He said that effectively meant the attorney general, as the final decision maker, had no prior involvement.
Hanging in the balance is whether Horne will have to pay a $400,000 penalty.
At issue is $513,340 spent by Business Leaders for Arizona, run by Winn, on a last-minute television commercial attacking Felecia Rotellini, Horneβs 2010 Democrat foe.
The group was registered as an independent campaign committee to help Horne get elected. As an independent committee, it could not legally coordinate its expenses with the candidate.
Undisputed evidence presented to the hearing officer showed a series of phone calls and emails between the pair. But the hearing officer accepted their testimony that they were not talking about the campaign but instead discussing a pending real estate deal.
Polk rejected that conclusion. She said the timing of those calls, coupled with nearly simultaneous emails by Winn to campaign consultant Brian Murray, provide enough evidence the pair discussed the upcoming election and TV ads that Winnβs organization was producing.
