PHOENIX — A federal judge has agreed to allow former Attorney General Tom Horne to pursue his claim that Yavapai County Attorney Sheila Polk violated his due process rights.
In a new order, Judge Steven Logan acknowledged that Polk, in her role of prosecutor, had absolute immunity from being sued.
But in a sometimes sharply worded order, Logan said Polk cannot claim she was entitled to judicial immunity for her role in pursuing claims of campaign finance violations against Horne and former staffer Kathleen Winn. He said Polk was clearly acting as both the prosecutor and the ultimate decision maker, something the judge said was a violation of the rights of the plaintiffs.
“The defendant’s participation as both a prosecutor and adjudicatory authority for the administrative action is the exact opposite of the fairness, independence and impartiality becoming of a judicial or quasi-judicial authority,” Logan wrote.
But Polk said none of this means she will lose the case.
“This ruling simply allows the lawsuit to proceed where the facts will be more fully developed,” she said in a prepared statement.
The legal dispute is over $513,340 spent by Business Leaders for Arizona on a last-minute commercial attacking Felecia Rotellini, Horne’s Democrat foe, when he first ran for attorney general in 2010.
That group was formed by Winn, a staffer in Horne’s office, and was registered as an independent campaign committee. That status prohibits it from legally coordinating its expenses with the candidate.
The FBI, looking into other matters in the 2010 election, came across what it said was evidence there was, in fact, communication. The case went to then-Secretary of State Ken Bennett who, by law, had to pass it on to the attorney general’s office.
But with Horne by that time running that agency, an aide in that office farmed the case out to Polk. She concluded there were violations of campaign finance laws, citing a series of phone calls between Horne and Winn.
When they appealed, the case was sent to an administrative law judge, with one of Polk’s deputies presenting the evidence against the pair. Polk later acknowledged that she “was involved with the prosecution of the case, by assisting with the preparation and strategy.”
The hearing officer accepted the testimony from Horne and Winn that they were not talking about the case but instead discussing a pending real estate deal.
Polk, however, rejected the findings and imposed a $1.2 million penalty.
When Horne and Winn appealed, the case was sent to the Cochise County Attorney’s Office, with the pair later cleared. They then sued Polk.
Logan said there is no question that Polk was acting improperly.
“A reasonable official in the defendant’s position, a position that is synonymous with legal training and advocacy, should have reasonably understood that serving as both a prosecutor and a final adjudicator for the same case would violate a defending party’s due process rights,” the judge said, calling those “among the earliest and most basic legal concepts attributable to the study of criminal and constitutional law.” And Logan said there was no question there was a need for “a separate and independent final decision maker.”
Polk said she was following the law, which she said “required me to serve as both the agency head and a nonjudicial officer in the administrative proceeding.” It was only later, she said, that the Arizona Supreme Court concluded the dual roles were a denial of due process.
Horne lost his re-election bid in 2014 when he was defeated in the GOP primary in 2014 by Mark Brnovich.
