Court ruling allows former Attorney General Horne to have case, $1.2M fine reviewed

PHOENIX — The Arizona Supreme Court is giving former state Attorney General Tom Horne another chance to escape a $1.2 million fine for campaign finance violations.

In a unanimous decision Thursday, the justices said it was wrong for Yavapai County Attorney Sheila Polk, who initially concluded Horne and a former aide had broken the law, to then overrule the findings of the administrative law judge who was hearing the appeal. That administrative law judge had concluded Horne had broken no laws.

“We hold that due process does not permit the same individual to issue the initial decision finding violations and ordering remedies, participate personally in the prosecution of the case before an administrative law judge, and then make the final agency decision that will receive only deferential judicial review,” wrote Clint Bolick for the court.

Thursday’s ruling, however, does not end the matter or absolve Horne of guilt. Instead, the justices directed the current attorney general’s office to review the findings of the hearing officer and issue a final decision.

That office is run by Mark Brnovich who defeated Horne in his 2014 reelection bid in the Republican primary. Asked if Brnovich wold have someone else handle the matter, press aide Mia Garcia said, “We are reviewing the ruling, evaluating our options, and conducting a conflict review.”

Despite the fact the Supreme Court refused to declare him innocent, Horne is viewing Thursday’s ruling as a victory.

“I was hit with a false, malicious, defamatory charge of having coordinated with an independent campaign,” he said in a prepared statement. “The only neutral judge to hold a hearing and take evidence was the administrative law judge, who found for the defendants,” Horne said, indicating he expects that to be upheld on review.

At issue is $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.

The group was formed by Kathleen 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 after the 2010 election, came across what it said was evidence that 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.

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But with Horne now running that agency, an aide farmed the case out to Polk. She found evidence of violations, 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 acknowledged later she “was involved with the prosecution of the case, by assisting with the preparation and strategy.”

That 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, saying they was evidence that Horne directed Winn to not just raise money for her independent group for his election but also told her how to spend it. Polk said Winn “repeatedly changed her story” and that her “pattern of contradicting sworn affidavits to conform to newly revealed facts calls into question her credibility.”

The result was Polk concluding that Winn’s expenses really were contributions to Horne’s campaign, contribution that exceeded the limit by $400,000 of what he could take from any one source. So Polk imposed a penalty equal to three times that.

Both a trial judge and the state Court of Appeals rebuffed the bid by Horne and Winn to overturn those findings. That led to an appeal by their attorneys.

Dennis Wilenchik, representing Horne, argued to the justices that the system is unfair, with Polk acting “like she’s judge, jury and executioner all in one.”

“If anybody describes these facts, you’d think you were in a Third World country,” Wilenchik continued. “Putting Horne aside, whether you like him or don’t like him, I mean, the reality is it’s not right.”

Polk said she does not take the ruling personally, saying she was following the statutes for appeals as enacted by the Legislature. What happened Thursday, she said, was that the Supreme Court concluded those procedures are unconstitutional.

“I respect our Supreme Court and the rule of law,” she said.