25The Arizona Supreme Court has voided lower-court decisions in the long-running case against former Attorney General Tom Horne centered on allegations he broke campaign-finance laws.
In an opinion filed Thursday, the state high court concluded the case should be sent back to the Attorney General’s Office for a final administrative decision, and noted the office Horne once presided over “does not have a conflict.”
The Supreme Court expressed no opinion on the merits of the case against Horne, but rather the legal process.
The court agreed with Horne’s attorneys’ argument that he was denied due process because of the state’s process for handling such allegations.
The system allowed Yavapai County Attorney Sheila Polk to serve as “an accuser, advocate, and final decisionmaker” in the case against Horne.
Three justices — Ann Scott Timmer, Andrew Gould and John Lopez IV — recused themselves from the case.
Michael Kimerer was involved in the Administrative hearing where they won and Sheila Polk overturned the Administrative Judges ruling and the Supreme Court overturned Shelia Polk’s ruling.
‘A complete victory’
The decision opens another chapter in the years-long legal battles and investigations involving Horne. A separate probe into Horne’s activities in office continues.
His attorney, Dennis Wilenchik, said the ruling “is a complete victory” — even though the court did not dismiss the case.
“It goes back to an independent finder,” Wilenchik said.
Wilenchik said Attorney General Mark Brnovich, who will now receive the case, has a conflict of interest because of statements he made about Horne during the campaign. He said he expects Brnovich to send the matter to the Solicitor General for review, saying, “They really are set up to be independent of the AG for purposes of conflict.”
Mia Garcia, a spokeswoman for Brnovich, said attorneys “are reviewing the ruling, evaluating our options, and conducting a conflict review.”
In 2013, Polk concluded Horne illegally coordinated with an outside group that ran TV ads against his Democratic opponent during his 2010 campaign for office. Horne, who lost his bid for re-election in 2014, and Kathleen Winn, a political ally turned staffer, have maintained they did not violate the law.
But an administrative court, after hearing days of testimony, found there was insufficient evidence to prove wrongdoing and recommended it be dropped.
Polk rejected the decision by the administrative court and reinstated her decision.
Horne and Winn then appealed to the Maricopa County Superior Court, which upheld Polk’s decision. They then appealed to the Court of Appeals, where they learned Polk was involved with the prosecution of the case by helping with strategy and preparation. Horne’s attorneys argued her role as an advocate and adjudicator in the case violated his right to due process. That court affirmed the Superior Court’s decision.
The Supreme Court agreed to consider the case’s due-process arguments, “which is of statewide importance and likely to recur,” the opinion said.
“Here, the interplay between the campaign finance statute and the (Arizona Administrative Procedure Act) placed Polk in the position of issuing the initial order and then making the final determination,” the opinion states. “She also participated in the prosecution of the case before the ALJ (Administrative Law Judge). And under these circumstances, there was no board or commission to review Polk’s final decision.”
The opinion later states: “Although Appellants do not allege actual bias, these circumstances have deprived them of due process.”
Separate investigation continues
In an email, Polk said she “carefully followed” statutory administrative procedures but that she respects the court’s decision.
“The core issue for the Supreme Court was whether the administrative appeals process for campaign finance enforcement as set out in Arizona law is constitutional,” she wrote. “Today, the Court has held that due process requires additional procedures not set forth in the statutes. Specifically, the Court held that, in order for the agency head to serve as the final decision maker, she must be walled off from her deputies who litigated the hearing.”
A separate investigation into allegations by a former employee that Horne used the Attorney General’s Office as a de facto campaign headquarters is ongoing. An attorney hired to conduct an independent investigation has not responded to The Arizona Republic’s inquiry about the status of that case.