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Montgomery rejects dismissal for Horne case, hearing is back on

Maricopa County Attorney Bill Montgomery, a leader of the effort to defeat Proposition 121, said a primary system in California similar to that proposed for Arizona has resulted in fewer independent candidates on that state’s general election ballot. (Cronkite News Service Photo by Lindsey Smith)

Maricopa County Attorney Bill Montgomery

A May 7 evidentiary hearing in Attorney General Tom Horne’s campaign finance case is back on after Maricopa County Attorney Bill Montgomery officially rejected an administrative law judge’s recommendation that the case be dismissed.

Montgomery on Friday formally rejected Judge Tammy Eigenheer’s ruling, which found that he and Secretary of Ken Bennett had not followed procedural rules for the handling the civil charges against Horne and Kathleen Winn, an ally who ran an independent expenditure to assist his 2010 campaign.

Eigenheer agreed with Winn’s attorney that the law required Bennett to refer the case to the Attorney General’s Office, which would have been required to send it to an outside agency due to Horne’s conflict of interest.   But Montgomery stood by his assertion that other laws allowed the Secretary of State’s Office to send it directly to the county attorney’s office.  He also argued that his office had the authority to investigate and prosecute the case on its own.

The Attorney General’s Office declared a conflict of interest in April 2012 when the Secretary of State’s Office sought legal counsel to handle public records requests regarding an FBI investigation into Horne’s 2010 campaign, and authorized Bennett to hire an outside attorney. The county attorney’s office argued that the decision effectively conflicted Horne out of any aspect of the case.

And though Horne would be required to send the case to an outside agency, Montgomery argued that Horne should not even be allowed to determine which agency handled the investigation.

“Not only is the fox precluded from guarding the hen house, he is precluded from selecting its guard,” Montgomery wrote.

After Montgomery submitted his order, Eigenheer restored the May 7 hearing.

Once the hearing is over, Eigenheer will issue another recommendation regarding the case. The county attorney’s office, Horne and Winn will have the option of appealing that decision in Maricopa County Superior Court.

Horne’s attorney, Michael Kimerer, and Winn’s attorney, Timothy La Sota, filed motions on Friday afternoon asking Eigenheer to vacate the hearing. It was unclear whether Eigenheer had the authority to do so. According to the Office of Administrative Hearings’ website, once an agency, such as the county attorney’s office, rejects an ALJ’s finding, the court proceeds with a hearing unless it is stayed by a “court of competent jurisdiction.”

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