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Horne vs. Montgomery — the fight over the fight

Bill Montgomery and Tom Horne

Before the Maricopa County Attorney’s Office can try to win its campaign finance fight against Tom Horne and Kathleen Winn, it’ll have to win the fight over whether it can prosecute the attorney general and his ally in the first place.

Winn’s attorney, Timothy La Sota, filed a request for special action in Maricopa County Superior Court on April 10, asking a judge to cancel an upcoming hearing in the case and bar the Maricopa County Attorney’s Office and County Attorney Bill Montgomery from further involvement in the case. Horne joined the appeal the next day.

Horne and Winn’s attorneys have argued that Montgomery and Secretary of State Ken Bennett did not follow state law in the investigation against Horne.

If Horne and Winn succeed in their appeal, the case against them will likely end up with another county attorney who may have to start anew.

Whoever ends up investigating the case if Montgomery is removed may not reach the same conclusion that Horne and Winn, who ran an independent expenditure campaign during Horne’s 2010 campaign for attorney general, illegally coordinated.

The appeal gives Horne a shot at clearing his name as he prepares for what may be a tough re-election bid in 2014. But it also may prolong the case, keeping it in the public eye as campaign season nears.

The dispute over whether Montgomery has the authority to pursue the campaign finance case has played out for months in the Office of Administrative Hearings.

La Sota and Michael Kimerer, Horne’s attorney, argued to Administrative Law Judge Tammy Eigenheer that the County Attorney’s Office should have followed state law requiring the Secretary of State’s Office to refer such cases to the Attorney General’s Office, which would be required to refer the case to an outside agency because of Horne’s conflict of interest.

Montgomery disagreed, saying other statutes, including a temporary law allowing Bennett’s office to retain outside counsel, allowed the secretary of state to refer the case directly to the agency of his choosing. Bennett referred the case to Montgomery, whose office had already worked for months with the FBI in the investigation.

Eigenheer agreed with Horne and Winn, and recommended that the case be dismissed. But Montgomery overruled her nonbinding recommendation, and the judge ordered that a previously scheduled evidentiary hearing set for May 7 be held.

In his filing, La Sota asked Superior Court Judge Richard Gama to rule that Montgomery had no authority to reject Eigenheer’s recommendation and that he has no authority to continue his civil action against Horne and Winn. He also asked Gama to prohibit the County Attorney’s Office from any further involvement in the case unless Horne delegates it to Montgomery’s office.

La Sota said he didn’t think the legal battle over Montgomery’s authority would take long, even if it’s appealed all the way to the Arizona Supreme Court, because special actions usually proceed quicker than other cases. But ultimately, the length of the case is not important compared to the greater principle, which is that the County Attorney’s Office and the Secretary of State’s Office must follow the rules.

“I don’t know how long it will take. But obviously we think it’s important enough to take a special action on,” said La Sota, of the firm Tiffany & Bosco. “I represent Kathleen (Winn) and Business Leaders for Arizona. Our goal is to win, and we think it’s important that the rules be followed.”

Kimerer could not be reached for comment.

Jerry Cobb, spokesman for the County Attorney’s Office, has previously said it would be improper for Horne or his employees to have any role whatsoever in the case against him, even if his only role is deciding which outside agency will investigate. Cobb could not be reached for comment on Winn’s request for special action in Superior Court.

La Sota said past attorneys general have decided where to refer cases when they have conflicts of interest. For example, when Horne’s predecessor, Terry Goddard, faced allegations that he violated the state’s resign-to-run law in 2009, he referred the case to the Pima County Attorney’s Office.

“He sent it to Barbara LaWall. That’s the way it works,” La Sota said, referring to the Pima County attorney. “That’s the law and that’s been the law for a long time.”
Even if Horne and Winn ultimately prevail in the campaign finance case, Horne has other legal problems that could hinder his re-election.

Margaret Hinchey, a special agent at the Attorney General’s Office, is suing Horne over allegations that he and his chief deputy retaliated and discriminated against her for her political affiliations and for referring the campaign finance allegations to the FBI, which triggered the county’s investigation. He also faces minor traffic charges in an alleged hit-and-run in a downtown Phoenix parking garage. FBI agents said they witnessed Horne back into another car and leave the scene.

If Horne is not exonerated in the cases, or if they drag on into the campaign season without resolution, it could be trouble for the embattled attorney general.

Democrat Felecia Rotellini, whom Horne defeated by just 3.8 percentage points in 2010, is running for the office again. Goddard, who held the office from 2003 to 2011, is also considering a run for his old job.

Either way, Horne would face a potentially strong Democratic opponent in the general election.

And many Republicans wonder whether Horne will face a primary challenge, though no candidate has emerged.

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