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Judge sets hearing over MCAO jurisdiction in Horne case

Prosecutors face off over suspect campaign activity

Maricopa County Attorney Bill Montgomery (left) and Arizona Attorney General Tom Horne. (File photos)

Before the Office of Administrative Hearings begins proceedings in the campaign finance case against Tom Horne, a Maricopa County judge will first determine whether County Attorney Bill Montgomery’s office actually has the authority to prosecute the attorney general.

Superior Court Judge John Rea on Tuesday scheduled a May 1 hearing for Horne and ally Kathleen Winn to present their arguments that the court should enjoin Montgomery’s prosecution and an upcoming hearing in the case. Rea acknowledged the need to act quickly so the he could rule on the issue before a week-long evidentiary hearing in the Office of Administrative Hearings begins on May 7.

Horne and Winn say the Maricopa County Attorney’s Office and the Arizona Secretary of State’s Office did not follow statutory procedure in pursuing the case of alleged illegal coordination between Horne and an independent expenditure committee that Winn ran during the 2010 election. Under state law, they argued, the Secretary of State’s Office must forward the case to the Attorney General’s Office, which would be required to send the case to an independent agency if Horne has a conflict of interest.

Timothy La Sota, Winn’s attorney, acknowledged that Horne would have likely declared a conflict of interest if Secretary of State Ken Bennett had referred to the case to him in 2012. But it’s Horne’s job to declare a conflict and refer the case to an outside agency.

Instead, Bennett referred the case to MCAO, which had already investigated the case for months with the FBI. After months of investigation, La Sota said, Montgomery’s office was invested in the outcome.

“Frankly, it’s our position that an independent agency that looks at it will not find grounds to proceed,” La Sota said.

Attorney Michael Kimerer, who is representing Horne, agreed that Bennett and Montgomery should have followed the letter of the law, calling it an issue of due process.

“We all know there’s a conflict,” Kimerer said. “You still have to follow the law and do what the statute says.”

Kimerer noted that Administrative Law Judge Tammy Eigenheer ruled that MCAO did not have the authority to proceed with the case, and recommended that it be dismissed. Montgomery overruled the recommendation and ordered Eigenheer to proceed with the May 7 hearing, which Horne and Winn’s attorneys say was beyond his authority as well.

MCAO attorneys have argued that other laws, including a 2012 measure allowing the Secretary of State’s Office to hire outside counsel, allowed Bennett to send the case straight to Montgomery. They have also questioned whether Horne should even have the authority to choose which agency will investigate his case, a concern that Rea echoed in Tuesday’s hearing.

“In this case, wouldn’t the conflict also extend … to choosing who the prosecutor would be?” Rea asked.

La Sota said that wouldn’t be a conflict of interest according to prior case law, though Deputy County Attorney Michael McVey disagreed. McVey said the case La Sota cited did not involve a financial interest, whereas Horne and Winn could face fines of up to three times the $500,000 that Winn’s independent expenditure spent in the 2010 attorney general’s race.

“His conflict is very real and it’s very personal,” McVey said.

Rea will also hear arguments from Kimerer and La Sota regarding the constitutionality of the campaign finance statutes that Horne and Winn are accused of violating. They argued that Arizona’s campaign contribution limits are unconstitutional under a 2006 U.S. Supreme Court ruling that struck down Vermont’s contribution limits, and that Montgomery himself acknowledged as much during a recent legislative hearing when he said Arizona’s limits are unconstitutionally low.

McVey said it’s premature to hear arguments over the constitutionality of the contribution limits.

“It’s the equivalent of attacking the constitutionality of a death penalty statute before a defendant has gone to trial,” he said.

But Rea said he would allow Kimerer and La Sota to present arguments on the constitutionality of the statute.

“I’m not going to foreclose anybody from making the arguments they think they ought to make,” Rea said.

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