A Maricopa County Superior Court judge expressed skepticism over the county attorney’s authority to pursue alleged campaign finance violations by Attorney General Tom Horne, putting the future of the case in question as the state’s top law enforcement officer and a key aide prepare to fight the charges in court.
During a Wednesday hearing to determine whether the Maricopa County Attorney’s Office can proceed with the case, Superior Court Judge John Rea said state law outlines specific procedures for the Secretary of State’s Office and Attorney General’s Office to handle allegations of campaign finance violations. The judge called several of the MCAO arguments into question before the attorneys had a chance to make their cases, saying the statutes MCAO is relying on don’t appear to apply to Horne’s case.
Rea said he expects to rule by late Thursday.
The county attorney’s office alleges that Horne illegally coordinated with Winn during the 2010 attorney general’s race, when Winn ran an independent expenditure committee in support of Horne’s campaign. Horne and Winn are challenging County Attorney Bill Montgomery’s authority to prosecute the case, saying he and Secretary of State Ken Bennett did not follow procedures in state law for such cases.
The Secretary of State’s Office is required to send alleged campaign finance violations in statewide races to the Attorney General’s Office. If the attorney general has a conflict of interest, state law requires him to refer the case to an outside agency.
Horne and Winn argue that Montgomery should be booted from the case and a four-day hearing scheduled to begin on Tuesday in the Office of Administrative Hearings should be called off because Bennett referred the case directly to the county attorney’s office. It had already jointly investigated the case for months with the FBI.
Rea opened Wednesday’s hearing by questioning the county attorney’s office’s justification for circumventing Horne’s office.
Deputy County Attorney Michael McVey argued that the Attorney General’s Office effectively declared a conflict of interest in the case when Horne’s chief deputy, Rick Bistrow, authorized Bennett’s office to hire outside counsel to advise it on public records requests from the media regarding the campaign finance investigation. But that decision, Rea said, was specifically aimed at providing legal advice on records requests in which Horne had a conflict of interest.
“While that action may have some indication as to what may occur if the matter is referred to the Attorney General’s Office, it does not in itself constitute independent justification for the referral to MCAO,” Rea said.
Rea was skeptical about the county attorney’s arguments that an affidavit from one of Montgomery’s investigators constituted a formal complaint. Under state law, the county attorney’s office can investigate such an allegation if it receives a formal complaint from a qualified elector.
“That’s not how this case came up,” said Rea, who said the statute on complaints from qualified electors doesn’t seem to provide an independent basis for the county attorney’s office to proceed with an investigation.
And Rea didn’t seem convinced by MCAO’s arguments that a 2012 session law giving Bennett the authority to hire outside counsel permitted the Secretary of State’s Office to bypass Horne and go directly to Montgomery.
McVey said the law permitted Bennett to seek outside counsel on the case if he deems it necessary. McVey said the term “outside counsel” doesn’t necessarily mean someone who is strictly advising an elected official such as Bennett.
“Archibald Cox was not a private advisor to Richard Nixon. Ken Starr was not a private advisor to President Clinton,” McVey said, referencing independent prosecutors who probed scandals involving those two presidents.
McVey also argued that Bistrow’s April 2012 letter essentially disqualified Horne’s office from the case because it left no question that Horne would have a conflict of interest in the case as a whole.
“A reasonable interpretation of that letter is that the Attorney General’s office was recognizing that it had a conflict of interest,” McVey said. “Once that was received, the result was inevitable.”
Timothy La Sota, Winn’s attorney, disagreed. He and Michael Kimerer, Horne’s attorney, said the attorney acts as an independent official when it comes to such investigations, and decides on his own whether to pursue cases. In the case of the campaign finance violations, they said, Horne was not acting as Bennett’s counsel.
“If he were doing that he’d have to take his orders form the secretary of state,” La Sota said.
Rea at times questioned whether there would be any practical purpose to halting the case so it could be restarted at another agency. He suggested that the case is likely to end up back in court anyway, and wondered whether another “qualified elector” could file a complaint against Horne with MCAO at any time, rendering the entire argument moot.
Kimerer said there’s no question that Horne would have a conflict of interest and would have had to refer the investigation to an outside agency. But Bennett does not have the authority to declare a conflict for him, he said. Statutorily, Kimerer questioned whether Horne would even have the authority to declare a conflict of interest before a case was sent to him.
“It’s so inherent in the structure of the statutes that they designed, I don’t think you can even delegate it away,” Kimerer said. “I think it’s an inherent due process argument that things need to be done the right way.”
Kimerer also noted that in past cases involving alleged campaign violations involving attorneys general, the Secretary of State’s Office still sent the case to the Attorney General’s Office. He pointed out that Bennett referred cases involving former Attorney General Terry Goddard to the Attorney General’s Office, at which point Goddard referred them to outside agencies.
When Rea questioned whether a “substantial interest” prohibited Horne from even referring his case to an outside agency, La Sota made a similar argument.
“Well, if it’s true in that instance it should’ve been true in the last instance,” he said.
Rea said the “strongest and most self-evident” argument in favor of bypassing the Attorney General’s Office is a state statute prohibiting public officers who have a “substantial interest” in the outcome of an agency decision from participating in that decision in any way. That statute, the judge said, could be construed to prevent Horne from even deciding which agency should handle the investigation against him and Winn.
“It’s hard to argue in this case that the attorney general doesn’t have about $1.5 million in substantial interests,” Rea said, referring to the massive fine that Horne and Winn could face if they’re found responsible for the campaign finance violations.
But, the judge added, “It’s the attorney general’s decision in this matter.”
The judge did not hear arguments on Horne and Winn’s assertion that the case should be thrown out because the campaign contribution limits that form the basis of the charges are unconstitutional, an argument based on a 2006 U.S. Supreme Court ruling that overturned Vermont’s contribution limits. Administrative Law Judge Tammy Eigenheer, who is scheduled to preside over next week’s evidentiary hearing in the case, rejected Horne and Winn’s request to dismiss the case on those grounds.