Attorney General Tom Horne and aide Kathleen Winn are asking a Superior Court judge to reverse a county attorney’s decision to push forward with a campaign finance complaint against them.
Michael Kimerer and Timothy La Sota, the attorneys for Horne and Winn, filed an appeal with Maricopa County Superior Court on Thursday asking a judge to overturn Yavapai County Attorney Sheila Polk’s decision to reject an administrative law judge’s recommendation that a campaign finance complaint against them be dismissed.
Administrative Law Judge Tammy Eigenheer recommended that the complaint, which accuses Horne and Winn of illegal coordination between a campaign and an independent expenditure committee in 2010, be dismissed for lack of evidence.
Under state statute, the scope of review for an administrative order such as Polk’s is very limited. The court can only overturn an agency decision if it concludes that “the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.”
Kimerer and La Sota challenged Polk’s decision on those grounds. But the appeal included a number of other issues.
Horne and Winn’s attorneys questioned whether the process by which the complaint against them is enforced is actually constitutional.
The attorneys questioned whether the statute giving the Yavapai County Attorney’s Office the ability to overrule a neutral ALJ can be constitutionally applied in a case in which the agency has no relevant substantive experience in campaign finance law, “thereby rendering the due process hearing a sham.” The attorneys argued that Horne and Winn were given due process in the Office of Administrative Hearings but had it taken away by the prosecuting attorneys in the case.
They questioned whether it’s constitutional for the county attorney’s decision to call as its main witness, FBI Agent Brian Grehoski, someone who has limited authority to answer questions on the witness stand. Defense attorneys made numerous complaints about Grehoski’s unwillingness to answer their questions during a three-day hearing February.
The attorneys also resurrected an argument from a previous lawsuit filed by Winn, which challenged the campaign contribution limits that Horne and Winn are accused of exceeding in 2010. Polk determined that because of the alleged coordination between Horne and Winn, all contributions to Winn’s independent expenditure committee, Business Leaders for Arizona, were subject to the same contribution limits as Horne, and that $400,000 of the roughly $500,000 the committee raised was in excess of those limits.
Kimerer and La Sota also questioned whether campaign finance laws could even be applied to Business Leaders for Arizona’s 2010 advertisement against Democratic attorney general candidate Felecia Rotellini, but it did not use any language urging people to vote for or against a candidate.
La Sota acknowledged that the scope of review is limited. But he said there is precedent for a Superior Court judge examining other issues as well, namely a campaign finance case against the Committee for Justice and Fairness, a committee that aired television ads against Horne in support of Rotellini during the 2010 election.
In 2012, Superior Court Judge Crane McClennen rejected a complaint against the Committee for Justice and Fairness on the grounds that the campaign laws it was accused of violating were unconstitutional. A decision in the case is pending in the Arizona Court of Appeals.
“That was precisely the same posture,” La Sota said, comparing the Committee for Justice and Fairness case with the newly filed appeal of Polk’s decision. “There has to be some place where we have the ability to challenge the constitutionality of these statutes. We tried below in the administrative courts. The court said they were not authorized to rule on constitutional issues.”
McClennen is also the judge in Horne and Winn’s appeal of Polk’s decision.
Polk has ordered Horne and Winn to repay about $400,000 in what she said were illegal in-kind contributions to Horne’s campaign. They could face a fine of up to three times that amount.