Horne sues group over TV ads

Attorney General Tom Horne is suing a conservative political group over wording in a television ad claiming that he is still under an investigation by the FBI.

In the original version of its ad, the Arizona Public Integrity Alliance lambasted Horne for allegedly coordinating with an independent expenditure committee in 2010, and stated that “now” Horne is under FBI investigation. The alliance changed the wording several days later to state that Horne “was” under investigation, after Horne’s attorney sent two cease-and-desist letters to Cox Communications, which was airing the television commercials.

Horne filed suit in Maricopa County Superior Court on Nov. 15. He is seeking unspecified damages, despite the change in the ad’s wording. In the lawsuit, Horne’s attorney wrote that damages should be determined in a jury trial.

Horne also filed a complaint with the Arizona Secretary of State’s Office.

Sandra Slaton, Horne’s attorney, wrote that the FBI investigation into the attorney general ended in 2012, with no criminal charges filed. She said the FBI agent in charge of the agency’s Phoenix office made it clear during a September 2012 press conference with Maricopa County Attorney Bill Montgomery – the press conference actually occurred on Oct. 1 – that the federal investigation into Horne was over.

Montgomery recently confirmed to the Arizona Capitol Times that the FBI investigation, with which the Maricopa County Attorney’s Office assisted, had ended.

“When they published the statement that ‘now Tom Horne is under an FBI investigation,’ defendants knew that any FBI investigation (whatever its merit was, if any) had ended more than a year earlier with no criminal conduct alleged. Defendants knew the statement was false when they published it. At the very least, defendants acted with reckless disregard of whether the statement was true or false when published,” Slaton wrote in her Nov. 15 complaint, which was filed in Maricopa County Superior Court.

The lawsuit followed two cease-and-desist letters sent by Slaton to Cox Communications, asking the company to pull the ads from the air. In the first letter on Nov. 8, Slaton said the ads should be discontinued not only because the allegation about a current FBI investigation was false, but because the Arizona Public Integrity Alliance had not registered as a political committee with the Arizona Secretary of State’s Office or disclosed its top three contributors, which the attorney alleged violated state campaign finance laws.

Slaton said the ads are intended to undermine Horne’s reelection campaign.

“Defendants’ actions of intentionally publishing statements known to be false about a public official whose re-election depends on public standing are outside the boundaries of acceptable conduct in a civilized society. Defendants had an evil intention to do harm to Mr. Horne so as to justify an award of punitive damages,” the attorney wrote.

The campaign law allegations were not part of Horne’s complaint. But Horne’s attorney also filed a complaint against the alliance with the Secretary of State’s Office.

Kory Langhofer, an attorney for the Arizona Public Integrity Alliance, said the group changed the wording of its ad shortly after Horne sent his second cease-and-desist letter to Cox on Nov. 13. The voiceover in the ad now says, “No wonder Horne was under an FBI investigation.”

Langhofer said the inaccurate statement about the FBI investigation being ongoing was “immaterial” because it does not affect the ad as a whole. The bulk of the ad focused on the allegations by Montgomery and Yavapai County Attorney Sheila Polk that Horne and ally Kathleen Winn illegally coordinated Horne’s campaign with Winn’s independent expenditure during the 2010 election. The ad urged viewers to call Horne and demand that he return $400,000 that Polk said was illegally contributed to Horne’s campaign.

“In order for him to prevail in the case, he has to show by clear and convincing evidence, which is a very high standard … that the ad was not just false, but it was materially false, and that the alliance either knew it was false or was reckless about its falsity,” Langhofer said. “That’s a really high burden. This is why elected officials almost never bring these types of lawsuits.”

Horne and Winn say they are innocent of the allegations, and are fighting Polk’s order to return the money in court.

Langhofer said the alliance contacted the FBI and U.S. Attorney’s Office to ask whether the federal investigation of Horne was ongoing, and that neither would confirm that Horne was no longer under investigation. But he acknowledged that neither confirmed that was still under investigation either.

Federal law enforcement agencies generally do not comment on the status of investigations.

During the Oct. 1 press conference with Montgomery, FBI Agent James Turgal, who was in charge of the agency’s Phoenix office at the time, said the FBI had concluded its investigation into Horne.

Slaton also noted that the FBI publicly released its investigative file in 2012, which is generally only does once an investigation has been completed.

Langhofer alleged that the lawsuit is intended to silence criticism of Horne. He said the ads aren’t election-related, noting that the general election is nearly one year away. The Republican primary, where challenger Mark Brnovich is attempting to unseat Horne, is on Aug. 26.

“The goal of this lawsuit is not to recover damages. This is what happens when you criticize Tom Horne in public,” Langhofer said.

The suit is reminiscent of the 2010 ads run by the Committee for Justice and Fairness, which assisted Felecia Rotellini, Horne’s Democratic opponent, with about $1.5 million in television ads late in the campaign. Horne unsuccessfully sued the group and filed a complaint with the Secretary of State’s Office alleging that the group illegally failed to register as a political committee.

Secretary of State Ken Bennett and an administrative law judge determined that the committee should have registered with election officials, but a Superior Court judge ruled that the committee did not need to register because Arizona’s campaign finance disclosure laws are unconstitutional. That ruling has been appealed to the Arizona Court of Appeals.

Langhofer said the alliance does not need to file as a campaign committee or disclose its contributors because the ad is “issue advocacy,” not electioneering. The ad did not identify Horne as a candidate for office or urge voters to vote against him.