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Judge rejects Horne’s bid to reverse campaign finance violation ruling

Attorney General Tom Horne. (Cronkite News Service Photo by Anne M. Shearer)

Attorney General Tom Horne. (Cronkite News Service Photo by Anne M. Shearer)

A Maricopa County Superior Court judge rejected efforts by Attorney General Tom Horne to reverse a determination that he violated state campaign finance laws in his 2010 election.

In a ruling late Thursday, Judge Crane McClennen said there was “substantial evidence” to support the conclusion by Yavapai County Attorney Sheila Polk that Horne had illegally coordinated his campaign with what was supposed to be an independent committee run by Kathleen Winn. McClennen also rejected a series of legal arguments about how Polk reached her conclusions.

The ruling, unless overturned, requires Horne to refund the nearly $400,000 his campaign illegally got through the help of Winn and her Business Leaders for Arizona. The law also allows a penalty up to three times that amount.

Horne has vowed to appeal.

At issue is $513,340 spent by Business Leaders for Arizona on a last-minute television commercial attacking Democrat Felecia Rotellini, Horne’s 2010 foe.

In his seven-page order, McClennen went through the evidence compiled by Polk. She got the case after Horne’s office, which normally would investigate such charges, opted to send it to her.

That evidence, the judge said, included a series of phone calls and emails involving, at various times, Winn, Horne and campaign consultants about fundraising and what should be in the commercial.

An administrative law judge – essentially a hearing officer – had concluded there was no evidence any of the discussions between Horne and Winn involved the campaign. Winn had said they were talking about a pending real estate deal.

But Polk rejected the hearing officer’s recommendations, concluding that Winn’s testimony was not credible. That led to the appeal to McClennen.

In reviewing the evidence, McClennen said it was not his job to second guess the conclusions that Polk had reached.

He said Arizona law requires him to uphold her decision unless it is not supported by substantial evidence, is contrary to the law, is arbitrary and capricious or is an abuse of discretion. And McClennen said he found none of that here.

In a prepared statement, Horne said Polk was wrong to ignore the recommendations of the hearing officer – and that McClennen was wrong in refusing to overturn Polk’s action.

“Only one neutral person in the world has listened to the testimony and reviewed the documents,” he said. “That is the administrative law judge who ruled that the charges were false.”

What the hearing officer said, though, is not that the charges were false, but that the evidence of improper conduct in a key phone call between Horne and Winn was largely circumstantial. And she said there was no evidence that anything Horne wrote to Winn had a “material effect” on how Winn actually spent the money on that last-minute commercial attacking Rotellini.

The violation is based on the idea that any coordination between Horne and Business Leaders for Arizona made contributions to her group essentially contributions to Horne himself.

But Horne was subject to state laws limiting what he could take from any one source to $840. And corporate contributions to Winn’s group, which were legal, became illegal corporate donations to a candidate.

The $397,378 penalty that Polk assessed – and McClennen upheld – is the amount of donations above the legal limits.

Horne’s bid for re-election this year was thwarted when he lost the Republican primary to Mark Brnovich, who now has his own campaign against Rotellini.

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