PHOENIX — The Arizona Supreme Court on Thursday ruled that former Attorney General Tom Horne didn’t get a fair hearing during his appeal of a finding that he violated campaign finance laws during his 2010 campaign, giving him at least a temporary reprieve from having to repay $400,000 to donors.
The court’s unanimous ruling said Horne’s due process rights were violated when Yavapai County Attorney Sheila Polk acted as a prosecution advocate in an administrative appeal hearing and then made a final decision against Horne.
The justices set aside Polk’s decision that Horne must repay $400,000 to donors and face up to $1.2 million in fines. They instead referred the case to current Attorney General Mark Brnovich to decide whether Polk correctly concluded that Horne and former aide Kathleen Winn illegally coordinated campaign spending while Winn ran an outside group backing Horne’s campaign.
Polk found in 2013 that Horne and Winn did just that during his campaign against Democrat Felecia Rotellini.
An administrative law judge ruled after a lengthy hearing in 2014 that Polk failed to prove illegal coordination. Polk overturned that decision, saying the judge used the wrong legal standard for strength of the evidence.
Brnovich defeated Horne in the 2014 Republican primary. His spokeswoman, Mia Garcia, said he is reviewing the ruling, evaluating the options and conducting a conflict of interest review.
Horne and Winn have consistently denied wrongdoing, with both noting that the only truly impartial arbiter of the case, the administrative law judge, ruled that there wasn’t sufficient evidence to show illegal coordination.
“I was hit with a false, malicious, defamatory charge of having coordinated with an independent campaign,” Horne said in a statement. “The only neutral judge to hold a hearing and take evidence was the administrative law Judge, who found for defendants.”
Justice Clint Bolick, writing for the court, said state law on such administrative findings normally allows an agency head, in this case Polk, to overrule an administrative judge’s findings.
“However, where an agency head makes an initial determination of a legal violation, participates materially in prosecuting the case, and makes the final agency decision, the combination of functions in a single official violates an individual’s Fourteenth Amendment due process right to a neutral adjudication in appearance and reality,” Bolick wrote.
Polk issued a statement after Thursday’s ruling saying that she followed the law as it was written by the Legislature and respected the Supreme Court ruling.
“The core issue for the Supreme Court was whether the administrative appeals process for campaign finance enforcement as set out in Arizona law is constitutional,” Polk’s statement said in part. “Today, the Court has held that due process requires additional procedures not set forth in the statutes.”
The issue is separate from a criminal probe of Horne’s failed 2014 re-election campaign that was closed without charges by the Maricopa County Attorney’s Office last year.
A retired judge and Gilbert’s former town attorney are trying to determine if Horne violated civil law by using his office staff to run the 2014 campaign. That case is ongoing.
Horne agreed to pay $10,000 of his own money to settle allegations from the Citizens Clean Elections Commission related to the same issues and refile his campaign finance reports if the outside review finds he violated the law.
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