Judge throws out charges against AG Tom Horne

2013-05-03T05:00:00Z Judge throws out charges against AG Tom HorneHOWARD FISCHER Capitol Media Services Arizona Daily Sun

PHOENIX -- A judge on Thursday threw out charges of violating campaign finance laws against Attorney General Tom Horne and a political ally.

Maricopa County Superior Court Judge John Rea acknowledged that Horne has a conflict of interest that would keep him -- and even anyone in his office -- from investigating charges that he illegally coordinated his 2010 election bid with what was supposed to be an independent campaign committee. Those charges stem from an FBI investigation into Horne's activities.

But the judge said that was no excuse for Secretary of State Ken Bennett "completely ignoring" a law that requires him to refer allegations of election law violations to the Attorney General's Office and instead sending the case directly to Maricopa County Attorney Bill Montgomery.

Thursday's ruling most immediately cancels an administrative hearing scheduled for this coming week to hear the evidence against Horne and Kathleen Winn, who ran that independent committee, and determine if they broke the law.

But Horne is not out of the legal woods.

The decision means the FBI findings go back to Bennett. He now has to submit those files, along with his findings that there is evidence of a campaign law violation, to Horne's office.

Horne told Capitol Media Services he will farm the case out to a county attorney who will have to take a fresh look at the evidence and decide whether to pursue charges.

But Horne said his choice will not be Montgomery, despite everything he already has done on the case -- or potentially because of what he has done: Montgomery already has concluded a violation has occurred.

Michael Kimerer, Horne's attorney, said new charges are not a sure thing.

He said the evidence against his client is built on thin evidence. And Kimerer said that while Montgomery concluded there was a violation, another prosecutor might not.

The allegation stems from $500,000 spent on a last-minute TV commercial in the 2010 race spent by Business Leaders for Arizona, a group run by Kathleen Winn.

She had been a campaign worker during Horne's Republican primary but said the organization she set up for the general election was independent of the candidate.

Montgomery, however, said an FBI investigation into Horne's activities turned up evidence of coordination between Winn and Horne. And if Horne effectively controlled that $500,000, that would run afoul of laws which limit how much candidates can take from any one source.

In his ruling, Rea acknowledged that requiring Bennett to send the case to Horne -- and Horne then sending it to someone else -- might simply wind up being a "seemingly formalized dance" that essentially just delays the process. But the judge said that does not make following the law meaningless.

"The fact that observance of the express statutory procedure would require a few extra steps in these circumstances does not justify simply abandoning it," Rea wrote. "Ignoring a clear statute for the sake of expediency means that we are no longer under a rule of law but the rule of some official or court's notion of convenience and practicality."

Rea also took a swat at Bennett and Montgomery for unilaterally determining that Horne has a conflict of interest and removing the opportunity for the attorney general to decide whether to recuse himself.

"What are the limits of one official's ability to evaluate and declare the conflicts of interest of another official?" the judge asked. He said that, carried to extreme, it would allow Horne to unilaterally declare that Montgomery has conflicts of interests and take matters away from him.

"This is neither the rule of law nor good public policy," Rea wrote.

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