Yavapai County Attorney Sheila Polk has played the role of lawyer judge and jury in her continuing crusade against Attorney General Tom Horne according to an appeal recently filed in Maricopa County Superior Court.
According to documents filed with the court, “On May 14, 2014, the County Attorney, who lost the Administrative Hearing, overruled the Judge and ruled in favor of herself. She reinstated her original Order, which had been vacated by the Administrative Law Judge.”
As a result of her dogged pursuit of Horne, lawyers for the Attorney General claim that Polk has abused her discretion pursuant to 21 A.R.S. § 12-910 E.
Since October 2013, the County Attorney has strived and failed to prove that the Attorney General violated campaign finance laws by coordinating with an Independent Expenditure Committee controlled by Kathleen Winn.
In April, the matter came before Administrative Law Judge Tammy Eigenheer, and after a three day hearing, the judge found for Horne and Winn. Judge Eigenheer said prosecutors “failed to establish by a preponderance of the evidence” that Horne and Winn had broken the law. Eigenheer ruled based on the fact that the County Attorney had no direct testimony or documentary evidence that the parties coordinated.
According to filings in Superior Court: “The County Attorney attempted to make the case by five “inferences”, from the timing of telephone records showing calls (with no evidence of the substance of those calls), and emails (with no direct evidence in any email that there was coordination). However, all of the evidence underlying these inferences equally supported contrary inferences argued by plaintiffs.”
In other words, she cherry-picked facts and deliberately drew inferences that were specious, argues Horne and Winn. Their attorneys argue that the County Attorney “cannot simply and arbitrarily adopt the inferences that enable her to win her case.”
Horne and Winn believe that all of the direct testimony supported the “contrary inferences, and that there was no direct testimony supporting the inferences arbitrarily adopted by the County Attorney so that she could win her case.”
But facts matter little in this entire melodrama which has featured a lying FBI agent and political enemies who turn to the court of public opinion, after they lose in court. Polk’s friend and political ally Maricopa County Attorney Bill Montgomery began a twitter war calling for Horne to step down as attorney general shortly after Eigenheer’s ruling.
“Montgomery conceded he’s backing Mark Brnovich in the GOP primary against Horne,” according to an article by Howie Fisher of Capitol Media Services.
While Polk is pursuing a case against Horne and Winn alleging illegal campaign activity, Montgomery has taken illegal campaigning to a whole new level. According to the Arizona Republic, Republicans and Democrats “alike are questioning whether Maricopa County Attorney Bill Montgomery crossed a line during a press conference” when he offered legal opinions “on legal questions he was researching on behalf of a political ally.”
According to the Arizona Republic, experts on county-government law believe Montgomery’s actions violate state statutes governing the conduct and duties of a sitting county attorney. “I do not believe that Bill Montgomery has the statutory authority to provide legal opinions to candidates who are running for political office,” former County Attorney Rick Romley told the Republic.
Prosecutorial abuse, political gamesmanship, and selective enforcement; at the end of the day attorneys have boiled it all down to a few questions:
“Whether the statute giving an Agency the right to overrule an Administrative Law Judge applies, or constitutionally can apply, where the “Agency” is a County Attorney having no relevant substantive expertise (as opposed to specialized agencies that have extensive expertise in their fields), who, after a lengthy and exhaustive administrative hearing, loses but then overrules a neutral judge, thereby rendering the due process hearing a sham.”
“Whether it is constitutional to give due process in a hearing, and then take it away by permitting the prosecutor to overrule the result of the hearing.”
“Whether the standard of proof should be preponderance of evidence or clear and convincing evidence where part of the remedy is punitive.”
“Whether the County Attorney, who never saw the witnesses, can override, on issues of credibility, the Administrative Law Judge, “who had the opportunity to evaluate the witnesses‟ demeanor and make informed credibility determinations.”
Attorneys argue that it is “contrary to the American system of justice, that a County Attorney, an advocate, with no expertise in the area,” can simply rule “in her own favor as the loosing advocate, overruling a neutral Administrative Law Judge.”
Most people would agree, with Horne and Winn who argue that “decisions are to be made by a neutral Judge, and not by an advocate who gets to serve both as an advocate and a Judge, leaving the opposing party in a lose-lose position from day 1.”
A hearing has not yet been scheduled in this matter.