Horne, Winn appeal Polk decision

Attorneys for former Attorney General Tom Horne and former Attorney General Outreach director Kathleen Winn filed a request with the Arizona Court Of Appeals that the decision by the Yavapai County Attorney Sheila Polk be reversed and that the decision of the Administrative Law Judge be reinstated in the campaign finance case against them.

On October 17, 2013, Polk issued an Order alleging that Horne and Winn had violated campaign finance laws and ordering repayment to the contributors to an independent campaign of approximately $400,000. If the pair did not pay the $400,000 within twenty days, they would owe three times that much, or approximately $1.2 million.

According to documents filed with the Court last week, “the matter proceeded to an administrative hearing. On April 14, 2014, the Administrative Law Judge, having heard three days of testimony and considered voluminous exhibits,” ruled in favor of Horne and Winn. On May 14, 2014, Polk, despite having lost the Administrative Hearing, overruled the Judge and ruled in favor of herself. Polk then reinstated her original Order, which had been vacated by the Administrative Law Judge.

On May 29, 2014, Horne and Winn filed a Notice of Appeal with the Superior Court. The Superior Court ruled in favor of Polk on October 30, 2014, stating that under the Administrative Procedures Act, which by statute is applicable to campaign finance enforcement cases such as this one, “[t]he court may not intervene if there is ‘any’ evidence to support the administrative (Polk’s) decision.”

The narrative presented in the appeal is compelling. It reads – as intended – like a fantasy novel. However, Polk’s obsession with the prosecution of the two has  appeared to be one out of a Grimm’s Fairy Tale to court watchers. The appeal’s introduction reads:

“This is not an ordinary case. It goes to the very heart of the assumptions of our legal system. Imagine if we read in the paper about the following happening in a foreign country: a defendant is accused by a prosecutor of a violation of law. The case goes to trial before a neutral judge. The judge takes testimony, judges the demeanor based credibility of the witnesses, and makes factual findings, and a final ruling in favor of the defendant. The prosecutor is angered about losing, wants to win the case, and overrules the judge. And when the prosecutor’s decision to overrule the judge is appealed to a higher court, that court states that the prosecutor’s decision must be upheld if there is “any” evidence supporting his or her decision. The legal system is constructed in such a way that it is the prosecutor’s factual and final determinations, not the judge’s, that must prevail. Defendant is hit personally with a huge monetary judgment, even though the only neutral party to take testimony and observe the demeanor of the witnesses was the judge that was overruled by the prosecutor.

“We would want to say to the decision makers of that country that a fundamental human right we have codified in our Constitution is that no person should be deprived of life, liberty, or (as in this case) property, without due process of law. We would say that a crucial component of due process of law is an independent judiciary, and that determinations of factual disputes, including demeanor based credibility judgments, must be made by a neutral judge, not by the prosecutor.

“We would say that a civilized legal system must be based on the principle enunciated by John Locke, who heavily influenced the American Founders, that no man can be a judge in his own case. We would say that this especially applies to prosecutors, whose natural desire to win cases makes it impossible to trust them as objective final determiners of facts. We would say that until now, making prosecutors’ decisions final has been true only in authoritarian countries, not in countries that respect the rule of law.

“This is especially true in cases involving the right to free speech, as this one does. This right means little if it can be completely negated merely because one person, the prosecutor, finds that a violation has occurred, and this finding is not subject to judicial review or meaningful challenge of any kind because it will be upheld if there is “any” evidence supporting it.

Attorneys asked the Court to consider:

● 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,” and whether these credibility determinations are an exception to the general rule that agencies are given deference to overrule Administrative Law Judges based on the presumption of their specialized expertise.

● Whether the County Attorney was required to defer to the Administrative Law Judge who heard the testimony on issues of demeanor based credibility, which were dispositive in the case.

● Whether, the decision of the County Attorney, overruling the decision of the Administrative Law Judge, should be reversed for any of the reasons stated in A.R.S. section 12-910 E, as “not supported by substantial evidence”, “contrary to law”, “arbitrary and capricious” or “an abuse of discretion.”

● 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.

Winn and Horne have denied any wrong doing in the matter.

According to the attorneys, Polk’s Order rejected the findings by the Administrative Law Judge because the “Administrative Law Judge found Winn to be credible. This credibility finding is central to The County Attorney’s overruling the Administrative Law Judge in every instance. The Administrative Law Judge heard the testimony, observed Ms. Winn, and found her to be credible.”

Attorneys also advised the Court that “the County Attorney’s principle witness, (FBI) Agent Grehoski, committed perjury, in that he testified to a conversation that the Administrative Law Judge found not to have occurred. This was based on irrefutable recordings of phone conversations between the relevant parties, and phone records showing those were the only conversations between those parties.”

“The Administrative Law Judge was in a position to judge the credibility of the witnesses,” argued the attorneys. “The County Attorney was not.”

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