The Arizona Court of Appeals has ruled against former Attorney General Tom Horne and in favor of Yavapai County Attorney Sheila Polk in a campaign finance violation case. The decision essentially declared that the findings by administrative law judges can be ignored by county attorneys who deem a defendant guilty without the benefit of a trial.
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.
Attorney Tim LaSota stated, “It is very disappointing that we have never been afforded our day in court. The only person who held a hearing and made a determination as to whether these allegations had merit is the state of Arizona office of administrative hearings judge and she sided with us. Now the Court of Appeals has stated that the administrative law judge’s opinion is not relevant, and held that we have no real ability to challenge our Government accusers’ case against us in front of a neutral judge. Anyone who exercises their First Amendment rights in political campaigns should be concerned about this.”
Horne intends to petition the Arizona Supreme Court to review the case. [Read the decision here]
Horne and his friend Kathleen Winn, who ran an independent expenditure committee, Business Leaders for Arizona, were alleged, by Polk, to have violated campaign finance laws. The two were accused of working together to produce a television ad to be paid for by Winn’s independent expenditure committee against Horne’s challenger, Felicia Rotellini.
In August 2014, attorneys for Horne filed documents in Maricopa County Superior Court in response to Polk when she rejected the administrative judge ruling that Horne and Winn did not violate campaign finance laws.
According to documents filed with that court, Polk’s decision to proceed with a prosecution, after administrator law Judge Tammy Eigenheer, found that there was no violation of campaign finance laws is due to the fact that her decision was either baseless and “not supported by substantial evidence or was an abuse of discretion.”
According to the filing, Polk relied on circumstantial evidence, but drew conclusions of guilt from that evidence, when in fact; there were other inferences, which could have led to a finding of innocence that was just as likely.
At that time, attorneys wrote:
“The County Attorney misunderstood Appellant’s point about the distinction between direct and circumstantial evidence. The County Attorney argued that there is no reason for a distinction as to the weight to be assigned to each. That misses the point.
For circumstantial evidence to lead to a conclusion of guilt or innocence, an inference is required. If a Defendant’s fingerprints are on a murder weapon, there is an inference that the Defendant was holding the murder weapon at the time of the murder. But if there were evidence that the Defendant was using that weapon for target practice every day, and was not at the scene of the murder, then there would be two possible inferences from the circumstantial evidence, one of innocence, and one of guilt. If they were equally possible, then additional evidence would be needed to determine whether the Defendant was guilty, in addition to the circumstantial evidence. Where there are two equally possible inferences from circumstantial evidence, additional evidence is needed.”
“The County Attorney has tried to establish that Horne and Winn talked about the contents of an ad, without any recording or witness testimony that they did so. The County Attorney attempts to do this by drawing inferences from the timing of phone calls and emails,” wrote Horne’s attorneys. “The assumption is that if a phone call preceded an email, the email must have been about the same topic. This contradicts every day experience. We often have one thing follow another chronologically, but the two things are of entirely different substance.”
Lawyers offered a hypothetical to the Court to consider:
“The following hypothetical sums up the logic employed by the County Attorney. You are talking on the phone at a restaurant waiting for the waiter to take your order. When he comes over you hang up, and he proceeds to recommend the steak. Instead you order lobster. The following conversation ensues:
Waiter: “Who on the phone just told you to order lobster?”
You: “Nobody. We were talking about something entirely different.”
Waiter: “You expect me to believe that it was just a coincidence that you were talking to someone and then immediately after that conversation you rejected my recommendation,”
That is the Yavapai County Attorney’s ‘Logic,” but it is not at all logical. The only way one knows what was said in a conversation is if one of the parties tells him, a witness tells him, or there is a recording.”
Judge Tammy Eigenheer had found that, for each item of circumstantial evidence, there were two possible inferences: an innocent one and a guilty one, according to attorneys. “She did this based on observing the demeanor of the witnesses when they testified (which the County Attorney did not do since she was not present at trial) and making a credibility determination based on the demeanor of the witnesses. This demeanor based credibility judgment by the Administrative Law Judge who presided in trial should not have been ignored by the County Attorney,” argued the attorneys for Horne and Winn.
“The Administrative Law Judge observed the demeanor of Horne, Winn, and their witnesses (primarily Wilkinson, Tatham, and Murray on cross examination) and chose to believe them: That Winn was helping Horne with backup financing for his real estate transaction, and their phone calls were about that subject, and not about a political ad,” noted attorneys. “Once it is determined that there are two possible inferences from the circumstantial evidence, one pointing to guilt and one pointing to innocence, the question becomes: What additional direct evidence was there to determine which inferences were more probable? All of the direct testimony supported Horne and Winn’s positions. The Administrative Law Judge was entitled to view their demeanor, and that of their supporting witnesses, and to choose to believe them. The County Attorney was not present at trial, and had no basis to disregard that. And there was NO direct testimony supporting the County Attorney’s view. NONE.”
Lawyers for Horne and Winn questioned whether the case is really about “an abuse of discretion,” on the part of Polk. Polk has acted as judge and jury in the matter. As the attorneys argue, “The concept of a Prosecutor being able to overrule a neutral Judge whenever she wants to, and thereby win all of her cases, is cosmically offensive to the whole idea of a constitutional judicial system. Conducting a trial at all is an outrageous sham if the prosecutor can decide beforehand, as she apparently did in this case, that she wins no matter what. We say that she apparently decided this beforehand, because all of the arguments in the Answering Brief are determinations that the County Attorney made upon filing the case, and that were rejected by the neutral Administrative Law Judge.”
Horne and Winn’s attorneys concluded, “The prospect of a prosecutor who wins the case no matter what, regardless of what the neutral Judge says, is the hallmark of a totalitarian, not a constitutional system.”
In November 2015, Secretary Michelle Reagan and Maricopa County Attorney Bill Montgomery filed a motion which seeks to hold the pro-Rotellini Committee for Justice and Fairness (CJF) in contempt of court.
In 2010, former Secretary of State Ken Bennett began an investigation into political advertisements criticizing Horne. The ads, funded by the Democratic Attorney Generals Association, were determined to be “false” and “inaccurate” by an Administrative Law Judge and the ruling was subsequently confirmed by the state Supreme Court.
In its decision, the court found CJF to be a political committee because it spent $1.5 million on the commercial and in effect admitted in IRS filings its primary purpose was election activity. These admissions by CJF made it a political committee under both the old and new definition of “political committee” in Arizona law, according to Reagan.