Institute for Justice Describes “Kafkaesque Process” In Horne, Winn Amicus Brief

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“This Kafkaesque process is unbecoming of a free society and cannot be permitted in Arizona”

The Institute for Justice has filed an amicus curiae brief in support of former Arizona Attorney General Tom Horne and Kathleen Winn. In December, the Arizona Supreme Court agreed to consider an appeal filed Horne and Winn of the controversial Court of Appeals ruling that essentially found that a prosecutor can also act the judge in a case they are prosecuting.

At issue is the allegation that Winn and her organization, Business Leaders for Arizona (BLA), coordinated political expenditures with Horne, then a candidate for attorney general.

An independent Administrative Law Judge found in favor of Horne and Winn when they were accused of coordinating an election campaign for Attorney General by Yavapai County Attorney Sheila Polk. Polk admitted in documents that she “was involved with the prosecution of the case, by assisting with the preparation and strategy.”
Polk overruled the Administrative Law Judge.

Horne and Winn’s attorneys, Dennis Wilenchik and Tim LaSota in their appeal to the Supreme Court noted that Polk made the unusual move “so that she would win the case that she had lost, as someone participating in advocacy, before the Administrative Law Judge.”

Wilenchik and LaSota specifically asked the Supreme Court: “can a County Attorney, who was personally “involved with the prosecution of the case, by assisting with the preparation and strategy,” personally overrule a decision of an Administrative Law Judge against her, so that by her own decision she wins the case that she had lost before the Administrative Law Judge?”

According to the Institute for Justice’s brief, “If Horne and Winn/BLA coordinated, BLA’s expenditures may be treated as contributions to Horne and subject to some limitations; if they did not coordinate, the First Amendment prohibits the government from limiting BLA’s independent expenditures.”

The Institute for Justice argues that the “statutory procedure used to determine the disputed fact” violates Horne and Winn’s “due process rights and constitutes structural error because the prosecutor also served as the adjudicator of that fact. The due process violation was then compounded when the courts deferred to the finding of fact, as required by statute, instead of independently reviewing it, as required by the First Amendment.”

The Institute’s brief reads in part:

Arizona’s administrative procedures fall below the “floor” of federal constitutional protections. These procedures also violate the heightened protections of the Arizona Constitution because Arizona courts must exercise greater oversight of administrative agencies to ensure they are respecting constitutional rights.

In 2013, pursuant to then-A.R.S. § 16-924(A), 1 the Secretary of State determined “reasonable cause” existed to believe that Petitioners had unlawfully coordinated expenditures during the 2010 general election. Yavapai County Attorney Sheila Polk was assigned to investigate the alleged violation and serve a compliance order—“stating with reasonable particularity the nature of the violation and . . . requir[ing] compliance within twenty days”—if a violation was found.

Polk served as an advocate in this case. She “assist[ed] with the preparation and strategy” of it, and “supervise[d]” the prosecutors and investigators working on it. Thereafter, based on the investigation, Polk concluded there was unlawful coordination and served an enforcement order.

Petitioners requested a hearing before an Administrative Law Judge (ALJ). The ALJ, reviewing live testimony and the totality of the record, determined there was insufficient evidence of coordination and recommended Polk vacate her enforcement order. But Polk rejected the ALJ’s findings and reinstated her enforcement order, as permitted by statute.

Petitioners then sought judicial review of Polk’s enforcement order. This process treats the enforcement order as final “agency action” for purposes of administrative review. While courts “may affirm, reverse, modify or vacate and remand the agency action,” they are required to affirm (“shall affirm”) “the agency action unless . . . [it] is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion.”

This statutory standard of review means courts “must defer to the agency’s factual findings.” Courts must affirm agency action if it is “supported by the record . . . even if the record also supports a different conclusion.” Courts “may not reweigh the evidence,” and “if two inconsistent factual conclusions can be supported by the record, then there is substantial evidence to support an administrative decision that elects either conclusion.”

The Superior Court affirmed Polk’s decision. On further appeal, the Court of Appeals also affirmed. Addressing Polk’s fact findings, and notwithstanding the ALJ’s decision, the Court of Appeals, following A.R.S. § 12-910(E), declined to independently review the factual record. Rather, the court determined only that there was sufficient evidence to support Polk’s decision and “[a]lthough the record may also support a different conclusion, we must defer to Polk’s decision.” Moreover, the court held that Petitioners’ due process rights were not violated, notwithstanding the fact that “Polk was both an advocate and judge in this case,” because “an agency employee can investigate, prosecute, and adjudicate a case.”

The Institute’s brief, which has been described as “brilliant, concludes: “To describe the proceeding in this case is to know it violates multiple provisions of the U.S. and Arizona Constitutions: The “fact” of coordination — which allowed the government to penalize communications between Petitioners — was determined (on a disputed record) by a “judge” that also served as the prosecutor. Thereafter, the courts refused to independently review the decision and instead deferred to it. This Kafkaesque process is unbecoming of a free society and cannot be permitted in Arizona.”

1Arizona’s campaign finance laws were reorganized in 2016. Current A.R.S. § 16-938 sets forth enforcement procedures effectively identical to those followed here.