Today, the Arizona Supreme Court issued a ruling in the matter of former Attorney General Tom Horne and Kathleen Winn brought by Yavapai County Attorney Sheila Polk. The justices ruled in favor of Horne and Winn finding that Polk’s actions denied them due process.
The justice remanded the case to the Arizona Attorney General’s Office for a final disposition.
Justice Bolick authored the opinion of the court, in which Chief Justice Bales, Vice Chief Justice Pelander, Justice Brutinel, and judges Eckerstrom, Howard, and Wright joined. “Specifically,” found the justices, “we hold that when Polk also assumed an advocacy role during the ALJ proceedings, the due process guarantee prohibited her from then serving as the final adjudicator.”
Polk attempted to play prosecutor, judge and jury in what was by all appearances a political attack on Horne and Winn. Bolick wrote:
Although Appellants do not allege actual bias, the circumstances here deprived them of due process. Apparently unique in the context of Arizona administrative law, Arizona’s campaign finance statute, when joined with the APA, place a single official in the position of making both an initial and final determination of legal violation, with no opportunity for de novo review by the trial court. A quasi-judicial proceeding “must be attended, not only with every element of fairness but with the very appearance of complete fairness.” Amos Treat & Co. v. Sec. & Exch. Comm’n, 306 F.2d 260, 266–67 (D.C. Cir. 1962) (holding that a similar combination of functions violated the “basic requirement of due process”).”
Horne and Winn filed an appeal in the Arizona Supreme Court of the controversial Court of Appeals ruling that essentially found that a prosecutor can act as judge in a case they are prosecuting.
Attorneys Dennis Wilenchik and Tim LaSota representing Horne and Winn specifically asked the 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?”
Wilenchik and Tim LaSota argued in the appeal that “Until this decision, the cases have been unanimous throughout the country that an Agency may advocate for conviction and make the final ruling, but that an individual within the agency cannot play all of those roles. There must be a division between the individual person acting as an advocate, and the person acting as a judge. Ours is the first decision in the country that holds the same individual can properly perform these conflicting roles.”
At issue is the allegation by Polk that Winn and her organization, Business Leaders for Arizona (BLA), coordinated political expenditures with Horne, then a candidate for attorney general.
Polk admitted in documents that she “was involved with the prosecution of the case, by assisting with the preparation and strategy.”
The independent Administrative Law Judge found in favor of Horne and Winn.
Polk overruled the Administrative Law Judge, according to the attorneys, “so that she would win the case that she had lost, as someone participating in advocacy, before the Administrative Law Judge.”
“This Kafkaesque process is unbecoming of a free society and cannot be permitted in Arizona,” wrote attorney Paul Avelar of Polk’s actions in the Institute for Justice’s amicus curiae brief in support of Horne and Winn.