PHOENIX – PHOENIX – The Ninth Circuit Court of Appeals has scheduled oral arguments in the highly controversial Thomas Horne, et al. v. Sheila Polk case for May 4, 2020. The case involving former Attorney General Tom Horne’s 2010 campaign has been winding its way through the courts for years.
In May 2017, the Arizona Supreme Court ruled in favor of Horne and Winn finding that Polk’s actions denied them due process. Horne and Winn then filed a civil rights action against Polk in the Arizona District Court.
The issue before the 9th Circuit is whether the statute of limitations in the civil rights action began when Polk first violated their rights or after the Supreme Court ruled that their rights had been violated. The appeal reads in part:
“Initially, the District Judge ruled that the statute of limitations for the filing of a civil rights action did not begin to run until the Arizona Supreme Court reversed Polk’s decision, and therefore the civil rights action was filed within the statute of limitations. On a motion for reconsideration by defendant, the District Court changed its mind, and ruled that the statue limitations began to run when plaintiffs knew or should have known that their civil rights had been violated, even though Polk’s decision had not yet been reversed, and plaintiffs would have been filing a civil rights action based on a decision that had not yet been invalidated. Plaintiffs appealed from the decision on reconsideration dismissing their claims on the basis of the statute of limitations. Defendant cross appealed the decisions regarding immunity.”
“Polk would have made an excellent prosecutor in the Soviet Union, where if the prosecutor says you’re guilty, you are, regardless of what a neutral judge says,” Horne told the Arizona Daily Independent in an email. “The American system of justice doesn’t work that way.”
“The case against Tom Horne and myself involved lying FBI agents, an over-zealous prosecutor, no evidence of coordination, only false allegations and made up theories. Due process was our only remedy and this hearing will complete that process,” said Winn. “I have empathy for all those that have experienced abuse of power and weaponizing of the justice system for perceived political gain.”
In fact, issues with the investigation and serious concerns about the FBI agent involved became evident after the Arizona Supreme Court ruled in Horne and Winn’s favor.
The Arizona Supreme Court remanded the case to the Arizona Attorney General’s Office (AZAG). The AZAG then assigned the case to Brian McIntyre, the Cochise County Attorney. The Cochise County Attorney reversed Polk’s decision and reinstated the decision of the Administrative Law Judge. The Cochise County attorney held:
“The FBI’s inaccurate and misleading summary of the conversations with Mr. Tatham and subsequent inaccurate testimony regarding the same, calls into question the reliability of other hearsay statements offered. The record, unfortunately, supports a conclusion that the investigation being conducted was not a search for the truth, but rather, only intended to shore up conclusions already drawn.”
At the time of the Cochise County Attorney’s finding, few would have believed that an FBI agent would not be in search of the truth, however in light of the recent “deep state” scandals surrounding the Trump administration, the Cochise County Attorney’s finding shocks few.
The Institute for Justice filed an amicus curiae brief in support of Horne and Winn with the Arizona Supreme Court. Institute attorney’s described Polk’s process as “Kafkaesque,” and “unbecoming of a free society and cannot be permitted in Arizona.”
In writing for the majority, Arizona Supreme Court Justice Clint 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.”