Judge throws out campaign charges vs. Horne

2013-05-03T00:00:00Z Judge throws out campaign charges vs. HorneHoward Fischer Capitol Media Services Arizona Daily Star

PHOENIX - A judge on Thursday threw out charges of campaign finance violations against Attorney General Tom Horne and a political ally.

Maricopa County Superior Court Judge John Rea acknowledged that Horne has a conflict of interest that would keep him or anyone in his office from investigating charges that he illegally coordinated his 2010 election bid with what was supposed to be an independent campaign committee. The charges stem from an FBI investigation into Horne's activities.

But the judge said the fact of a conflict did not justify Secretary of State Ken Bennett "completely ignoring" a law that requires him to refer allegations of election law violations to the Attorney General's Office. Bennett, instead, sent the case to Maricopa County Attorney Bill Montgomery, who launched the case tossed out Thursday.

Thursday's ruling most immediately cancels an administrative hearing scheduled for next week to hear the evidence against Horne and Kathleen Winn, who ran that independent committee, and determine if they broke the law.

But Horne is not out of the legal woods.

The decision means the FBI findings go back to Bennett. He now has to submit those files, along with his findings that there is evidence of a campaign law violation, to Horne's office.

Horne said he will farm the case out to a county attorney who will have to take a fresh look at the evidence and decide whether to pursue charges.

But Horne said his choice will not be Montgomery, who already concluded a violation occurred.

Michael Kimerer, Horne's attorney, said new charges are not a sure thing. He said the evidence against Horne is thin, and while Montgomery concluded there was a violation, another prosecutor might not.

The allegation stems from $500,000 spent on a last-minute TV commercial in the 2010 race by Business Leaders for Arizona, a group run by Winn. Winn worked on Horne's Republican primary campaign, but then set up an independent committee for the general election.

Montgomery said the FBI investigation turned up evidence of coordination between Winn and Horne. If Horne effectively controlled that $500,000, he would be in violation of laws that limit how much candidates can take from any one source.

Rea acknowledged that requiring Bennett to send the case to Horne, with Horne then sending it to someone else, might simply wind up being a "seemingly formalized dance" that essentially just delays the process. But the judge said that does not make following the law meaningless.

Rea also criticized Bennett and Montgomery for unilaterally determining Horne has a conflict of interest and removing the opportunity for the attorney general to decide whether to recuse himself.

"What are the limits of one official's ability to evaluate and declare the conflicts of interest of another official?" the judge asked.

Carried to extreme, he said, it would allow Horne to unilaterally declare that Montgomery has conflicts of interests and take matters away from him.

"This is neither the rule of law nor good public policy," Rea wrote.

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