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Horne v. Polk

Supreme Court of Arizona

May 25, 2017

Thomas Horne, individually and Thomas Horne for Attorney General Committee (SOS Filer ID 2010 00003); Kathleen Winn, individually, and Business Leaders of Arizona (SOS Filer ID 2010 00375), Plaintiffs/Appellants,
v.
Sheila Sullivan Polk, Yavapai County Attorney, Defendant/Appellee.

         Appeal from the Superior Court in Maricopa County The Honorable Crane McClennen, Judge No. LC2014-000255

         Memorandum Decision of the Court of Appeals, Division One 1 CA-CV 14-0837 Filed Feb. 23, 2016

          Dennis I. Wilenchik (argued), Wilenchik & Bartness, P.C., Phoenix, Attorneys for Thomas Horne and Tom Horne for Attorney General Committee; Timothy A. La Sota (argued), Timothy A. La Sota, PLC, Phoenix, Attorneys for Kathleen Winn and Business Leaders of Arizona

          Sheila Sullivan Polk, Yavapai County Attorney, Benjamin D. Kreutzberg (argued), Deputy County Attorney, Prescott, Attorneys for Sheila Sullivan Polk

          Dominic E. Draye, Solicitor General, Jennifer M. Perkins, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Solicitor General

          Paul V. A velar, Timothy D. Keller, Keith E. Diggs, Institute for Justice, Tempe, Attorneys for Amicus Curiae Institute for Justice

          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. [*]

          OPINION

          BOLICK, JUSTICE

         ¶1 In this case involving substantial consequences for alleged violations of campaign finance laws, we hold that due process does not permit the same individual to issue the initial decision finding violations and ordering remedies, participate personally in the prosecution of the case before an administrative law judge ("ALJ"), and then make the final agency decision that will receive only deferential judicial review.

         I. BACKGROUND

         ¶2 On June 27, 2013, acting pursuant to A.R.S. § 16-924(A) (2011) repealed by 2016 Ariz. Sess. Laws, ch. 79, § 10 (2d Reg. Sess.), Arizona Secretary of State Ken Bennett determined that there was reasonable cause to believe that Attorney General Thomas Horne, Kathleen Winn, who served as Community Outreach Director of the Attorney General's Office, and two campaign committees (collectively "Appellants") had violated Arizona campaign finance laws, specifically A.R.S. §§ 16-901(14), -905, -913, -915, -917, and -919. The Secretary accordingly notified Solicitor General Robert L. Ellman, who appointed Sheila Polk as Special Arizona Attorney General because the Attorney General and one of his staffers were subjects of the notice, and "an appearance of impropriety would arise if the Arizona Attorney General's Office investigated the alleged campaign finance violation."

         ¶3 Following investigation, pursuant to A.R.S. § 16-924(A), Polk issued a twenty-five-page order finding that Appellants had violated Arizona campaign finance statutes by illegally coordinating campaign expenditures, exceeding contribution limits, and collecting illegal contributions. Polk directed Appellants to amend their campaign finance reports and ordered Horne and his campaign to refund contributions totaling approximately $397, 000. The order stated that if the Appellants failed to take the specified actions within twenty days, "this Office will issue an Order Assessing a Civil Penalty pursuant to A.R.S. § 16-924(B). The violation of the contribution limit carries a civil penalty of three times the amount of money of the violation. A.R.S. § 16-905(J)."

         ¶4 Appellants requested an administrative hearing pursuant to A.R.S. § 16-924(A). After a three-day evidentiary hearing, the ALJ issued a decision finding that Polk had failed to prove illegal coordination and recommending that Polk vacate her compliance order.

         ¶5 Pursuant to A.R.S. § 41-1092.08(B) (2000), Polk issued her final administrative decision, which rejected the ALJ recommendation and affirmed her prior compliance order. Polk accepted all of the ALJ's findings of fact and rejected in part the ALJ's conclusions of law.

         ¶6 Appellants appealed to the Maricopa County Superior Court, challenging Polk's decision and the constitutionality of Arizona's campaign contribution limits. Neither side requested an evidentiary hearing. The court affirmed Polk's decision, finding that ...


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