A judge on Tuesday rebuffed efforts by Attorney General Tom Horne to quash a criminal investigation into whether he has been using public resources in his reelection bid.
Maricopa County Superior Court Judge Mark Brain rejected as “entirely unconvincing” Horne's contention that the entire Maricopa County Attorney's Office is bound to be biased against him simply because County Attorney Bill Montgomery is supporting Mark Brnovich, Horne's Republican primary foe.
“It is apparent that Mr. Montgomery does not think much of plaintiff Horne,” Brain conceded. But he said using that as a standard could pretty much prevent any prosecutor from looking into the questions of whether Horne is violating state laws.
Michael Kimerer, Horne's attorney, charged there is a possibility that charges will be filed, perhaps right before the Aug. 26 primary, “regardless of whether the evidence for it is credible or not.” That, Kimerer said, would “help elect Montgomery's protégé, Brnovich, and help defeat Montgomery's political adversary, Horne.”
Brain conceded that is possible. But he said all the publicity about the dispute — including Horne's repeated public contentions of Montgomery's bias — actually could work in Horne's favor, “bolstering his ability to argue that any indictment is just a political stunt.”
“Public policy certainly does not favor shielding candidates from investigations during elections,” Brain wrote.
“If a candidate broke the law, he should receive his just reward,” the judge continued. “Moreover, if there is, in fact, probable cause to indict plaintiff Horne, then the public has every right to know it so that voters can factor it into their decisions on how to cast their ballots.”
Brain said if the Maricopa County Attorney's Office eventually does bring charges, Horne remains free to file a new complaint at that time to have the case transferred to another agency.
At the heart of the issue are allegations by Sarah Beattie that she was expected to work on Horne's campaign while at work. Beattie, in a formal affidavit, also said she observed other members of Horne's executive team doing campaign work on public time.
Assistant Secretary of State Jim Drake concluded last month there was enough evidence and uncontested allegations for his office to seek its own probe of whether election laws were violated.
By law, Drake's findings were referred to Solicitor General Robert Ellman, who actually is part of Horne's staff. But because of a possible conflict, Ellman retained a former appellate court judge and the Gilbert town attorney to do the actual probe and deputized them as special attorneys general so they can pursue any case without further interference from the office.
Separately, the Citizens Clean Elections Commission launched its own investigation over election law questions.
In this case, though, Kimerer said what Maricopa County is reviewing is whether criminal laws were broken. And Kimerer said if there is to be such a probe, it cannot be conducted by that agency because of Montgomery's bias against his client.
Kimerer admitted in legal papers that Montgomery has screened himself off the investigation. But he argued that is not enough as “his subordinates know what he wants” because “they rely upon Montgomery for their livelihood.”
Brain wasn't buying that argument.
“Horne's notion that Mr. Montgomery's office will do his unspoken bidding is entirely unconvincing as a basis to disqualify the entire office from a mere investigation and grand jury proceedings,” the judge wrote. “The court will not indulge a presumption that the investigators and employees of the Maricopa County Attorney's Office will act unethically based on a mere allegation that they know what Mr. Montgomery wants, nor that a grand jury will ignore its responsibilities in evaluating any potential charges.”
Brain said he is not ignoring reality.
“The court accepts as a given that prosecuting attorneys typically do not think much of ordinary people who they believe have committed crimes, and think even less of elected officials who they believe have done so,” Brain wrote. And he said that based on the evidence submitted, it is clear Montgomery "does not think much'' of Horne.
Brain questioned where claims of bias might end. He pointed out that the second largest county prosecutor's office is in Pima County, headed by Barbara LaWall, a Democrat.
“One assumes a similar argument could be constructed against allowing her office to proceed with the investigation,” Brain wrote. He noted Yavapai County Attorney Sheila Polk has rejected the recommendations of an administrative law judge and concluded that Horne's conduct during his 2010 campaign violated state election laws.
“An approach that so easily disqualifies prosecuting agencies from even investigating someone cannot be right,” Brain said.