A lawyer for Attorney General Tom Horne asked a judge on Monday to kill one of the three investigations against him.
Attorney Timothy LaSota told Maricopa County Superior Court Judge Dawn Bergin the authority of the Citizens Clean Elections Commission to investigate candidates is limited to those who run for office with public financing. He noted that Horne is hoping to win a second term with private donations, and LaSota argued that gives the panel no power to look into allegations that Horne has been using public employees on state time and public resources to win a second term.
Beyond that, LaSota said if the public financing law, originally approved by voters in 1998 was not clear, it is now: The Republican-controlled Legislature voted specifically earlier this year to strip the commission of any authority over candidates not getting public dollars.
“What we have is a commission intruding into an area that it's not only not legal for them to do so,” he said.
“They don't have authority,” LaSota said. “And that was confirmed by the Legislature.”
LaSota told Bergin there's another reason she should block the commission's probe.
“It's also completely unnecessary,” he said. “We already have two other investigations going on.”
But commission lawyer Joe Kanefield noted Horne has filed a separate lawsuit to kill one of these, an inquiry by Maricopa County Attorney Bill Montgomery. He noted the other actually was referred by Secretary of State Ken Bennett to the Attorney General's Office. There, one of the employees opted to farm out the inquiry to a former appellate court judge and a current city attorney of his choosing.
Kanefield said that's why voters gave concurrent authority to the commission to investigate allegations.
“The voters wanted to make sure an independent body, a bipartisan independent body, could enforce these laws if necessary,” he told Bergin.
“It makes sense that the voters would have done this as a policy matter,” Kanefield continued. “But this argument that the world's going to cave in if there's concurrent jurisdiction is just nonsensical.”
Hanging in the balance is who — if anyone — is going to look into the allegations by Sarah Beattie, a former staffers in the attorney general's office, that work was being done during office hours by state employees. Horne has disputed the allegations, calling Beattie a liar, a thief, a former drug user and said she could not be trusted.
But commission members said they want to hear more before making a decision, so they launched an investigation of their own, one where they can subpoena documents and testimony.
LaSota, however, contends they have no right to do that under the 1998 law.
It allows — but does not require — candidates for statewide and legislative office to get public dollars if they agree not to accept private donations. LaSota said that limits their authority only to those who take the funds and have agreed to abide by the rules.
Kanefield said the law is broader than that, citing a statement of purpose in the law that it was designed to minimize “corruptive influences” on the political process.
The outcome of whether the commission gets to pursue its inquiry could turn on the decision earlier this year by lawmakers to alter the law with the goal of specifically divesting the panel of any authority over privately financed candidates.
Kanefield argued to Bergin that change was flawed, but even if it was not, he said the vote was legally meaningless.
He said the Arizona Constitution precludes lawmakers from tinkering with anything approved by voters unless the change is approved by a three-fourths margin of both the House and Senate. The legislation failed to gain that margin.
Bergin gave no indication when she will rule. But the judge said she expects that anything she decides likely will be appealed.