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WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY By: M. COLLEEN CONNOR

State Bar No. 015679 JOSEPH I. VIGIL State Bar No. 018677 Deputy County Attorneys MCAO Firm No. 00032000 ca-civilmailbox@mcao.maricopa.gov

CIVIL SERVICES DIVISION Security Center Building 222 North Central Avenue, Suite 1100 Phoenix, Arizona 85004-2206 Telephone (602) 506-8541 Facsimile (602) 506-8567 Attorneys for Maricopa County Attorney

IN AND FOR THE STATE OF ARIZONA

THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter Of, TOM HORNE, Tom Horne for Attorney General Committee (SOS Filer ID 2010 00003); KATHLEEN WINN, Business Leaders for Arizona (SOS Filer ID 2010 00375)

NO. 13F-CF20120001-MCAO RESPONDENT MARICOPA COUNTY ATTORNEY’S RESPONSE TO APPELLANTS’ MOTION TO DISMISS (Assigned to the Honorable Tammy Eigenheer)

Respondent Maricopa County Attorney’s Office responds to Appellants’ Motion

Dismiss for lack of jurisdiction. Appellants’ argument overlooks the Arizona Secretary of

State’s authority both to retain counsel other than the Attorney General, and the

Attorney General’s recognition that his Office had previously declared a conflict

regarding the subject matter involved in this campaign finance enforcement matter. As

such, the Arizona Secretary of State had the authority to refer this matter to the County

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Attorney for a civil enforcement action, and the County Attorney had the authority to

initiate this enforcement action pursuant to A.R.S. §§ 16-905 and 16-924.

I. Arizona Attorney General has a conflict and could not advise the Secretary of State in any matter related to the Tom Horne for Attorney General campaign. On April 16, 2012, the Attorney General’s Office appointed outside counsel to

represent the Arizona Secretary of State in matters concerning Tom Horne’s campaign

for Attorney General and any other political committee that may have been involved in

supporting Mr. Horne’s campaign. Attachment 1. In recognition of the obvious conflict,

the Attorney General’s Office had no choice but to appoint outside counsel to assist the

Secretary of State regarding public records requests concerning the Tom Horne’s

election campaign. Given the Attorney General’s disqualification from providing legal

services on all matters related to his 2010 campaign for Attorney General and related to

any other political committee that assisted Mr. Horne’s campaign, the Secretary of State

was authorized to seek other attorneys to provide representation in this case. A.R.S. §

41-192(E).

Furthermore, the Arizona Legislature granted the Arizona Secretary of State

specific authority to retain counsel other than the Attorney General through December

31, 2014. Laws 2012, ch. 361, § 25; attachment 2. Assistant Secretary of State Jim

Drake explains in his Declaration that the catalyst for the session law was the

knowledge that the FBI was investigating Mr. Horne and that the Secretary of State

would perhaps have to initiate an enforcement action against the Attorney General.

Attachment 3.

Moreover, under the circumstances presented in this case, the Secretary of State

was authorized to divest the Attorney General of his role in the enforcement process

and retain other counsel. Certainly the statutes were not enacted with the idea that the

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state’s top prosecutor would be the one to have allegedly violated the law. See Romley

v. Daughton, 225 Ariz. 521, 526, 241 P.3d 518, 523 (App. 2010) (County Board of

Supervisors may retain outside counsel for advice and representation where there is a

lack of harmony between the County Attorney and Board regarding a particular legal

matter). Thus, Arizona’s Secretary of State, as the State’s chief election officer,1 has the

authority to refer a campaign finance enforcement matter to the County Attorney where

there is a lack of harmony with the Attorney General regarding the legal proceedings.

II. County Attorney’s authority to enforce alleged violations of campaign finance laws. Arizona’s limits on campaign contributions applicable to all nonfederal offices

within the state were added by an Initiative Measure approved by the voters at the

November 4, 1986 General Election. Op.Atty.Gen. No. I87-039. These contribution

limits and the enforcement authority for any violations of the contribution limits are set

forth in A.R.S. § 16-905. Specifically, “Any qualified elector may file a sworn complaint

with the attorney general or the county attorney of the county in which a violation of this

section is believed to have occurred, and the attorney general or the county attorney

shall investigate the complaint for possible action.” A.R.S. § 16-905(K)(emphasis

added). The filing officer, attorney general, or county attorney may bring a civil action to

enforce the campaign finance laws. A.R.S. § 16-905(L).

Here, the Maricopa County Attorney’s Office provided to the Secretary of State

with a copy of a Search Warrant Affidavit signed by Mark Stribling2 summarizing the

alleged campaign finance violations committed by Tom Horne and Kathleen Winn.

Attachment 4. As the filing officer for contribution and expenditure reports of statewide

1 A.R.S. § 41-121. 2 Mark Stribling is the Commander of the Investigation Division in the Maricopa County Attorney’s Office. Attachment 4, at 2.

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office candidates,3 the Secretary of State pursuant to A.R.S. § 16-905(L) had the

authority to bring a civil action based on Mr. Stribling’s sworn complaint. Likewise, the

Maricopa County Attorney had the authority to bring this enforcement action pursuant to

A.R.S. § 16-905(L).

Appellants completely ignore the enforcement authority of both the Secretary of

State and the Maricopa County Attorney’s Office prescribed in A.R.S. § 16-905. Instead,

Appellant chooses to focus only on the general campaign finance enforcement statute,

A.R.S. § 16-924, and the even broader Title 16 enforcement statute, A.R.S. § 16-1021.

Appellants’ references to other enforcement actions with scant facts that resulted in

unpublished decisions is improper, and, more importantly, irrelevant to this proceeding.

Appellants argue that the procedure that should have been followed was for the

“Attorney General [to] send this to an independent law enforcement officer. . . it is the

duty of the Attorney General, not the Secretary of State, to . . . find a suitable

replacement for the Attorney General.” Motion to Dismiss, at 4-5. Yet the Attorney

General did not send this case to an independent law enforcement officer and did not

“find a suitable replacement for the Attorney General” to investigate even though he was

aware of the FBI investigation since late 2011.

As explained in the Search Warrant Affidavit, it was the Attorney General’s own

employee, Special Agent Meg Hinchey, who discovered the alleged violations and

reported the matter to the FBI. Attachment 4, at 4.

Information received by Hinchey, during the course of a separate AG internal investigation, alleged that candidate Horne told Kathleen Winn, General Director of community Outreach, to go do this independent expenditure and take care of this money for me.

3 The Secretary of State is the filing officer for all statements and reports filed by candidates seeking statewide office and all political committees formed to support a candidate for statewide office. A.R.S. § 16-916(A)(1).

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Id. (emphasis added). Attorney General Horne had ample opportunity to find his own

“independent law enforcement officer” to investigate this matter, but failed to do so.

III. Conclusion

The Arizona Secretary of State of State is the State’s chief election officer who as

the power and duty to uphold Arizona’s election laws. To that end, the Secretary of

State has the authority to retain counsel other that the Attorney General especially in a

campaign finance enforcement matter where the Attorney General had a blatant conflict

of interest. The Secretary of State and the Maricopa County Attorney have jurisdiction to

prosecute this matter pursuant to A.R.S. §§ 16-905, 16-924, 41-192, and Laws 2012,

ch. 361, § 25. Therefore, the Appellants Motion to Dismiss should be denied.

RESPECTFULLY SUBMITTED this 11th day of January, 2013.

WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY

By: /s/ Colleen Connor

COLLEEN CONNOR JOSEPH I. VIGIL Deputy County Attorneys Attorneys for Maricopa County Attorney

ORIGINAL of the foregoing was E-FILED and this 11th of January, 2013, to: Honorable Tammy Eigenheer Administrative Law Judge ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS 1400 West Washington Street, Suite 101 Phoenix, Arizona 85007 casemanagement@azoah.com

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and COPIES of the foregoing served via OAH electronic filing to: Michael D. Kimerer, Esq. KIMERER & DERRICK, P.C. 221 East Indianola Avenue Phoenix, Arizona 85012 MDK@kimerer.com Attorney for Tom Horne for Attorney General Committee and Tom Horne

Timothy A. La Sota, Esq. TIFFANY & BOSCO, P.A. 2525 East Camelback Road, 3rd Floor Phoenix, Arizona 85016-4237 tal@tblaw.com Attorney for Business Leaders for Arizona and Kathleen Winn

/s/ Colleen Connor S:\COUNSEL\Civil\Matters\CF\2012\CF12-0001 Horne & Winn Campaign Finance Enforcement\Pleadings\Response To Appellants' Motion In Limine 010813.Docx

Page 7 of 15

A.R.S. § 41-192 Page 6

Laws 2012, Ch. 321, § 172, provides:

"Sec. 172. Effective date

"This act l>ecomes effective from and after September 28, 2012."

I

Laws 20l Ch. 361, § 25, pmvides:

"Sec. 25. Secretary of state; independent counsel

''Notwithslmg section 41-192, Arizona Revised Statutes, the secretary of state may lilie independent counsel in place oj the attorney genernl tlrrough December 31, 20 14."

Reviser's ~otes:

1989 Not~. The amendment to subsection E inserted "the following are exempt from this section" without show­ing the addition in capital letters as required by House and Senate rules. Pursuant to authority of§ 41-1304.02 this languhge was retained in the text of this subsection as a correction of a manifest clerical error. The inde­pendent ~d valid amendment of this section by Laws 1989, Ch. 95, § 1 and Ch. 162, § 4 could not be blended because of the delayed effective date of Ch. 162.

1995 NoJ Pursuant to authority of§ 41-1304.02, in subsection G after "3-368" "of' was removed and a comma was insert~d to correct a manifest clerical error.

1996 Nol. The independent and valid amendment of this section by Laws 1996, Ch. 220, sec. 60, Ch. 235, sec. 1 and Ch.t335, sec. 23 could not be blended because of the delayed effective date of the Ch. 335.

2000 NoJ Prior to the 2009 amendment, this section contained the amendment. made by Laws 2000, Ch. 193, sec. 414~d Ch. 272, sec. 2 that were blended together pursuant to authority of § 41-1304.03.

CONSTI'IiUTIONAL PROVISIONS

Article 5, § 6, places the attorney general after the secretary of state in the line of succession to office of gov­ernor in case of the governor's inability to serve.

Article 5, l9, provides that the powers and duties of the attorney general shall be as prescnbed by law.

CROSS lFERENCES

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

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