Judge won't consider whether contribution limits are unconstitutional

2013-12-07T00:00:00Z Judge won't consider whether contribution limits are unconstitutionalBy Howard Fischer Capitol Media Services Arizona Daily Star
December 07, 2013 12:00 am  • 

PHOENIX — A Maricopa County Superior Court judge on Friday rejected an effort to void charges that Attorney General Tom Horne and a supporter violated state campaign finance laws.

Judge Sally Duncan denied a bid by Michael Kimerer, representing both Horne and Kathleen Winn, that she should let him argue the limits on how much candidates can accept are unconstitutionally too low. Duncan said neither person has standing to challenge the law, at least at this point.

That does not mean Duncan believes that the limits are, in fact, legal. She said that question will have to be resolved some other time.

But her ruling means Horne and Winn will have to try to prove to an administrative law judge that they did not illegally coordinate their activities during Horne’s successful 2010 bid for attorney general.

Kimerer hoped Duncan would agree the statute they are accused of violating is unconstitutional, which would have killed a scheduled February hearing on the charges.

Kimerer said after the hearing that he may seek intervention by the state Court of Appeals. He said going after Horne with an illegal law amounts to “persecution.’’

During the 2010 campaign, Winn was operating a group called Business Leaders for Arizona. In the days before the election, with Horne losing ground, Winn’s group collected and spent more than $500,000 on a TV commercial criticizing Felecia Rotellini, Horne’s Democratic foe.

Yavapai County Attorney Shelia Polk, working with evidence gathered by the FBI, concluded Winn coordinated the message in that commercial with Horne. Polk cited phone calls Winn was having with Horne at virtually the same time she was sending emails about the commercial to a campaign consultant.

Polk ordered the pair to refund most of that $500,000.

They have denied there was any coordination and have appealed Polk’s findings to an administrative law judge.

Friday’s hearing stems from the contention that, legally speaking, it really would not matter if there were coordination. They contend the campaign-finance law they are accused of violating is unconstitutional.

At the time of the 2010 campaign, candidates for statewide office could take no more than $840 from any one source.

Polk’s case against the pair is based on her contention that, if they were coordinating activities, any money collected and spent by Winn and her committee counted as money collected by Horne. And she said the amounts Winn collected from major donors was far above the $840 limit.

But Kimerer and Tim LaSota, who is Winn’s lawyer, contend the $840 limit is unconstitutionally low. Kimerer cited federal court cases that have said limits are unconstitutional if they do not give a candidate sufficient resources to run an effective campaign.

And if the $840 limit is unconstitutional, then the law is void — meaning neither Horne nor Winn could have broken it.

Duncan sidestepped that question.

She said Horne and Winn must first make that claim of unconstitutionality to the administrative law judge, set to hear their case in February. Duncan said she can rule on the issue only if that judge upholds the limits or refuses to consider the issue.

Horne has said he intends to seek re-election next year. And Rotellini has announced she intends to run against him again.

But Horne may not be the Republican nominee. He first has to survive a GOP primary against Mark Brnovich, the former head of the Arizona Department of Gaming.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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