FINACT13F-CF20120001-MCAO.pdf

13F-CF20120001-MCAO · Maricopa County Attorney's Office · 2013-04-18

WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY 301 W. Jefferson Street, Suite 800 Phoenix, Arizona 85003 Telephone (602) 506-3411 MCAO Firm No. 00032000 BEFORE THE OFFICE OF THE MARICOPA COUNTY ATTORNEY NO. 13F-CF20120001-MCAO In The Matter Of, MARICOPA COUNTY ATTORNEY’S TOM HORNE, Tom Horne for OFFICE FINAL DECISION AND Attorney General Committee (SOS ORDER REGARDING THE Filer ID 2010 00003); KATHLEEN ADMINISTRATIVE LAW JUDGE’S WINN, Business Leaders for Arizona RECOMMENDED ORDER OF (SOS Filer ID 2010 00375) MARCH 19, 2013

The Maricopa County Attorney’s Office pursuant to A.R.S. § 41-1092.08(B)

rejects the Administrative Law Judge’s Recommended Order for the reasons set

forth below, and issues its Final Decision and Order. The Administrative Law

Judge’s Recommended Order is attached as Exhibit A.

BACKGROUND

The political committee, Business Leaders for Arizona, filed a statement of

organization with the Secretary of State as an independent expenditure

committee in the 2010 election cycle. The Maricopa County Attorney alleged that

Tom Horne, candidate for Arizona Attorney General in the 2010 election,

coordinated with Kathleen Winn, a volunteer member of the Tom Horne for

Attorney General campaign and the chairwoman of Business Leaders for

Arizona, to raise and spend money through the Business Leaders for Arizona

political committee to advocate the defeat of Mr. Horne’s opponent in violation of

A.R.S. §§ 16-901, -903, -905, -913, -915, -917, and -924. See Maricopa

County’s Order Requiring Compliance filed October 11, 2012.

On November 5, 2012, Appellants Tom Horne and Kathleen Winn

requested a hearing on the allegations set forth in the Order Requiring

Compliance.

On December 21, 2012, Appellants Winn and Business Leaders for

Arizona filed a motion to dismiss. Tom Horne filed a Joinder on that same date.

Maricopa County Attorney’s Office filed a response on January 11, 2013.

Appellants filed an amended reply on January 27, 2013.

On March 19, 2013, the Administrative Law Judge filed a Recommended

Order recommending that the case be dismissed because: 1) The Secretary of

State was required to refer this matter to the Attorney General pursuant to A.R.S.

§ 16-924(A); 2) The Secretary of State’s referral to the Maricopa County

Attorney was not authorized; and 3) the Maricopa County Attorney lacked

authority to issue the Order Requiring Compliance.

FINDINGS OF FACT

1. In December 2011, the Federal Bureau of Investigation (FBI) and

the Maricopa County Attorney’s Office began investigating alleged campaign

violations by Tom Horne, the Tom Horne for Attorney General Campaign,

Business Leaders for Arizona, and Kathleen Winn began. Shortly thereafter, the

Secretary began to receive public records requests “concerning Tom Horne’s

campaign for the Office of Attorney General and other political committees

allegedly involved in supporting the Horne campaign.” Exhibit B, April 16, 2012

letter, from Deputy Attorney General Eric Bistrow to Stephen Tully.

2. The Attorney General very personally (and derivatively everyone

who worked for and were beholden to him in his Office as at-will employees) had

a self-evident conflict of interest that absolutely required their complete and

immediate disqualification in all matters related to the investigation and

enforcement of charges that he had personally violated campaign finance laws.

See, E.R. 1.7 (a) (2), Rules of Professional Conduct, and A.R.S. § 38-503(B)

(“Any public officer or employee … shall refrain from participating in any manner

as an officer or employee in such decision.”). “Any manner” means any manner.

3. Thus, when he received a request from the Secretary of State that

he appoint outside counsel in the matter, Attorney General Horne and his office,

pursuant to A.R.S. § 41-192(E), should immediately have declined the request

and referred the selection of outside counsel back to the Secretary of State.

4. The Secretary of State was fully justified in his understanding that

the April 16, 2012 letter from Mr. Horne’s Chief Deputy Eric Bistrow to attorney

Stephen Tully (Exhibit B hereto) was a tacit admission that both Mr. Horne and

his office were in this conflict position. This tacit admission is confirmed by the

internal e-mail exchange between Assistant Secretary of State Jim Drake and

Assistant Attorney General Michele Forney for the period from April 6-9, 2012.

Exhibit C.

5. Once the Attorney General’s Office appropriately acknowledged that

it was ethically disqualified from advising the Secretary on all issues relating to

public records requests arising out of his alleged campaign finance violations,

due to a clear conflict given Mr. Horne’s position as Attorney General and Ms.

Winn’s status as a current employee of the Attorney General’s Office, it

necessarily follows that it was also disqualified from evaluating or enforcing

allegations of law breaking by the Attorney General and/or Ms. Winn concerning

issues arising out of the same subject matter. This includes of course, the

Attorney General’s determinations of where to forward the case for further

investigation and enforcement. Properly avoiding involvement in a matter with a

clear and personal legal conflict necessarily encompasses any decision-making

with respect to who handles the matter at the outset. This is particularly true

where it is the Attorney General himself who is the subject of the investigation,

and potential enforcement action. Not only is the fox precluded from guarding the

hen house, he is precluded from selecting its guard.

6. The Office of the Attorney General has a conflict of interest, and is

disqualified in all matters concerning the investigation and enforcement of

alleged violations of Arizona’s campaign finance laws by candidate Tom Horne,

the Tom Horne for Attorney General campaign, Business Leaders for Arizona,

and Kathleen Winn, a current employee of the Attorney General’s Office, during

the 2010 election campaign. Once the letter acknowledging the clear legal

conflict on the instant issue of advising on public records requests was sent to

the Secretary on April 16, 2012, the Secretary’s sole legal obligation was to

“make expenditures and incur indebtedness to employ attorneys to provide the

representation or services.” A.R.S. § 41-192(E).

7. This statutory duty and authority was further buttressed by a special

session law authorizing the Secretary to hire independent counsel in place of the

attorney general through December 31, 2014. (Laws 212, Chapter 361, § 25)

The Secretary acted pursuant to these laws when he requested the Maricopa

County Attorney to file an enforcement action on September 20, 2012.

8. The Secretary faced another practical dilemma not contemplated by

A.R.S. § 41-192(E) or by the Administrative Law Judge. If the Secretary

submitted a request for enforcement to the Attorney General – the subject of the

enforcement action – he would be required to provide that subject, Tom Horne,

with sensitive and secret investigation information before an independent

assessment could be made. This would include information provided to

investigators by numerous at-will employees under Mr. Horne’s employ. This

concern was not an academic one. Tom Horne contacted a number of witnesses

during the FBI’s nine month investigation, and interrogated those witnesses

about what they told investigators.

9. The Maricopa County Attorney made an exhaustive review of the

Notice of Reasonable Cause and more than 3,000 pages of supporting records

submitted by the Secretary. These records included the sworn affidavit

(complaint) of Maricopa County Investigator, Mark Stribling; the Arizona Attorney

General’s Office’s internal investigation conducted by Special Agent Meg

Hinchey; FBI witness interview transcripts and Form 302 reports; telephone

records of Tom Horne, Kathleen Winn, and other members of the Tom Horne for

Attorney General Campaign; and email messages of Tom Horne, Kathleen Winn,

and Lincoln Strategy Group, a consulting company hired by Business Leaders for

Arizona.

10. On October 11, 2012, the Maricopa County Attorney’s Office issued

the Order Requiring Compliance. On November 5, 2012, Tom Horne and

Kathleen Winn requested a hearing pursuant to A.R.S. §§ 16-924(A) and 41-

1092.03.

CONCLUSIONS OF LAW

I. The Attorney General Was Disqualified From Reviewing Or Enforcing The Case Against Himself Or Referring It To An Outside Agency, And Acknowledged This By Letter Dated April 16, 2012.

1. By its letter dated April 16, 2012, the Arizona Attorney General’s

Office acknowledged the presence of a clear legal conflict and appropriately

disqualified itself on all matters regarding the investigation and enforcement of

alleged campaign finance law violations by Attorney General Tom Horne, the

Tom Horne for Attorney General campaign, Kathleen Winn, and Business

Leaders for Arizona.

2. Such disqualification was not only mandated by E.R. 1.7 (a) (2),

Rules of Professional Conduct1, but also by A.R.S. § 38-503 (B) which provides:

Any public officer or employee who has … a substantial interest in any decision of a public agency shall make known such interest in the official records of such public agency and shall refrain from participating in any manner as an officer or employee in such decision. (Emphasis added). 3. A person who intentionally violates A.R.S. § 38-503 is guilty of a class six felony. A.R.S. § 38-510 (A)(1). 4. The Attorney General’s ethical and statutory obligation to disqualify himself included not only the duty to refrain from enforcing the campaign laws against himself, but it also disqualified him from selecting the lawyer who would bring the enforcement action against him2. II. Once The Secretary Received Notice That The Attorney General Was Disqualified He Was Authorized To Refer The Case To The Maricopa County Attorney For Enforcement. 5. The Maricopa County Attorney’s Office has subject matter jurisdiction in this case pursuant to A.R.S. § 41-192(E) and a special session law of the Arizona Legislature. A.R.S. § 41-192(E) provides in relevant part: If the attorney general determines that he is disqualified from providing judicial or quasi-judicial legal representation or legal services on behalf of any state agency in relation to any matter, the (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(2) there is a significant risk that the representation of one or more clients will be materially limited by…the personal interest of the lawyer.

2 Virtually every lawyer on the Attorney General’s staff is an at-will employee. This includes his Chief Deputy, Eric Bistrow, and former Solicitor General, Dave Cole, each of whom interacted with the Secretary in the early phase of the investigation.

attorney general shall give written notice to the state agency affected. If the agency has received [such] notification that the attorney general is disqualified from providing legal services in relation to any particular matter the state agency is authorized to make expenditures and employ attorneys to provide the representation or services. (Emphasis added) 6. Additionally, the Legislature authorized the Secretary to hire independent counsel for instances such as this: Notwithstanding § 41-192, Arizona Revised Statutes, the secretary of state may hire independent counsel in place of the attorney general through December 31, 2014. Laws 212, Chapter 361, § 25. 7. Under A.R.S. § 41-192(E) there are two instances where the Secretary is authorized to retain separate counsel. The first is where the attorney general is disqualified from representing the agency in a judicial proceeding. The second is when the Secretary receives written notice from the attorney general that he is disqualified from performing a legal service on behalf of a state agency. The enforcement of campaign finance laws is a legal service performed by the attorney general on behalf of the Secretary of State’s Office. In fact, the attorney general and the county attorney are the only constitutional officers statutorily authorized to bring such actions on behalf of the Secretary in a judicial proceeding. The fact that the Secretary is not the Attorney General’s “client” in such actions does not negate the fact that in bringing an enforcement action, the attorney general is performing a legal service on behalf of the Secretary. Indeed, in such cases the attorney general is assisting the Secretary in the administration and enforcement of the state’s campaign finance laws.

8. Once The Attorney General’s Office acknowledged that it was

disqualified from enforcing alleged campaign violations against the Attorney

General himself, let alone the additional issue of reviewing and enforcing

campaign violations against Ms. Winn, a current employee who chaired Business

Leaders for Arizona and served as a volunteer member of the Tom Horne for

Attorney General campaign, the Secretary was authorized under A.R.S. § 41-

192(E) and the session law to refer the case to the County Attorney to enforce

these laws on his behalf. That is precisely what the Secretary did here.

III. The Maricopa County Attorney Had An Independent Basis To Bring An Enforcement Action. 9. Pursuant to A.R.S. § 16-905(K), the Maricopa County Attorney’s Office had authority to prosecute this enforcement action upon the receipt of a sworn complaint from a qualified elector indicating that a campaign finance law violation occurred in Maricopa County. Mark Stribling is a qualified elector. Exhibit D, Certification of Jasper Altaha, Voter Registration Manager, and Custodian of Records for the Maricopa County Elections Department. 10. The Maricopa County Attorney’s Office was presented with more than 3,000 pages of investigative materials. These materials included a sworn affidavit of Mark Stribling, a qualified elector, summarizing the alleged violation, the reasonable cause notice from Secretary of State Ken Bennett, and numerous investigative reports from the FBI. All of these investigative materials were “filed” with the Maricopa County Attorney’s Office.

11. The Administrative Law Judge erred in concluding that an affidavit

signed under the penalty of perjury, and submitted for the County Attorney’s

review was not the equivalent of a sworn complaint because such conclusion

fails to recognize the substance of the affidavit, which contained compelling

evidence indicating that campaign finance violations had occurred in Maricopa

County. A law enforcement office does not lose subject matter jurisdiction over

the merits of a case merely because a form is called an affidavit as opposed to a

complaint. Administrative law judges should not “substitute their judgment for

that of the agency on factual questions or matters of agency expertise.” Id.

Indeed, courts “give great weight to an agency's interpretation of the statutes”

that it is charged with implementing. Sanderson Lincoln Mercury, Inc. v. Ford

Motor Co., 205 Ariz. 202, 205 ¶ 8, 68 P.3d 428, 431 (App.2003). Therefore, the

Maricopa County Attorney’s Office received substantial evidence of campaign

finance violations in Maricopa County in the form of the sworn affidavit and the

accompanying documents, and had the authority to investigate and enforce this

matter.

ORDER

IT IS THEREFORE ORDERED rejecting the Administrative Law Judge’s

Recommended Order issued on March 19, 2013.

IT IS FURTHER ORDERED directing the Administrative Law Judge to

proceed with the evidentiary hearing on the Maricopa County Attorney’s Order of

Compliance filed on October 11, 2012.

RESPECFULLY SUBMITTED this 29th day of March, 2013.

WILLIAM G. MONTGOMERY MARICOPA COUNTY ATTORNEY BY: /s/ William G. Montgomery WILLIAM G. MONTGOMERY Maricopa County Attorney ORIGINAL of the foregoing electronically Submitted this 29th day of May 2013 to:

Honorable Tammy Eigenheer Administrative Law Judge ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS [email redacted] M. Colleen Connor Michael R. McVey MARICOPA COUNTY ATTORNEY’S OFFICE Civil Services Division [email redacted] [email redacted] Attorneys for Maricopa County Attorney’s Office Michael Kimerer, Esq. KIMERER & DERRICK [email redacted] Attorney for Tom Horne

Timothy A. La Sota, Esq. TIFFANY & BOSCO, P.A. [email redacted] Attorney for Business Leaders for Arizona and Kathleen Winn

Larry L. Debus, Esq. DEBUS KAZAN & WESTERHAUSEN LTD [email redacted] Attorney for Kathleen Winn /s/Jennifer Christiansen C:\Documents and Settings\Connorc\My Documents\CA Decison re ALJ Recommendation 032813.docx

Exhibit A IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the matter of TOM HORNE, Tom Horne No. 13F-CF20120001-MCAO for Attorney General Committee (SOS Filer ID 2010 00003); KATHLEEN WINN, Minute Entry Business Leaders for Arizona (SOS Filer ID 2010 00375)

The parties are advised that, as of this date, the Administrative Law Judge has issued a decision recommending that the appeal in this matter be dismissed. A copy of the decision is attached to this minute entry. Done this day, March 19, 2013. /s/ Tammy L. Eigenheer Administrative Law Judge

Copy e-mailed this 19th day of March, 2013 to all parties and interested persons on the approved mailing list.

By: autogenerated and posted to https://portal.azoah.com/oedf/documents/13F- CF20120001-MCAO/index.html

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the matter of TOM HORNE, Tom Horne No. 13F-CF20120001-MCAO for Attorney General Committee (SOS Filer ID 2010 00003); KATHLEEN WINN, ADMINISTRATIVE LAW Business Leaders for Arizona (SOS Filer ID JUDGE DECISION 2010 00375)

ISSUE This matter comes before the tribunal on Appellant Kathleen Winn’s and Appellant Business Leaders for Arizona’s Motion to Dismiss, which Appellant Tom Horne and Appellant Tom Horne for Attorney General joined. 1 RULING Because the Secretary of State was statutorily required to refer this matter to the Attorney General for civil enforcement under A.R.S. § 16-924(A), the Secretary of State’s referral to the Maricopa County Attorney’s Office was not authorized and the Maricopa County Attorney’s Office lacked authority to issue the Order Requiring Compliance, the subject of the instant matter. Consequently, this appeal should be dismissed. FINDINGS OF FACT 1. The Maricopa County Attorney’s Office worked with the Federal Bureau of Investigations (“FBI”) in conducting a criminal investigation of the alleged coordination between Tom Horne for Attorney General and Business Leaders for Arizona. 2. On September 18, 2012, the Maricopa County Attorney’s Office referred the matter to the Arizona Secretary of State for further action related to civil enforcement based on its investigation with the FBI. In making the referral, the Maricopa County Attorney offered the services of the Maricopa County Attorney’s Office with respect to a civil enforcement action in the matter if the Secretary of State’s Office determined reasonable cause existed that a violation of Arizona campaign finance laws occurred. The term “Appellants” as used in this order refers collectively to Appellant Tom Horne, Appellant Tom Horne for Attorney General, Appellant Kathleen Winn, and Appellant Business Leaders for Arizona.

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 3. On September 20, 2012, the Secretary of State issued a Reasonable Cause Notice stating that it had found reasonable cause existed to believe that Tom Horne, Business Leaders for Arizona, and Kathleen Winn had acted in violation of the Arizona campaign finance laws. 2 Relying on a session law, Laws 212, Chapter 361, Section 25, the Secretary of State referred the matter to the Maricopa County Attorney’s Office for enforcement action. 4. On October 11, 2012, the Maricopa County Attorney’s Office issued an Order Requiring Compliance. Tom Horne and Tom Horne for Attorney General were ordered to amend their 2010 Post-General Election Report and refund all individual and political party contributions that exceeded the contribution limits. Kathleen Winn and Business Leaders for Arizona were ordered to amend their Amended 2010 Post- General Election Report and refund all corporate contributions that exceeded the contribution limits. 5. Appellants filed the instant appeal to the Office of Administrative Hearings. 6. Kathleen Winn and Business Leaders for Arizona filed a Motion to Dismiss based on a lack of jurisdiction, which Tom Horne and Tom Horne for Attorney General joined, and the Maricopa County Attorney’s Office filed a response objecting to the dismissal of this matter. CONCLUSIONS OF LAW 1. Arizona statutes outline the method of civil enforcement in campaign finance laws. Specifically, A.R.S. § 16-924(A) provides: Unless another penalty is specifically prescribed in this title, if the filing officer for campaign finance reports designated pursuant to section 16- 916, subsection A has reasonable cause to believe that a person is violating any provision of this title, except for violations of chapter 6, article 2, the secretary of state shall notify the attorney general for a violation regarding a statewide office . . . . The attorney general, . . . as appropriate, may serve on the person an order requiring compliance with that provision. The order shall state with reasonable particularity the nature of the violation and shall require compliance within twenty days from the date of issuance of the order. The alleged violator has twenty days from the date of issuance of the order to request a hearing pursuant to title 41, chapter 6. Neither party raised any arguments as to the failure to include Tom Horne for Attorney General in the Reasonable Cause Notice. (Emphasis added). Further, A.R.S. § 16-1021 provides: In any election for state office, members of the legislature, justices of the supreme court, judges of the court of appeals or statewide initiative or referendum the attorney general may enforce the provisions of this title through civil and criminal actions. (Emphasis added). 2. The parties acknowledge that in a typical case involving civil enforcement of campaign finance laws, the statutes would require the Secretary of State to notify the Attorney General of a violation. The parties disagree as to the effect of the obvious conflict in the instant matter. 3. The Maricopa County Attorney’s Office argued that, because of the obvious conflict, the Attorney General’s Office “could not advise the Secretary of State in any matter related to the Tom Horne for Attorney General campaign.” 3 The Maricopa County Attorney’s Office further argued that the Secretary of State was authorized under A.R.S. § 41-192(E) and a session law to refer the matter to counsel other than the Attorney General for civil enforcement. 4. A.R.S. § 41-192(E) provides: If the attorney general determines that he is disqualified from providing judicial or quasi-judicial legal representation or legal services on behalf of any state agency in relation to any matter, the attorney general shall give written notification to the state agency affected. If the agency has received written notification from the attorney general that the attorney general is disqualified from providing judicial or quasi-judicial legal representation or legal services in relation to any particular matter, the state agency is authorized to make expenditures and incur indebtedness to employ attorneys to provide the representation or services.

5. The plain language of A.R.S. § 41-192(E) requires that the Attorney General make a determination of a conflict and notify the agency affected prior to the agency being authorized to hire independent counsel. The Maricopa County Attorney’s Office argued, however, that the Attorney General was not required to make a finding of

Respondent Maricopa County Attorney Office’s Response to Appellants’ Motion to Dismiss (“Response”) 2. a conflict under A.R.S. § 41-192(E) before the Secretary of State could refer the matter to independent counsel for civil enforcement based on a session law that provides: Notwithstanding section 41-192, Arizona Revised Statutes, the secretary of state may hire independent counsel in place of the attorney general through December 31, 2014. Laws 212, Chapter 361, Section 25. 6. The Maricopa County Attorney’s Office concluded that in the face of the obvious conflict and the authority granted to the Secretary of State through the session law, the Secretary of State properly referred the matter to the Maricopa County Attorney’s Office for civil enforcement. 7. Appellants argued that the authority cited above does not authorize the Secretary of State to refer the matter to the Maricopa County Attorney’s Office for civil enforcement because the Attorney General does not act as “counsel” for the Secretary of State in the civil enforcement of campaign finance laws and does not provide “judicial or quasi-judicial legal representation or legal services” for the Secretary of State. A.R.S. § 41-192(E). Appellants maintained that under the campaign finance laws, once the Secretary of State notifies the Attorney General of its reasonable cause determination, the Attorney General acts independently as to the civil enforcement. 8. Appellants’ position is supported by the plain language of the statutes, which provide that after the Secretary of State notifies the Attorney General of a violation, the Attorney General “may serve on the person an order requiring compliance” and the Attorney General “may enforce the provisions of this title through civil and criminal actions.” A.R.S. § 16-924(A) (emphasis added) and A.R.S. § 16-1021 (emphasis added). 9. The Administrative Law Judge does not find any inference in A.R.S. § 16- 924(A) or A.R.S. § 16-1021 that the Attorney General represents the Secretary of State in the classic attorney-client relationship. Rather, each entity is charged with separate duties in the enforcement process. 10. The Administrative Law Judge concludes that the Attorney General does not provide any legal representation or legal services to the Secretary of State within the provisions of A.R.S. § 41-192(E) when discharging its duties under A.R.S. § 16-924(A) or A.R.S. § 16-1021. Accordingly, the Administrative Law Judge determines that neither A.R.S. § 41-192(E) nor the session law grants the Secretary of State the authority to refer the matter to independent counsel, such as the Maricopa County Attorney’s Office, for civil enforcement. 11. The Maricopa County Attorney’s Office also argued the Attorney General’s prior determination of a conflict regarding the subject matter involved in this matter granted the Secretary of State the authority to refer the matter to the Maricopa County Attorney’s Office for civil enforcement. In making its argument, the Maricopa County Attorney’s Office relied on an April 16, 2012 letter in which the Attorney General’s Office appointed outside counsel “for the purpose of advising and representing the [Secretary of State] in matters concerning public records requests for documents concerning Tom Horne’s campaign for the office of Arizona Attorney General and other political committees that may allegedly be involved in supporting Mr. Horne’s campaign.” 4 The referral also indicated that the representation would continue while the matter was “pending either in arbitration or before a court of law including any appeals.” 5 12. Although the Attorney General’s Office determined a conflict existed and made a referral to outside counsel, that referral was for representation in the classic attorney-client relationship as the outside counsel would advise and represent the Secretary of State during the proceedings. As previously addressed, the role of the Attorney General in civil enforcement proceedings is not one of representation. Therefore, the acknowledgement of a conflict as to providing representation to the Secretary of State during the investigation phase did not grant the Secretary of State authority to refer the matter to the Maricopa County Attorney’s Office for the civil enforcement phase. 13. The Maricopa County Attorney’s Office also argued it had independent authority to bring an enforcement action against Appellants as outlined in A.R.S. § 16- 905. In particular, the Maricopa County Attorney’s Office referenced A.R.S. § 16- 905(K), which provides:

Response Attachment 1 (emphasis added). Id. 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.

(Emphasis added). The county attorney is then authorized under A.R.S. § 16-905(L) “to institute an action within forty-five working days after receiving a complaint under subsection K of this section . . . .” 14. The Maricopa County Attorney’s Office argued it had the authority to bring an enforcement action under A.R.S. § 16-905(K) based on a Search Warrant Affidavit signed by Mark Stribling, Commander of the Investigation Division of the Maricopa County Attorney’s Office, that was filed with the Maricopa County Superior Court. The Administrative Law Judge concludes that the Search Warrant Affidavit is not the equivalent of a sworn complaint filed by a qualified elector and the Maricopa County

Attorney’s Office did not present any evidence that any qualified elector had filed a

sworn complaint with the County Attorney.

15. Because the Secretary of State did not have the statutory authority to refer

the matter to the Maricopa County Attorney’s Office for civil enforcement, the Maricopa

County Attorney’s Office did not have legal authority to issue the Order Requiring

Compliance. Thus, as a matter of law, the Order Requiring Compliance is void ab initio,

which requires dismissal of this matter.

16. As a result of this finding, all pending motions before this tribunal are

rendered moot.

RECOMMENDED ORDER

Based upon the foregoing, this matter is dismissed.

In the event the Maricopa County Attorney’s Office fails to accept, reject, or modify the Administrative Law Judge Decision as provided in A.R.S. § 41-1092.08 and the Director of the Office of Administrative Hearings certifies the decision, the effective date of the Order will be five days from the date of that certification.

Done this day, March 19, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to: Bill Montgomery, Maricopa County Attorney Maricopa County Attorney's Office

Exhibit B Exhibit C From: Drake, Jim [mailto:[email redacted]] Sent: Friday, April 06, 2012 12:40 PM To: Forney, Michele Cc: Chan, Amy; Bennett, Ken Subject: Public records request (Legal advice)

Hello Michele. I complied with a public records request yesterday, albeit with redacted information. The Republic is now asking to review the unredacted materials. Pretty darn sure we’re going to need counsel as this progresses. Hoping I can get a formal conflict letter and appointment?

Jim

Jim Drake Deputy Secretary of State 1700 W. Washington, 7th Floor Phoenix, AZ 85007 (602) 542-4919 Tel (602) 542-1575 Fax

From: Forney, Michele [mailto:[email redacted]] Sent: Monday, April 09, 2012 11:01 AM To: Drake, Jim Cc: Chan, Amy; Bennett, Ken Subject: RE: Public records request (Legal advice)

EXO has approved the appointment of outside of counsel. We’re moving forward. As soon as I have more information, I will be in touch.

Michele

Michele L. Forney Assistant Attorney General Office of the Attorney General 1275 W. Washington Street Phoenix, AZ 85007

[email redacted] Phone: (602) 542‐7826 Fax: (602) 542‐8308

From: Drake, Jim [mailto:[email redacted]] Sent: Monday, April 09, 2012 11:04 AM To: Forney, Michele Cc: Chan, Amy; Bennett, Ken Subject: RE: Public records request (Legal advice) Many thanks. I will stop asking you questions . . . soon. Does this process take a long time? Jim

From: Forney, Michele [mailto:[email redacted]] Sent: Monday, April 09, 2012 4:39 PM To: Drake, Jim Cc: Chan, Amy; Bennett, Ken Subject: RE: Public records request (Legal advice)

Our office recommends the following three attorneys from the approved contract attorneys list. If you’ll please let me know your preference, we’ll get it to the outside counsel committee.

1. Russell Kolsrud of Clark Hill, PLC 2. Michele Iafrate, of Iafrate and Associates 3. Jay Jacobson, of Sanders & Parks, PC

I’ll continue to try to move this along as quickly as possible.

Michele Exhibit D