A Maricopa County Superior Court judge refused late Friday to sideline charges against Attorney General Tom Horne and a supporter that they violated state campaign finance laws.
Judge Sally Duncan rejected a bid by Michael Kimerer — representing both Horne and Kathleen Winn at an afternoon hearing — that she should let him argue that 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.
Her ruling, unless overturned, means Horne and Winn are stuck with having 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 had hoped that Duncan would agree that the statute they are accused of violating is unconstitutional, a move which would have killed that scheduled February hearing.
Kimerer said after the hearing 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 that Winn had 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 e-mails about the commercial to a campaign consultant.
Polk ordered the pair to refund most of that $500,000. They have denied there is any coordination and have appealed Polk's findings to an administrative law judge.
Friday's hearing stems from the contention by attorneys for both of them that, legally speaking, it really would not matter if there were coordination. They contend the campaign finance law the pair is 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, it made any money collected and spent by Winn and her committee effectively money collected by Horne. She said the amounts Winn collected from major donors were far above the $840 limit.
Kimerer and Tim LaSota, who technically is Winn's lawyer, contend that $840 limit is unconstitutionally too low. Kimerer cited federal court cases which 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 have to 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 reelection 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.