Feathered Bastard

Tom Horne's Bid for Temporary Restraining Order Against Bill Montgomery Rejected by Judge

The noose around Arizona Attorney General Tom Horne's neck just tightened a little.

On Monday, Maricopa County Superior Court Judge Mark Brain rejected Arizona Attorney General Tom Horne's bid for a temporary restraining order against County Attorney Bill Montgomery, whose office is investigating, among other things, allegations that Horne has used his state office to campaign for re-election..

Though Montgomery has said that he's walled off from any such investigation, Horne's attorney Michael Kimerer argued that Montgomery is biased against Horne (which even Montgomery would concede) and therefore Montgomery's underlings will do his bidding, even if he is walled off.

Judge Brain eviscerates this argument in the following passage from his ruling, which makes for a tasty read:

Plaintiff Horne's notion that Mr. Montgomery's office will do his unspoken bidding is entirely unconvincing as a basis to disqualify the entire office from a mere investigation and grand jury proceeding. In fact, the reported decisions are extraordinarily leery of attempts to disqualify attorneys based solely on a mere appearance of impropriety, uncoupled from additional facts such as those in the cases cited by Plaintiff Horne...One of the central lessons (perhaps "reminders" would be a better word) from the Thomas/Aubuchon/Alexander disciplinary process is that the Nuremburg Defense ("I was just following orders") is not viable in Arizona....The court will not indulge a presumption that the investigators and employees the Maricopa County Attorneys' Office will act unethically based on a mere allegation that they know what Mr. Montgomery wants, nor that a grand jury will ignore its responsibilities in evaluating any potential charges.

The court accepts as a given that prosecuting attorneys typically do not think much of ordinary people who they believe have committed crimes, and think even less of elected officials who they believe have done so. From the facts presented, it is apparent that Mr. Montgomery does not think much of Plaintiff Horne. But one could presumably disqualify a number of investigating agencies if that argument were good enough. Arizona's second-largest county, Pima County, is headed by a Democratic County Attorney (Barbara LaWall); one assumes a similar argument could be constructed against allowing her office to proceed with the investigation. Likewise, it is common knowledge that the Yavapai County Attorney (Sheila Polk) has rejected an administrative law judge's ruling regarding Plaintiff Horne's conduct during an earlier election and continues to pursue him. An approach that so easily disqualifies prosecuting agencies from even investigating someone cannot be right. The court concludes that Plaintiff Horne's chances of success on the merits are modest at best.

Turning to the possibility of irreparable harm if relief is not granted and public policy, Plaintiff Horne's claim (voiced at the oral argument) is that an indictment during the election season might cost him the election. Perhaps so, although the Arizona Republic articles cited by Plaintiff Horne as evidence of Mr. Montgomery's bias actually appear to help him by bolstering his ability to argue that any indictment is just a political stunt. Public policy certainly does not favor shielding candidates from investigations during elections; if a candidate broke the law, he should receive his just reward. Moreover, if there is, in fact, probable cause to indict Plaintiff Horne, then the public has every right to know it so that voters can factor it into their decisions on how to cast their ballots. Having weighed the competing factors set forth in Shoen, the court concludes that Plaintiff Horne is not entitled to a temporary restraining order.

I love the line about the Nuremburg defense not being viable in Arizona. Also, Brain is to be applauded for pointing out that, "if a candidate broke the law, he should receive his just reward," and that, "if there is, in fact, probable cause to indict Plaintiff Horne, then the public has every right to know it so that voters can factor it into their decisions on how to cast their ballots."

Horne's case is not completely dead. There is still a "formal evidentiary hearing on application for a preliminary injunction," but it is scheduled for after the August 26 primary.

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons