PHOENIX - A prosecutor on Wednesday reinstated a campaign finance case against Arizona Attorney General Tom Horne, ordering him to repay donors hundreds of thousands of dollars despite a judge deciding there is not enough evidence to show he broke the law.
Yavapai County Attorney Sheila Polk had 30 days to accept, reject or modify the judge's April 18 findings.
Prosecutors didn't prove Horne illegally coordinated campaign spending with an aide running an independent group during his 2010 election bid, administrative law Judge Tammy Eigenheer ruled. Horne and aide Kathleen Winn denied the allegations.
Polk said in a court filing that she was rejecting Eigenheer's recommendation that the complaint be dismissed, writing that it is "more probable than not" that Horne and Winn engaged in illegal coordination. Polk reinstated her Oct. 13, 2013, order requiring Horne to amend his campaign finance reports, repay $400,000 to donors and face up to three times that amount in fines.
Horne plans to file an appeal in Maricopa County Superior Court, spokeswoman Stephanie Grisham said.
In a statement, Horne said Polk should have accepted the judge's findings.
"This case was brought to an independent judge who could weigh all the facts, and listen to all the witnesses," the statement said. "She came to the very clear conclusion that no campaign finance laws were broken. This should have been the end of it, but a county politician has foolishly ignored the ruling of an independent judge. She will undoubtedly lose on appeal."
Polk's office said she would not comment beyond the filing in the Arizona Office of Administrative Hearings.
Polk's decision means Horne will have to continue fending off allegations he broke the law while trying to be elected the state's top law enforcement officer.
Prosecutors alleged that Horne, a Republican, and Winn illegally worked together on outside ads targeting Horne's Democratic opponent before the November 2010 election.
Winn's lawyer, Timothy La Sota, said he would challenge the state law that allows a prosecutor to ignore a judge's findings and impose what amounts to $1.2 million in fines. He called Polk's decision to reinstate the charges "a grave injustice."
"What we showed is that their case was a house of cards built on speculation and innuendo," La Sota said. "The judge sided with us and their witness lied to boot."
La Sota was referring to part of Eigenheer's ruling that concluded that an FBI agent who was the prime witness during a three-day hearing in February could produce no record of a phone call he testified about.
The allegations have dogged Horne for more than two years. Maricopa County Attorney Bill Montgomery first filed the campaign finance complaint in 2012, but it was dismissed on procedural grounds and the case compiled by the FBI was then sent to Polk.
Candidates cannot discuss strategy or other matters with so-called independent expenditure committees, but both Montgomery and Polk concluded there was evidence that Horne was involved in both raising money and deciding how to spend it on advertising by Business Leaders for Arizona.
Eigenheer heard all that evidence during a three-day hearing in February and determined the circumstantial case didn't meet legal standards for a civil finding that Horne violated the law.
Prosecutors said a series of emails and phone calls in October 2010 showed Horne and Winn were guilty of illegal coordination. Horne and Winn testified in February that they were discussing a real estate deal.
Eigenheer ruling said there was no smoking gun and the prosecutors' circumstantial case was not strong enough.
"While there are inferences that can be made, there are also reasonable explanations that the communications related to Mr. Horne's real estate transaction that was pending at the same time," the judge wrote.