Rep. Tully: ‘There is an obvious appearance of conflict of interest there’
By Paul Davenport
The Associated Press
One of the five Arizona Supreme Court justices who will decide Republican legislators’ constitutional challenge of a line-item veto by Governor Napolitano argued on her behalf as a private attorney in a similar case three years ago.
A Republican legislative leader who pushed for the current line-item veto court challenge said Justice Scott Bales’ involvement is troubling because of his past representation of Ms. Napolitano.
House Majority Leader Steve Tully, an attorney, said, “His long-term relationship with the governor and his direct representation of the governor — and not only his direct representation of the governor but his direct representation of the governor on this same issue — lends itself to some questions concerning his ability to be impartial on this issue although I have every confidence he will certainly do his best and he will attempt to be impartial.”
Ms. Napolitano appointed Justice Bales to the state’s high court in 2005, two years after he represented her in a 2003 case in which GOP legislative leaders also challenged her line-item vetoes. Justice Bales previously worked under Ms. Napolitano as a federal prosecutor while she was U.S. attorney for Arizona and as state solicitor general when she was state attorney general.
Judges are generally told to avoid disqualifying themselves from cases if possible, but the state’s judicial conduct rules state that judges must disqualify themselves in a proceeding in which “the judge’s impartiality might reasonably be questioned,” including instances in which a judge “served as a lawyer in the matter in controversy” within the past seven years.
The 2003 case
In the 2003 case, Justice Bales, then a practicing attorney, signed a brief arguing that line-item vetoes Ms. Napolitano cast that year were within her constitutional power and that the court shouldn’t “referee in the state’s budget process.” Similar arguments were presented on Ms. Napolitano’s behalf in the current case.
Justice Bales had his office refer a request for comment to Supreme Court spokeswoman Cari Gerchick. She said Justice Bales wouldn’t discuss the matter because it involved a pending case but that he would be impartial.
There’s a difference between an attorney arguing a client’s position and being a judge impartially considering an issue, Ms. Gerchick said.
“The bottom line is that no justice will sit on a case unless he is impartial,” she said. “The fact that he’s sitting on the case means he’s impartial.”
Ms. Gerchick said she didn’t know whether there’d been any discussion within the court regarding Justice Bales’ involvement but that Chief Justice Ruth McGregor takes the position that no justice would sit on a case unless he or she were impartial.
Keith Stott, executive director of the state Judicial Conduct Commission, declined to comment.
Ms. Napolitano said she was confident that Justice Bales would be impartial.
Mr. Tully said he still questions what he calls an apparent conflict.
“I’m sure that he’s an honorable man, and I have reason to believe he’s honorable and… will discharge his duties as required by law,” Mr. Tully said. “But there is an obvious appearance of conflict of interest there.”