Political baggage burdens Montgomery’s Supreme Court quest

Maricopa County Attorney Bill Montgomery did not receive enough votes to advance on the shortlist of Supreme Court nominees. He needed at least seven votes to be considered, and only mustered five. (AP Photo/Ross D. Franklin, File)

Maricopa County Attorney Bill Montgomery has won three consecutive elections as the county’s chief prosecutor, but he couldn’t get the few votes needed to make it on the shortlist of Arizona Supreme Court nominees.

Montgomery’s bid to the high court drew the most endorsements and opposition among the 13 applicants. He had the backing of political bigwigs like Arizona Attorney General Mark Brnovich, who gave his endorsement in person before the Commission on Appellate Court Appointments on March 1, former U.S. Sen. Jon Kyl and GOP operative Steve Twist, who both wrote letters on Mongomery’s behalf.

But when it came time for his interview and background check, there was one thing weighing on Montgomery that the other semi-finalist candidates did not have to deal with – a political track record.

Being the only politician vying for this seat means the general public knows where you stand on certain issues.

Mark Harrison, an attorney at Osborn Maledon in Phoenix, said Montgomery did not advance because he is simply not qualified to serve on the court.

“He is a politician with no meaningful experience as a practicing lawyer and none in appellate practice,” he said.

In his application, Montgomery listed he had only handled 15 appellate matters and argued just one of those. He also has a limited amount of hands-on experience as a lawyer, which made him an outlier compared to the others.

The commission settled on Court of Appeals Division I judges James Beene, Kent Cattani and Maria Elena Cruz; Pima County Superior Court Judge Richard Gordon; and Snell & Wilmer attorney Andrew Jacobs. Gov. Doug Ducey has until April 30 to appoint one of these five nominees to fill the seat of Justice John Pelander, who retired March 1.

Harrison, an attorney for almost 60 years, said he could not think of any other candidate who generated so much public opposition, which he thinks is attributable to the general consensus among lawyers that, “… he is fundamentally an opportunistic politician whose policies are so rigid and ideologically driven that he could not be as impartial as judges are expected to be.”

Harrison also said to his knowledge he could not recall any comparable situation involving a political candidate since the merit selection system was initiated in the mid-1970s.

In the lead up to the interview with the commission, Montgomery received the largest negative response of the candidates from the public, which was spearheaded by an ACLU of Arizona campaign raising concerns for his interest in the Supreme Court position. According to the ACLU, nearly 1,000 people submitted the same ACLU auto-generated letter addressing those concerns. If Montgomery decides to keep his name in consideration, the ACLU of Arizona said it may do the same thing again.

The ACLU letter stated that Montgomery allowed prosecutorial misconduct to go unchecked in his office and he bungled a high profile use-of-force case in which Glendale police used an electronic stun gun on a man.

It was the Glendale incident that drew an unprecedented public remark from Ducey about a Supreme Court applicant.

A Glendale officer, who was accused of abuse of force for kicking Johnny Wheatcroft in the groin and shocking him in his genitals with a stun gun after pulling off his shorts was suspended for 30 hours. The case at first was not referred for an outside criminal investigation. After release of the body cam footage, followed by public outcry, Montgomery told the victim’s attorney the his office would re-examine the case.

Ducey said the investigation was “whitewashed,” and he told 12News he would “love to see the County Attorney’s Office reopen the investigation.”

A spokeswoman for Montgomery told The Arizona Republic that Montgomery was not motivated by the governor’s comments and that he had already contacted the FBI to reinvestigate “long before” he announced his decision.

Ducey’s comments came just a few months after Supreme Court Justice Clint Bolick recommended in a text message to Ducey that Montgomery should be appointed to fill the U.S. Senate seat vacated by the death of John McCain.

The Phoenix New Times reported in November that Bolick’s text read: “He is respected by everyone, supported by all parts of the GOP, yet unfailingly conservative … [and] young enough to be there for a long time…”

Those points could be echoed for a spot on the Supreme Court., but unlike the U.S. Senate, the Supreme Court has a mandatory retirement age of 70. Montgomery just turned 52.

Ducey wrote to Bolick in response: “Always value your advice and recommendations. I share your admiration of Bill. He is one of our finest.”

All justices on the Supreme Court must be non-partisan while serving on the bench, so one’s political party should, in theory, be irrelevant. If Bolick’s words about Montgomery are accurate, being “unfailingly conservative” would be a concern of whether Montgomery would be able to put his personal views aside, which was brought up before his interview.

Those personal views include how Montgomery is widely known as a staunch marijuana opponent, to the point where he once called a Vietnam veteran an enemy of the Constitution for using recreational marijuana. Montgomery has also made his views known that he does not support sentencing reform and certain LGBT rights.

A letter on behalf of the Board of Directors of the Arizona LGBT Bar Association from Randal McDonald of the law firm Perkins Coie addressed how LGBT interests would be harmed if Montgomery were to be appointed to the Supreme Court.

“Mr. Montgomery vocally and publicly refused to assist same-sex couples seek [sic] adoption services despite clear Arizona law that required county attorneys to provide these services to all applicants,” McDonald wrote.

Montgomery’s vocal remarks were in response to when the U.S. Supreme Court struck down state bans on same-sex marriage in 2015.

“In the years to come, the Arizona Supreme Court will consider many cases that impact the rights of LGBT individuals and the Arizona LGBT Bar Association is concerned Mr. Montgomery will not be able to consider these cases fairly and impartially because of his history of opposing for LGBT people and their families,” McDonald wrote.

All of the concerns addressed were framed into a four-part question Montgomery had to answer during his interview that also included whether Montgomery is a politician or a jurist.

At the March 1 interviews, each candidate was given the same set of questions, but it was Supreme Court Chief Justice Scott Bales who asked Montgomery the extra, four-part question not posed to the others.

Montgomery took his time answering point-by-point, but it ultimately did not sway enough of the commissioners.

He said politics only constituted a tiny portion of his job since elections only happen once every four years, and that his daily duties aren’t as “sexy to write about, so folks generally aren’t familiar with that.”

Montgomery also addressed the concerns about whether or not he could put his personal beliefs aside to be fair and impartial as is expected of a justice.

“Probably the number one thing to look to that would address all of those concerns is the oath of office,” Montgomery said. “Each of those oaths of office have required me [and] would require me to uphold the Constitution of the United States and the Constitution laws in the state of Arizona.” He then proceeded to recite the oath.

When it came time to vote on the final list, he only received five votes. He needed at least seven to advance.

Montgomery did not provide comment for this story.

This might not be Montgomery’s final attempt at the Supreme Court, though. The chief justice announced on March 5 his plans to retire later this year, and according to the Commission on Appellate Court Appointments rules of procedure, if there are two vacancies within one year, all applications submitted for the first vacancy would roll over for the second. However, an applicant could opt to withdraw his or her name from contention.