Their candidate squeezed out of the last screening, allies of Maricopa County Attorney Bill Montgomery are lining up to urge that he be nominated for the Arizona Supreme Court.
More than a dozen attorneys and public officials have submitted comments to the Commission on Appellate Court Appointments listing what they say are his qualifications to sit on the state’s highest court. That includes Attorney General Mark Brnovich, the state’s top prosecutor, who praised Montgomery’s “principled nature and dedication to the rule of law.”
More support is expected when the commission meets Friday to hear comments and interview the nine applicants to replace Scott Bales who retired earlier this month.
The outpouring is occurring four months after the same commission was deciding who to recommend to Gov. Doug Ducey to fill the vacancy created by the resignation of John Pelander. And Montgomery, criticized over positions taken on gay and civil rights, was not on the list of nominees.
That list is crucial: The Arizona Constitution allows him to choose only from those nominated. And if Montgomery can’t get his name on it, he can’t be considered.
What’s changed since March is that the governor has replaced several commission members, including at least three who voted not to forward his name to the governor. But gubernatorial press aide Patrick Ptak told Capitol Media Services that his boss did not decide who to reappoint and who to replace based on their positions on Montgomery.
While Montgomery’s supporters are lining up for Round 2, so are some who contend that his biases would get in the way of being a judge.
Front and center are the Arizona chapter of the American Civil Liberties Union and Lambda Legal. Both are citing instances where they say Montgomery ignored the law.
One key incident both groups cite dates to 2015 when Montgomery, whose office is required to provide legal assistance to couples who are adopting, refused to do so for a gay couple even after a federal judge ruled that Arizona’s law banning same-sex marriage is unconstitutional. Montgomery contended that decision still did not provide the same rights of gays to adopt.
When that argument faltered, Montgomery pushed the Legislature to repeal entirely, for all couples, that requirement for free legal help. It was only a veto by Ducey that blocked the maneuver.
“It appears unlikely that he would be able to provide impartial justice to LGBT people and their families if he were appointed to the Arizona Supreme Court, let alone the appearance of impartiality,” attorneys for Lambda Legal which gets involved in issues of gay rights.
His views on gay rights also came into focus when he helped to kill a proposed rule for lawyers that would have made it an ethical violation for them to discriminate against clients based on their “gender identity.” So strong was his opposition that Montgomery even sent out a note saying that if the change is approved there will be a “strong effort” to eliminate the requirement that attorneys belong to the State Bar of Arizona.
That killed the plan.
“Mr. Montgomery has made clear over the course of many years that he is unwilling to treat LGBT people equally under the law,” the attorneys for Lambda Legal wrote.
But the view is different from Gary McCaleb, senior counsel of the Alliance Defending Freedom, a Christian public interest law firm, whose organization has often ended up on the other side of issues with Lambda Legal.
McCaleb, who also served on that task force about gender identity, defended Montgomery and the way he handled himself. He said Montgomery stated his opposition “in very measured, logical, and legally grounded terms.”
Analise Ortiz, campaign manager for ACLU Arizona, said Montgomery’s issues of bias go beyond sexual orientation.
That includes his 2014 decision to hire John Guandolo, a former FBI agent, to conduct training for law enforcement on the threat of Muslim terrorist groups. The invitation to the training said Guandolo, who left the FBI after an affair with a confidential source, said topics would include “threats posed to our local communities by Hamas, Hezbolla and Sharia Law.”
At the time, Imraan Siddiqi, president of the Council on American-Islamic Relations in Arizona, called Guandolo an “Islamophobe,” saying he was “creating a false correlation between being a Muslim and being prone to violence.”
Montgomery said at the time that the training was “mischaracterized” and said he was “comfortable” with it. But Ortiz said it raises questions about impartiality and whether Montgomery is capable of considering the impact of his decisions on all people.
On the positive side of the ledger, Montgomery also has secured endorsements from Ernest Calderon, a former president of the State Bard of Arizona, David LeBahn, CEO of the Association of Prosecuting Attorneys, Maricopa County Assessor Paul Petersen and several current and former staffers at the Maricopa County Attorneys Office.
Montgomery declined to comment on what has been submitted to the commission.
At least part of whether Montgomery makes the short list sent to Ducey depends on exactly how short that list turns out to be.
The voter-approved constitutional provisions for selecting appellate judges requires the commission to send at least three names to the governor. In that case, no more than two can be from the same party. So if the commissioners want to nominate just one of the two Democrat contenders, or just the Libertarian, they can send only two Republican names to Ducey.
More non-Republicans on the list mean more potential Republican nominees, though there is no set requirement for how many of the nine to be interviewed Friday can be sent. Last time, when Montgomery did not make the cut, the commission sent just five names to Ducey, three Republicans and two Democrats, before the governor chose Republican James Beene.
This will be Ducey’s fifth pick for the court. Aside from replacing two retiring justices – now three – the Republican-controlled Legislature also expanded the court from five to seven, giving Ducey two more slots to fill.