Montgomery to lose political clout stepping up to high court

Bill Montgomery’s power and influence as an Arizona Supreme Court justice will depend on whether he abides by more traditional standards of the high court by taking less of an activist role at the Capitol.

Stepping back from his influential position as “top cop” in Maricopa County, one of the largest in the United States, would be a dramatic turn for Montgomery.

As county attorney, Montgomery has a well-earned reputation as an influential powerbroker at the Legislature, where he has opposed sweeping criminal justice reforms, and on the campaign trail, where’s he has been an outspoken opponent on matters like medical and recreational marijuana.

Traditionally, Arizona’s top judges take to the sidelines when it comes to debates over policy at the Capitol, and certainly don’t engage in the sort of direct lobbying Montgomery is accustomed to, according to Alessandra Soler, executive director of the ACLU of Arizona.

“I assume that there was this separation of powers and they should not play a role in lobbying,” Soler said. “From what I know, it’s been sort of an informal role where the justices have generally stayed out of lobbying themselves. That’s just how it’s been handled.”

The Arizona Code of Judicial Conduct broadly states that a judge “shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official,” with some exceptions, such as when the conversation is in connection with the legal system or if the judge is lending their particular expertise.

Generally, the code is intended to assure a judge, or in this case justice, doesn’t act in a way that will interfere with his or her duties or disqualify them from cases.

Gov. Doug Ducey, who made Montgomery his fifth, and arguably, most controversial, appointment to the Supreme Court, made clear in announcing the decision what kind of justice he hopes Montgomery will be.

Ducey tweeted that he was looking for a candidate with “an understanding of the law, a well-developed judicial philosophy, appreciation for the separation of powers and a dedication to public service… More broadly, I was looking for an individual who wants to interpret the law – not someone who wants to write the law.”

“Bill Montgomery is that candidate,” Ducey wrote.

That may be a jarring transition for Montgomery, whose vetting process was peppered with criticisms that he lacked judicial experience and had a long track record of controversial political positions as county attorney.

That includes his staunch opposition to marijuana legalization, which in 2015 led to an exchange in which Montgomery called an Arizona veteran an “enemy” of the U.S. Constitution after the veteran admitted to using marijuana recreationally; Montgomery’s repeated, leading role in blocking criminal justice reform efforts at the Arizona Legislature, highlighting the influence he wielded over the chairs of the House and Senate judiciary committees; and his refusal to offer legally-required, free legal assistance to lawful same-sex couples who sought to adopt children.

It’s that record that has critics like Soler concerned about how Montgomery will behave as a justice, from the bench and beyond.

“Justices need to be fair and impartial, and I think that during the last nine years he’s really shown that he lets his personal biases drive his prosecutorial practices and policies, so I think that’s certainly going to be a big question for us – is he going to be fair and impartial? He is going to be somebody who’s expected to uphold the rule of law,” she said.

Republican attorney Kory Langhofer said it will be telling to see how Montgomery navigates issues like criminal justice reform.

Judges are only human, after all, and it’s naive to assume they can set aside all their beliefs when ruling from the high court.

“I strongly suspect that his views on criminal justice are deeply held and will come through in his jurisprudence. But I think his judicial philosophy on other political matters about which he’s expressed very strong opinions may be less predictable,” Langhofer said. “You can simultaneously think the government should pass a certain statute or adopt a certain policy without thinking the Constitution compels that result.”

For now, Langhofer said Arizonans have Montgomery’s word that he understands the difference between judicial and political philosophy.

“I think we need to hear him out on this,” Langhofer said. “He said he appreciates the distinction and will be different as a jurist than he will as a politician, and that may well be true.”

Danny Seiden, a former aide to Ducey who once served as a special assistant county attorney to Montgomery, pointed to the governor’s words as evidence that Ducey is confident in the judge Montgomery can become compared to the county attorney he’s been for years.

That will mean Montgomery has to accept the fact that he’s taking what Seiden called a “less powerful” position as a justice compared to an elected county attorney.

“Prosecutors have a ton of power in the process. That’s why they’re elected, that’s why they have to face the people and stand for their charging decisions and policymaking role in the process. But when you’re a judge, you really just interpret statutes… You don’t make policy,”  Seiden said.

Even among the 15 elected county attorneys, Montgomery was “the first among equals,” according to Langhofer.

Serving as a judge, even on the highest court in Arizona, “by far it’s a less powerful position,” Seiden said.

“Now, there’s still a lot of prestige and power that goes with being a Supreme Court justice, but in terms of what you can do to most impact life, I think prosecutors on a day-by-day basis have a lot of power to do that,” Seiden said.

Langhofer said he sees Montgomery maintaining some influence, perhaps “for a session or two, but justices almost inevitably recede into the monastic lifestyle of the Supreme Court.”

Both Seiden and Soler said Montgomery may fit the mold of another Ducey appointee to the Supreme Court: Clint Bolick.

A libertarian and former vice president of litigation at the Goldwater Institute, Bolick was always an outspoken advocate for his political beliefs, and at times has proven he can still be outspoken from the bench. Bolick raised eyebrows in August after he was spotted with his wife, Republican Rep. Shawnna Bolick, at a conference hosted by the American Legislative Exchange Council, a group known for pushing conservative bills at state legislatures.

Bolick previously made headlines after texts revealed that the justice had advised Ducey to appoint Montgomery to a vacant U.S. Senate seat.

Yet Bolick, in his brief time on the high court, has shown he can set aside his political beliefs and rule strictly on the law.

Bolick joined a unanimous decision upholding the rights of voters to bring wide-ranging initiatives to the ballot box in the face of a legal challenge against Arizona’s voter-approved minimum wage – a policy his former employer, the Goldwater Institute, opposed.

“Clint’s probably more opinionated than Bill. He’s written books on topics like school choice. So it’s the same question for Bill as it is for Clint,” Seiden said. “He’s going to approach things on a case-by-case basis, and I’m going to trust him to do the right thing as I would every judge that’s been appointed.”

Montgomery might be further motivated to step back from his role as a policy powerbroker in order to avoid conflicts of interest, which could lead to Montgomery recusing himself from important cases accepted by the Supreme Court, Langhofer added.

In the near future, Montgomery will inevitably have to step aside for certain cases, such as rulings on the death penalty that involve cases handled by the Maricopa County Attorney’s Office, Langhofer said.

Seiden said he’ll take Montgomery at his word that the outgoing county attorney understands the new role he’ll play as a judge.

“I can only speak to what I’ve heard Bill say in the past, and I think Bill’s a firm believer in the separation of powers,” Seiden said. “I believe he would say that the judiciary is not a legislative body, so that would be my guess. I can’t predict the future, but I think that’s probably closer to true.”

While Montgomery may have less influence lobbying the Legislature on policy, Soler said there’s still the political reality that he’s now serving as the backstop in Arizona’s criminal justice system.

“This is the highest court in the state of Arizona, and they’re going to have a huge impact on public policies that impact millions of Arizonans,” Soler said.

Staff writer Julia Shumway contributed to this report.