By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Supreme Court Justice William Montgomery said Tuesday he won’t step away from hearing an upcoming case involving a measure about abortion on the Arizona ballot.

In a three-page order, Montgomery does not deny having made statements years ago, when he was Maricopa County attorney. These include that abortion “kills children” and that Planned Parenthood was “responsible for the greatest generational genocide known to man.”

But Montgomery called that legally irrelevant.

“This matter involves different parties and different issues,” he said.

“The fact that a judge may have an opinion as to the merits of the cause or a strong feeling about the type of litigation involved, does not make the judge biased or prejudiced,” he wrote, quoting from a ruling in an unrelated case in 1975. “And my responsibility to perform my duties with honor and integrity and with fidelity to my oath of office is paramount to any opinion or feeling about any issues that may come before the court, including this one.”

The decision drew disappointment from Dawn Penich, spokeswoman for Arizona for Abortion Access which has proposed a constitutional amendment to guarantee the right to terminate a pregnancy.

It currently has a case before the state’s high court over whether it was improper for the Republican-controlled Legislative Council to use the words “unborn human being” in describing Proposition 139 for a brochure describing ballot measures that will be mailed to all registered voters.
A trial judge ruled the council’s phrasing violated requirements for it to provide an “impartial” summary and ordered it reworded.

Instead, lawmakers on the council are seeking Supreme Court review. And attorneys for Arizona for Abortion Access on Monday asked Montgomery to step aside in that legal battle based on his prior comments.

Penich pointed out Montgomery never denied making those statements and others.

“Instead, he took less than 24 hours to deny our motion for recusal by saying little more than ‘trust me,’” she said in a prepared statement. Penich said her organization believes the Code of Judicial Conduct “requires more than that.”

But this is the end of the road for their effort.

Court rules make each justice responsible for determining whether he or she has an impermissible conflict or reason not to participate in a case.
There is no ability of the other justices to overrule a decision of one of their own. And there is no higher court from which to seek appeal.

This isn’t the first bid to get Montgomery to disqualify himself on the issue of abortion.

Last year a case came to the Supreme Court over the question of the validity of a territorial-era law that outlaws all abortions except to save the life of the mother.

That law never was repealed after the U.S. Supreme Court approved Roe v. Wade in 1973 and its constitutional right of abortion. But all that changed after the nation’s high court overturned Roe in 2022, leaving such decisions to each state.

The justices were asked to decide the conflict between that old law and a more recent statute allowing abortion until 15 weeks.

Planned Parenthood Arizona, a party to that case, asked Montgomery to step aside, citing his earlier comments. He initially refused but later, citing other “additional information related to the parties and respective counsel,” agreed to step away.

Montgomery never spelled out what was that “additional information.” A spokesman for the court said there would be no further comment.
The remaining six justices eventually voted 4-2 earlier this year that the old law was valid, though legislators have since voted to repeal it.

Attorney Andrew Gaona, representing Arizona for Abortion Access, argued Montgomery’s recusal in that case remains just as valid for why he should not be involved in this one. And at least part of the reason is that Planned Parenthood Advocates, the political arm of the organization, is a prime financial backer of Proposition 139.

Montgomery on Tuesday rejected that contention.

“A prior recusal is an insufficient basis for recusal in a subsequent matter, given the fact that judicial rulings alone almost never constitute a valid basis for a bias or partiality action,” he wrote.

Also irrelevant, said Montgomery, is the financial backing of the current initiative.

“The present matter does not involve either of the parties from PPAZ (the Planned Parenthood Arizona case) nor any of the facts or legal issues present in that case,” he wrote. “Thus, the basis for the previous recusal in PPAZ, as well as the PPAZ motion for recusal, is not relevant to these present proceedings.”

The court is continuing to receive legal briefs on the issue of the wording of the ballot summary. No date has been set for a ruling.

Strictly speaking, Montgomery’s refusal to step aside affects only the ballot description. But it could come up again soon.

On Monday, Maricopa County Superior Court Judge Melissa Julian rejected a bid by Arizona Right to Life to knock Proposition 139 off the ballot entirely.

Its attorneys argued the legally required 200-word description that has to appear on each petition was deceptive. And they said that some of the more than 820,000 people who signed to put it on the ballot may have been misled.

Julian disagreed.

“The description accurately and fully communicated the initiative’s key provisions,” she wrote.

Arizona Right to Life has not yet said whether it would seek Supreme Court review.