By Howard Fischer
Capitol Media Services
PHOENIX — Gov. Doug Ducey on Wednesday tapped Maricopa County Attorney Bill Montgomery to serve on the Arizona Supreme Court, rejecting claims by foes that the positions he staked out at his office on gay rights and medical marijuana make him unfit for the job.
The appointment, Mr. Ducey’s fifth to the seven-member court, comes just one day after an ethics complaint was filed against Mr. Montgomery accusing him of failing to properly supervise Juan Martinez, one of his top prosecutors. Martinez himself is currently under investigation on separate ethics charges.
Mr. Ducey, however, brushed aside the new complaint, telling reporters to instead look to a statement issued later Tuesday on Mr. Montgomery’s behalf by former U.S. Sen. Jon Kyl saying that the county attorney would make “an excellent addition to the court.”
And Mr. Ducey, in a conversation with reporters earlier Wednesday, before the appointment was announced, said he found the timing of the complaint “pretty suspicious.”
But it means that Mr. Montgomery will be sitting on the high court with a pending complaint. That also creates a potential for conflicts as issues of discipline ultimately are decided by the Supreme Court.
Attorney Karen Clark, who filed the complaint, said it was not about politics or timing. She said the complaint was filed when it was because Mr. Montgomery, awaiting a decision on his nomination, has so far failed to comply with the state’s public records laws and release the findings of an internal investigation into the conduct of Martinez.
Ethics complaint aside, the controversies surrounding Mr. Montgomery go deeper than that.
He waged several legal battles against medical marijuana even after a 2010 vote to approve the drug’s use for those who have a doctor’s recommendation.
Both the American Civil Liberties Union and Lambda Legal fought to keep him from even being nominated for the court amid claims that Mr. Montgomery, in his official position, discriminated against same-sex couples.
And the appointment came despite the fact that Mr. Montgomery in 2015 sought to undermine Mr. Ducey’s policy for state agencies that same-sex couples deserve the same legal protections as heterosexual couples when adopting a child.
There was no mention of any of that in Mr. Ducey’s prepared statement or Twitter feed.
“I was looking for a candidate who had an understanding of the law, a well-developed judicial philosophy, appreciation for the separation of powers and a dedication to public service,” the governor wrote.
“More broadly, I was looking for an individual who wants to interpret the law, not someone who wants to write the law,” he continued. “That’s the job of the Legislature.”
But Mr. Montgomery has his supporters, with the governor’s office forwarding messages of congratulations from various elected officials. Most were from Republicans, though Maricopa County Sheriff Paul Penzone, a Democrat, saying that Mr. Montgomery “has provide great and consistent counsel and has devoted his life to public service.”
The fact that Mr. Ducey now has named five of the justices was helped along by the decision by the Republican-controlled Legislature to gave him two quick picks when it voted in 2016 to expand the size of the court by two, to seven.
That leaves only Justices Ann Scott Timmer and Andrew Gould as the only non-Mr. Ducey appointees on the state’s high court.
Both were tapped by Mr. Ducey predecessor Jan Brewer. And both, like Ms. Brewer and Mr. Ducey, are Republicans.
Officially, the court now consists of six Republicans and one Libertarian, Clint Bolick. But Mr. Bolick, even before his appointment by Mr. Ducey, had long aligned himself with conservative issues, including serving as an attorney for the Goldwater Institute.
Mr. Montgomery replaces Democrat Scott Bales, appointed by Democratic Gov. Janet Napolitano, who retired earlier this year.
The fact that Mr. Montgomery got this far in the process is itself related at least in part to Mr. Bales’ departure — and to some political appointments that Mr. Ducey made.
Mr. Montgomery had applied for a different vacancy earlier this year, only to find that there were insufficient votes at the Commission on Appellate Court Appointments, which must screen nominees — and from whose list the governor must choose — to advance his name to Mr. Ducey. That followed not just complaints about Mr. Montgomery’s views on LGBTQ issues and medical marijuana but Mr. Bales who, as chief justice at the time chaired the commission, asked Mr. Montgomery some questions about his strong beliefs.
In fact, just five of the 12 commissioners supported his nomination at that time.
With Mr. Bales retired, that elevated Robert Brutinel to chief justice and commission chair. And under Mr. Brutinel, the only questions asked of Mr. Montgomery were the same prepared questions asked of all of the other applicants, with no inquiries permitted about any of the candidate’s specific background or policy positions.
What also changed is that Mr. Ducey has since replaced three of the commissioners who voted against Mr. Montgomery.
That left Mr. Montgomery supporters in the majority, including Kathryn Townsend who said she believed a lot of those who oppose his appointment “don’t like him because he’s a conservative, white Christian, cisgendered heterosexual male.” And she told colleagues on the commission that if were not on the final list it would be because “he didn’t have the right identity politics.”
Mr. Montgomery’s views on gay rights that garnered opposition from some groups include his actions that came after a federal judge ruled that same-sex couples have the same legal right to wed as all others.
It became an issue because Arizona law requires Mr. Montgomery’s office to provide legal assistance to couples who are adopting. But Mr. Montgomery refused, arguing that the fact that gays can wed did not mean they were entitled to other legal protections.
When that argument faltered, Mr. Montgomery pushed the Legislature to repeal entirely, for all couples, that requirement for free legal help. It was only a veto by Mr. Ducey that blocked the maneuver.
He also helped kill a proposed rules that would have made it an ethical violation for lawyers to discriminate against clients based on their “gender identity.”
Mr. Montgomery also gained headlines when he threatened to prosecute anyone who provided a tincture of marijuana Jacob and Jennifer Walton who had been giving it to their 5-year-old son, Zander, who had a doctor’s permission to use the drug to treat his seizures. The couple said it was difficult to get the boy to swallow things such as applesauce with crushed marijuana leaves, much less determine if he was getting the correct dosage.
A trial judge ruled Mr. Montgomery was wrong.
Mr. Montgomery also attempted to block county officials from providing the necessary zoning certification for marijuana dispensaries even after the 2010 vote legalizing the drug for medical uses. He argued the fact that marijuana remains a felony under federal law.
That argument did not wash with the Arizona Court of Appeals which said nothing in federal law precludes states from having their own drug laws.
Despite the criticism from some quarters, the appointment drew praise.
In selecting Mr. Montgomery, Mr. Ducey passed over six other nominees, including three Republicans serving on the state Court of Appeals: Kent Cattani, Randall Howe and Sean Brearcliffe, Democrat Maria Elena Cruz, a Democrat serving on the Court of Appeals, Libertarian David Euchner who is a Pima County public defender, and Andrew Jacobs, a Democrat attorney in private practice.