Montgomery opponents cleared from judicial nominating commission

Maricopa County Attorney Bill Montgomery is once again seeking a seat on the Arizona Supreme Court, and his odds may be markedly improved after Gov. Doug Ducey replaced several members of a judicial nominating commission who blocked his path to the high court earlier this year.

Ducey nominated six people to the Commission on Appellate Court Appointments during the recently concluded legislative session, and the Senate confirmed them in April. Four of those are new commissioners, while two are reappointments.

Three of the commissioners Ducey replaced voted against sending Montgomery’s name to the governor as a finalist for retired Justice John Pelander’s seat in March, while another two were absent for that meeting. The two others nominations were reappointments of sitting commissioners.

Montgomery could gain up to four votes from his previous total. Presuming the commissioners who voted for him last time do so again, that could be enough to add his name to the list of finalists that the commission will send to Ducey’s desk, depending on the vote totals for the other candidates.

Montgomery fell short in March on a 5-7 vote, with departed commissioners Joshua Hall, Monica Klapper and Charie Wallace voting against him. Two commissioners were absent at that meeting, one of whom has since left the commission and been replaced.

Patrick Ptak, a spokesman for the governor, said Ducey did not take the commissioners’ positions on Montgomery’s candidacy into account when deciding who to appoint or reappoint.

At least one of the returning commissioners,Tracy Munsil, voted for Montgomery. The other commissioner whom Ducey reappointed, Buchanan Davis, declined repeated interview requests. Minutes and an audio recording of the meeting don’t show how individual commissioners voted.

Montgomery is a divisive figure, and that was reflected during his candidacy for the last vacancy. He received an extensive amount of negative feedback from the public, which became a focal point of his interview in March. Bales said some questioned Montgomery’s ability to hear cases fairly, given his positions on LGBT issues, criminal justice reform and marijuana.

But Montgomery also has powerful political backers. He and Ducey have long been allies. Justice Clint Bolick, a Ducey appointee, urged the governor in August to appoint Montgomery to replace John McCain in the U.S. Senate. In January, Montgomery asked Bolick to send him his successful Supreme Court application to use as a guide as the county attorney was putting together his own application, the Phoenix New Times reported.

Eleven people are vying for the new Supreme Court vacancy. All applied for the previous vacancy earlier this year. Besides Montgomery, the applicants are:

• Sean Brearcliffe, an Arizona Court of Appeals judge
• Kent Cattani, an Arizona Court of Appeals judge
• Maria Elena Cruz, an Arizona Court of Appeals judge
• David Euchner, of the Pima County Public Defender’s Office
• Richard Gordon, a Pima County Superior Court judge
• Randall Howe, an Arizona Court of Appeals judge
• Andrew Jacobs, of the law firm Snell and Wilmer
• Regina Nassen, of the Pima County Attorney’s Office
• Jennifer Perkins, an Arizona Court of Appeals judge
• Timothy Wright, a Gila County Superior Court judge

Cattani, Cruz, Gordon and Jacobs were the four runners-up for Pelander’s seat. The two Republicans who weren’t chosen, Cattani and Gordon, received 11 votes and 7 votes, respectively. Ducey chose then-Arizona Court of Appeals Judge James Beene to fill the vacancy.

The commission will meet on June 25 to review the applications and hear public comments about the applicants. On July 26, the commission will interview the candidates and choose the finalists.

Under Arizona’s system for choosing judges, known as merit selection, the commission vets applicants, then forwards a list of finalists to the governor, who must choose from among the names chosen by the commission. No more than 60 percent of the candidates can be from the same political party.  

The commission consists of 15 members – 10 non-attorney members chosen by the governor and 5 attorneys chosen with input from the State Bar of Arizona.

Democrats recently cried foul over the commission’s makeup, arguing that Ducey was ignoring diversity requirements in the Arizona Constitution. The constitution states that the governor “shall endeavor to see that the commission reflects the diversity of Arizona’s population.”

Perhaps most relevant to the minority party’s complaints is the fact that not a single Democrat now serves on the commission. Ducey has satisfied a constitutional requirement that no more than five non-attorney members and three of the attorney members be from the same political party by appointing independents instead of Democrats.

One of the independents Ducey appointed is a former Republican activist.

Though the commission’s primary responsibility is in selecting judicial nominees, Democrats keyed in on another major duty – vetting candidates for the Independent Redistricting Commission that draws Arizona’s legislative and congressional boundaries every 10 years. That includes the independent chairman of the commission, who serves as an all-important tiebreaker between the commissioners two Democrats and two Republicans. The chairwoman of the last IRC sided frequently with her Democratic colleagues, much to the consternation of Arizona Republicans.