Just four months after he was rejected as an applicant for the Arizona Supreme Court, Maricopa County Attorney Bill Montgomery is on the list of contenders for a seat on the high court, part of an unusually large list of finalists that Gov. Doug Ducey will choose from.
The Commission on Appellate Court Appointments, which vets candidates for the Arizona Supreme Court and Court of Appeals, selected seven candidates for the seat vacated by retired Chief Justice Scott Bales. Ducey has 60 days to decide who the new justice will be.
No more than 60 percent of the nominees can be from the same party, so the commission nominated four Republicans, two Democrats and a Libertarian.
Montgomery is a Republican, as are Court of Appeals Judges Sean Brearcliffe, Kent Cattani and Randall Howe. Democrats Maria Elena Cruz, a Superior Court judge in Yuma, and Andrew Jacobs, an attorney with the law firm Snell and Wilmer, made the final cut, as did Libertarian David Euchner, an attorney with the Pima County Public Defender’s Office.
The commission left only two candidates, Republicans Richard Gordon, a Pima County Superior Court judge, and Jennifer Perkins, a Court of Appeals judge, off the final list. Two other applicants were cut from the list in June.
By law, the commission must select at least three candidates, and in practice it usually doesn’t nominate more than five. It chose seven finalists in 2016 when Ducey had two seats to fill.
Though there were nine candidates and seven whom the commission ultimately named as finalists, Montgomery was, as Commissioner William Ekstrom put it, the “elephant in the room” on Friday.
Montgomery has been a polarizing figure during his nine years as Maricopa County’s top prosecutor. Many Republicans have lauded his tough-on-crime approach and conservative policies. But critics deride him as an overzealous prosecutor and obstacle to criminal justice reform, and accuse him of taking positions hostile to Latinos, the LGBT community, Muslims and others.
On Thursday afternoon, some three dozen protesters, led by the American Civil Liberties Union’s Arizona chapter, gathered in front of the Maricopa County Attorney’s Office in opposition to Montgomery’s candidacy. Among the criticisms of Montgomery were that he refused to assist a lesbian couple with an adoption, despite a state law requiring county attorneys to assist people with adoptions, and that he brought in a prominent anti-Muslim figure to conduct training for his office.
Khalil Rushdan, of the ACLU-Arizona, criticized Montgomery for aggressively charging medical marijuana patients and for urging Ducey to veto legislation that would have barred prosecutors from charging first-time offenders who face multiple charges as repeat offenders.
“Bill Montgomery has a history of twisting facts to paint himself as criminal justice reformer when the data and his actions say otherwise,” Rushdon said.
Some of Montgomery’s opponents focused on his lack of judicial experience, noting that he has never served as a judge and has little experience directly handling appeals. Commissioner Larry Suciu said Montgomery has handled oral arguments in only one case, and said attorneys have told him that Montgomery had little involvement in four other cases he cited in his application.
Suciu, a Republican attorney from Yuma, said he admired Montgomery for the success he’s achieved despite his hardscrabble background. But he said the Supreme Court needs a justice who can hit the ground running and doesn’t need on-the-job training.
“He contributes to discussions about briefs in some cases. Well, I’ve been doing this for 50 years, and I can tell you kibitzing on a brief is not the same as becoming an appellate lawyer,” Suciu said. “I would just ask you to take his experience … and compare it with this list, and show me one person who has less experience as a jurist.”
Montgomery also had his share of supporters. Among the supporters who urged the commission to forward his name to the governor were Attorney General Mark Brnovich, former State Bar of Arizona President Ernest Calderon, former Maricopa County Supervisor Andrew Kunasek and County Assessor Paul Petersen.
Attorney Peter Gentala was among several people who spoke in favor of Montgomery’s candidacy on Friday morning. Gentala, an attorney who serves as general counsel for the Phoenix chapter of the child advocacy organization Childhelp and previously held the same position for the Arizona House of Representatives GOP caucus, lauded Montgomery’s work on behalf of children, and credited him with helping to reform the Arizona Department of Child Safety.
“Mr. Montgomery and his office have been incredible partners. And many young boys and girls who have been put in the terrible place of being victims of crimes have benefitted from that compassionate approach,” Gentala said.
Stephen Grams, executive director of Sage Counseling, which serves people who are in the criminal justice system, defended Montgomery’s record on justice reform, an area where criticism has been especially fierce this year. He said Montgomery has started innovative anti-recidivism efforts for people with drug convictions and animal cruelty, women who have been convicted of domestic violence, and people with mental illness.
During his interview with the commission, Montgomery spoke of his upbringing in “some pretty rough neighborhoods in southern California,” his time as a cadet at West Point, his work in reforming the state’s child welfare system and his service on a task force created to reduce the state’s backlog of untested sexual assault kits. He also touted diversion programs that he said give people a second chance to turn their lives around.
“All of that work too has been a recognition that the approach of a public official has to take into account the full scope of the people they’re seeking to serve, and not just sit behind a desk and make decisions based solely on pieces of paper that come in front of your desk, but to also be mindful of what that impact is on others,” Montgomery said. “And I’ve had a unique background, a unique professional opportunity to implement that over time.”
Recently appointed Commissioner Kathryn Townsend, a Republican-turned-independent, said she found that all of the criticism of Montgomery was refuted by comments from his supporters. She found what she felt were other reasons, unrelated to his qualifications for the Supreme Court, that drove some of the opposition to him.
“I think a lot of the people who don’t like his candidacy, frankly, and I know this isn’t politically correct but I’ll say it anyway, don’t like him because he is a conservative, white, Christian, cisgendered, heterosexual male,” Townsend said. “You can look at the letters that we’ve got and see that. We’ve literally got people who say he shouldn’t be on the court because he’s a conservative, he shouldn’t be on the court because of his worldview.”
The commission rejected Montgomery on a 5-7 in March, when it selected candidates to replace retired Justice John Pelander. Since then, Ducey has made several appointments to the commission, replacing several commissioners who voted against him. Two other commissioners were absent at the March meeting. The governor’s office said commissioners’ positions on Montgomery’s candidacy had no bearing on Ducey’s decisions.
The selection will be Ducey’s fifth appointment to the Supreme Court, including two Ducey appointed after he and the legislature expanded the high court from five to seven members.
Montgomery has long been a close ally of the governor. He supported Ducey in a crowded GOP primary when he first ran for governor in 2014, and has a lot of influence on Ducey when it comes to criminal justice policy. But Ducey has recently been uncharacteristically critical of the county attorney, saying in February that the Maricopa County Attorney’s Office “whitewashed” an investigation into a Glendale police officer accused of using excessive force.