Feathered Bastard

Bill Montgomery's Lawyer Stephen Tully Chokes, Trying to Defend Monty's Move to Silence Mary Rose Wilcox

I confess, it's damn entertaining watching a highly-paid lawyer completely flummoxed in court, sputtering like a percolator, particularly when you disagree with him.

Which is what happened Friday afternoon in Maricopa County Superior Court before Judge Dean Fink, as Fink gently grilled legal beagle Stephen Tully, the gent representing County Attorney Bill Montgomery in Wilcox v. Montgomery.

That's the lawsuit by county Supervisor Mary Rose Wilcox, asking for a declaratory judgment, stating that Wilcox does not have a conflict of interest in discussing or voting on an appeal of the ACLU's big civil rights lawsuit, Melendres v. Arpaio.

During the hour-long hearing in downtown's Old Courthouse, Fink wanted to know, specifically, how Wilcox's voting or discussing Melendres on the board would be a conflict for the supervisor.

Tully struggled for an answer.

See Also: Montgomery, the Republic, and Arpaio Want Supervisor Mary Rose Wilcox to Zip It on Melendres Joe Arpaio Pal Bill Montgomery's Plot to Silence Mary Rose Wilcox, First Hearing Joe Arpaio's Andy Thomas-Like Stooge Bill Montgomery Moves to Silence Mary Rose Wilcox on Melendres

"I'm a little bit uncomfortable arguing anything that's outside the county attorney's opinion," Tully admitted. "Does [Wilcox] have an indirect pecuniary interest in the Melendres suit? Certainly she could have."

See, Montgomery issued an opinion in June, stating that this supposed conflict of interest has to do with a nearly $1 million settlement Wilcox and the county agreed to in a federal suit, regarding bogus charges brought against her during the regime of Monty's predecessor, disbarred political pariah Andy Thomas, onetime stooge of Sheriff Joe Arpaio.

The judge in Wilcox's federal complaint ordered the county to pay the settlement, but Monty, for his own political reasons, has appealed that order to the Ninth U.S. Circuit Court of Appeals, where it now sits.

Melendres deals with racial profiling by the MCSO. Wilcox's lawsuit dealt with retaliation by Arpaio against his enemies, Wilcox being one.

The two are not related, and Fink observed as much, more than once during Friday's oral argument.

"I'm not sure how there's relevance and how the Melendres case can get into Supervisor Wilcox's case," Fink stated.

Tully hemmed and hawed, trying to come up with something, anything.

Well, they are both civil rights cases, he offered, maintaining that because of this, somehow Wilcox could use the ruling in Melendres in her lawsuit, should Monty's asinine appeal to the Ninth triumph.

"The county gets sued and the sheriff gets sued all the time," Fink observed. "Those can be involving civil rights as well."

What about training of MCSO deputies? That could be an issue in both cases, Tully suggested. Or "abuse of power," or Wilcox's claim of a "broad conspiracy."

Or there's the fact that Melendres deals with the harm done to Hispanics, and, um, well, Wilcox is Hispanic.

Indeed, in Tully's motion to dismiss, he mentions that Melendres is a class action lawsuit, the class being all Latinos stopped or detained by the MCSO from 2007 on.

"As a self-described Mexican-American," Tully writes, "Ms. Wilcox is arguably in that class."

Which, if that argument were to hold, would mean that, potentially, every Latino politician in Maricopa County would have a conflict of interest regarding Melendres.

The judge wasn't buying.

"I don't see how the Melendres case can really help her," Fink said of Wilcox. "Except in the court of public opinion."

And that doesn't count when it comes to the law.

Arizona's conflict of interest statute states that a public officer must refrain from participating in any matter where the officer or his or her family has a "substantial interest," which the statute defines as "any pecuniary or proprietary interest."

In other words, a substantial interest is a financial benefit of some kind. And that, the supervisor does not have in Melendres.

Wilcox is not a party to Melendres, and the plaintiffs in Melendres are seeking an injunction, not damages.

By contrast, the supervisor has recused herself from discussions and votes in the U.S. Department of Justice's lawsuit against Arpaio. In that case, Arpaio's retaliation against his critics is part of the government's complaint, so Wilcox's lawsuit against the county parallels matters there.

(Interestingly, at one point, Brody asserted that Monty's opinion regarding a Wilcox conflict in Melendres was a "cut and paste job," identical to the opinion regarding a conflict in the DOJ case.)

Tully gave one other point of conflict for Wilcox: the DOJ has asked to be part of negotiations for a consent decree in Melendres and there could be some overlap as a result.

Fink seemed to regard this and other what-ifs as speculative, observing that the Melendres complaint would have to be looked at as it currently stands, not as it might end up.

But if Judge Fink seemed sympathetic to Wilcox on the merits of the case, he was skeptical that he could issue the sort of judgment Wilcox's lawyers want.

Representing Wilcox, attorney Kathleen Brody argued that Montgomery's "incorrect opinion" from June has "chilled" Wilcox's First Amendment rights, and raised the specter of criminal prosecution.

Which is true. Tully stated in a footnote to one of his filings that should Wilcox vote on Melendres or discuss its appeal in a BOS meeting, contrary to Monty's opinion, the county attorney would "refer the matter to an outside prosecutorial agency."

Montgomery also reportedly said as much during a recent convention of the State Bar of Arizona.

Thus, Wilcox could face Class 6 felony charges and possible removal from office, should she defy Monty's "opinion."

Brody contended that a judicial determination from Fink, stating that Wilcox was not in conflict, would prevent any "prudent prosecutor" from pressing charges against Wilcox.

But Fink was wary of Brody's proposal.

"Usually judicial determinations are binding," he said. "I'm not seeing what the binding nature of the order would be."

Even if Fink did what she wanted, it would not protect Wilcox from wrongful prosecution.

"It's as if you're asking the court to say, if Wilcox does X, she is not violating the law," stated Fink, adding, "We don't usually issue these sort of opinions before the matter."

Tully, on the attack, accused Wilcox of wanting a "talisman" to ward off prosecution, and compared the situation to the one in the sci-fi film Minority Report with Tom Cruise.

Ironically, Wilcox has already, on two previous occasions, discussed the case in executive session. Only when an appeal of Melendres became an issue did Montgomery advise Wilcox verbally, then in writing, of this supposed conflict.

At the hearing's close, Fink took the matter under advisement, promising a ruling "sooner rather than later."

When asked, Brody conceded that the judge "was having a tougher time" with the issue of whether or not he could offer an opinion on the merits of the case.

"We think we have a solid argument," she replied. "It's just, I think, a closer question than the merits question."

What would Brody and her co-counsels do if the judge came back and said he couldn't give them a declaratory judgment?

"We would amend our complaint to ask for an injunction enjoining the county attorney from initiating a prosecution against Supervisor Wilcox," she said, adding, "We did not want to go that route in the beginning, but if we have to, I think that's what we may do."

And if the judge declines, would Wilcox defy Montgomery and risk prosecution?

Brody said she didn't think Wilcox had made that decision yet.

Tully walked out of the courthouse with Assistant County Attorney Tom Liddy and Doug Irish, chief of the MCAO's civil division. Irish declined comment when I wondered why the county attorney was attempting to muzzle the sole Latina on the board.

I asked Tully why he choked in court when the judge pressed him on the alleged conflict of interest.

"I didn't choke," Tully shot back, as Irish pushed him away from me, telling him to defer to MCAO flack Jerry Cobb.

Truth be told, Monty can't justify the case any better than Tully can.

At Montgomery's most recent press conference on July 10, I asked him to explain how county Supervisor Mary Rose Wilcox could benefit financially from Melendres.

"That analysis is in the opinion itself," he responded.

I countered that the opinion does not do that, which is why I was asking the question.

"I can't offer any more because the matter is now in litigation, [other] than what we originally had put in that opinion," he said. "I can't clarify it any further than what is there right now."

What about the charge that he's trying to shut up the only Hispanic, the only woman, the only Democrat on the board?

"If I was, it hasn't worked," he cracked.

No, on the board, and on the issue of a Melendres appeal, I said.

"That's just not true," he replied.

Though the Arizona Republic has agreed with Monty, and claims Wilcox is conflicted, its opposition has more to do with anger over the size of Wilcox's settlement.

But even a superior court judge apparently does not believe there's a conflict of interest as defined by law.

If Fink refuses to rule on the merits, I suspect that the Arizona Republic, or at least columnist Laurie Roberts, will declare victory.

Which would not only be wrong, but unseemly.

Often, I have opined that Maricopa County is the most bigoted patch of land I've ever lived in, including my native South.

Ditto for the state at large.

Folks complain when I say this. Yet, the evidence abounds.

Surely, this vengeful move by the white power structure in this county, including Monty and the Republic, to silence Wilcox on the board, despite her having no financial interest in Melendres, and despite her being outgunned by Republicans 4-to-1, is just more proof that prejudice remains at play in the Land of Sand..

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons