Feathered Bastard

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

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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."

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