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.