Maricopa County Attorney Bill Montgomery's crusade to silence county Supervisor Mary Rose Wilcox on the Melendres case scored a win Thursday, with a superior court judge declining to weigh in on Monty's argument that Wilcox has a conflict of interest regarding the federal civil rights lawsuit.
In a minute entry dated August 1, Judge Dean Fink granted the county attorney's motion to dismiss the matter, finding that the court did not have the authority to issue the sort of opinion Wilcox's lawyers were seeking.
"The Supervisor, through counsel, essentially conceded at oral argument that what the Supervisor is seeking is a contrary opinion to that of the County Attorney in order to make it highly unlikely that a prosecutor would bring criminal charges against the Supervisor," Fink writes.
"But, like the County Attorney's opinion, the Court's opinion would not be binding on any prosecutor. It would be little more than a public relations tool to apply political pressure. Those are not waters into which the Court is inclined to wade."
Monty has warned Wilcox in writing that if she participates in official discussions or votes on whether the county will fund an appeal of a federal judge's decision in Melendres, she will be violating Arizona's conflict of interest statute.
The argument is ludicrous and incorrect, as Wilcox does not benefit financially from Melendres, and benefiting financially is the very definition of a criminal conflict of interest under state law.
Indeed, during oral arguments two weeks ago on Wilcox's complaint, Montgomery's outside counsel Stephen Tully, who is being paid $200-$250 an hour by the taxpayers to do Monty's dirty work, was stymied when he tried to explain Monty's twisted legal reasoning to the judge.
Montgomery's official position is that Wilcox's civil settlement with the county in an unrelated case from the dark days of disbarred ex-county attorney Andy Thomas creates the conflict at hand.
But Fink wasn't buying.
"I don't see how the Melendres case can really help her," Fink said of Wilcox during the hearing. "Except in the court of public opinion."
Fink also signaled at the hearing that he was not inclined to issue the sort of judgment sought by Wilcox's attorneys.
Montgomery has indicated that he will refer the matter to another prosecutor should Wilcox defy him and attend executive sessions regarding Melendres or vote on a possible appeal of a federal judge's decision in the case.
That ruling by federal Judge G. Murray Snow found Sheriff Joe Arpaio guilty of racial profiling, and enjoined Arpaio from discriminating against Latinos in the future.
But as Fink observes in a footnote to his minute entry, Wilcox has previously participated in discussions on Melendres. Only when the issue of an appeal reared its head, did Montgomery issue his edict, warning Wilcox of her "conflict."
Fink writes that,
"The Supervisor's declaratory judgment request is limited to future discussions regarding the Melendres case, although both parties seem to acknowledge that the Supervisor has already engaged in such discussions during the pendency of her federal lawsuit against the County.
"Thus, if the County Attorney's opinion is correct, the Supervisor has already committed a felony (although he has apparently declined to charge the crime or refer it to another prosecutor for review)."
In another aside, Fink opines that any prosecutor Montgomery might conflict out to, "will not simply take the County Attorney's opinion at issue as gospel, but will use appropriate prosecutorial discretion in evaluating this matter and determining whether a crime should be charged based on the facts and the law."
That's a huge maybe. Were Monty to conflict the matter to a prosecutor such as Yavapai County Attorney Sheila Polk, I think Wilcox would be safe from retaliation.
However, were Monty to send the matter to someone like Pinal County Attorney Lando Voyles, protege of sleazy right-wing Sheriff Paul Babeu, all bets are off.
Fink left the door open to Wilcox's counsel to amend the complaint and ask for an injunction against Montgomery, setting an August 15 deadline.
Asked to comment, attorney Kathleen Brody said she and the other lawyers representing Wilcox are studying the decision and have not decided on the next move.
We Believe Local Journalism is Critical to the Life of a City
Engaging with our readers is essential to Phoenix New Times's mission. Make a financial contribution or sign up for a newsletter, and help us keep telling Phoenix's stories with no paywalls.
Support Our Journalism
It bears reminding that Wilcox is the only Hispanic, the only woman, and the only Democrat on the five member BOS.
What threat does she pose a 4-to-1 GOP majority likely to side with Arpaio, who wants the BOS to fund his appeal of Melendres?
What Wilcox brings to the table is her unyielding, outspoken criticism of Arpaio and his racial-profiling ways.
And that's not what the white power structure of this county wants to hear as it backs our prejudiced sheriff to the hilt.