By Howard Fischer
Capitol Media Services
PHOENIX -- A decade-old political spat between two Republicans could affect whether one Supreme Court justice is among those who decides what is the legal way to teach English in Arizona schools to those who are not fluent.
In a surprise move, state schools chief Tom Horne has asked Justice Bill Montgomery to sit this case out. Horne's attorney, Dennis Wilenchik, said it's all because actions by Montgomery when he was Maricopa County attorney -- actions that at the time involved possible criminal charges against Horne.
That case involving allegations of violations of campaign finance law in Horne's 2010 campaign for attorney general, eventually ended up being dismissed. But Wilenchik said the history of that case should mean Montgomery should step aside.
A spokesman for Montgomery said Thursday he had not seen Horne's motion.
Strictly speaking, it would be up to him to make the decision whether to recuse himself from this case. . There are no rules or procedures that allow the other six justices on the court to force him out.
But Montgomery has, at least once in the past, agreed to step aside: He agreed -- after at first refusing -- to sit out a hearing about the legality of a 2023 law that said abortions are legal through the first 15 weeks of pregnancy after it was noted that while he was county attorney he had made disparaging comments about Planned Parenthood, one of the parties in the ccase.
What's at issue here is quite different.
Horne contends a 2000 voter-approved law spells out that the only method of teaching English is through immersion programs. Several school districts disagree, saying they are following rules enacted by the state Board of Education which allows bilingual or dual-language programs.
The case has reached the state's high court because both a trial judge and the Court of Appeals have concluded that Horne lacks legal standing to sue the districts. They also tossed out his claim against Gov. Katie Hobbs and Attorney General Kris Mayes who he accused of encouraging the schools to break the law, at least the way he reads it.
Wilenchik, in his new legal filing, does not specifically charge that Montgomery is biased against Horne. But he said the history between the two of them is enough to justify the motion for the justice to step aside.
All this goes back to Horne's 2010 bid for attorney general and the money spent to get him elected by what was billed as an independent campaign committee supporting his election.
Nothing in state law prohibits any group from conducting a separate campaign for or against a candidate. But the law says these must be independent, with no coordination between the candidate and those running the committee.
An FBI report said that Horne actively directed the fundraising of Business Leaders for Arizona, what was supposed to be an independent campaign run by Kathleen Winn. And that committee spent more than $500,000 on ads attacking Felecia Rotellini, his Democratic foe who he defeated.
Under normal circumstances, Ken Bennett, who was secretary of state when the complaint was filed after the election, would send it to the attorney general. But Bennett, saying that was a conflict, sent it instead to Montgomery.
"Justice Montgomery, then Maricopa County attorney, held a press conference in which he announced to the public that Tom Horne ... had deliberately violated the campaign finance law by coordinating with an independent campaign,'' Wilenchik wrote. He said that Montgomery then sent the case to a hearing officer -- but retained the right to overrule what that person found.
Wilenchik said the hearing officer didn't rule on the charges but concluded that Montgomery was "not the proper person to be pursing the case against Mr. Horne.'' Montgomery fought that, only to have , Maricopa County Superior Court Judge John Rea rule in 2013 that Bennett had no right to decide unilaterally to send the case to Montgomery.
That sent the case to Yavapai County where a different hearing officer found there was no evidence of coordination.
Wilenchik said in his motion seeking Montgomery's recusal that he needed to detail that history.
With or without Montgomery's participation, the Supreme Court has yet to decide whether to hear Horne's appeal of the lower court rulings.
Horne's battle with the schools, the governor and the attorney general have proved to be costly
In a new order, the Court of Appeals ordered Horne to pay more than $41,000 in legal fees incurred by attorneys hired by the governor to defend herself, another $33,042 for Mayes' legal fees and $17,226 for the lawyers for the school districts.
All that is on top of $120,000 that Horne owes in legal fees after losing the case in Maricopa County Superior Court.
In the end, though, that is going to be paid by Arizona taxpayers since Horne sued -- and continues to sue -- in his capacity as superintendent of public instruction.
The earlier issue with Montgomery in the 2023 abortion case arose after it was revealed that in 2015, while still Maricopa County attorney he said Planned Parenthood "encourages the very behavior that leads to STDs (sexually transmitted diseaase) and abortions,'' adding that "their business model relies on it.
And then there was a 2017 statement saying "Planned Parenthood is responsible for the greatest generational genocide known to man.''
Montgomery, in a statement at the time to Capitol Media Services, said his comments while county attorney were irrelevant because they came before then-Gov. Doug Ducey tapped him in 2019 for the Supreme Court. He also insisted he could fairly judge the case.
But Montgomery reversed course a week later, saying that "additional information related to the parties and respective counsel has come to my attention warranting that I recuse myself from any further deliberations in this matter.'' He did not spell out what was that "additional information.''
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