By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Supreme Court has rebuffed a bid by state schools chief Tom Horne to keep Bill Montgomery from joining with other justices who will decide whether he has the right to sue schools and others over English instruction.
In a brief order, Justice James Beene, writing for the court, said Horne "has not demonstrated good cause for the disqualification of Justice Montgomery.''
Beene, the duty justice, made no mention of Horne's claim that Montgomery's, when he was Maricopa County attorney, made statements saying he was guilty of campaign finance violations in 2010 before there had even been a hearing. Nor did Beene note that a trial judge hearing the issue at the time rebuffed the way Montgomery wanted to handle the legal claims against Horne.
Instead, Beene said that Horne had not met his burden of showing that Montgomery, named to the state's high court in 2019 by then-Gov. Doug Ducey, could not be fair.
"The motion cites no legal authority that would provide a basis for disqualifying any justice in this case,'' the order states.
Horne told Capitol Media Services he was surprised by the summary order.
He said that he was representing a private party in an unrelated case in front of the justices some years ago where he raised the same claims about whether Montgomery could be fair given their history.
"And he recused himself,'' Horne said. "So I'm wondering what changed.''
One thing is different is this time.
Montgomery did not personally decide whether or not he should step aside -- what was in the legal filing by Horne -- but left the decision of whether he could remain on the case to the others on the seven-member court.
Horne brushed aside a question of whether he may have undermined his case by filing a public document that essentially questioned whether Montgomery could be fair, especially now that the justice will be helping to rule on his claim. But he said he wasn't sorry he did it.
"I felt it was the right thing to do,'' he said, given what had happened the last time he requested Montgomery step aside from a case based on their earlier history. That happened to be a civil matter while Horne was in private practice, between the time he was no longer attorney general and when he was elected schools chief in 2022.
"Last time I filed it he understood and he recused himself,'' Horne said.
There was no immediate response from Montgomery.
The issue before the Supreme Court revolves around Horne's lawsuit is a 2000 voter-approved ballot measure which says that "all children in Arizona public schools shall be taught English by being taught in English, and all children should be placed in English language classrooms.'' That, he says, means students who are not proficient in the language when they come to school -- presumably from homes where another language is taught -- are placed in English immersion courses for four hours a day.
That concept, however, drew concern from some parents and schools who said that it resulted in those students falling behind in academic subjects as well as the question of whether they were being segregated from others their own age.
In 2019 lawmakers voted to allow the state Board of Education to adopt and approve alternate "research-based'' models that involve two hours a day of English instruction, giving school more flexibility in how to schedule that time. It also allows classes mixed with both students whose native language in not English as well as those from homes where that is not the case.
The board subsequently said that can include a "dual-language model'' where students can both learn English but also keep up with their peers on other subjects.
Horne contends this doesn't work as well. But what's behind his 2023 lawsuit against districts that have adopted that alternative is his argument that neither the Legislature nor the Board of Education has the constitutional right to override something approved by voters.
So far, though, he has not had a chance to make that argument. Both a trial judge and the state Court of Appeals ruled that only the Board of Education -- and not him as superintendent of public instruction -- can sue districts over whether they are complying with the law.
That sent the case to the Supreme Court -- and led to Horne's bid to have Montgomery sit out the case based on their prior history over that issue of Montgomery saying he believed Horne was guilty of campaign finance violations in his successful 2010 campaign for attorney general.
What the high court decides goes beyond whether the justices will let Horne sue the school districts.
He also filed suit against Gov. Katie Hobbs saying that she encouraged schools to violate the 2000 initiative. And he also is suing Attorney General Kris Mayes who he said issued a legal opinion that empowered school districts to use dual language programs.
Those claims, too, were dismissed by lower courts.
The Supreme Court has yet to decide whether or not to hear his appeal.
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