Nov. 2, 2010: Bill Montgomery waves to the crowd after giving a victory speech at the GOP election headquarters at the Hyatt in Phoenix. (Photo: Pat Shannahan, Arizona Republic)

The Sunday Arizona Republic ran a good profile about the man about to become the most influential lawyer in Arizona.

No, not the new state Attorney General, Tom Horne. I was referring to Bill Montgomery, who on November 22 will punch a clock as the new Maricopa County Attorney.

Arizona Attorney Magazine is a statewide publication, so we tend not to cover county-specific races and positions. Which may be a shame, because that meant we sidelined ourselves as the oddest squadron of legal types wreaked havoc over the state’s largest county over the past few years. And at the center of the maelstrom were two county positions: Sheriff and Attorney.

Michael Kiefer’s profile of Bill Montgomery managed to leave the starting gate before Montgomery even sat in the chair. Therefore, we’ll have to reserve judgment on whether the results align with the new prosecutor’s stated aims: to serve “the cause of justice and the people of Maricopa County.”

Kiefer hedges his bets by noting in the second graf that Sheriff Joe Arpaio “contributed heavily to Montgomery’s Republican primary win by bankrolling attack ads against Montgomery’s primary opponent, Interim County Attorney Rick Romley.”

It’s not easy, Kiefer suggests, to decline to dance with the one who brung ya.

Andrew Thomas

Montgomery seems to be aware of this, and went out of his way to reassure Kiefer and readers that he is his own man.

There are a lot of good reasons to do that.

First, of course, it would appear (even to a non-ethics expert such as me) that it is simply the right thing to do. As Montgomery said, “I can’t use the criminal-justice system to effect a policy outcome if I don’t have the evidence or the ability to prosecute a case ethically in the first place.”

It may be a sign of how far we have fallen in Arizona that a statement like that yields a sigh of relief in a reader; anywhere else in the country, it would cause readers to say, “Well, duh; that’s Crim Law 101.”

Second, it may be the right thing for Bill Montgomery to do—for himself. It can’t have escaped his attention that waging high-profile war with other agencies, county supervisors and even judges did not translate into fame, fortune and a life of unalloyed praise for his predecessor and the sheriff. Sure, it’s always possible that Andrew Thomas may be hosting his own Fox News show one of these days, but right now? He’s just practicing law, and continuing to stare at the possibility of formal bar charges.

And the sheriff? Well, he’s been a little quieter lately. Elections may have consequences, but so do active county supervisors, and an inquisitive Department of Justice.

You can read the entire story here.

Tomorrow, I’ll write about other leaders who are buoyed along the political current by supporters, some of whom the leaders wish would stay in the shadows. Sometimes it works, but sometimes …

(Full disclosure: I am a State Bar employee, but I have nothing to do with the Lawyer Regulation Department. And in the case of Andy Thomas, even the Lawyer Regulation Department is out of that loop. By Arizona Supreme Court order, it is being investigated by Colorado lawyer John Gleason; the probable-cause panelist is former Arizona Chief Justice Charles Jones. So far, no formal charges have been brought in the matter. So my musings are just that.)

Maricopa County Court Tower and Supervisor Don Stapley

Today’s top legal story was a construction story—what could be better in real estate-crazy Arizona!

 

The “topping-out” of a building, even a new courthouse, is rarely much more than page 3 stuff. More often, it rates only a squib in the newspaper, or a larger filler news story, but only if there’s a good photo.

But the skyward reach of the Maricopa County Superior Court qualifies for much splashier coverage. For it is steel and mortar—and so much more.

The courthouse, as most everyone knows, has become a Rorschach inkblot on the legal psyche of the Valley community. It was constructed with cash that the county administration had saved up over at least 10 years. But it is also the most expensive single construction project that the county has ever taken on.

Thrifty, or spendthrift? Individuals disagree.

Recently departed County Attorney Andrew Thomas thought it was a waste of money, and worse. Over the past year, using the rising court tower as an iceberg, or a battering ram, he aimed crushing blow after crushing blow at county government. And in his mission to unearth what he claimed were massive improprieties, he even extended his assault beyond all the usual targets. He included court leadership itself, going so far as to file charges against judges.

Those actions—and therefore the Court Tower itself—split the legal community like very little ever has. It led to indictments, harmed reputations—on both sides—anger, recrimination, firings, and the specter of a rudderless county, perhaps mortally wounded by action and reaction.

Andy Thomas has resigned now, building his campaign for Arizona Attorney General. His replacement—Rick Romley—was named and has begun his own purge. So everyone has now taken a collective deep breath.

Hon. Barbara Mundell

But that high opera served as a fitting first act to the topping-out ceremony, where county officials maybe even enjoyed themselves, for the first time in a long time. Board of Supervisors Chair Don Stapley—who himself had been charged by Thomas—had to feel a certain sense of accomplishment on the sunny April day as he spoke to the assembled well-wishers.

But it was in a keynote speech delivered by Presiding Judge Barbara Mundell that we learned one of the more interesting aspects of the new courthouse.

She spoke on April 14 at the annual dinner of the Arizona Asian American Bar Association. And her words and tone also were those of someone who had come this close to a ship-sinking iceberg. She was insightful, drained, and relieved.

Hon. Gary Donahoe

Judge Mundell enumerated the challenges she had faced—including a lawsuit by Andy Thomas against a Spanish-speaking probationary DUI program, which he alleged were race-based courts. (She won that federal lawsuit at the trial and Ninth Circuit levels.)

“No Presiding Judge had ever been sued before,” she marveled. “I was making precedent, but not in a good way.”

She still sounded stunned as she spoke about “a new way of attacking the court that I’d never heard of: through press releases, out in the public.”

The low point, she said, was when she was contacted by the media at about 2:00 on a weekday afternoon. They had been informed that a search warrant had been issued for her home and office, and they wanted to tape what happened.

“I had to explain to our 14-year-old daughter that strangers may be going through our house, through her room.”

“Mom,” her daughter asked, “did you do something wrong?”

She managed to obtain an order to stay the warrant, if it ever existed.

Rev. Martin Luther King, Jr.

It’s stories like that, you surmise, that make the engraved words on the new courthouse resonate even more with her: “The first duty of society is justice.”

But the visible words outside cannot compare with the words inside that people like me will never see. And those words are written on the building’s top beam, now hidden forever by lath and drywall.

Before that top beam was hoisted into its highest point, Judge Mundell said, many judges and court personnel were invited to inscribe it with a Sharpie. Most just signed their names. But then Judge Gary Donahoe stepped forward.

Donahoe, of course, had his own notorious run-ins with the County Attorney. Out from under that hammer, the judge added perhaps the most poignant hieroglyphics to the soon-to-be hidden building beam:

“Injustice anywhere is a threat to justice everywhere.” —MLK

A fitting apex, indeed.

Here is the news story on the Court Tower’s topping out.

Whew! Few days are more representative of quintessential Arizona legal politics than today.

Today was going to be all about the Chief Justice’s State of the Judiciary speech. That was to be delivered at the Legislature, and would be followed by posting the complete report on the Court’s spanking-new Web site (http://www.azcourts.gov/).

But after the speech by Chief Justice Rebecca White Berch, there were the inevitable questions, and one just had to be on the matters regarding Maricopa County Andrew Thomas. What about this new Special Counsel who had been named, Scott Rhodes? someone asked. Hadn’t Mr. Thomas complained that Rhodes, too, had conflicts and should be de-selected?

You may recall that Scott Rhodes, an attorney at Jennings, Strouss & Salmon, had been named independent counsel only about a week and a half before. His selection had followed the State Bar’s request to the Chief Justice that she might consider naming an independent counsel. The Bar said it believed it could do its job fairly, but the appearance of a conflict might undermine the process, so how about naming someone who does not work at the Bar?

C.J. Berch agreed, and that’s when she named Rhodes.

But all good things must come to an end. The Chief replied to today’s questioner that Rhodes had decided to withdraw from the position. So now the Court will have to name someone else—someone somewhere in Arizona who knows a lot about the Ethical Rules, but has never had any significant interaction with the County Attorney, the County Sheriff, or the County Supervisors. Tough one, that.

Later in the day, the Court’s Chief Communications Officer, Jennifer Liewer, sent the media a statement from the Court on this newest Andrew Thomas development (see below). The Court recognized it had to address the story, so it did, head on.

And the “State of the Judiciary,” a well-written document that will guide Arizona courts for the coming year? It was an attachment.

That was a tough communications day for the Arizona Supreme Court.

Here is the Court’s statement:

“Statement from the Arizona Supreme Court regarding appointment of Scott Rhodes as independent counsel to review allegations of misconduct against Maricopa County Attorney Andrew Thomas

“The Chief Justice selected Scott Rhodes to investigate allegations of ethical misconduct by Mr. Thomas, because Mr. Rhodes is a well-respected and knowledgeable expert in the field of attorney discipline. The Chief Justice believes Mr. Rhodes would have conducted a fair and unbiased investigation. However, after a meeting recently convened by Chief Justice Rebecca White Berch with Mr. Rhodes and legal counsel representing County Attorney Andrew Thomas, Mr. Rhodes chose to withdraw as special counsel because of the objections raised to his appointment and to avoid those objections becoming a distraction to the investigation.

“Chief Justice Rebecca White Berch states, “I respect Mr. Rhodes’ decision to withdraw and will appoint a different individual to look into the allegations against Mr. Thomas.””