The Supreme Court's 26 opinions in 2019 are the fewest issued by Arizona's highest court in modern times* Also, the 7 justices have not issued an opinion since the Brush & Nib opinion attracted national attention on September 16; never* has the Supreme Court gone this long without releasing an opinion.**
Brutinel tells AZ Law that it is "a funny set of circumstances" that led to fewer opinions being issued. Among the confluence of events was the departures of Chief Justice Scott Bales and Justice John Pelander, the resulting appointment of two new justices "who really want the first ones to be good" and naming of a new Chief Justice and Vice Chief Justice. In addition, a "minor factor" may have also been the difficulty and 110- page length of the Brush & Nib opinion. (James Beene and Bill Montgomery are the two new Justices.)
"We'll get back into a regular rhythm as people get a little more experienced," the new Chief Justice explained. "The reality is we're trying to take more cases, (we are) a group of people that wants to work hard - they're here to write opinions."
Brutinel notes that the seven justices have been discussing ways to produce a higher output in 2020. However, he notes that "part of it is not in our control. I would argue we take all the cases we ought to be taking."
A couple of the ideas they have discussed involve the intermediate Courts of Appeals. A "more robust" transfer policy would see the Supreme Court accepting cases directly appealed from the trial court. That recently happened in the appeal by Payson Mayor Tom Morrissey; although it was an elections-related case, it could have first been heard in the Court of Appeals. The Supreme Court took the case and issued an order, although the written opinion will be released later this year.
Brutinel also tells AZ Law that the Court of Appeals judges do a very good job, and "we've never taken cases just to tell the Court of Appeals that they're right - but we may start doing that." (Like the U.S. Supreme Court, the Arizona Supreme Court is not required to accept all appeals from the intermediate level; rather, it considers which cases need to be accepted.
He notes that there are 17 cases already in the pipeline, and predicts that the Court will issue "around 70" opinions in the coming year. That would set a modern record for the MOST opinions issued in a year, and more than double the average output over the past 15 years.
The modern records come against the backdrop of Governor Doug Ducey and the state Legislature deciding to expand the size of the Supreme Court bench in 2016, from five to seven justices. One of the Governor's key stated reasons for expanding over the objections of then-Chief Justice Bales was that the Court would be able to issue more opinions.
In a letter justifying the legislation, Ducey stated "Arizonans deserve swift justice from the judicial branch. Adding more voices will ensure that the court can increase efficiency, hear more cases and issue more opinions."
Ducey also suggested that the additional justices would allow for "more certainty" for the parties to the litigation. Brutinel explains to AZ Law that while he has nothing bad to say about the court's expansion, more opinions does not necessarily lead to more certainty in the law. Rather, having Supreme Court opinions that are unanimous (or, nearly so) lead to more certainty because it would be harder for them to be overturned. (Perhaps the Governor meant to refer to "finality"?)
When the Governor appointed three new Justices in 2017, 43 opinions were issued and there was no gap of more than one month between opinions.
The Governor's Office declined to respond to AZ Law's requests for comment.
(AZ Law's interview with Chief Justice Brutinel will be presented next week as part of our program for Sun Sounds of Arizona. AZ Law is broadcast at 11:00a.m. on the 3rd Saturday of each month, and other installments are available on-demand. Sun Sounds is a non-profit reading service for persons with disabilities which make it difficult to hold or read printed materials; it is a public service provided by Rio Salado Community College, along with KJZZ and KBAQ. Learn more here, and donate here.)
*The Court's website lists all of its opinions chronologically from 1998 to the present. Given the court's known penchant in earlier times for issuing more frequent - and, shorter - opinions, it is likely that the 2019 records would stand the test of earlier times, as well.
**Only once in the past 22 years has the Court gone more than three months without issuing an opinion. That was in the autumn of 2011 - 102 days. Only two other times were there a waiting period of more than two months between opinions (2012).
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