Chief Justice talks rule of law, diversity, and merit with Arizona business leaders

Robert Brutinel, chief justice of the Arizona Supreme Court, met with Arizona business leaders last week by video conference  to discuss his career, the utility of the state’s merit selection process, and the justice system’s commitment to equality under law and a qualified bench. 

Born and raised in Prescott, Arizona and a graduate of both Arizona State and the University of Arizona, Chief Justice Brutinel is a testament to the exceptional education provided by the state’s public universities.

Brutinel was first nominated to the bench in 1996, transitioning from his own law firm to serve on the Yavapai County Superior Court. Specializing in juvenile cases, he made a name for himself in Yavapai County and was nominated by Gov. Jan Brewer in 2010 to the state’s Supreme Court. In 2019, with the resignation of Chief Justice Bales, Brutinel assumed the role of chief justice for Arizona’s highest court.

He is proud to say that only a year or so into his term, he has visited every single county. Meeting with judges and exploring their courthouses, he has fostered a relationship and keen understanding of the state’s legal environment.

Merit and diversity

Justice Brutinel says he is proud of Arizona’s widespread adoption of the merit selection process. “I am truly grateful for the [Arizona Chamber of Commerce and Industry]’s support of merit selection of judges,” says Brutinel.

The state’s leading business group has long cited the merit selection process as a best practice that fosters a better legal environment in Arizona. 

“Looking around the nation and seeing how elections work for appellate judges in other states–merit selection is just so much better in terms of having a diverse and qualified judiciary and getting the best people possible,” Brutinel said.

From his perspective, direct election systems often invite “the pernicious influence of lots of money in electing judges.”

“If you look at Illinois, or Texas, or West Virginia, or a number of the eastern states who have direct election of appellate judges–particularly Supreme Court justices–they spend about three to four million dollars” in order to elect a judge. 

According to Brutinel, money should have a negligible influence in how appellate justices are chosen.

Arizona’s meritocratic judicial selection process has been hailed across the nation as one of the most efficient and nonpartisan systems in the nation. The U.S. Chamber of Commerce’s Institute for Legal Reform cites the Arizona process as among the most fair and desirable in the United States.

This system also provides for diversity among judges. “We’re looking for diverse appointments and to encourage people to apply,” says Brutinel, “We recognize that it’s critically important that our judiciary be representative of the diversity of the state as a whole.”

Under Governor Ducey, 37% of judicial appointments have been women, and 18% have been minorities.

While he does applaud the state of Arizona and the courts for reflecting the diversity of the state in its courthouses, he does admit that the state bar must work on expanding diversity so that it is fully representative of Arizona’s racial and gender make-up.

As part of the state’s commitment to intellectual, racial and ethnic diversity, the chief justice “asked members of the commission on all of the trial court appointment commissions and the Commission of Appellate Court Appointments to recruit. To go out and try to find people who are interested in being a judge, who will add to the diversity of the court.”

The Arizona Commission on Appointments has a standing committee on minorities in the judiciary that “turns 30 this month”.

Access to justice

Upon taking his oath and assuming the title of chief justice, Brutinel listed as his first priority to enhance “access to justice.” He believes, and the data substantiates this claim, that Arizona has an “access to justice problem.”

“In Maricopa County, 80 percent of the people that come to the domestic relations courts are not represented by counsel. If you go to smaller counties, like Santa Cruz County, it’s 95 percent.”

A large swath of Arizonans seeking justice in the legal system are left without counsel. This is a hindrance to the delivery of justice under the law.

In response to this endemic issue, the court’s taskforce on the delivery of legal services has recommended that licensed paralegals are equivalent to physicians’ assistants in their role. They would be trained in specific areas of law and would be available at much more affordable rates than a traditional attorney.

According to Brutinel, “the [University of Arizona] and Arizona State University [are] both interested in bachelors of law programs” which would allow for far more representation in courtrooms.

Because of the severe disparity witnessed in domestic relations courts, Brutinel and the court have put domestic relations cases first on the agenda in regards to which areas paralegals will be recommended to study.

Rule of law

While Chief Justice Brutinel is unable to speak directly on issues that could potentially come before the court, such as civil unrest, he made clear that “courts exist to ensure access to justice and to apply the Constitution and our laws” equally.

Mentioning Federalist 78, he quoted James Madison in that the courts have neither force nor will, but rather judgement.

“We have seen property damage and looting, which is certainly horrifying.” Brutinel said. He is confident, however, that in a civil society domestic disputes can be settled peacefully and through the levers of justice provided to Americans and Arizonans by the U.S. and the state constitutions. This is another reason he is working towards ensuring the bench reflects the diversity of the state and that access to justice is available to all Arizonans.

Pandemic response

Following Gov. Ducey’s emergency order on COVID-19, Chief Justice Brutinel released an order outlining how the courts would handle this unprecedented outbreak. “In a real sense, we have followed the direction of the Governor’s Office and the Arizona Department of Health Services.”

Though this is a unique challenge, Brutinel made clear that “the courts remain open for business… [but it can’t] be business as usual.”

“We suspended jury trials, we suspended most bench trials, we limited in-person contact in our courthouses, we limited the size of gatherings,” among other safety measures, he said.

Giving county courts considerable discretion, “Mohave County now has grand jury proceedings by Zoom.” The impact of this Arizonan innovation is widespread, Brutinel said. “People around the country are looking at that.”

The courts’ maintenance of fair trials and public accessibility while also balancing this with “the safety of the public and the safety of [their] employees” is widely attributable not just to the chief justice’s leadership, but also to the counties’ presiding judges. Brutinel mentioned that they have followed all statewide instructions and used their discretion wisely in order to best provide justice to the citizens of their respective communities no matter the realities of the coronavirus.

Business community

Laura Ciscomani, development director for the Arizona Chamber of Commerce and Industry, hosted the discussion with the Chief Justice via Zoom. She thanked Brutinel, on behalf of all Arizona job creators, for his continued dedication to justice under law.

He remarked that it is vitally important that appellate courts “properly serve the businesses in the state of Arizona; the citizens of the state of Arizona.”

The cover photo for this story comes courtesy of the Arizona Capitol Times.

Joe Pitts

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