Arizona Supreme Court Chief Justice Robert Brutinel said the addition of two more justices has made the court less efficient.
Brutinel’s assessment contradicts Gov. Doug Ducey’s justification in 2016 for signing legislation to expand the court from five to seven justices “. . . will ensure that the court can increase efficiency, hear more cases and issue more opinions.”
Brutinel, a Republican appointed by Gov. Jan Brewer in 2010, told Arizona Capitol Times he believes not only that the court is less efficient than it was with five justices, but that five justices was plenty to handle any increased caseload the bench has seen since.
“[When] five justices take 10 cases in a year, they write 50 opinions in total. When seven justices take 10 cases it’s 70 opinions,” Brutinel said, citing an example of why the court is less efficient.
Brutinel was against the expansion in 2016 and though he likes his coworkers that Ducey added to the bench –– Justices Andrew Gould and John Lopez –– he said the additional justices mean two law clerks per justice, which is six additional people who will look at a case before issuing an opinion.
“I’m not saying it’s a bad thing, but it’s not a more efficient thing,” Brutinel said.
The first time Arizona expanded the court was in 1949 from three to five. The court building at 1501 W. Washington St. was built with the space for seven justice chambers, which was another argument proponents of the expansion used to push the legislation. What that really means, though, is it would not cost taxpayers more money to build those areas.
The expansion does cost roughly $1 million annually.
The 2016 expansion was politically charged and passed on partisan lines. The bill’s sponsor, Sen. J.D. Mesnard, R-Chandler, who at the time was Speaker of the House, said at the time there was a political component.
“There’s always going to be a political consideration,” Mesnard said in 2016. “And if there were a Democrat on the ninth floor (where the governor’s office is located) that would be a political consideration that I would take into account.”
Democrats accused Republicans and Ducey of trying to pack the court, a term that came up nationally this year as the prospect of a decades-long conservative majority on the U.S. Supreme Court came up following the death of Ruth Bader Ginsburg.
The idea of adding seats to the nine-justice court has gained renewed traction among Democrats, and Democratic Presidential nominee Joe Biden has dodged multiple questions from the media about the proposal. California Sen. Kamala Harris, refused to answer the question during her debate with Vice President Mike Pence.
Harris, however, expressed support for court-packing during her primary bid for president, along with several other progressive candidates
One of Ducey’s justifications for expanding the court did pan out – sort of.
The number of cases filed with the court did increase in the first two years after Ducey appointed Lopez and Gould, but there is no data to attribute the increase to the expansion.
Republican elections attorney Kory Langhofer, who pens a blog dedicated to following the Arizona Supreme Court called SCOAZ Blog, said cases have been on an incline for years leading up to the expansion.
The Supreme Court handles appeals in civil and criminal matters, death penalty appeals, fast-tracked elections appeals, State Bar matters, Industrial Commission appeals, and certain urgent matters that are allowed to skip the Court of Appeals.
The court only accepts a handful of cases a year for review; the standard for review is if there’s a split on an issue between the two Arizona Court of Appeals divisions, if the justices think case law should be reconsidered or if the issue at hand has statewide importance.
In the five years preceding the expansion, the court saw an average of 1,050 filed cases and terminated an average of 1,049 per year.
Terminations means any resolved matter. A Supreme Court spokesman said not all cases filed in one fiscal year will be terminated in the same year so some years will have more terminations than cases filed.
In Fiscal Years 2017 and 2018, the court saw an average of 1,244 filed cases and terminated 1,168. Then in 2019, those numbers changed a lot. The court saw roughly 200 fewer cases than 2018 and terminated more and filed cases began to rise again in 2020. The same trend exists with written opinions, with 2019 being the year with the lowest number of opinions in a decade.
Patrick Ptak, Ducey’s spokesman, said the 2019 numbers were low because of the “high turnover” on the bench. Brutinel said that’s possible, but did not think there was one area they could point to as to why there were fewer cases and opinions.
Scott Bales, the previous chief justice who retired from the bench in 2019, said the decrease was not an active decision from the court to hear fewer cases or write fewer opinions.
The Arizona Supreme Court often follows a practice of calling up a judge from the Court of Appeals or bringing a justice back from retirement to temporarily fill a seat that is empty because of a vacancy or a recusal.
Bales, the last Democrat to serve on the court, was one of the most ardent critics of the expansion and told Arizona Capitol Times he still does not believe the expansion made the court more efficient, as Ducey claimed it would.
“Additional justices are not required by the court’s caseload,” he wrote in a 2016 letter urging Ducey to veto the bill. “And an expansion of the court (whatever people may otherwise think of its merits) is not warranted when other court-related needs are underfunded.”
Ducey signed the bill anyway, but he “took into account” what Bales had to say, according to his staff.
“No question that five justices would be able to handle the workload,” Brutinel said in an October 14 interview.
Langhofer supports the expanded court and actually views more terminations as a positive factor of the seven-member bench, but also concedes that the court operates at a slower pace now than it did before the expansion.
“You’ve got more people that have to review [the cases],” he said, adding that it obviously takes longer to get seven people’s response than five.
Brutinel and Bales said one thing that did not change with the increase is the number of justices necessary to accept a case – three – rather than increasing it to four of seven.
“Certainly it has made it easier to take cases, but the reality is that if someone feels strongly about a case then most of the time you can convince two others to go along. Convincing three would be more challenging,” Brutinel said.
Between 2012 and 2016 the court issued an average of 36 written opinions with nine of those involving election appeals, which do not have to include a full panel of justices. The following two years saw an uptick again of 43 and 46 opinions, respectively with seven election appeals in 2018. That number dropped in 2019 to 26 total opinions (including the longest duration for a decision at 237 days), and through 10 months this year, it has issued 48 opinions with 13 from election appeals.
Langhofer through his analysis of the court did shoot down one of the main criticisms of expanding.
He said that the more conservative court “has not guaranteed the outcomes preferred by the Republican Party.”
He pointed to two recent rulings, one in the appeal of Republican Arizona Corporation Commissioner Kim Owens losing her candidacy over a petition challenge where the lower court ruled in favor of her, and the second also from 2020 with the Supreme Court unanimously ruling in favor of the Invest in Education ballot measure, a proposed tax on the state’s highest earners.
Even so, the court now lacks in political party breakdown with six belonging to the Republican Party, and one – Clint Bolick – a conservative independent.