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Arizona Supreme Court Justice Robert Brutinel is retiring

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Retired Arizona Supreme Court Justice Robert Brutinel doesn't care that a Democratic governor is picking his successor on the state's most powerful bench.

“When it came time for me to retire, people said, 'You can't retire, you're going to appoint a Democrat in your place.' I said I don't care,” Brutinel said in an interview on Nov. 1, his first day in retirement.

Brutinel defended the quality and independence of Arizona's judiciary on the eve of potentially significant changes to the composition of the Supreme Court and the state's merit-based method of selecting judges. He spoke out in favor of today's benefits system and said he feared “general harm” from the perception that the court and its decisions were politically motivated.

On Nov. 5, Arizona voters will decide whether to keep two judges, Clint Bolick and Kathryn King, on the same ballot they consider Proposition 137.

Bolick and King have been targeted by progressive groups over, among other things, the court's 4-2 decision in April that allowed the enforcement of a near-total ban on abortion. If Proposition 137 passes, it would upend the state's electoral system for electing members and end regularly held elections for judges. It is retroactive, meaning judges who may be voted out could ultimately remain on the bench if Proposition 137 passes.

Brutinel objected in the abortion case. And he believes both Bolick and King should be embraced by voters.

“We are not a second legislature,” Brutinel said. “We don’t make guidelines. And so I'm disturbed by the idea that you judge a person sitting on a court in the state of Arizona based on whether or not you like the policies that are driving the decisions.”

Brutinel, 66, served on the Supreme Court for 14 years, including five years as its chief justice, guiding the courts through the COVID-19 pandemic. His retirement plans are not yet set in stone, but he will continue to lead committees focused on the courts' interaction with artificial intelligence and people with mental illness.

On his first day of retirement, Brutinel reflected on important court decisions during his time in office and the uncertain future of the court system.

“I really don’t want Arizona’s merit selection system to become a type of partisan election,” he said. “I also don't want to see a federal system that's all about attacking candidates on the basis of things that have absolutely nothing to do with whether they're going to be competent judges and whether they're going to be a judge have sufficient ideological purity or not.” I think the system we have works remarkably well.

Politics undermines perception, says Brutinel

Arizonans first approved the state's merit-based system for selecting and electing judges in 1974. It is now used in four counties and for appellate judges and judges. Merit retention involves a process of evaluating a judge's performance based on ratings, a system broadly designed to exclude politics from consideration.

No Supreme Court justice has ever been removed by voters in Arizona.

But Arizonans removed lower court judges in 2022, sending a shockwave through the legal community. This came after grassroots groups like Civic Engagement Beyond Voting recommended the judges' removal despite meeting judicial performance standards.

Brutinel said it sends the wrong message to evaluate competency based on the political implications of a court decision or the political party of the governor who gets to choose a replacement. Especially in a state that has changed politically in recent years.

“You better be careful what you ask for because as one side, the liberal side, succeeds in getting judges off the bench, you can be sure the other side will do the same,” he said. “They will mobilize, they will raise the money and they will get rid of the judges they don’t like for political reasons. And I think that would be a disaster.”

Already fewer lawyers are running for judgeship, Brutinel said, fearing they will give up their lucrative careers and sit on the bench for a few years before being removed by voters. He said that could have a detrimental effect on the quality of the bank.

Brutinel said public perception of courts is intertwined with politics. He blamed media coverage that focused on partisan appointments for autonomous decisions by individual judges. And he pointed to Republican Gov. Doug Ducey's expansion of the bench from five to seven judges in 2016, which critics saw as overcrowded courts.

“I think we probably did real damage to the system when we expanded the court,” said Brutinel, who joined then-Chief Justice in opposing the expansion. “And you know, I have a lot of respect for Governor Ducey, as I did for Governor Hobbs and Governor Brewer.” Gov. Jan Brewer, a Republican, appointed Brutinel to the Supreme Court in 2010. Brutinel has campaigned to remain on the court and was previously elected to the Yavapai County judge's bench, where he served for 14 years.

“Ultimately all we have is perception. People’s belief that they can come to court and get fair compensation is the only reason the system works,” he said. “And every time we do harm to that, it’s troubling to me.”

A spokesman for Ducey claimed the 2016 expansion was a “necessary reform” and one of several steps Ducey has taken to improve the courts, along with salary increases and software updates.

“Governor Ducey also respects Judge Brutinel, but disagrees with him on this issue,” said Daniel Scarpinato, a spokesman and former chief of staff for Ducey. “The fact is that this was a necessary reform because Arizona had one of the smallest state supreme courts in the country at the time, despite being one of the fastest-growing states in the country.”

Scarpinato also works for a political committee that supports merit-based election of judges and ensures that Bolick and King remain on the bench.

The shared abortion decision

Cathy Sigmon, co-founder of Civic Engagement Beyond Voting, argued that the merit system is designed to give voters a say in judges who are nominated by a bipartisan commission and appointed by a partisan governor.

Based on the belief that Arizonans should have more information to help them decide on historically less publicized judicial elections, Civic Engagement Beyond Voting is publishing a voter guide that considers judicial performance ratings, high-profile rulings and other factors. The group opposes retaining Bolick and King, in part because of their decision in the abortion case but also because of their ties to conservative organizations.

“The judges inevitably come with different perspectives, otherwise every decision would be unanimous,” Sigmon said. “I think it's perfectly fine for people coming from all perspectives to serve the purpose of the judicial record, which is to make judgments about the judges.”

The April ruling, which has thrown the futures of Bolick and King into question, asked the justices to interpret two abortion laws and consider whether they conflict with each other. A law more than a century old banned abortions in almost all cases, but a 2022 law allowed abortions up to 15 weeks of pregnancy. The justices had to interpret the legislature's intent as to how these laws would be read together or which would take precedence.

Bolick, King, Judge John Lopez and Judge James Beene said the older law, the near-total ban, is in effect. Brutinel, then-Chief Justice Ann Scott Timmer, said the newer 15-week law should take precedence.

“We disagree about how you interpret the law, but it's not a disagreement about abortion,” Brutinel said.

Brutinel's belief in the independence of Arizona judges is the reason he no longer has heartburn about retiring now, four years before independence becomes mandatory at age 70.

“I am confident that Gov. Hobbs will appoint the best person possible,” he said. “I’m confident that person will be a Democrat, and frankly I’m OK with that.”

Back to law school for the final oral argument

While the court's abortion ruling earlier this year had a blockbuster effect, Brutinel said it was difficult to pick the most high-profile of his term. But he cited the education funding case, in which the court kept a tax increase on higher incomes off the ballot, sparking protests.

“I understand. If I had worked to sign a petition, I would be unhappy about it and feel like I wasn't being treated fairly,” Brutinel said. “And we went to great lengths to explain the basis for the decision. Our jurisprudence says, and I am firmly convinced of this and I know that my colleagues do too, that we do not like to ignore the will of the voters. If you get enough signatures, all other things being equal, it should be on the ballot. But we also have an obligation to follow the constitution and the law.

Sometimes it was the obscure cases that stood out for their significance, such as a 2017 case over livestock stamps, he said. The case examined an Arizona law that prohibits identical trademarks and whether the trademark's location plays a role. The unanimous opinion written by Brutinel dealt superficially with cattle brands, but established a lasting framework for courts' interpretation of statutes and is frequently cited in other court decisions.

Brutinel's tenure on the Supreme Court ended in the law school auditorium where his legal career began more than 40 years ago.

The Arizona Supreme Court heard oral arguments Oct. 30 in Tucson in Ares Auditorium at the University of Arizona James E. Rogers College of Law. In the same room, Brutinel took his first law course on tort law.

“I went further than I ever thought possible,” Brutinel said. “Just thinking about sitting in that classroom and someone saying to me, 'You're going to be the chief justice of Arizona,' my classmates and I would have died laughing.”

Reach reporter Stacey Barchenger at [email protected] or 480-416-5669.

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