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Tue, Dec. 10

Column: An inside look at the Supreme Court

So the local guy made good. Bob Brutinel, Judge Brutinel, became Arizona Supreme Court Justice Brutinel. I was curious how that's worked out and talked to a few local people who follow the courts, as well as with Tim Hogan, executive director of the Arizona Center for Law in the Public Interest, and Justice Brutinel himself.

He started on the Supreme Court just about two years ago. I asked what surprised him since being there, or what he thought might surprise other people. The first thing that came to mind was that people probably think there's a lot of discussion of politics on controversial cases. He was pleased to find it is never discussed.

I asked if there were cases where the law goes one way but he wishes it could go another way. He said it's not so much about wishing the law went another way as it is sorting out just exactly what the law is when it's not immediately clear. He said that as a trial judge it was almost always clear what the law was in a case.

"That's never true here," Brutinel said of Supreme Court cases. "They don't come here unless there isn't a clear answer. So you're always on the edge of 'what should the law be?' How do we interpret the statute to give the effect of what the Legislature was trying to say?

When the law is split we need to figure out what the law says.

"I have had occasion where our precedent says this and it's not the direction I would prefer to go."

Hitting on a recurring theme that judgments need to be sound and make for predictable law, he noted people look to the past cases, "with the expectation that that's what the law is. So you wouldn't overrule that or change it randomly."

The process they follow is that one justice writes a draft opinion and then they all discuss the rulings and try to reach consensus. "The purpose of all this is to make it predictable," Brutinel said. "That's why it's preferable to have a 5-0 decision than a 3-2 decision."

In talking with Ho-gan, he mentioned the same thing. He pointed out that in the '90s the court was much more divisive. Now it's a more moderate court that works at cohesion and takes pride in it.

He also brought up the topic that our system of choosing judges seems to have worked well, something that I heard echoed by others. That's probably why when Gov. Brewer was trying to make changes last year in the way judges are selected there was a lot of push-back.

The court also tries to find fairly narrow grounds to rule on, the idea being that it makes for a more solid ruling than some far-reaching decision. I mentioned the contrast with the U.S. Supreme Court, that Justice Scalia likes to dig into far-reaching considerations of cases, even when he's speaking from the bench. I asked if maybe they should take some lessons from our court. He demurred and said he wouldn't say that, simply that Scalia's writing is "entertaining."

Most of the time they achieve that consensus. There were no dissenting opinions last year and so far none this year. There were some in 2011. In an early opinion written by Brutinel in the case of Jacob Braden, two justices concurred and two dissented. This was a rare 3-2 split, and he was one of the deciding votes. His majority opinion didn't hesitate to point out where they disagreed with the dissent.

The justices may have wondered about their new colleague in one of the first controversial cases regarding state issues he was part of, when leaders of the state Legislature tried to get members of the Redistricting Commission disqualified. He dissented in part, agreeing with the ruling but not with some of the details.

Of the half dozen constitutional-issue cases since Brutinel has been on the court, they have had unanimous decisions. He has authored two of those, one that a candidate for a city council could be dis-qualified because of insufficient English skills and the other upholding a death sentence.

One of those constitutional issues partly overlaps with a current case before the U.S. Supreme Court, which is deciding if taking DNA from someone who is merely arrested, not convicted, and putting it into national databases, is constitutional. The Arizona Supreme Court last year decided in the case of juveniles a rather interesting distinction - that police could take a DNA sample to hold, but not process it or run it through a database. Only if the juvenile failed to appear for their hearing, and if having the DNA profile might help in locating them or checking them against other unsolved crimes, could the sample be processed.

As a parting thought, Justice Brutinel, who continues to be involved in juvenile justice issues, said that is part of what he misses about not working here - the people he worked with, especially the people who volunteered to work with juveniles.

Tom Cantlon is a longtime local resident, business owner and writer. Contact him at TomCantlon@TomCantlon.com.

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