One of the rule-change petitions filed this year asks the Arizona Supreme Court to amend Rule 28, which is its own rule about rule-change petitions. R-20-0022 proposes requiring that the Court explain its actions on rule-change petitions and disclose how each justice voted. So, it’s a rule-change petition about rule-change petitions.
Mauricio R. Hernandez filed the petition asking for the change “to support longstanding state policy favoring open government and an informed Arizona citizenry and to heighten accountability through augmented transparency.” [Petition at 1] The petition points to the Nevada Supreme Court as an example of a jurisdiction that does this, and includes that court’s orders on two rule-change petitions.
I’ve filed a comment in support of R-20-0022. I support the proposal for several reasons, including that the Court makes court procedure rules and substantive rules about lawyers as part of its constitutional authority over the entire state judicial system. Because the Court doesn’t discuss and vote on rule-change petitions in a public meeting (although it could), Arizonans have no way to know how individual justices discharge their official administrative duties and the reasons for the Court’s actions.
In addition, those reasons should be explained and memorialized for the benefit of anyone interested. After all, democracy, as the Court itself has written, “blooms where the public is informed and stagnates where secrecy prevails.” Phoenix Newspapers v. Jennings, 107 Ariz. 557, 561 (1971) (overturning a justice of the peace’s order closing a preliminary hearing to the public, including the news media).
I’ve followed our Court’s rule-making process for years. I don’t recall the Court ever having explained specifically why it grants or denies a rule-change petition, or that it ever disclosed votes on rule-change petitions, let alone how individual justices voted.
As I wrote in my comment, not explaining is the judicial equivalent of a parent telling a child, “Because I said so.” That isn’t helpful, particularly for a body that adopts the rules that govern lawyers.
A Nevada example attached to R-20-0022 shows why explanations are not only helpful but important.
A rule-change petition proposed that Nevada lawyers be required to obtain an additional hour of CLE every year, specifically in substance abuse and mental health issues. That court, by a vote of 6-1, approved the proposal. Did the justice who voted against the proposal not think lawyers’ substance abuse and mental health sufficiently important? That wasn’t the case at all. She questioned increasing the number of required CLE hours, explaining that she “expect[ed] evidence showing the efficacy of mandatory annual CLE on these issues for 100% of the bar, as opposed to more intensive measures targeting the 20% of the bar that is afflicted with them.”
Here’s an example closer to home of how an explanation of our Court’s action would be helpful.
I have twice – in 2016 and in 2018 – filed rule-change petitions asking the Court to amend ER 1.2(d) to state an exception for conduct that complies with or is authorized by state law. (You can read my petitions here and here.) Although Arizona has legalized medical marijuana, federal law still criminalizes possessing, distributing, or manufacturing marijuana for medical or recreational purposes, or attempting or conspiring to do so. ER 1.2(d) tells lawyers not to “counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” The State Bar issued a non-binding opinion in 2011 that essentially created an exception to ER 1.2(d) for conduct legal under state law.
In my 2018 petition, I asked that the Court, if it denied the petition, explain why and what should be done with the State Bar’s ethics opinion. But as it did with the 2016 petition, the Court – without comment or explanation – denied the 2018 petition. Had it explained its denial, Arizona lawyers would know whether the Court stands behind the clear language of its own rule. Its silence leaves a gray area between the Ethical Rule that says one thing and a non-binding State Bar committee opinion that says another.
Rule-change petition R-20-0022 proposes that the Court document its very important administrative decisions on rules that govern the legal system. All of the comments filed so far support the proposal.
But that doesn’t mean the Court will adopt it. It could, of course, deny it. Without explaining why.