A Significant Denial?
The Arizona Supreme Court recently adopted rule changes that, beginning January 1, will allow non-lawyers to have ownership interests in law firms and lawyers to pay referral fees.
That’s really big news. And I’ll write about it. But not today.
Instead, I want to address something the Court didn’t do but that I think is significant, albeit not big.
Rule-change petition R-20-0022 asked the Court to adopt a rule that would require it to explain its decisions on rule-change petitions and disclose how each justice voted. I heartily supported that petition and filed a comment advocating for the Court to adopt it.
I wrote about it here. I ended that entry by saying that the Court could, of course, deny R-20-0022, without explaining why. [Imagine a smiley- or winky-face emoji here.]
The Court did, indeed, deny that petition. But guess what? It kind of explained why!
Here’s what it said:
While the Court declines to adopt a proposal mandating that every denial of a rule petition be explained, nothing in Rule 28, Rules of the Supreme Court, prevents the Court from explaining its reasons for rejecting a specific proposal if the Court concludes an explanation would be helpful. The Court will endeavor in future rule petition cycles to exercise its discretion and explain its reasoning when it would be helpful to do so.
Maybe I’m just an old softie, but I read that and almost teared up. Seriously.
It seems like every week, there’s news about a government office, official or body resisting requests to disclose information. Limiting disclosure means government becomes less transparent and accountable.
Although the Court decides rule-change petitions in its administrative capacity – as opposed to decisions on cases in its judicial capacity – it doesn’t do so in a public forum. Unlike the meetings of other public bodies, we can’t observe the Court as it discusses and makes rule-change decisions, and no public minutes detail the discussion and action. As a result, we never know the Court’s reasons behind its decisions on rule-change petitions -- unless the Court volunteers an explanation. I’m not familiar with the Court ever explaining its denials.
The Court’s order in R-20-0022, however, seems to be a thoughtful and sincere offer to do that, and, as a result, better serve the public. Explaining the why increases transparency and accountability for these public officials who must stand for retention to stay in office.
For lawyers – because most users are lawyers – the why behind a decision declining to change the rules often is almost as important as the decision itself. Did the Court just not agree with the proposed amendment? Or did it not even perceive a problem that needed fixing? What does that mean for interpreting and applying (and complying with) a particular rule?
Explanations would have been helpful on several past denied rule-change petitions, such as the petitions that asked the Court to make State Bar membership voluntary or my petitions to amend the Ethical Rules to deal with medical marijuana.
While petition R-20-0022 and my comment supporting it both focused on the Court explaining why it denies a rule-change proposal, the reasons it adopts a proposed amendment (or an amended version of a proposed amendment) also could be important. If you’ve ever researched statutory history, you know how significant explanations are. With rules, particularly because the Court doesn’t debate and adopt them in a public meeting, we often don’t know why the Court did what it did. Did the Court adopt a rule-change proposal because of all the reasons stated in the rule-change petition? Or just one of the reasons? Or some other reason entirely?
R-20-0022 also proposed requiring the Court to disclose how each justice voted on rule-change petitions. There’s no indication that even if the Court chooses to explain its reasons for denying a petition, it will detail the vote. But nothing prevents it from doing so.
Although the Court’s order in R-20-0022 doesn’t commit it to explaining, it has committed to keeping the option of explaining in mind and to think about what would be helpful to explain. If it wasn’t going to grant the rule-change petition’s proposal, this might be the next best thing.