"but in the time of testing they fall away. "

The following letter was sent to the Commissioners of the Arizona Commissions on Appellate Appointments. Feel free to send them your comments too, as those lobbying for their favorite judge surely are!

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May 29, 2009

Judicial Nominating Commission


Re: Presiding Judge Brutinel and the Hinson fiasco

Dear Commissioners:

I'm writing, albeit at the last minute, to tell you why Judge Robert Brutinel should NOT be considered for the Arizona Supreme Court at this time.

By way of background, I don't personally know Judge Brutinel. I have never been a litigant in his court. (I've never been in his court, period.) I have no animus toward the man. What I know is what I've observed from afar, judging his performance as presiding judge from the record. Specifically, due to Judge Brutinel's handing—more properly, his non—handling—of the Judge Hinson matter, Judge Brutinel would not be a good candidate for Supreme Court Justice at this time. Character matters and "actions speak louder than words." Judge Brutinel's inaction in the Hinson matter compel me to question his integrity and character as a potential Justice and write you about it.

At issue is the matter of Yavapai Superior court Judge Howard Hinson, who lives in presiding judge Brutinel's bailiwick. A complaint of judicial misconduct was filed against Judge Hinson in November 2008, documenting Judge Hinson's numerous, egregious violations of the Arizona Constitution's 60-day Rule ("right to a speedy trial"), which he violated for many years. Further, Judge Hinson falsified numerous affidavits, stating he had no matters extending beyond 60-days, falsely claiming he qualified for his monthly pay. Falsifying this affidavit is a criminal offense. The complaint is posted at www.reportjudgehinson.blogspot.com and the Commission on Judicial Conduct has confirmed the complaint by publishing a Statement of Charges against Judge Hinson. The matter is to go before the Supreme Court next.

According to the record, all but two (out of twenty-eight) of these known violations occurred during Judge Brutinel's watch as presiding judge. (Judge Brutinel says he has been presiding judge since 2004. See p16 of his application.) But apparently, Judge Brutinel, did little, if anything, during the three years of extreme malfeasance to defend the Constitutional rights of Judge Hinson's victims or to uphold the law.

Further, when the story about Judge Hinson became public, instead of chastising Judge Hinson for his obvious violations, distancing himself or simply remaining silent, Judge Brutinel circled the wagons, defending his subordinate. This is unacceptable on its face and especially unacceptable for a Justice of our Supreme Court.

Look, being a Justice is not simply a matter of academics. It doesn't matter if Judge Brutinel gives the "right" answers to complex legal conundrums or has an impressive list of credentials. He has to demonstrate he cares about the law. And abides by it. From his (lack of) actions while Judge Hinson was his subordinate and from his comments to the press, it appears Judge Brutinel doesn't really care much for some laws. This is not a matter of poor Administrative skills. Rather, his silence speaks volumes about core beliefs.

And there's a double whammy here. During Judge Hinson's malfeasance, Judge Brutinel served on the Commission on Judicial Conduct! He was even Vice-Chair. (See p19 of his application.) Again, impressive credentials, but no outrage when one of his own violates the rules? Wouldn't you think that someone who is so high mindedly moral to serve on the Commission would be outraged at Judge Hinson's behavior and work to oust him? Instead, did Judge Brutinel use his position to shield a friend from scrutiny? There appears to be some more (useless) internal discipline tried on Judge Hinson in the third quarter of 2007, presumably by the presiding judge. (See the Analysis section of the complaint at www.reportjudgehinson.blogspot.com)

There has already been, and surely there will be more, bad press about Judge Hinson. (KPHO-TV Statewide and local press in Prescott have covered the story.) The story is not over yet, and as the Judge Hinson matter continues to play out, there will surely be scandal following Judge Brutinel. ("What did he know and when did he know it?") It would even be more scandalous if Judge Hinson's matter came before the Supreme Court in the Fall and Judge Brutinel was a Justice and had to recuse himself! Think of the egg on face of the Nominating Commission then!

Perhaps Judge Brutinel is a fine jurist . . . on paper. But his character needs building. Maybe he'll make a fine Justice someday. But not today. Please do not nominate him during this round to be a Justice on our Supreme Court.