Wednesday, August 6, 2008

Arizona and New Mexico Supreme Courts: Contrast in the Southwest

The sun, blue skies, dry heat, desert, mountains, canyons, plateaus, pine forests, red rock, gold aspens, and the sunsets---and lots else. These are common characteristics of the two states at the heart of the Southwest. And my favorite places in America.*

[*That is, together with Upstate New York. As in the races at Saratoga, Lake Placid in the Adirondacks, the Union College campus and Morrette's Steak sandwiches in Schenectady, the Court of Appeals courtroom and the Jackson Building of Albany Law School in Albany, the Finger Lakes, Green Lake State Park outside Syracuse, Carmine Basilio's sausage and pepper subs at the State Fair, the People of Buffalo, etc. etc. etc. But that's not the focus here.]

Arizona and New Mexico are also the home of two of the nation's most fascinating and, in my view, best state supreme courts. And both are growing in importance as the two states grow in population and urbanization and industry and tourism. At the same time, the quality of the membership of the two courts and the opinions they author is very high. More about that in a later post.

The only point to be made here is something that struck me at the outset of researching the recent voting and decisional patterns of these two high courts. The New Mexico Supreme Court issues considerably more opinions, and its members are considerably more likely to dissent from their court's decisions. In the past three years, that court has decided 162 cases with opinion. By contrast, the Arizona Supreme Court has decided 107. Stated otherwise, the New Mexico court decided more than 150% more cases with opinion than the Arizona court.

Extending the time to the past five years, the disparity is 235 cases for New Mexico, 192 for Arizona. The absolute numerical disparity is somewhat smaller--i.e., 55 cases for the last three years, 43 for the last five. The five year difference between the two courts, then, is attributable to the large disparity in the most recent three years. Evidently, the New Mexico court's caseload--or at least the number of cases it decided with a published opinion--increased significantly over the last three years as compared to that of the Arizona court.

Additionally, there have been considerably more divided decisions emanating from the New Mexico Supreme Court, both in absolute numbers and proportionately, than from the Arizona court. In the last three years, 31 of the New Mexico court's 162 opinions evoked a dissent. At the Arizona Supreme Court the number was 10 out of 107. In other words, there were more than 3 times as many divided decisions at the New Mexico court. In terms of proportions, it was 19% of the New Mexico cases; 9% of the Arizona ones.

Again, going back five years, there were 41 cases decided with a dissent out of a total of 235 for the New Mexico court. There were 29 out of 192 for the Arizona court. Proportionately, that's 17% and 15%. The disparity for the full five year period does not seem that great. Actually it is much greater than it looks at first blush. This is why. Among Arizona's 29 divided decisions for the last five years are 11 authored by a single judge repeating the same position on the same single issue. (That was Chief Justice Charles Jones dissenting on the identical issue of judge-determined aggravating facts for sentencing.) If this string of 11 dissents is treated as the single continuing dissent it actually is, then the number of divided decisions for the Arizona court drops to 19. That is 10% of the total 192 decisions for the five years. Hence, the true comparison is more like 17% divided decisions over the last five years for the New Mexico Supreme Court and 10% for the Arizona court.

Interestingly, unlike the disparity in the total number of decisions for the two courts, the disparity in number and frequency of dissents was basically the same over the entire five years as it was for the last three.

In short, looking at the last three years, the New Mexico Supreme Court issued 162 decisions with full opinion; considerably more than the Arizona Supreme Court's 107. The disparity in decisions with dissent was also considerable: 31 compared to 10, or 19% versus 9%.

Future posts on the New York Court Watcher will discuss other aspects of the voting and decisional patterns at the two courts.