Judging Stanley

Justice Stanley Feldman has ruled the Arizona legal scene for years. But now he's gone. And Governor Janet Napolitano has some important decisions to make.

Feldman recalls that at his interview, Governor Babbitt told him to stay out of his way.

"I found out over the years that this is not a unique view of people in political office," Feldman says. "You go be a judge, but don't be getting in my way.'"

Jeff Newton
Clint Bolick of the Institute for Justice has great admiration for Stanley Feldman – even though he's happy to see him go.
Vivian Spiegelman
Clint Bolick of the Institute for Justice has great admiration for Stanley Feldman – even though he's happy to see him go.

But it's not in Stanley Feldman's nature to stay out of anyone's way, not when he feels strongly about something. And while he should go down in Arizona history for the laws he shaped, it's more likely that at least for the near future, he'll be remembered for the noise he made.

Feldman had a fairly easy time through the Babbitt administration, and as vice chief justice under Chief Justice Frank X. Gordon, he was busy running the day-to-day operations of the court while Gordon presided over Governor Evan Mecham's impeachment proceedings. But when Fife Symington was elected governor in 1991, the trouble began.

The friction started long before 1996, but that's when the public became aware of it. The governor was pushing Proposition 102, an initiative that largely switched power over the state's juvenile justice system from the judiciary to the legislature. The major tenet of the initiative and the one that proved popular with voters was the mandatory transfer of juveniles to the adult system for certain violent crimes.

Feldman, who was chief justice at the time (he served in that post from 1992-97), hated Prop 102. So did juvenile judges across the state. So Feldman spoke out against it.

"That angered the governor's staff a lot because they didn't think it was the job of the chief justice," Feldman says.

But the governor and his staff were already angry at Stanley Feldman. The bad relationship began over a judicial appointment, Feldman recalls, not long after he became chief justice.

There was a judicial vacancy in Pima County.

"I told the commission, This is a Republican governor,'" Feldman says. "He's going to want to appoint a Republican . . . so let's make sure we send up some good Republican names,' and they did."

Apparently not good enough. Symington called Feldman and told him he was sending back the list; he didn't like the names on it.

"I said, I'm sorry, I tried to send you some good Republican names.' He said, Well, perhaps they are good Republicans, but they're not my kind of Republicans.'"

Symington told Feldman he'd be sending over his own list, and that the commission should meet again. Feldman tried to explain that the selection process for judges is set by the Arizona Constitution, and that it prohibited Symington from doing so.

"The conversation went downhill from there," Feldman says. "Finally he said, I don't think you understand.' I said, What's that?' He said, I got elected governor and you didn't get elected anything. We'll do it my way.' I said, No, governor, we'll do it the Constitution's way.'"

Feldman told Symington that the governor had 60 days to appoint a judge, but that he didn't have to.

"He said, Well, that's what I mean.' I said, Good, because if you don't,' I said, on the 61st day I get to appoint, and I will.'"

Symington chose a name from the list.

Symington was out of town and could not be reached for comment, but Jay Heiler, who worked first as a crime policy adviser to the governor and later as chief of staff, says he recalls hearing of the incident.

"Fife had to learn the hard way that he didn't have any power as the governor to shape the bench," Heiler says.

That incident and some debates over mandatory sentencing and other judicial policy differences deteriorated the relationship between Symington and Feldman. So it's not surprising that things got so ugly when Feldman came out against the governor's own Prop 102.

In fact, it is highly unusual for a judge to take such a public stand. Feldman's rationale was that this debate was about amending the Arizona Constitution with respect to the courts, and the courts deserved to be heard.

"When it comes to programs that involve the judicial system, somebody's got to say what the judicial system thinks about all this. . . . If it had been before a legislative committee and I'd gone over to express the view of the court, nobody would have said anything, because that would have been proper," Feldman says. "This was going to the people."

Maurice Portley agrees. Portley, a Maricopa County Superior Court judge, had just been assigned to juvenile court when the controversy erupted. He recalls being "grateful" to Feldman at the time.

Voters did ultimately pass Prop 102. Feldman has no regrets about speaking out, even though he acknowledges there were rumors after the fact about trying to get him kicked off the court. (This was a very real possibility, given that Tennessee Supreme Court Justice Penny White had been removed from office by the voters in 1996 for far less.)

Ultimately, Feldman was never challenged, and the event became history except to the extent that it set a precedent for future activism on the court. Ron Reinstein, another judge in Maricopa County Superior Court, says that the Arizona Supreme Court is much more active in public policy debates like the one on Prop 102 than other state supreme courts.

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