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.

In Arizona, he says, "They felt that the court should have a place at the table . . . as opposed to hiding behind the black robe."

Looking back, Jay Heiler – one of the architects of Prop 102 – chooses his words carefully.

"In the case of that controversy, not only Chief Justice Feldman but the entire judicial establishment wandered far afield from their traditional role in making public policy," he says.

But while he was furious at the time, Heiler says that in retrospect, the debate was healthy for the state.

"I think there was a clash of purpose of will between two men in very critical positions in state leadership. Some day political scientists may find the whole thing pretty interesting," Heiler says. "You had two very smart men holding very important positions and having very different ideas about what was in the best interest of the state. . . . Constructive engagement and difference of opinion is a good thing in our system. The better people are at debating these issues, the better off the public is going to be."

He insists that there was no animosity between Feldman and Symington. Feldman agrees.

"I didn't have any personal animosity with him, but his view was that he got elected governor and we had to do things his way," Feldman says. "The we' included all of Arizona, I think. That doesn't work in the judicial system."


He's not so crazy about the title "activist," but if you really want to make Stanley Feldman mad, call him a "liberal."

Plenty have, and they usually mean it both in regard to Feldman's political leanings and what they see as his tendency to broadly interpret the Arizona Constitution to fit his desires. Clint Bolick, of the Institute for Justice, recalls Feldman's dissenting opinion in a recent school tax credit case. The court upheld the tax credits as constitutional; Feldman disagreed.

Bolick says Feldman's interpretation of the separation of church and state was far stricter than other justices, including former Arizona justice Thomas Zlaket, who often agreed with Feldman. IJ has never lost a tax credit case.

Feldman says he made decisions that could be construed as "conservative" as well as "liberal." He and others point to the fact that several times he voted to uphold the death penalty in cases that came before the Arizona Supreme Court, even though personally he would rather see capital offenders imprisoned for life.

When he sided with the majority of the court in agreeing to send a teenage girl to Kansas for an abortion, that made him a liberal to many, Feldman says, recalling a discussion with a state attorney general that took place in open court.

"In my mind it made me a conservative . . . because I didn't see the issue as abortion. My question to the state was, If I want to go to Denmark to do something that's legal in Denmark, why would the United States of America or the state of Arizona have the right to tell me that I can't go?' He said, Well, they don't.' I said, So why is it any different if I go to Kansas?' He didn't have a good answer to that question."

Whether he should go down in history as a liberal or not, one thing is certain: Throughout his time on the court, Feldman wrote opinions that infuriated the business community and its lawyers.

"For 20 years, for all practical purposes, he has been the most compelling influence on the development of the law in Arizona that has existed. Like it or not, Stanley made the law," says Bill Jones, a longtime litigator whose firm often represents the government.

Often, Jones didn't like it at all. One of Feldman's most significant decisions, Darner Motor Sales, Inc. v. Universal Underwriters Insurance Company, says that if an insurance company sells you a policy, the salesman has to honestly explain the terms of the policy. If he doesn't, the insurance company is liable, even if you, the policyholder, never bothered to read the contract.

"[Darner] invalidated every written contract in the state of Arizona," Jones says. And Jones is equally critical of Feldman's decisions that declared tort reform actions taken by the Legislature as unconstitutional.

"He's created liabilities where liabilities never existed before," he says.

Again and again, attorneys recall Feldman's decisions with gritted teeth – but inevitably, wind up the conversation by adding that he's a close friend. "We love yelling at each other privately," Jones says.

Another wildly unpopular decision was Wagenseller v. Scottsdale Memorial Hospital. In his opinion, Feldman wrote that an employer can fire an employee for a good reason, or even for no reason at all, but not for a reason that has nothing to do with job performance.

Looking back on the decision today, Feldman's surprised it caused such a stir.

"I don't know what the big hullabaloo is about. Suppose you're told you better vote Republican, or you'll lose your job. Or suppose you're told that if you don't change your religion, you'll lose your job. If you don't divorce your wife or husband, you'll lose your job. . . . On and on and on," he says.

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