Judging Stanley

Jeff Newton

For the past 20 years, a liberal Jew from Tucson has had as much impact on life in Arizona as anyone.

While Republican governors were being impeached and indicted, while conservative legislators were whining about gay bowel disease and creating the alternative-fuels budget disaster, Arizona Supreme Court Justice Stanley Feldman was quietly and, once in a while, not so quietly affecting the state in much more profound ways.

From how contracts are interpreted to whether you can get into an emergency room to whether your boss can fire you, Feldman's court opinions about 400 in all have changed the law of this land. His administrative actions got rid of the good-old-boy system of selecting judges and gave more power to juries.

Often with Feldman in the lead, the Arizona Supreme Court has repeatedly overturned the Legislature's decisions and made other rulings some might find surprising. It was the Supreme Court that forced the state to adequately fund public schools and ordered the state land commissioner to let environmentalists bid on grazing permits along with ranchers. A couple of years ago, it was the Supreme Court that allowed a young girl in the state's custody to go to Kansas for an abortion. And just last year the justices were the ones who said the government should pay for abortions for poor women with life-threatening medical problems like diabetes and heart disease. In one of his last actions on the court, Feldman joined his colleagues in giving judges the power to determine if materials produced in a lawsuit should be kept confidential.

Over two decades, you can trace Feldman's decisions to his defense of the little guy.

And although his vote was always just one on a court of five, people familiar with his actions agree that Feldman's intelligence and charm translated into far more power, and that his elegantly written opinions often carried far more weight than other opinions.

The casual observer of government in this state likely doesn't know much about the judge who never would have gone to law school if he'd been a better basketball player. But the lawyers and academics who do pay close attention to every ruling that comes out of the Arizona Supreme Court say the court is one of the finest in the country, and call Feldman, who stepped down earlier this month just shy of his 70th birthday and mandatory retirement, its crown prince.

Until recently, Clint Bolick watched the Arizona Supreme Court from afar. As an attorney with the Institute for Justice, a conservative/libertarian public interest law firm based in Washington, D.C., Bolick is a student of supreme court politics, both U.S. and state.

When it came time two years ago for IJ to open its first state chapter, Arizona was the choice in large part because the court was considered to be centrist with a high degree of integrity.

"We did not want to come to a state where the fix was in, either politically or ideologically, and we felt we would get a fair shake in the Arizona Supreme Court," Bolick says.

But then Bolick quickly admits that it didn't hurt that Feldman, widely considered a liberal, was close to mandatory retirement.

Now court watchers like Bolick are eagerly waiting to see who Governor Janet Napolitano will pick to take Feldman's place. After more than 10 years of Republican governors and conservative appointments to the court Napolitano will most likely pick a liberal Democrat.

But that doesn't mean she'll be able to fill Feldman's shoes.

"They'll never be filled," says Bob Myers, a longtime Feldman friend who recently left a Maricopa Superior Court judgeship to become chief of staff to Attorney General Terry Goddard.

"His chair will be filled. But his shoes will never be filled."

The answer to why Stanley Feldman is a champion of the little guy is simple. His considerable height aside, Feldman's got little-guy roots.

He doesn't come out and say as much. In fact, Feldman won't say much at all about his personal life and in some respects, even less about his time on the Arizona Supreme Court.

Feldman and his staff spent much of the past few weeks packing up his Supreme Court office in Phoenix where granddaughter Hannah's finger-paintings were among the last pieces of art to come down and getting settled back in at his old law firm in Tucson. During that time, he sat down for two lengthy interviews. He politely answered questions about his upbringing and early law career, volunteering few extra details.

When asked, he offered a list of his opinions that should be read, in order to understand his work as a justice but later refused to discuss the opinions. He refused to talk at all about anything that went on behind the scenes with his fellow justices during his time on the court.  

What Feldman does want people to know is that he is passionate about the law and took his job as a Supreme Court justice very seriously. He considers himself a "constitutionalist" rather than a "liberal" or even a "populist," and says politics never entered into his decisions on the court.

Unlike some of his silver-spooned colleagues on the bench, who went to Harvard Law School and joined restricted country clubs, Feldman's beginnings were humble. He was born in New York City during the Depression. His father ran a grocery store and later had another business manufacturing bleach. His mother had one of the few jobs in her family, modeling fur coats. Feldman doesn't recall much of life in the Bronx; his parents moved to Tucson when he was 4 or 5, because his mother had respiratory problems.

Patience Huntwork, chief staff attorney for the Arizona Supreme Court, worked with Feldman throughout his tenure as a justice and knows him well. She says his early background clearly shaped his actions on the court.

"I get the idea that his parents had to make a life for themselves with no support system," she says. "They made a life for themselves and they probably did very well, but that experience with being totally self-reliant gave him a sympathy that many other jurists do not have experience with: what the average person experiences."

Feldman's father, who had been quite religious in New York, had to adapt to life in Tucson, where the Jewish community was tiny and it was impossible to keep kosher. The senior Feldmans, both Depression-era Democrats, were interested in politics but not active.

Their son, who was 6'2" by junior high, wanted to be a professional basketball player. The closest he ever got was season-ticket floor seats to the Phoenix Suns. (His law partner, Don Pitt, helped create the team.) Feldman is blunt about his own lack of talent on the basketball court, and equally blunt about his early ambivalence toward a profession. He considered teaching history, but stumbled into law school, ultimately graduating from the University of Arizona in the mid-1950s.

There were few missteps, once he discovered the law.

"From the first day, I loved it," Feldman says of law school. "I just loved the whole process, the reasoning, the cases. Just interesting, fascinating. I found it more intellectually stimulating than anything I'd ever done."

But while Feldman graduated with the highest honors, he couldn't get a job.

"The market for Jewish lawyers, Hispanic lawyers, women lawyers . . . or any minority of any kind was, shall we say, extremely limited," he recalls. "I couldn't get an interview. I was first in the class. Usually the guy who's first in the class gets an interview."

And so Feldman opened an office by himself in an old converted warehouse in downtown Tucson. He calls it the luckiest thing he's ever done. Coincidentally, two other attorneys, brothers Morris and Stewart Udall, had an office in an old house across the street. The Udalls would both go on to greater fame, one as a congressman, the other as Secretary of the Interior, but they got their start as garden-variety lawyers. "You could come to Morris with almost any kind of matter or case and he would represent you," Feldman says.

Mo Udall became Feldman's informal mentor, offering him cases and letting him tag along to watch him in court.

Soon, you could come to Feldman with almost any kind of case and he would represent you.

"If you had five dollars, you could be a client. If you didn't have five dollars, then I had time," he says.

Feldman took cases dealing with fraud, personal injury and contracts. He represented Don Diamond, the Tucson real estate mogul, before Diamond made it big. But most of his clients were along the lines of the Navajo miners who contracted lung cancer on the job. Eventually, Feldman earned a reputation in town as the guy who would take the most unusual cases.

In one of his most interesting tasks, Feldman represented servicemen who found out decades after the fact that the government had been secretly giving them high doses of LSD, as an experiment. Some of the men had been having inexplicable psychotic episodes for 20 years.

The government admitted to the experiments, Feldman recalls, and the defense was that it was a "discretionary decision" and thus legitimate.

Feldman argued that "there was no one in the United States government who had discretion to do this to a United States serviceman."  

He lost.

By the mid-1960s, Feldman found law partners, creating a firm with Don Pitt and Bob Miller. He worked on John F. Kennedy's presidential campaign and raised money for Mo Udall's presidential bid, and became active in Bar politics, first as Pima County Bar president and then president of the Arizona State Bar.

In the early 1980s, Arizona Governor Raul Castro was made ambassador to Argentina, Secretary of State Wesley Bolin died and Attorney General Bruce Babbitt became governor. A seat opened on the Arizona Supreme Court, and friends urged Feldman to apply.

Feldman was the second Supreme Court justice named under the state's new merit selection system. The Commission on Appellate Court Appointments sent three names to the governor. At the time, the commission meetings were secret something Feldman would later change but when the list emerged, Feldman was the only Democrat on it. He figured he had the job. He was right.

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.'"

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.

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.

Charles E. "Bud" Jones, now chief justice of the Arizona Supreme Court, was in private practice at the time the Wagenseller decision came down. He remembers how frustrated he was, although he now admits it wasn't such a bad opinion.

Jones refuses to discuss specific cases or events that have taken place since he joined the court seven years ago, but calls Feldman a "first-rate constitutional and legal scholar." He adds, "He is a very gracious individual. He has personal characteristics that are positive in every respect. He's always pleasant to work with."

Jones, a Republican Mormon, is considered far more conservative politically than Feldman. With the exception of Tom Zlaket, who also recently stepped down, most of the justices are conservative. And yet many court observers say it's a testament to Feldman's powers of persuasion that so many Arizona Supreme Court opinions in recent years have been either unanimous or 4-1.

Paul Bender, a professor of law at Arizona State University and one of the foremost authorities on the Arizona Supreme Court, says of Feldman, "I've known a lot of judges in my life, and I don't know anybody other than William Brennan, on the U.S. Supreme Court, who had that ability to be enormously principled and really intelligent and yet be able to incorporate other people's concerns and what they do to forge a consensus."

There is one notable exception. Feldman never got along with his former colleague Fred Martone. Martone, who served on the Arizona Supreme Court for 10 years until leaving for a seat on the U.S. District Court, is widely considered brilliant. And very difficult.

"Fred was one of the few people . . . who Stanley had very little positive impact on, and vice versa," Bender says.

Many court watchers say it was a good thing that Martone left the Supreme Court, that he simply doesn't work well with others and is better off running his own court, as he is now.

Martone is obviously careful in describing his relationship with Feldman.

"I would say that it was a very challenging experience to work with Stanley. He had very strong views about most issues and so it was always plenty of work, working with Stanley, because he seemed to be personally and intensely involved in everything," he says.

"I think he was certainly a very competent judge. But we had a very, very different approach to judging and the role of the court."

That's all he'll say, explaining, "As a sitting United States District judge it really wouldn't be appropriate for me to comment substantively on a former colleague."  

So did it get personal? "I think an honest answer to that question is yes, and you can see that in the opinions," Martone says.

That is true. Many Feldman and Martone opinions and dissents are peppered with assaults on the opposition.

Feldman says it was never personal at all. And that's all he'll say.

Even before Stanley Feldman's retirement, there have been signs that the Arizona Supreme Court was veering to the right.

Governor Jane Hull made three appointments to the court during her time in office. Hull did relatively well in terms of diversity: Two of her choices are women (Ruth McGregor and Rebecca White Berch), and Michael Ryan, a former trial judge, is wheelchair-bound.

But all are considered quite conservative, particularly McGregor, even though she is a registered Democrat. Observers point to a 2001 court decision, Merleen Lyneer Clouse v. State of Arizona, as proof that the previously centrist court was tilting even before Berch and Ryan joined it.

In the Clouse decision, authored by McGregor with Feldman writing the dissent, the court gave the government immunity in a case in which a family was terrorized their home burned and the matriarch killed by a man whom the plaintiffs say had been illegally released by the authorities in connection with a previous crime.

As it stands now, there are four conservatives on the court (including Chief Justice Jones, who was appointed by Fife Symington) and one vacancy.

Governor Janet Napolitano will have the chance to make at least two appointments: Jones turns 70 in 2005. First, of course, she must fill Feldman's seat.

Earlier this month, Napolitano's legal advisers sat in the front row as the Commission on Appellate Court Appointments interviewed six candidates for the court. The commission, chaired by the chief justice, first accepted applications last year, then narrowed the field from 10 to six.

The commission used to meet in secret; Feldman changed that. But the group still has the ability to meet privately in executive session if the members desire.

In December, when they narrowed the field, the commission spent about 45 minutes in executive session; little of substance was discussed in the public meeting. In the second meeting earlier this month, when the interviews took place, the group didn't vote to go into executive session, but again, little of substance was said. The decisions seemed predetermined, and the questions coming from the bipartisan group of lawyers and non-lawyers were by and large softballs, including the one Tucson attorney Tom Chandler asked Andy Hurwitz about whether he'd have time to continue on his softball team, if chosen to be a justice.

There was not much diversity among the six attorneys who sat before the commission for interviews, unless you count the way the white, middle-aged men are addressing hair loss. That's not the commission's fault: They had a very white, male pool from which to draw. Ernest Calderon, a Hispanic attorney from Phoenix who is the current president of the Arizona State Bar, had originally applied, but pulled his name because, he says, he would be forced as a justice to give up most of his civic activities. Maurice Portley, who is African American and applied previously, says he plans instead to apply for an open slot on Arizona's Court of Appeals.

So that left the commission with geography and political affiliation as the significant differences among candidates. Many observers have said that Napolitano would be wise to name a Tucson attorney to the court. With Feldman and Zlaket gone, Pima County is no longer represented at all. And Napolitano owes Pima County a favor, after last fall's election.

But ultimately, of the four names sent by the commission to Napolitano, only one is from Tucson and John Pelander, a conservative Republican who sits on the Court of Appeals, is her least likely choice. Scott Bales, a Democrat who served as solicitor general under Napolitano when she was attorney general, and David Cole, an Independent and Maricopa County Superior Court judge, are also on the list.

Bales and Napolitano are close; they also worked together when she was U.S. Attorney, and he is considered to be very capable.

But it is the final name on the list, Andrew Hurwitz, who everyone interviewed for this story thinks will get the job.

Hurwitz will be a controversial choice for Napolitano, in some ways. He is considered the most liberal of the candidates, even labeled by some as an ideologue. And he has long been a force in Democratic politics in Arizona, working for governors Babbitt and Mofford and most recently heading up Napolitano's transition team.  

During his interview before the commission, one member asked Hurwitz if he felt he had been too involved in the other branches of government in the past to make a good Supreme Court justice.

Hurwitz pointed to Sandra Day O'Connor, who served in the Arizona Legislature before joining the bench. But perhaps an even better example is Ernest McFarland, who served as both Arizona's governor and U.S. senator before being named to the court.

Each interview lasted 45 minutes. Some dragged; Hurwitz's flew. It's easy to see why so many compare him to Feldman. He wears his passion for the law in the open, and eagerly engaged in debates with commission members about recent death penalty decisions and his past as a member of the Arizona Board of Regents.

ASU's Paul Bender says Hurwitz would be his choice, as much for his personality as his skill as a lawyer.

"He has a lot of Stanley's qualities of being able to work with and persuade other people," Bender says.

In the end, the commission almost didn't include Hurwitz's name on the list. He got just eight votes, barely a majority.

He got that majority, though, and if Hurwitz gets the seat, at 55 he'll have 15 years to prove himself.

Janet Napolitano will be watched closely, as she makes one of the most important decisions a governor can make.

And certainly, she'll be judged.

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