Justice Stanley Feldman: An Extraordinary Judicial Career
Bender, Paul, Albany Law Review
On December 31, 2002, Stanley G. Feldman retired as a Justice of the Arizona Supreme Court after twenty-one years of service on that court. For five of those years, he served as Chief Justice. Justice Feldman's retirement was not entirely voluntary. Although federal judges have life tenure, Arizona's Constitution provides that its state's judges must retire upon "attaining the age of seventy years." (1) Feldman reached that milestone in March of 2003.
Justice Feldman's tenure on the Arizona Supreme Court was one of extraordinary accomplishment. In the midst of a career in Tucson as a brilliant and successful lawyer, Feldman was named to the supreme court by Governor Bruce Babbitt in 1982--the second Arizona Supreme Court Justice to be appointed under Arizona's then-new merit-selection system. In the ensuing two decades, Justice Feldman was the court's most influential member, writing about 400 majority opinions and displaying an exceptional ability to forge consensus among his colleagues. His thoughtful and powerful views about the role of courts in a democracy, about the special character of the Arizona Constitution, and about the need for court decisions to reflect reality rather than abstractions and formalisms, have largely (although not always) been accepted by the court's majority. Over the past twenty years, Justice Feldman led the Arizona Supreme Court to recognition as perhaps the most distinguished state supreme court in the country.
Feldman's progressive jurisprudence had important and beneficial effects for all Arizonans. Consider, for example, Justice Feldman's approach to the role of the common law--that judge-made set of basic legal principles that has been evolved by English and American courts over the past several hundred years. In one of its first enactments after statehood, the Arizona Legislature declared that the common law "is adopted and shall be the rule of decision in all courts of this state." (2) Some argued that the effect of this statute was to freeze the content of the common law in Arizona as it stood in 1912, thus preventing Arizona's judges from continuing to develop common-law principles to deal with changing conditions and evolving legal concepts. Justice Feldman successfully championed the much more useful and sensible view that Arizona's courts remain free to develop common-law principles as fairness and justice require. (3)
In one of his best-known opinions, announcing the court's 1985 decision in Wagenseller v. Scottsdale Memorial Hospital, (4) Feldman used this approach in addressing the common-law rights of at-will employees--those employees who, like most employees, have no fixed term of employment. Some old cases had held that an at-will employee could be fired by his or her employer for any reason, no matter how good or bad that reason might be. Under that 19th century view, an employee could be fired for refusing an employer's request to commit perjury on the employer's behalf, for refusing to engage in racial discrimination, for refusing to violate a consumer protection law, or, as in the Wagenseller case itself, for refusing to join a supervisor in committing criminal acts of indecent exposure. Justice Feldman's opinion for the court in Wagenseller refused to adopt that outdated rule as the current law of Arizona, and sensibly ruled that, under modern common law, "an employer may fire for good cause or for no cause ... [but] [h]e may not fire for bad cause." (5)
In interpreting the Arizona Constitution, Justice Feldman's opinions have insisted on the duty of the Arizona courts to independently enforce the state Constitution's specific, detailed, and sometimes unique protections of individual rights--i.e., that Arizona's courts not try to march in "lock step" with United States Supreme Court decisions that may give unduly narrow interpretations to similar rights in the United States Constitution. He has pointed out that the Arizona Constitution's Declaration of Rights was adopted at a time when the United States Constitution's Bill of Rights had not been made applicable to the States by the United States Supreme Court. …