Arizona Skilled judge or judicial activist? Judge handling high profile cases praised by colleagues, drew fire from governor

By Gary Grado

The Daily Record Newswire

PHOENIX - Katherine Cooper went from a sound decision maker to an activist judge in a matter of months in the eyes of the governor who appointed her to the bench.

Gov. Jan Brewer's contrasting assessments came in response to decisions Cooper issued in two lawsuits with stakes of billions of dollars, insurance coverage for almost 250,000 people, the state's financial health, and the governor's legacy.

Such is the life of a judge, even a Republican one appointed by a Republican governor.

Cooper, 52, a Maricopa County Superior Court judge since 2011, has ruled in a series of cases involving divisive public policy matters that will shape the state for years. Those who know her say she has the legal abilities and temperament to be up for the task.

Attorney Tom Ryan has known Cooper since the mid-1990s when they were on opposite sides of a medical malpractice case.

"I walked away from that case thinking she was a straight shooting, very effective lawyer on the other side," Ryan said.

Ryan said Cooper had the reputation as a litigator of avoiding the "nasty wars with opposing counsel" in the trenches.

Ryan has never litigated a case in front of Cooper, but most of the approximately 60 attorneys who responded to surveys in 2014 for the Commission on Judicial Performance rated her as either very good or superior in the areas of legal ability, temperament and fairness. The 30-member commission evaluates judges and passes its recommendations to voters on whether to retain them on the bench.

Before the school financing and Medicaid cases that spurred Brewer's changing opinion of Cooper, she had already handled politically potent cases. Cooper ruled in January 2014 against the city of Phoenix for allowing city employees to be paid with public money while working for unions, calling the practice unconstitutional.

And in March she ruled that Arizona's medical marijuana patients can use, and dispensaries can sell, concentrated extracts made from marijuana.

Her ruling, if it stands, sets the stage for the state's 45,000 medical marijuana patients to obtain other products made with extracts instead of the plant's leaves.

She also declared U.S. Rep. Martha McSally, a Republican, the winner in the 2nd Congressional District recount.

And while news articles focused on Cooper's rulings in the string of high-profile cases, she gained unwanted attention recently when a 52-year-old convicted sex offender was arrested Jan. 6 at her house.

Michael Krause, was taken into custody on a warrant out of New York in connection with an indictment alleging larceny. In addition, he had been convicted of rape in 1988.

Cooper released a statement through the Maricopa County Superior Court's media relations office denying any knowledge of Krause's criminal past or that he is a registered sex offender.

"I have no further relationship with Mr. Krause, and he no longer resides at my residence," the statement read.

Cooper declined further comment for this story.

BREWER'S OPINION

Cooper ruled in February 2014 that lawmakers who were on the losing end of a vote on the expansion of Medicaid had no right to challenge the law's passage in court.

"Telling the state Legislature you don't have standing to sue is a very serious political thing, especially when you have a state Legislature that's been trying to gut and control our Arizona judicial branch," Ryan said. "She called it like she saw it and that took a lot of courage."

At the time, Brewer's spokesman Andrew Wilder called the ruling a "huge victory" that allowed the state to move forward in implementing Brewer's Medicaid expansion, restoring cost-effective health care to tens of thousands of Arizonans and "honoring the will of the voters."

"Judge Cooper's ruling is thoughtful and legally sound," Wilder said at the time of the ruling.

The Arizona Supreme Court reversed Cooper's decision, however, ruling in Brewer's final days in office that lawmakers do have standing to sue over the program. The decision dealt a potentially crushing blow to one of Brewer's signature accomplishments and threatening to take away health care to 250,000 people.

The case returns to Cooper, who will determine whether the lawmakers are incorrect in their assertion that a hospital assessment used to fund the expansion should have been subject to a provision in the Arizona Constitution that requires a two-thirds supermajority in the Legislature to pass a tax increase.

And although Brewer applauded Cooper's decision in that case, just six months later the governor was unhappy with the judge's decision in a lawsuit over the requirement that the Legislature adjust for inflation in funding public schools.

The Legislature quit making the disputed inflation adjustment in fiscal-year 2010 to save money during a deepening recession.

Cooper ordered lawmakers in July to reset the base amount of per-pupil funding to an amount the plaintiff school districts had argued for, and it came with an immediate price tag of more than $300 million. That ruling is on appeal.

After Cooper's ruling on school funding, Wilder voiced Brewer's displeasure, saying the imposed spending will have a disastrous effect on public safety and vulnerable populations because the money will have to come from somewhere else in the budget.

"A court should not substitute their judgment on policy for that of the duly elected legislators who are constitutionally responsible for budget appropriations," Wilder wrote in an email in July. "Courts spend money in a vacuum while elected executives and legislative officials must balance spending within the confines of budget realities."

Again, Ryan said Cooper's decision took a lot of backbone.

"It takes your breath away as a judge, I would imagine, to look at the breadth and the volume of money that you're deciding and to make the decision that she did," Ryan said.

REPRESENTING BOTH SIDES

Cooper moved to Phoenix in 1987 straight out of the University of Virginia law school to join Jennings, Strouss & Salmon, a firm with lawyers who went on to prestigious positions such as state Supreme Court justices, a university president, and a U.S. solicitor general. Former U.S. Sen. Jon Kyl was also employed there before his election to Congress.

Cooper became a partner and handled cases in an assortment of areas such as wrongful death, personal injury, insurance coverage, product liability and employment.

She left the firm and the practice of law in 1997 to work for the Historic First Church in downtown Phoenix as the director of lay ministries, organizing events, volunteers and working with the homeless and inner-city children's programs of the church. Cooper volunteered at the church for five years as a teacher before taking the paid position.

She returned to law in 2002 with a private firm and eventually made her way to the Scottsdale City Attorney's Office, where she defended the city in lawsuits.

Her Scottsdale boss, City Attorney Bruce Washburn, said Cooper has the ability to analyze large amounts of information and recognize the legal issues.

"She also had the ability to see both sides of the case. and you have to be able to do that when you're a litigator," Washburn said.

Cooper wrote in her application to be a judge that she thinks she is fair because of her experience representing both sides in the courtroom, and in any contested matter the competing views have to be considered objectively.

"Opposing counsel have commented on my ability to fairly evaluate the facts, even when those facts did not support my client's position," Cooper wrote. She also pointed out that while she sat on the board of the Arizona Association of Defense Counsel, the Arizona Trial Lawyers Association, the plaintiffs' bar, supported her effort to become a judge.

In the school finance case, Cooper still has to rule on whether the state must repay school districts for years of not adjusting for inflation, estimated to be about $1.6 billion.

The judge has put that ruling and the case on hold and urged the parties to go into settlement negotiations. She helped set up the negotiation process with the Arizona Court of Appeals.

If the negotiations fail and she has to rule, the winners will see her as using sound judgment and the losers will consider her an activist judge.

Although she likely won't comment on her ruling beyond what she writes, Cooper has already addressed in her judicial application those who would see her as an activist.

"I also know the importance of knowing and applying (not creating) the law," Cooper wrote.

Published: Fri, Jan 30, 2015

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