Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 3

Part 3 covers Justice Struckmeyer’s years as a trial court judge and Supreme Court justice, changes in the courts in Arizona, and his views on the judicial system.


Justice Struckmeyer saw many changes in Arizona and the law during his years as a Judge and a Justice. He put into practice a cautious and thoughtful philosophy of the law.


Judicial Career
In 1950, Governor Dan Garvey appointed Assistant County Attorney Fred Struckmeyer Jr. to the Superior Court, filling a vacancy left by the passing of Thomas J. Croaff, Jr. He served as a judge on the Superior Court for five years. It was during this period that he ruled that segregation of Arizona public schools was unconstitutional.

Then-Judge Struckmeyer was elected to Supreme Court and was sworn in on January 3, 1955. At 43 years old, he was the youngest justice ever elected or appointed to the Arizona Supreme Court. In nearly 27 years on the Supreme Court, he served 4 terms as Chief Justice, authored a steady stream of judicial opinions, and participated in many changes in the judicial process. Justice Struckmeyer retired on January 19, 1982 at age 70.

Creation of the Court of Appeals
In the early years following Statehood, Arizona’s judicial system had only one appellate court, the Arizona Supreme Court. By the 1960s the work of the Supreme Court has increased so much that the Supreme Court needed the help of an intermediate level appellate court. Justice Struckmeyer participated in gathering information and preparing paperwork to assist the Legislature in making the change. In 1964, the Legislature created the two divisions of the Court of Appeals. Division 1 would consist of Maricopa, Yuma, Mohave, Coconino, Yavapai, Navajo, and Apache counties and would meet in Phoenix. Division 2 would consist of Pima, Pinal, Cochise, Santa Cruz, Greenlee, Graham, and Gila counties and would meet in Tucson.

Water: A Review of Rights in Arizona

Water law
In 1960, Justice Struckmeyer co-authored an article on Arizona water law: Water: A Review of Rights in Arizona. The work included the history of water use and legal rights, legislation and court decisions regarding surface water and groundwater, and legal rights.

Therefore it was logical that as Chief Justice he assigned himself to write the opinion in Town of Chino Valley v City of Prescott, 131 Ariz. 78 (1981), the major legal challenge to the groundbreaking Groundwater Management Act of 1980. Citing the Arizona Constitution and caselaw, the decision held that the owner of the overlying land does not have an ownership right in groundwater prior to its capture and withdrawal. Despite the fact that the effect of the legislation was to choose between competing interests in a limited supply of groundwater, the decision recognized the authority of the Arizona Legislature to adopt the Groundwater Management Act.


Many entities that had water rights filed documents in the case to explain to the Court their legal interests in water issues. True to his practice in deciding cases, Justice Struckmeyer declined to decide additional issues that had been presented to the Supreme Court:

Many and varied interests are affected by the 1980 Act. These interests are apparent in the briefs which amici curiae have filed. We express our appreciation for their excellence and the assistance which they have given the Court. Some matters have been raised and argued which were not addressed by the parties. As to these, it is the rule that amici curiae are not permitted to create, extend, or enlarge issues beyond those raise and argued by the parties.

***

This Court will only decide issues raised and argued by the parties.

The opinion upheld the Groundwater Management Act of 1980 and affirmed the authority of the Arizona Department of Water Resources to regulate groundwater. It left the constellation of additional issues for future determinations. According to his friend George Reed Carlock, Justice Struckmeyer was proud of the opinion he authored in the case. “He would think his water decision was his greatest accomplishment. He would think that was the most important thing he did.” (Arizona Republic, June 24, 1992).

Justice Struckmeyer was also heralded for his pro-consumer opinion in Pena v Fullinwider, 124 Ariz. 42 (1979). In 1974, the Legislature had moved the Division of Weights and Measures to the Department of Administration (Laws 1974, Chapter 200, PDF page 292). The legislation included a requirement that the Department establish labeling standards that presented cost-per-unit information. The next year, the Legislature repealed the cost-per-unit requirement (Laws 1975, Chapter 146, PDF page 705). Challengers to the repeal argued that the 1975 law was unconstitutional because it combined two distinct subject matters in a single bill in violation of Article 4, Part 2, Section 13 of the Arizona Constitution. The bill had included the Weights & Measures provisions with changes to Public Safety Personnel Retirement System. The Division of Weights and Measures challenged the lawsuit, and the Arizona Supreme Court heard the appeal. The opinion written by Justice Struckmeyer held that the plaintiffs were proper parties to challenge the constitutionality of the law and that bringing the suit as a declaratory judgment claim was appropriate.

Photograph of the Arizona Supreme Court in Phoenix, 1972 L-R Justices Lockwood, Cameron, Hays, Struckmeyer, Holohan

Judicial Philosophy

In an interview in 1991, he explained his views on the law, the role of judges, and the judicial system.

On politics

Justice Struckmeyer considered himself a conservative Democrat. He felt loyalty to the party and believed it was better to work within the party to resolve differences than to change parties.

On being an activist judge

Justice Struckmeyer was seen as extremely conscientious and an excellent legal scholar with a tempered legal mind. He believed in the strict construction of our Constitution. He discussed his thoughts in an interview in 1991.

Interviewer: If I was to say, describe Fred Struckmeyer, I would start it off by saying he was a man of reason. He didn’t make decisions without having reasons for them.

Justice Struckmeyer: It’s what I call a five-hundred-year outlook. Look at it and if you’re in a position where you can change things, you should measure it by saying to yourself, well, is this going to be just as good five hundred years from now.

Interviewer: That’s a tough test.

Justice Struckmeyer: Well, it helps a lot when you think of it that way. It keeps you from doing a lot of things you might do if you didn’t think about it that way.

Interviewer: I know that your opinions never seemed to touch political lines. They cut across all lines, it seems, over the years as I read them.

Justice Struckmeyer: Well, I hope that’s true. Well, it’s a matter of being an activist I guess. I don’t think judges should be activists. That’s one of the things I most firmly believe in. It’s a little, the philosophy changes and you can see it. It’s easiest, of course, to see it in the United States Supreme Court. A few years back they had very strong activists. Before that they were men that weren’t. The tide comes and goes. I just never was an activist in the law, I don’t think, in that sense.

A new law, just create a new law and make it suitable to live under five hundred years now. That’s sort of the kind of the test. If you’re going to a law as a judge, you ought to think, well how is this going to look in the light of the history of civilization, of men and women, how they live the two thousand years that we’ve had history, that we’ve had a history we know of, from the Roman Empire.

On the jury system

Justice Struckmeyer: Well, I think it’s the best system. It has its problems that’s not to be denied, but other systems have their problems too. And if it’s between something different and the jury system, I think the jury system is, hands down, the system. That’s simply because you can have some weird jury verdicts at times and some funny things influence a jury. When I was trial judge I found that out. I always wouldn’t have decided case the way they did. But I think in the long run, over the long haul, it’s a much safer thing to have, because in the end, the jury is going to be the arbiter of what is justice and that’s really what you want, somebody that’s going to not be prejudged on the basic lines. With a jury you have a chance of getting somebody that’s open-minded in that area. If the lawyers are smart when they select the jury, this will be the outcome.

Interviewer: You know, the cases I’ve tried and, unfortunately, the few I’ve lost, in some instances lost in a big way, the clients seem to accept the fact that a jury decided it as opposed to a single individual like a judge. If it’s a judge then they’re mad at him individually, but against the jury they feel like their friends and neighbors have said something to them.

Justice Struckmeyer: It’s hard to be mad at them collectively.

On election of judges

Today, merit selection is used for appointments of Supreme Court justices, Appeals Court judges, and trial court judges in the most populous counties. A judicial nominating commission screens candidates and sends a list of names it recommends to the Governor, who appoints a judge from the list. Prior to merit selection, judges were elected.

Voters approved merit selection in 1974, with the passage of Ballot Proposition 108 (PDF page 27).

Proposition 108 was endorsed by the Citizens Association on Arizona Courts, League of Women Voters of Arizona, Arizona Jaycees, Arizona Judges Association, and the State Bar of Arizona. It passed with about 54% of the vote (PDF page 9).

Image of the Arizona Supreme Court in 1975. L-R: Justices Holohan, Struckmeyer, Chief Justice Cameron, Hays, Gordon.
Justice Frank X. Gordon was the first justice appointed under merit selection.

Having experienced both systems, Justice Struckmeyer expressed his opinion:

Interviewer: What do you think of judges not running? How do you feel about the plan now that it’s been in effect…twenty years or so?

Justice Struckmeyer: I don’t think there’s any perfect way of selecting judges. But I think the system of having to go out and campaign and shake hands and walk around the community and…

Interviewer: Get contributions.

Justice Struckmeyer: Well, that’s the worst part. I should have put that first. But the system of having to go to the lawyers because nobody else, you wouldn’t take their campaign contribution from a corporation or a company or anything of that kind, going to the lawyers and getting your campaign contributions. Because in a sense it looked as if you were going to repay that with a favor on the Supreme Court. Judges didn’t and lawyers didn’t try to do that, but there’s some, there’s a little bit of…

Interviewer: The appearance?

Justice Struckmeyer: Yes, but not only the appearance but there’s a little pressure on a judge who has a lawyer in front of him that has made a campaign contribution, too. There’s a little bit of feeling of, I don’t know exactly what to call it. It puts a little pressure on a judge, let’s put it like that. And for that reason I think it’s a terrible system to have to run. Any system is better than having to run, a judge run for office.

In his long career as a judge, Justice Struckmeyer displayed his values and judicial philosophy. He did not believe that judges should be activists. He made decisions carefully, applying the law and considering the long-term welfare. He believed that a good judicial decision should stand the test of time and be understood by the citizens.

Work after retirement
Justice Struckmeyer was a workhorse and didn’t stop after his retirement from the Court. Sixteen days after his retirement, Governor Bruce Babbitt appointed him to fill a vacancy on the State Racing Commission. He served on the Commission from 1982 until 1987.


The next year, he participated in the Supreme Court decision in Green v Osborne, 157 Ariz. 363, 758 P.2d 138 (1988), which found that the recall election of former Governor Evan Mecham was moot, since he had been impeached and removed from office. Chief Justice Gordon recused himself from the case before the Arizona Supreme Court and Justice Struckmeyer was designated to sit in his stead. Under the Arizona Constitution (Article 8, Part 2, §1), Chief Justice Gordon had served as the presiding officer of the Court of Impeachment in the State Senate.

Conclusion
Justice Struckmeyer died on June 22, 1992 at age 80 and was buried at the National Memorial Cemetery of Arizona in Phoenix. A scholarship fund in his memory was established at the law school of the University of Arizona.

At the time of his death, Justice Struckmeyer had devoted over four decades of his life to public service. He was an army lieutenant in wartime, a deputy county attorney working on both civil and criminal cases, a trial court judge, a Supreme Court Justice, and a commissioner on the Racing Commission. As a justice he authored some 650 legal decisions. He participated in changes in the development of Arizona law, embraced reforms to the administration of the courts, and welcomed greater inclusiveness of legal minds in the profession. He collaborated with countless colleagues and mentored even more young lawyers. In his lifetime he experienced unimaginable changes in Arizona. Yet, the biography of this diligent and private man is surprisingly sparse. An unsung hero, indeed.

Additional reading:

Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 1

Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 2

State Bar Foundation. Arizona Legal Legacies Project. Interview transcript 5-21-1991. Retrieved from
https://www.legallegacy.org/13-attorneys/75-frederick-c-struckmeyer

“Ex-Justice Fred Struckmeyer Dies.” Arizona Republic, 24 June 1992, p.B2.

Struckmeyer, Fred C., Jr., and Butler, Jeremy E., “Water: A Review of Rights in Arizona”. Arizona Weekly Gazette, 1960.

Arizona Supreme Court. (1985). The Superior Court in Arizona 1912-1984: A History of the Court in each County since Statehood.

Zarbin, Earl. (1991). A History of Maricopa County’s Legal Professions. Chatsworth, California: Windsor Publications, Inc.

Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 2

Part 2 covers Justice Struckmeyer’s early legal career, wartime service, his reentry into the practice of law, and his home and family.


Early legal career
After graduating from law school in 1936, Justice Struckmeyer joined his father’s law practice. His father offered him $50 a month but invited him to take a better offer if he could find one elsewhere. It was the depths of the Depression. Justice Struckmeyer did look around, then decided that his father’s rate was pretty good because he could live at home. After studying the law, Justice Struckmeyer learned how to practice law:

“When I got out of law school and went to practice law with him why he took every—they started me out by drafting complaints, and he took every complaint I drafted and red-lined it and scribbled on it and sent it back to me.”

After practicing for a year and a half with his father, he was offered a job by fraternity brother and newly elected County Attorney Richard F. Harless. Over the next 3 years, Deputy County Attorney Struckmeyer did trial work for the county attorney’s office.

Arizona Republic, April 18, 1943


Wartime service
The United States had entered World War II. In 1942, Justice Struckmeyer was drafted and spent four years in the service. The newspaper published news of the people serving the war effort. He was featured in the Sunday column on Our Fighting Men when he was home on leave.

Arizona Republic, November 12, 1944

Serving as an infantry platoon leader, he fought in the invasion of Salerno, Italy. About three weeks after the invasion of Normandy in June of 1944 the military sent his platoon to southern France, intending to take pressure off the fighting in Normandy. They advanced into the Rhone Valley, and then to the Vosges Mountains of France. By October it was wintertime in the mountains and streams were frozen. His platoon was about 20 miles from the Rhine River when he was wounded in the throat by shrapnel that cut his vocal cords. He underwent surgery in a tent hospital near the front lines.

The newspaper provided updates to the public at home.

Moved through 13 government hospitals, he finally arrived in England. A Tucson newspaper reported his progress:

Arizona Daily Star, December 29, 1944

Throughout his treatment he was only able to whisper. The field surgeon had sutured his vocal cords, a procedure practically unknown at the time, which enabled him to learn to speak again. He was awarded the Silver Star, the Bronze Star, and the Purple Heart for his valor. On his return to Arizona, he was characteristically modest about his contributions:

Arizona Daily Star, February 14, 1945

Avoiding adulation was a personality trait she showed throughout his life. About a year before his death, he observed in an interview:

“I’ve never really cared for limelight, and I don’t get any great satisfaction out of being in the limelight particularly.”

Arizona Republic, April 2, 1946

Back to work
A year later he was re-hired by the County Attorney. Both major newspapers in Arizona reported the story of his reappointment to the county attorney’s office. Since he could not project his voice he was unable to do trial work, but was assigned to the civil division. His voice gradually gained strength and in time he was able to give speeches, but always used a microphone. For the rest of his life, his voice was quiet and raspy.

Arizona Daily Citizen, April 3, 1946

Family life
In 1948 at age 35, he married Margaret Mills. The couple had four children: Jan, Frederick Christian III (who went by his middle name), Karl, and Kent. In 1955 the couple was able to buy a 1½ acre lot in a citrus grove at Glendale Avenue and 3rd Street, which was out in the country. They paid $3500. They built a home, Justice Struckmeyer doing much of the work himself. The fireplace was built of native sandstone. Over the years caring for the citrus trees became a rewarding hobby and a restorative place for him to spend time.

Additional reading

Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 1

Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 3

Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 1

Part 1 covers Justice Struckmeyer’s early life and education, the influence of his parents, and his historic ruling striking down Arizona’s long-standing law of school segregation.

Image from Arizona Bar Foundation Oral History Project: Arizona Legal History

Frederick Christian Struckmeyer was born on January 4, 1912 in Territorial Arizona, some six weeks before Arizona became a state. He was decorated for his service in World War II. He distinguished himself during a long career as a public servant. Justice Struckmeyer was a conscientious judge, deciding the cases before him in with a view of their long-term results. He participated in the most significant changes in the administration of the law and its interpretation. He died on June 22, 1992, but the influence of this unsung hero endures.

Early years

Justice Struckmeyer grew up in central Phoenix in a home at the corner of Portland Street and North 9th Street. Like most homes at that time, they had a screened sleeping porch. They would drape wet sheets around the porch to cool any breeze and make it more comfortable to sleep. He even improvised a homemade evaporative cooler by placing a wet gunny sack in front of a fan to blow cooler air into the house. People who were able to leave town would spend part of the summer in San Diego, Prescott, or the Mogollon Rim.

Justice Struckmeyer graduated from Phoenix Union High School in 1929. He lived at home and studied for two years at Phoenix Junior College, the predecessor to Maricopa Community College. During the summers he would looking for a summer job. It was during the Great Depression when many people were unemployed.

“I’d go down in the summertime to look for a job and line up with guys and they’d go down the line and say, ‘How many children do you have?’ ‘I have two.’ ‘How many do you have?’ ‘I have three.’ ‘How many do you have?’ ‘I have six.’ You’d get the job.”

After two years studying at Phoenix Junior College he moved to Tucson and enrolled at the University of Arizona. He graduated from a program that allowed students who had studied at the undergraduate level for 3 years and at the law school for 3 years to earn an LLB, which was the law degree awarded in that era. He graduated with his law degree in 1936.

Family influences

Justice Struckmeyer was named after his father, a well-known and accomplished lawyer. Born in 1874 in Wesphalia, Germany, his father was orphaned at age 1 when both of his parents died of influenza. At aged 17 he arrived in the United States by way of South Africa where there were German colonies at the time. He started studying for a law degree at University of Michigan Law School but finished at the more affordable Chicago Kent. He arrived in Arizona in about 1909.

Fred Struckmeyer Sr. developed a friendship with Arizona Governor George W.P. Hunt. In 1923 the Governor appointed him to the Maricopa County Superior Court, filling a vacancy left when Frank Lyman resigned to serve on the Arizona Supreme Court. He was paid $5000 per year ($81,000 in 2021 dollars), and he served for 2 years. He returned to the private practice of law, where he could earn more money to support his family of 6.

Struckmeyer Sr. served as the code commissioner for the Revised Code of Arizona of 1928. His work started with the Revised Statutes of Arizona 1913 Civil Code and the Revised Statutes of Arizona 1913 Penal Code. He added the laws that had been enacted by the Legislature since 1913, reorganized the sections, edited extensively for clarity, and added annotations showing the origin of the statutes and relevant caselaw. It was a very valuable resource for the Legislature and the legal community. Struckmeyer Sr. described the process in the Preface:

“The task of revision has been arduous and exacting. It was the aim of the Commission to truly carry out the intent of the Legislature to ‘reduce in language’. To reduce statute law in language is not only the demand of the layman but produces clearness and certainty. Redundancy is ever confusing. The 1913 Civil and Penal Codes contained 7057 sections. From 1913 to 1927 an additional 4499 sections of general legislation had been enacted. All this was reduced to 5349 sections.”

Struckmeyer Sr. donated his time to perform this huge task.

Justice Struckmeyer may have gained his perspective of the law from his father’s view. Fred Struckmeyer Sr. revealed his view of the law in his Preface to the Revised Code of 1928:

“The craving for new legislation resulting in multiplicity of statute law inevitably leads to confusion…The necessity of simple restatement of the statute law is apparent. Any person of common school education should be enabled to read intelligently the statute law of his state.”

Years later, Justice Struckmeyer would coach a law clerk:

“Try to keep the language clean and stop – I know you can use big words, but every chance you get to use a big one use a small one so everybody understands.”

Justice Struckmeyer was noted for his insightful, concise, and clearly worded opinions.

Photograph/portrait of Arizona Judge Fred C. Struckmeyer Jr., taken in Phoenix

Justice Struckmeyer’s mother, Inez Walker, moved to Arizona due to a tuberculosis scare. Here she met and married Fred Sr., but never developed tuberculosis. She was active in community affairs with a special interest in the welfare of children. In 1921, she and other women in Phoenix lobbied the Arizona Legislature to pass a law permitting segregation of the high schools. Ironically, it was Superior Court Judge Struckmeyer who later ruled that school segregation was unconstitutional. Let’s jump ahead in the chronology to provide context for Inez Struckmeyer’s role in segregation and her son’s actions three decades later to undo it. In an interview, Justice Struckmeyer told the story:

(Justice Struckmeyer) …[my mother] and some other women in Phoenix went out to the Legislature and they got the statute, the segregation statute passed. And here’s why they did it… The Blacks were in the minority…and there was a chronic fight going
on in the high school between the Blacks and whites. There were so many more whites that the Blacks weren’t being educated. They just were killing the Blacks right on the school grounds, fights, vicious fights. So my mother and some other women went out and got a segregated statute permitting the building of a black high school in Phoenix, Arizona. And that’s what happened. They did build a separate high school for the Blacks. And that’s how Arizona happened to have segregated school districts.

Interviewer: That you overturned…

Justice Struckmeyer: It permitted it, see. It didn’t demand it but it permitted it. But then the school districts all did it.

Interviewer: And then your decision subsequently…

Justice Struckmeyer: Overturned it.

Interviewer: Overturned the statute that was a pragmatic gesture for your mother to put through in the early days.

Justice Struckmeyer: Yes. And that’s how things change.

Interviewer: Yes. Then things had changed and they weren’t giving those Black students a fair shake, really, is what was happening.

Justice Struckmeyer: That’s right. That’s right, they weren’t giving them an education. I was appalled at what I saw.

The Revised Statutes of Arizona, adopted in 1913, had mandated segregation of the elementary schools, but was silent on the question of segregation of high schools. Section 2733 (PDF page 920) stated in part:

The 1921 legislation confirmed that segregation was mandated in elementary schools and established a process to segregate a high school by an election of voters in the school district:

Newspapers reported the progress of the bill through the Legislature. On March 1, 1921, The Bisbee Daily Review reported that equal facilities would be furnished for the segregated Black pupils.

The March 11. 1921 edition of the Copper Era & Morenci Leader reported that the Black community was in favor of the bill.

In 1950 there was a ballot proposition to prohibit segregation of pupils in public schools. Initiative Measure 318 was defeated by a wide margin.

The provision was included in the Arizona Code of 1939, renumbered as §54-416. It was last amended by Laws 1952, Chapter 138 (PDF page 494). It remained in Arizona statute until 1953.

In 1952, Hayzel B. Daniels, the first Black lawyer to pass the Arizona bar examination, and long-time Phoenix attorney Herbert B. Finn, both working pro bono, filed suit on behalf of students of Carver High School, the only segregated high school in the state. Justice Struckmeyer recounts his memory of the case:

“I just went out and I took my car and I drove over to the school. They had a big two-story concrete school for the whites and they had a two-room schoolhouse on another lot down there, and they had the four first grades in one room and the four second grades, the four upper grades to the eighth grade in another room and two schoolteachers. There were outdoor toilets. So a year before the Supreme Court outlawed segregation, I ordered the school district to admit the children.”

In February of 1953, then-Judge Struckmeyer found §54-416 and §54-430 unconstitutional. Enforcement of the court order was stayed pending an appeal to the Arizona Supreme Court. In the meantime, on May 17, 1954, the U.S. Supreme Court issued its ruling in Brown v. Board of Education of Topeka declaring that racial segregation in public schools violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. The Arizona Supreme Court dismissed the appeal of Judge Struckmeyer’s ruling as moot. Documents from the case are on the website of the Maricopa County Superior Court.

Additional reading:

Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 2

Fred C. Struckmeyer, Jr.: War Hero, Jurist, Unsung Hero- Part 3