Kurt X. Metzmeier's blog
After musing on the worst justices on the US Supreme Court, I thought it might be appropriate to discuss some interesting quantitative research I'm doing on the national reputation of Kentucky high court judges as represented in selective reporters like the Bancroft-Whitney Trinity Series and American Law Reports (ALR). The idea of getting some objective data on state judges from the presence of their opinions in highly selective multistate reporters came from an oft-hand remark by former Chief Justice John S. Palmore in his recent judicial memoir, An Opinionated Career: Memoirs of a Kentucky Judge (Georgetown, Ky.: Kentucky River Press, c2003), where he praised Osso W. Stanley, a trial commissioner on the old court of appeals (then the state's highest court).* Palmore noted that while Stanley’s Republican party affiliation prevented him from ever being elected to the court from his predominately Democratic district (see prior postings, “Old Partisan Kentucky Judiciary” and “Partisan Defined”), he was a wonderful judge and “gifted writer,” who probably had “more of his opinions … published in the American Law Reports (ALR) …than any other judge who has served on the Kentucky court.” (p.76). The passage alerted me to the role that selective reports played in how judges viewed the work of other judges.
The Trinity Series was a pre-West selective reporter by San Francisco law publisher Bancroft-Whitney Co. which included American Decisions (covering opinions from 1760-1869); American Reports (1868-1887) and American State Reports (1886-1911). The series sought to carefully collect leading state court decisions of the fifty states in the period from 1760-1911. The series was highly selective and numbered fewer than 300 volumes for the entire run. Although decisions were picked based on the legal issue addressed in the case, the series editors also chose opinions from judges who had a high reputation in the American legal community. It is clear from my preliminary results** that George Robertson was the leading bluegrass judge in the century, with nearly double the number of decisions published nationally as his closest competitor:
Top ten Kentucky judges represented in the Trinity Series:
1. Robertson, George -- 148 decisions (7 signed only as CJ)
2. Pryor, William S -- 77
3. Boyle, John -- 69 (29 signed only as CJ)
4. Marshall, Thomas A. -- 67
5. Mills, Benjamin -- 67
6. Owsley, William -- 53
7. Simpson, James -- 50
8. Ewing, Iphraim M. -- 43
9. Lewis, Joseph H. -- 40
10. Holt, William H. - 38
George Robertson (whose portrait hangs in the Uofl Brandeis School of law courtroom), served on the Kentucky Court of Appeals from from 1829 to 1834, when he resigned to resume his private practice and teach as law at his beloved Transylvania University, where for 25 years he led the law department. He returned to the court from 1864-1871. His decisions were widely cited in the area of criminal law, legal jurisprudence and tort law, and Kentucky histories and bar tributes mark him as a leading figure in the state legal firmament.
Robertson’s reputation is backed up by some recent scholarship. He is favorably viewed in Peter Karsten’s Heart Versus Head Judge-Made Law in Nineteenth-Century America (Chapel Hill, N.C.: University of North Carolina Press, 1997; see esp. UofL history professor Thomas C Mackey’s review). Karsten’s thesis is that 19th c. jurisprudence reflects a struggle between judges who applied the common law without concern its impact on individuals (especially workers and the victims of railroad injuries), versus a more humanistic view of the law offered by other jurists. Karsten sees southern and midwestern judges trying to mitigate the harsh effect of doctrines like the fellow-servant doctrine that were promulgated by northeastern jurists in the thick of the industrial revolution and he uses George Robertson is an exemplar of this tendency.
Now obviously, there are caveats to this line of research. Judges with long tenures have a more opportunity for their opinions to be cited and those who served as chief justice may have had a better choice of the type of topics that would tend to be selected. Because of this, I’m planning to expand on the selection data with some citation analysis. In addition, I’m trying to come up with a way to track citations to Kentucky cases in the 21,000 19th and 20th century legal treatises in the Making of Modern Law database. I’m also working in a parallel manner using American Law Reports selection patterns to create a similar ranking for 20th century judges, although the changing nature of both the Kentucky court and the continual re-purposing of the ALR by its editors are making that effort more of a challenge. One thing is clear even at this stage: Palmore was right about Stanley!
*Stanley was Palmore’s predecessor as editor of Kentucky Jury Instructions
**With special thanks to Sarah L. Johnstone who helped track the cases and tabulate the results.
Kentucky Attorney General Jack Conway* yesterday released an opinion finding that the Council on Postsecondary Education (CPE) violated Kentucky law when it hired Brad Cowgill as its chief without conducting a statutorily required national search. (The opinion is not yet of the AGs site so you can find it here). What is more interesting is the comment made by Conway in an interview with CJ reporter Stephenie Steitzer. He told her that if the CPE ignored his opinion, the matter could end up in the courts, or "without elaborating," he suggested that "Beshear has the authority to "reorganize" the council."
What he was eluding to was the governor's broad power to reorganize executive branch units under KRS 12.028, which gives him or her the authority to "between sessions of the General Assembly, temporarily effect a change in the state government organizationalstructure as described in subsection (1) of this section if such temporary reorganization plan is first reviewed by the interim joint legislative committee with appropriate jurisdiction." While such a reorganization would last only until the next meeting of the general assembly, Kentucky courts have given the governor a wide berth in these cases. The power was last exercised by Governor Fletcher in 2004 when he abolished the old Kentucky Racing Commission replacing it with a new Kentucky Horse Racing Authority.
The CPE, currently under the Department of Education, is among the units subject to the law (KRS 12.020). The governor could abolish the CPE, dismiss Cowgill (who does not have a signed contract), and establish a new board with a new interim director to handle the CPE's duties. The few judicial decisions and AG opinions on the reorg law suggest that the governor may or may not be able to dismiss the appointed members out of hand, but he can certainly ask them to resign (Fletcher's course in the racing commission case) or make them a minority on the new board by increasing its size and appointing new members (subject to the law that boards be evenly split between the top two political parties).
Clearly this would be a "nuclear option" but one available if the current jostling between the governor and the CPE ripens into a crisis. The reorganization law is rooted in the "ripper bill" of 1932, when Gov. Ruby Laffoon nakedly stripped the lieutenant governor and the auditor of much of their powers; in that case (as well as later cases), the high court found that law constitutional, implicitly acknowledging the plenary power of the executive to organize his branch when authorized by statute.**
* Pictured to the right in a poster supporting the ALA/Kentucky Library Association's READ campaign.
** Talbott v. Laffoon, 79 S.W.2d 244 (Ky.1934).
Joe Gerth has an interesting article on the issues raised by the Kentucky General Assembly’s recent decision to unplug its clocks and enroll several laws that had—allegedly—been passed after the constitutionally mandated April 15 deadline (Ky. Const. s 42). However, the article is a little vague as to details relevant to lawyers so I decided to dig deeper.
The article discusses an issue precedent to the constitutional controversy (actually more an expectancy of a controversy than a perfected one): the question of whether a court can even inquire into the legitimacy of a enrolled bill. For years, Kentucky courts had followed the common law principle known as the “enrolled bill rule,” which, as stated in the case of Lafferty* v. Huffman, 35 S.W. 123 (1893), held that a bill "properly enrolled, signed by the presiding officers of both houses, and approved by the governor, will be presumed to have been enacted … in the manner prescribed by the constitution and cannot be impeached.” The rule was based on both the separation of powers between the branches and on the practical understanding of the possibility of errors by clerks and staff in the preparation of legislative records, especially in the more frantic hours of a session. The courts, in Justice Hazelrigg’s expressive words, didn’t want to cause the “superstructure” [of the] law thus built up [to] fall” due to nitpicking of an imperfect legislative record.
However as Hazelrigg’s pen begat the typewriter, and the typewriter begat the computer, the commonsense justification for the rule waned and many state courts shifted away from an absolute presumption of validity towards a rule that only gave prima facie presumption that an enrolled bill was valid, allowing extrinsive evidence (say, I don’t know, real-time, date-stamped real-time video) to rebut the presumption. That was the rule adopted in 1980 that Gerth alludes to in his CJ piece. In D&W Auto Supply v. Department of Revenue, 602 S.W.2d 420, the court examined a litter law that, among other things, assessed a tax to fund its purposes. Unfortunately, the law, while properly enrolled, clearly failed to meet the constitutional absolute majority required for money bills (See “Two Guides to the Kentucky General Assembly: With Apologies to Niccolò Machiavelli and ABC's Children's Programming Division” ).
The enrolled bill rule stood in the way of righting an obvious violation of a constitutional provision and the Kentucky Supreme Court, in an unanimous opinion by Justice Stephens, overruled Lafferty and adopted the “extrinsic evidence rule," noting that “It is clear to us that the major premise of the Lafferty decision, the poor record-keeping of the legislature, has disappeared. Modern equipment and technology are the rule in record-keeping by our General Assembly. Tape recorders, electric typewriters, duplicating machines, recording equipment, printing presses, computers, electronic voting machines, and the like remove all doubts and fears as to the ability of the General Assembly to keep accurate and readily accessible records.” Id at 424.
Turning to the balance of powers rationale, the court rejected the premise that “the equality of the branches … requires that we shut our eyes to the constitutional failings and other errors of our copartners in government.” Channeling Justice Marshall, the court noted its duty under the Kentucky constitution (and I’m paraphrasing) to say what the law is. The court, in essence, adopted 1 Sutherland, Statutes and Statutory Construction s. 15.06 (4th ed. 1972; s. 15.6 in current 6th ed.) as the law of Kentucky.
It’s hard to tell yet whether anybody’s ox was gored by the laws enrolled in the wee hours of April 16 (allegedly). However, if they have a grievance that finds its way into the courts, the law (as well as the video records of KET) may be on their side.
* The case was styled from the name of William T. Lafferty, a town official of Berry, Ky., who the court released from an injunction barring him from issuing liquor licenses. In 1908, he was named dean of the new UK law school, where he soon was producing licenses of a different vintage.
LEFT: William T. Lafferty; RIGHT: Lafferty Hall, the building that the UK college of law moved into in the 1930s. It now houses the anthropology department.
As the train wreck that was the 2008 session of the Kentucky General Assembly screeched and clanked to the constitutionally mandated deadline of midnight April 15, it suddenly became clear that it needed more time. Drawing on the omnipotent power conveyed upon them by the citizens of Kentucky, Senate leader David Williams and House leader Jody Richards raised their hands high and commanded time to stand still!
OK, actually they unplugged the clocks and went on to pass at least five bills after the day of April 16th had dawned, if WHAS' Mark Hebert and the Lexington Herald-Leader's Ryan Alessi are counting correctly. There is talk of someone asking Attorney General Jack Conway to write an opinion as to whether this is legal. (This could be the oddest OAG since Attorney General Squire Boone opined on whether the 1826 legislature could repeal the law of gravity).*
"And yet it moves." Or so muttered Galileo after recanting his daft idea that the sun did not revolve around the earth. However, no timid Tuscan can teach the legislature the lesson it truly needs. No, they need someone to tell them (straight up, boyee) what time it is. Flavor Flav is the man for the job.** First, he brings his own personal clock (like to see someone get up in his grill to silence that time-piece). Second, he has the resume that indicates he will stand up to the legislative leaders to end pork-barrel politics and support state priorities. Let his friend, Chuck D explain:
Gettin' small makin' room for it all
Flavors on the phone so he can...
Make the call
I know you're clockin' the enemy
You should be clockin' the time
Checkin' records I'm wreckin' you
For defecting my rhyme
No provokin', no jokin', you know the stage is set
If you're thinkin' I'm breakin'
He ain't rocked it yet
My education is takin' you for a long ride
I'll have you brain slip and do the slide
Glide into infinity, it's infinite
With your hands in your pockets
I know your money is spent
Like this, like that, butter for the fat
If you kill my dog, I'ma slay your cat
It's like that y'all, can you handle it son
I'm public enemy number one
From "Terminator X To The Edge Of Panic"
Under Sen. Flav, fat (as well as butter) will be cut and education will supported (from the two infinity references, I assume that science education is a priority). And finally, somebody to put David Williams' tabby on notice!
* Not actually true.
** Once he establishes residency--how hard could that be? Stephenson v. Woodward, 182 S.W.3d 162 (Ky., 2005).
In recent posts I discussed John McKinley, the only other U.S. Supreme Court justice besides Louis D. Brandeis to be buried in Louisville, grouping the two disparate men under the random accident of the geographic proximity of their last resting places. If state lines are ignored, a third justice is also buried nearby, the gregarious New Albanian Sherman Minton, whose grave at Holy Trinity Catholic Cemetery lies just across the the Ohio River bridge that bears his name. (Credit to Jim Chen, who pointed out the Oyez created Google Maps page of SCOTUS death-places). Minton is a balancing addition to the Kentuckiana trilogy, a solid hardworking and sensible jurist whose career avoided the dizzying heights of Brandeisian greatness and the spectacular lows of McKinleyesque inconsequentiality, landing squarely in the middle of most rankings.
Minton, a senatorial pal of Harry S. Truman who appointed him to the court in 1949, was the last member of the U.S. Congress to sit on the court. This is no obscure fact; since he left in 1956, only Sandra Day O’Connor, an Arizona state legislator, joined the Court with any experience in drafting laws, counting votes and trading favors to pass a law. The woeful lack of practical experience has led many of the current court to expect laws to be drafted without error or ambiguity, and, when they don’t find this perfection, they are content to ignore obvious legislative intent. Minton, a man with a high regard for the product of the popular branches, sought to find and vindicate the purpose of the legislature embodied in its laws.
Sherman Minton was the last of another breed of justice, at least according to a new paper on SSRN by Justin Crowe and Christopher Karpowitz, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948813). Crowe and Karpowitz discuss the historical role of “short-term” justices, men who served productively on the court but did not stay for decades. They show that this was a common phenomenon in the 19th and early 20th centuries, but has been rare in the last half-century.
When Sherm Minton left the court in 1956, he likely had little idea that an era was ending. The age of poker-playing lawyer-legislators was over; the court would increasing become the province of law professors, Justice Department staff attorneys and corporate lawyers; all typically rotated through a federal lower court position before being seated on the high court. Where they would sit … and sit … and sit …
Federal judge and former congressman Abner J. Mikva was decrying this tendency in the lower federal bench back in the early 1980s: "Judicial Selection: Casting a Wider Net," 62 Annals Am. Acad. Pol. & Soc. Sci. 125 (1982).
Senator McConnell’s recent campaign ad has once again got me hot under the collar. No, it is not any particular claim he makes (that would be a different blog), but instead something that he has repeated in every commercial since he began ad buys at the beginning of 2008: that he is “only the second Senate leader from Kentucky” (the other being Alben W. Barkley).
Admittedly, this claim is backed up by the Senate Historical Office which dates the history of this title (arbitrarily, I believe) back until 1920 when they declare that the title “leader” was formally applied to the chairmen of the Democratic and Republican caucuses. This clearly neglects the increasing importance of this party office in Senate politics starting at the end of the 19th century and at the same removes three additional Kentuckians from the roll of leaders: John W. Stevenson (1873-77), James B. Beck (1885-90) and Joseph C. S. Blackburn (1906-07). Moreover, this determination ignores what some of these men were actually called by the press: leader.
The reason that Senate historians have fixed on the 1920 date is that it is admittedly hard to determine when the caucus chair went from being a mere presiding officer to the chief organizer of the party’s legislative activity. It is fairly clear that former Kentucky governor Stevenson’s role when he held the Democratic Senate caucus chair in the 1870s was to gavel the infrequent meetings to order. However, when Jo Blackburn let loose the leadership reins in 1907, his fellow Democrats prepared to jockey for a position of real power.
Reading through contemporary accounts of the caucus chairmanships of Senators Beck and Blackburn in the free New York Times archive (1851-1923), it is clear to me that McConnell is the fourth, not second Kentucky Senate leader, and that if re-elected he needs to give his other predecessors their due.
Leader Blackburn (with senatorial 'stache):
One characteristic of blogs that I have not figured out how to get around is that the medium disfavors citation to print-only sources. Bloggers are eager to link to support for their propositions from online references but they (and I count myself in this) are loathe to pull out the Harvard citator or Chicago Manual and drop a hoary old bibliographic citation on their readers. In a recent post, “John McKinley: Louisville's Lost Supreme Court Justice," I made several assertions that seemed to cry out for a footnote but I could not figure out how to insert such references without messing up the flow and (more importantly) detracting from my cool graphic layout. First, I numbered Louis D. Brandeis among the greatest justices to have sat on the court, a very defensible position, but a source or two might be nice. Second, I suggested that Justice John McKinley was perhaps not as well-respected. This might not strike readers who have not heard of him (a sizeable subset of humanity) as needing a citation, but there is actually excellent authority for the statement (from the University of Chicago Law Review, no less). Finally, I argued that McKinley is not usually counted among the list of Kentucky Supreme Court justices. Some might say: There’s a list?! Oh yes, my dear, there is a list. In fact, a little bibliography answering all these questions might be in order…
Top Supreme Court Justices:
Ranking judges is perhaps the most entertaining useless exercise in the legal world (Doris Kearns Goodwin and Michael Beschloss can keep the president-ranking game). In 1992, University of Texas Law Librarian Roy Mersky and a UT colleague bibliographically surveyed all of the judge-ranking efforts up to that date. Roy M. Mersky and Gary R. Hartman, Rating the Justices, 84 Law Libr. J. 113 (1992). Among the best known efforts are George R. Currie, A Judicial All-Star Nine, 1964 Wis. L. Rev. 3, Bernard Schwartz, The Judicial Ten: America's Greatest Judges, 1979 So. Ill. U. Law J. 405. and James E. Hambleton’s meta-analysis, The All-Time, All-Star, All-Era Supreme Court, A.B.A. J. Apr. 1983, at 462. Almost the studies put Brandeis in the top nine (in center-field, if I read the ABA Journal illustration right). Brandeis missed Roscoe Pound’s 1938 list of all-time judges of U.S. history (The Formative Era of American Law 4, 30 n.2), hobbled by the evident fact that he failed meet an implied condition of the ranking: he was still alive.
Most Insignificant Justices
The two seminal works on this topic (see fn 1 of Easterbook, infra) are David Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. Chi. L. Rev. 466 (1983) and Frank H. Easterbrook, The Most Insignificant Justice Further Evidence, 50 U. Chi. L. Rev. 481 (1983). Students of judicial irrelevance may be interested in Professor Currie’s Objective Indicator of Insignificance (OII) factors that led him to fix the MIJ tag on Virginian Gabriel Duvall and Kentuckians may be distressed that Judge Easterbrook pointed the finger at homeboy Thomas Todd, but the fact is that both seriously considered John McKinley for the esteemed title of Sultan of Sloth.
In his article Kentucky Justices on the U.S. Supreme Court (70 Register Ky. Hist. Soc. 121), Woodford L. Gardner, Jr., confined his list of “Kentucky Justices” to the eight men who were born in the state and the two men appointed to the court while residing in the state. In order of appointment they are:
Thomas Todd (no snickering), born in Virginia, appointed from Kentucky, 1807.
Robert Trimble, born in Virginia, appointed from Kentucky, 1826.
Samuel Freeman Miller, born in Richmond, Ky., appointed from Iowa, 1862.
John Marshall Harlan, born in Boyle Co., Ky., appointed from Kentucky, 1877.
Horace H. Lurton, born in Newport, Ky., appointed from Tennessee, 1910.
James C. McReynolds, born in Elkton, Ky., appointed from Tennessee, 1914.
Louis D. Brandeis, born in Louisville, Ky., appointed from Massachusetts, 1916.
Stanley F. Reed, born in Boyle Co., Ky., appointed from Kentucky, 1938.
Wiley B. Rutledge, born in Cloverport, Ky., appointed from Iowa, 1943.
Fred M. Vinson, born in Louisa, Ky., appointed from Kentucky, 1946.
In fairness to Gardner, he was not unaware of McKinley’s Kentucky ties, grouping him with John McLean, Philip Pendleton Barbour and John Catron as justices “closely associated with Kentucky.” McLean lived in the state a few years as a child and the Virginian Barbour practiced in Kentucky for a couple years before returning home. Catron had greater ties to the state, having read law, practiced and held office in Kentucky before migrating to Tennessee. None but McKinley is buried here, however, and he now can claim 166 years of residence.
Justice in Repose:
Finally, this whole exercise occurred when I noticed that nearby Cave Hill Cemetery had a justice planted among the oaks and roses, in George A. Christensen, Here Lies the Supreme Court: Revisited, 33 J. Sup. Ct. Hist. 17 (2008), an updated survey of the final resting places of Supreme Court justices. Plan your vacation accordingly!
In olden times, a child tragically affected with a disfiguring condition would be hidden from public view, out of shame, and from a desire to shield society from a horror they were ill-equipped to handle. In our more enlightened era, compassion and openness has largely swept away such attitudes. Some offspring, however, are still considered so hideous that the public must be protected from unwitteningly stumbling upon them. It is out of such caution that the Kentucky legislature has secreted away its ill-conceived prodigy, the 2008-2010 Kentucky state budget document.
However, as a librarian and a lawyer, I am a heir to two traditions of unflinching rationalism, and am bound to to throw off the cloak of superstition and point the brave to go to http://www.lrc.ky.gov/record/08RS/HB406.htm and to click directly on the first link "HR406." Read with caution; a stiff drink might be advised.
Two associate justices of the U.S. Supreme Court are buried in the city of Louisville. One, Louis D. Brandeis, is considered to be one of the finest jurists to ever serve on the Court, writing opinions that are widely considered landmarks in the development of the right to privacy and the freedom of speech. He is the namesake of both Brandeis University and, more importantly, the Brandeis School of Law at the University of Louisville, where he is buried in the school's portico.
And then there is John McKinley. In fifteen years on the Court, he wrote 21 opinions. True, he was assigned to ride the Southern Circuit, a brutal task in the years from 1837 to his death in 1852, but in his later years he neglected this task, avoiding his responsibility to visit Arkansas his whole time on the court. (Some might argue that this was an understandable omission). He was so obscure that when he died in Louisville on July 19, 1852, the New York Times gave him a one-line obituary. He may have been the victim of unfortunate timing; another man with Kentucky connections died that day, Henry Clay. McKinley’s obscurity has only grown; many biographies have his death place listed wrongly as Lexington.
McKinley is not usually counted among Kentucky’s Supreme Court justices, but the state has a rather strong claim to him (assuming it wished to claim him). He was born (like Clay) in Virginia, but was brought to Lexington, Kentucky, in his youth. He was called to the bar in Frankfort and practiced there and in Louisville, before trying his fortunes in Alabama in 1821. He served that state in Congress and was considered an Alabaman when President Martin Van Buren appointed him to the Supreme Court. However, he soon decided that Louisville was an excellent home base for his circuit court duties, and relocated here in 1842. The 1850 census lists him and his family well ensconced in the city.
Related by birth to one leading Kentucky family, the Logans, he became connected to others by the marriage of his daughters. (One set of in-laws, the Churchills, dabbled in horse racing and built a race track of moderate fame).
He was buried in a prominent place in Cave Hill Cemetery, Louisville’s oldest and most beautiful burial place; his memorial is dignified but relatively modest. The cemetery does not mention McKinley among its list of famous residents, which includes John Keats’ brother George and Col. Harlan Sanders.
These guys? Oh, right...I remember.
How 'bout these? Nope. (Not yet, at least).
No, these are the champions!
Coaches Mary Jo Gleason, Michelle Grant Rudovich, competitors, David Scott and Scott Powell.
UofL News: UofL law students win national negotiation competition
March 3rd, 2008
A team of University of Louisville law students recently won the American Bar Association Law Student Division’s Negotiation Competition.
Scott Powell and David Scott, third-year students at the Brandeis School of Law, are the first UofL students to win the national competition. They will represent the United States in the International Negotiation Competition in London in July.
Acting as lawyers, Powell and Scott had to negotiate a series of legal problems in a simulated family law case. They defeated 20 other teams from such law schools as the University of California, Berkeley; Northwestern University; Boston College; the University of Tulsa; and the John Marshall Law School in Chicago.
Michelle Grant Rudovich, assistant commonwealth attorney and adjunct professor of law, and Mary Jo Gleason, staff attorney for Judge Denise Clayton with the Kentucky Court of Appeals, serve as team co-coaches. Rudovich was a student on the UofL team that came in third in the 2004 national competition.
“It is very exciting to work with a team that is so exceptional in every way — work ethic, negotiating skill, legal prowess and collaborative style,” Gleason said. “It reflects well on our law school to have students with this level of skill and ability.”