Bench & Bar January/February 2025

Q&A WITH CHIEF JUSTICE

During your career you served on every level of the judiciary. What were the particular challenges of each position and what did you enjoy the most about serving in those positions?

The Supreme Court has a different way of doing business than the Court of Appeals, but in a lot of ways the case work is very similar: reviewing briefs and trial records and rendering opinions. Obviously, one difference is that the Supreme Court is the final word, definitely on state constitutional and statutory interpretation and, as a prac tical matter, on federal interpretation (since the U.S. Supreme Court takes so few cases). Another difference is that the lower courts tend to anger individual parties, whereas the Supreme Court can anger half the Com monwealth in one swoop! I have enjoyed every level, although as an outgoing people person, the appellate courts can be isolating in ways that the trial courts are not. Trial judges tend to see a constant flow of people in the courtroom and in chambers.

I will confess that in my first year as district judge, my criminal law skills were non-ex istent. When an issue arose for which I was unsure of the resolution, my suggested solution initially was a memorandum from both parties, “not to exceed five pages.” That was usually met with pushback since district court has such a high volume of cases. Luckily, I had five very experienced colleagues, Judges Clark, Hayes, Horne, Isaac, and Tackett, who were glad to take this rookie under their wings. Then, after five years, I moved to circuit court, which, at that time, included a family docket. Obviously, I had to get more famil iar with KRS Chapters 401 to 407, governing domestic relations. And in contrast to district court, where most trials were crim inal or small claims, circuit court includes much more substantive civil disputes which require detailed knowledge of the civil rules. And, as before, Judges Adams, Clark, Isaac, To answer a lot of questions, I first look at the history. Prior to the adoption of the 1976 Judicial Article, Kentucky’s four constitutions provided differing methods of selecting the Chief Justice. Kentucky’s 1792 and 1799 Constitutions do not refer to the office of Chief Justice at all, but give the Governor the power to appoint with the advice and consent of the Senate “all offi cers, whose offices . . . shall be established by law, and whose appointments are not herein otherwise provided for[.]” Ky. Const. of 1799, art. III, § 9; Ky. Const. of 1792, art. II, § 8. At its first session, the legislature, in “[a]n Act establishing the Court of Appeals,” provided that “the court of appeals shall consist of three judges, . . . one of them shall be called chief justice of Kentucky . . . and shall be commissioned and have precedence accordingly.” Act of June 28, 1792, ch. 24, § 1, 1 William Littell, The Statute Law of Kentucky 101.

Noble, Overstreet, Paisley, and Payne were always available to advise. Moving to the Court of Appeals, I was again blessed with wonderful colleagues and my time in the trial courts provided great preparation. The main challenges involved learning the flow of the work, specifically how cases were assigned and opinions ren dered. One part of opinion writing which I learned was that if a presiding judge pre sented a draft with which I might disagree, then my best approach was to send a short email expressing my thoughts. If one of the other judges seemed interested, then we might continue that discussion. If my thoughts, however, were a “no go,” then that short email became the basis for a short dis sent and perhaps the Kentucky Supreme Court might take notice. That way I did not waste two weeks writing a great dissent on an unpublished opinion. The 1850 Constitution not only changed the selection process for judges, from guber natorial appointment to election, but also altered the selection of Chief Justice. This constitution established eight-year terms for the appellate judges and staggered those terms so one appellate judge was elected every two years. Ky. Const. of 1850, art. IV, §§ 3, 6. As to the selection of the Chief Jus tice, the 1850 constitution provided “[t]he judge having the shortest time to serve shall be styled the Chief Justice of Kentucky.” Id. at § 6. The 1891 Constitution maintained this “mechanical” method of selecting the Chief Justice, but instead of designating the judge having the shortest time to serve altered the selection to “[t]he Judge longest in commis sion as Judge of the Court of Appeals[.]” Ky. Const. of 1891 § 123.

The leader of one of the three branches of our tripartite system is chosen by seven people out of public view. Can you explain the process by which the chief justice is chosen?

The 1976 Judicial Article did away with the mechanical selection process and merely provides “[t]he Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.” Ky. Const. § 110(5)(a). I have been involved in three elections for Chief Justice: one which re-elected Chief Justice John Minton, one which elected myself, and the most recent which elected Chief Justice Debra Hembree Lambert. In each of those elections, the voting procedure was deter mined by the Court and varied slightly.

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january/february 2025