Bench & Bar January/February 2025

The Kentucky Supreme Court in this era, and probably in many others, strikes down acts of the General Assembly. There is always the danger of relations between branches being impaired. Any evidence of that in Kentucky? Probably? Since the early days of the Commonwealth, Kentucky’s highest court has been ruling that legislative acts infringe either the federal or state constitution. The most prom inent of these early decisions is Lapsley v. Brashears , 14 Ky. (4 Litt.) 47 (1823), in which the Court of Appeals, then Kentucky’s highest court, held unconstitutional debt relief legislation in violation the constitution’s prohibition of impairment of contract, asserted the primacy of judicial review and precipitated the “Old Court/New Court” controversy. In the course of that opinion, the court stated: In proceeding with this examination, the court is not unmindful of the solemn obligations which are imposed upon it by the duty of its station. The question is one involving the power of the legislature in relation to a subject upon which it has not for the first time acted, in the passage of the act under consideration, and the many private interests which, it may be supposed, may be affected by the decision, have produced in the court a deep sense of its duty, and induced it to bestow upon the subject all that deliberation and reflection of which it is capable. In the passage of the act, the legislative department of the government, acting, as it is presumed it did, under the conviction of the paramount authority of the constitutions, must be supposed to have entertained the opinion, that no provision contained in either of those constitutions is violated by any thing contained in the act. But it is not in the opinion of the legislature that the court is to search for the true meaning of the constitution. The high respect due from the judiciary to that department of government, should at all times induce the court not to pro nounce upon slight conjectures, that the legislature has transcended its power in the enactment of law. But the court is not to adopt the opinion of the legislature upon trust merely. The constitution has made the judiciary an independent and co-ordinate department of the government, and its opinions must be the result of its own reflections and deliberations. Each department, when acting within its proper sphere, must decide for itself upon the constitution; but both must concur in favor of the constitutionality of a law, before that law can be enforced upon the people. 14 Ky. at 52. Lapsley , however, was not the first cases in which the Court had held a legislative act unconstitutional. That honor appears to have gone to Stidger v. Rogers , 2 Ky. (Sneed) 52 (1801) and Enderman v. Ashby , 2 Ky. (Sneed) 53 (1801), which were decided almost two

Were there any judges, justices, or legal thinkers that significantly impacted your judicial philosophy? If so, who were they and can you describe their impact? In terms of opinion writing, Judge Gudgel and Judge Robert W. Dyche, III, on the Court of Appeals, were known for writ ing concise yet thorough opinions that addressed the issues at hand and nothing else. I have tried to adhere to that guideline. As to an overarching philosophy, I sup pose the starting point was my training as a transactional lawyer in which we were trying to draft documents in order to accomplish our client’s goals, so that other lawyers, and, God forbid, judges would read them the same way. In other words, what does the constitution, statute or case law say? I do not know that I started out think ing in these terms, but I am reminded of an exchange said to have occurred between Justice Holmes and Judge Learned Hand. As they parted one day, Judge Hand said “Do justice, sir!” Justice Holmes replied, “That is not my job. It is my job to apply the law.” See Michael Herz, “Do Justice!”: Variations of a Thrice-Told Tale, 82 Va. L. Rev 111 (1996). I have never been comfortable in making a decision without some authority for a ruling. If a judge always makes rulings on what he or she subjectively thinks is the fair thing, then pretty soon there is no law. No lawyer, transactional or litigator, can advise a client because no one can predict what the judge’s decision will be.

years before the Supreme Court decided Marbury v. Madison , 5 U.S. (1 Cranch) 137 (1803). Because Lapsley involved high pro file, “priority” legislation and precipitated a constitutional crisis in which the legislature attempted to remove all the judges involved, it is the case which is remembered. At my formal investiture as Chief Justice, I acknowledged that, in the Court’s adju dicative role, this potential conflict will always exist. Importantly, however, both the Court and the Legislature, in our respective spheres, play a role in providing prompt and efficient judicial services to the people of the Commonwealth. As a result, we need to always work together. Hopefully, we have done that in my eight years on the Court and in my two years as Chief Justice.

What are you the proudest of in your career to date? I am proud that I stood for election seven times (four of which were contested) and never lost, meaning that the voters trusted my judgment in applying the law and making decisions that comported to the constitutions of the United States and Kentucky. I am proud that when I ran for Kentucky Supreme Court every one of my opponents in prior contested races supported my candidacy. I am proud that when someone is thinking of running for judicial office, they frequently call me because I “know how to do it.” (This contrasts to 1994, when, I am told, Governor Jones was advised by some, “don’t appoint VanMeter; he can’t win!” The best revenge.). I am proud that in almost 31 years as a judge, I never committed and was never charged with a violation of the Code of Judicial Conduct, not even a private admonition or reprimand. I am proud that my colleagues elected me as Chief Justice, trusting that I was the right person to lead the Kentucky Court of Justice. And, I am proud that my two marriages survived my judicial career (albeit the first ended due to my wife’s sudden death) and I, to this point, have reared four children who seem to be relatively happy, law-abiding citizens.

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