David Hearod

June 7, 2019

I read this morning that David Hearod died yesterday at a Princeton nursing home.
He was 70. Visitation will be at Morgan Funeral Home in Princeton this morning and burial this
afternoon. How often do you hear of that happening? A person dies one day and is buried the
next. He died a pauper and spent almost all of his life with the mind of a four-year old child.

David was from old Kuttawa. When he was just a baby, his mom took him to a doctor for a
regular inoculation of some sort. The nurse who gave him the shot made a brutally tragic
mistake. David was running a temperature, most likely from a harmless cold. The nurse either
didn’t take his temperature or ignored it. She gave him the inoculation. When combined with
his fever, he suffered permanent and serious brain damage. It pretty much froze his mental
development in place.

So, David’s parents were saddled with the terrific burden of raising a child with severe brain
damage. I didn’t know his father. He passed long before I got to know David and his mother
Anna. They lived in a little, wooden frame house on the upper ledge at old Kuttawa. Their
home, while always neat and clean, consisted only of about three rooms.

David’s physical agility and mobility was mostly unaffected by his brain damage. He could
dress himself and basically take care of his bodily cares under the direction of his mom. He
had the vacant and constant stare of an idiot in his eyes and was quiet and subdued most of
the time. When he spoke, he did so loudly, and in rushed sentences which, made sense, but
were of little substance. “We got no mail today,” or “Bill McConnell came by yesterday.” His
words would be sudden ejaculations of thought, and then he would retreat back into his silent
house of mystery. Like a four-year old, he had friends who he recognized. He would speak
and answer questions with mostly yes and no. Well, guttural grunts were more like it. His
personality was totally devoid of any emotion. I never saw him smile.

Obviously, he required constant supervision by his poor mother and was incapable of any
gainful employment. Even his domestic usefulness was limited. His main assignment each
day, was the job of going to the mail box and getting the mail for Anna. He carried out this
responsibility with the diligence and devotion of a decorated soldier. There, at the mail box, he
 would stand, a lonely sentinel with his head slightly turned in the direction from which he knew
the US Postal service would arrive. The friendly mail man would place the mail in David’s hand,
who would retreat with his daily trove to the house and place it in the hands of his mom.

 

Like school kids once marked the time of day with their disassembled ramblings home after 3
p.m., David marked the time of day by his daily vigil at the mail box. Neighbors from down the
street could tell if the mail had run by looking for the man standing at the Hearod mail box.

I visited in their home many times. Anna was a large, stout, and intelligent woman. She drew
disability for her and David and I once investigated unsuccessfully the possibility of some
recourse for his long ago medical malpractice claim. I was always struck by the simplistic
sweetness of David, and the gallant courage of his mom. Her personality was one of bold
acceptance never complaining or lamenting her terrible plight in life. She performed her
motherly duties as like one sent from Heaven by God himself to cheerfully watch over and care
for one David Hearod.

But Anna grew old. Tired. David grew into middle age. No change in David. But Anna died.
David seemed to be emotionally detached from such a momentous loss. Just another day at
the mail box for him.

Either distant cousins or Social services took over. Anna was buried, and David was moved to
the nursing home in Princeton. The little wooden house with the fabulous view of Lake Barkley
was sold. The nursing home and Medicare gobbled up the money. In a short time the house
was torn down. Some stranger from up north replaced it with a nice new home. The mail box
is gone. No trace of Anna Hearod and her severely challenged son has been left behind.

David lived out the last 25 years or so of his life in the Princeton nursing home. I went by to
see him several times. He was always clean, well dressed and fed. His countenance and
demeanor was unchanged, from those times I visited him in old Kuttawa in his mother’s warm
and loving kitchen. He seemed happy there with others of similar ilk. Happy? Not sure that is
the right word for someone without emotion. Satisfied comes to mind.

So now David Hearod is dead. I plan to go to the visitation. Visitation. Somehow the word
sounds strange all of a sudden, for the event. Outside a cousin or two, and maybe some loyal
care takers from the nursing home, there will not be many to visit each other around the earthly
remains of David. A very meager few, if any, will remember the sad saga of Anna and David
Hearod? When pondered deeply in the heart we try to draw some meaning from it all. Some
purpose for these ill-fated lives bent low under the heavy cross of misery and woe. We strain to
find God’s will in it all. An innocent babe through no fault of his own, cruelly abused. A loving
mother, through no fault of her own, sentenced to a life of nursing and caring for the eternal
infant. How could Heaven look on and not take their part? The story of Anna and David is
simply one of the millions of such melancholy tales which are told across America each day.
They run their earthly course and will—like David this afternoon—descend into the earth.

And, without any answers, we will quietly strike David’s name from the prayer list at our church.

Law Day Speech to new Lawyers at the Capitol | May 1, 2019  |By Justice Cunningham (retired)

This is the 13th consecutive year that I have attended the May Day ceremony in this historic chamber. It’s been my honor to hear outstanding speakers speak from this podium the best of which some of my fellow brothers and sisters of the Supreme Court.

I’m also mindful that perhaps the greatest orator in the history of the United States, the great William Jennings Bryan stood on this very spot and addressed the joint meeting of the Kentucky General Assembly on January 19, 1922—over 97 years ago.

So, to be very honest with you today…I’ve always wanted to speak at this event.

Former Governor Bert Combs told the story of an old prospector who was wearily trudging into town one day with his pack mule. A drunken cowboy came staggering out of a saloon with his .45 blazing firing into the air. He spotted the old man and decided he would have a little fun. So, he went up to the grisly old-timer and his mule and proclaimed, “old man, I’m going to make you dance.” He then proceeded to pour out the lead around the old man’s feet as the aged prospector danced from one foot to the other. Finally the cowboy ran out of bullets. The old prospector calmly went back to his pack and pulled out a long, double barrel shotgun, and stuck the end of the barrel in the cowboy’s face and pulled back the hammers. “Boy”, he said, “you ever kissed a mule in the mouth?” The cow poke, now completely sober and wide eyed as he stared down the barrel of the shotgun said, “No. But I’ve always wanted to.”

So thank you Chief Justice and Associate members and Ms. Clary,for giving me the opportunity this morning to do something I’ve always wanted to do.

Another reason this is special for me personally is, that I celebrate 50 years as a lawyer this year. You are just beginning. I’m falling into the sere, the yellow leaf, you are just bursting into full bloom.

I have no magical words of wisdom for you this morning…no profound insights, but only, to paraphrase the great Patrick Henry, “I have but one lamp to guide you here today, and that is the lamp of my experience.”

First, the good news. If I had it all to do over…..I’d choose to be a lawyer everytime. There is no greater boast in the grand pantheon of callings, than to say, “I am a lawyer. I work for justice.” You are only a few minutes away from joining that noble band.

My limited time this morning compels me to share with you only twoof the most important things my experience of being a lawyer has taught me.

First, if you want to have a happy life as a lawyer be nice to everyone.

If you want to have a disastrous life that will lead to alcohol and drug addictions, ruined marriages, and mental illness, then follow those miserable barristers who follow the deceptive sirens of greed, win at all cost—hard ball. They follow the failing banner that nice guys finish last. I present to you exhibit A to totally destroy that myth this morning. The seven justices sitting right here are all in first place. They are all some of the nicest people I have ever met. I rest my case.

Be nice to everyone—opposing lawyers, their clients, jurors and witnesses, and secretaries and law clerks. Be nicer to the judge’s secretary than you are to the judge; nicer to the deputy clerks than you are to the clerks; nicer to the people who clean the building, than the person who owns the building. Back on a rainy afternoon in the late 1890s, an elderly lady walked into a Philadelphia department store. Young clerk asked if he could help, and she responded that she was just getting out of the rain. He didn’t try to sell her anything, but simply got her a chair to sit in. After the rain stopped, she asked for his card and left. It was Andrew Carnegie’s mother. Andrew Carnegie was one of the wealthiest men in the history of the United States. Later the store received a letter from Andrew Carnegie requesting that the store furnish his entire castle in Scotland and that the young man who gave his mother a chair be sent to fulfill the order. Yes, always be nice to everyone.

 

Secondly, do not let technology swallow up who you are. Do not lose your humanity to technology. The toughest thing about suffering through my speech right now is having your cell phone off. Steve Jobs, the founder of Apple, refused to allow his children to have an iPad.”We limit how much technology our kids use, “ he said,”We think it’s too dangerous.” Senator Ben Sasse in his book “Them” says, “we are likelier to spend time seeking validation from out digital “friends’ than to spend time with flesh and blood friends.”

You would be offended if I told you that you were enslaved to your girl friend, or your husband, or to a senior lawyer in the firm. Yet, we become impervious to being enslaved to technology. The ones here today who will rise above all others will be the ones who know when to quit the texting and make the phone call; when to turn off the e- mail and communicate face to face. Construct an inner antenna to recognize that need. It’s ironic that modern technology makes it easier for us to communicate, but we use it to communicate less successfully.

In November of 1972, I voted by absentee ballot from Vietnam in the presidential election between incumbent Richard Nixon and challenger George McGovern. President Nixon won that election 3 with 60.7 % of the vote, carrying every state but one. Years later I was sitting in a fancy restaurant with my friend David Whalen, congressional aide to Congressman Carl Perkins. A man walked in the restaurant and began greeting people at the next table. He looked vaguely familiar. “You know who that guy is?” David asked. “I don’t know. He looks very familiar.” I responded. “That’s George McGovern” he replied.

 

I was incredulous. It couldn’t be George McGovern. This man was smiling, shaking hands, engaging people in conversation. He was warm and appealing. I liked him. The real George McGovern did not come through on the technology of television. Don’t let that happen to you. God gave each and everyone of you a personality. Use it. The turn of a phrase, a tilt of the head, a certain inflection of the voice….each of you have personal charm in varying degrees. Don’t lose it to the cold screen and unfeeling touch of your cell phone or computer.

Technology is the great equalizer..making everyone bland and lifeless.

With all of that said I fully recognize that is is highly unlikely that any of you will remember anything I say here today. In fact, fifty years down the road, when you are where I am, I bet you the farm, you will not even remember who was the speaker here today. If you do….call me. I’ll give you the farm.

But I promise that there are two things which you will remember about today.

1. You will remember how your felt. You will remember the joy of being here with your family and loved ones, who look on proudly. Picture taking. Snap, snap, snap. Seeing your friends who also made it to the top of the heap, great sense of accomplishment from all the hard work. You will remember this moment just as you will remember the thrill of that moment you learned that you passed the bar exam. Hold onto that feeling. You are going to need it over the long, challenging journey ahead of you. Put it in a bottle, and put it on your shelf. And when those days come, as they do in any profession worthwhile, when you become stressed from the burden of other people’s problems; when you are discouraged and depressed from a series of setbacks and losses; when you dread getting up to face a particular client, a particular hearing; a particular judge……when you have second thoughts about being a lawyer..take a big swig of this feeling and be renewed with that energy and pride….knowing that any job that matters, any job dedicated to helping others, and problem solving, any job worthwhile…the job of being a lawyer, will have days and moments like that.

 

2. The second thing you will remember is that you took an oath here today. The oath that you will be giving shortly……the magical oath…..the scant few words. One moment you are a lay person, and the next…..poof….you are a lawyer. You ride up here with family members who you have been giving free legal advice to for the past three years, and now you can charge them for it on the way home.

What is an oath? The dictionary defines an oath as “a solemn promise, often invoking a divine witness, regarding ones future action or behavior.” A promise. Giving your word.

I have taken this same oath seven times in my life. When I became a lawyer, and six times being sworn in to public office. I’ve administered this oath to Governors, Lt Governors, other constitutional officers, judges and lawyers, school board members and mayors. I’ve never let them get off with a yes or no answer. I make them repeat it. It’s not my oath; it is their oath. Ms. Clary will let you off with a yes or no answer here today. But…..it is still your oath. You are giving your word to us, to the people of Kentucky, and “so help you God.”, that you will support the constitution of the United States and the Commonwealth of Kentucky.

We live in the land of the free and the home of the brave. We remain free only if we remain brave. It is not large fleets of black bottomed ships, nor marching brigades of soldiers that keep us free. It is the constitution. The executive branch doesn’t keep you free. Unfettered it will become tyrannical; it is not the legislative branch which keeps you free, for unchecked it becomes an oligarchy. It is the judicial branch and lawyers which keeps us free, through the enforcement of our constitutions. So, in effect, you are freedom fighters. Outside your wedding vows, it will be the most important promise you will ever make.

 

During my 12 years working in this beautiful temple of democracy, I kept on my wall in my office the old and tattered 8th Grade Diploma of my father framed and hanging on my wall. My father only had an eighth grade education but he had a juris doctorate in character. My character was molded out of watching the way he lived his life with honesty, self-discipline, integrity, charity, hard work, and total devotion to my mother and his children. Character is caught more than it is taught. But there was one verbal admonition he gave me, not once, but many times as I was growing up. He gave it to me so many times that that I came to think that even my Baptist conversion would not save me from eternal damnation if I violated it. That admonition was simply this. “Always keep your word….even when it takes the skin off your nose.” That description quickly catches the attention of a small child Every rambunctious child knows the pain of having the skin taken off your nose.

Please take heed that keeping your oath, keeping your word to support and uphold the constitution may sometimes take the skin offyour nose.

For Example: *A prosecutor provides evidence to a criminal defendant who has committed a heinous crime knowing that such evidence is likely to cause that criminal to go free—because the constitution through the interpretation of the U.S. Supreme Court requires it. It takes the skin off his nose.

For example: a trial judge suppresses evidence in a serious criminal trial—because the constitution requires it. And pays a terrible political price. It takes the skin off his nose.
For example: *this Court right here late last year struck down two important laws enacted by the General Assembly, and both the executive and legislative branch announced war upon the court and the judiciary for their upholding their oath of office in supporting the constitution of the Commonwealth of Kentucky.

For example: *a legislator stands here in this chamber and votes no to proposed legislation because he knows or strongly suspects it is

unconstitutional while a mob of voters scream out in the rotunda for him or her to vote yes. Knowing that his vote may well lose him the next election he remains true to his word in supporting the constitution. It takes skin off his nose.

I wish I could impress you with these remarks of the gathering storm clouds which threaten our republic. It’s the growing disrespect for our constitution. Our country is imperiled. More and more public officials, some of them lawyers, are treating the constitution like a side dish no one ordered. More and more are treating it like an impediment to power, rather than a birthright to democracy. We live in the most perilous times in our history, endangered not by foreign powers, but by our own our own neglect of our constitutions. The only thing which prevents us from being ruled by dictators or tyrants is our constitution. If the 34 lawyers at the 1787 U.S. Constitutional convention had not been lawyers first, and politicians second….we would not have a constitution. If you are not lawyers first and politicians second, we will not keep our constitution.

I’m not sure we’re going to make it. And I’m not the only one. But there is hope. The hope is in our lawyers. David Brooks, noted columnist who is not a lawyer, was referring to these perilous times when he wrote in the New York Times on Feb 22 of this year:

In speaking of lawyers as the saviors of America he said, “The legal institutions instill codes of excellence that are strong enough to take the heat. Those people(lawyers) have enough character to live up to those codes. They are clinging tenaciously to old standards of right and wrong, to the Constitution, and the rule of law. And if we get through this, it will be because of people like them.”

So, when you stand here in a few moments and Ms. Clary ask if you will support the constitution of the United States and the constitution of the Commonwealth of Kentucky…. In that fleeting moment please insert in your own passing thought, “even if it takes the skin off my nose.” Then, and only then, will you have the right to call yourself a lawyer.

 

In closing, as this old warrior departs the arena, I wish you nothing but success and happiness in the exciting years ahead. We send you off with the words of Virgil, “God’s speed to your youthful valor, may you scale the stars.”

Kentucky Appellate Survey Monthly Judicial Focus Series Justice Bill Cunningham Interview Questions

1.Can you tell our readers a little bit about yourself? Maybe something that even those who know you would be surprised to learn.

I came within 200 yards of being born in prison. I was born in government housing across the street from the Kentucky State Penitentiary in old Eddyville. My father worked on the old lock and dam. That town was demolished for Barkley Lake and we moved to Benton. After graduating from Benton High School, I attended Murray State and University of Kentucky law school. After law school I served four years in the Army in Germany, Vietnam, and Korea. After the Army I started practicing law in Eddyville and served as public defender for the inmates at the Kentucky State Penitentiary; Hearing officer for the Board of Claims; Commonwealth Attorney; Circuit Judge and just completed 12 years on the state Supreme Court.

2. Why did you decide to retire from the bench this year?

Burnout. The most important thing about being anywhere, is knowing when to leave. After 45 years of human misery, tortured children, dysfunctional people and homes, indescribably evil perpetrated by human beings on each other….I’d had enough. I just lost my passion for it. And when you lose your love for being in the arena of human tragedy, you’d best leave.

3. You have been both a public defender and a prosecutor and served for fifteen years as a circuit judge. How has that experience informed your work on the Kentucky Supreme Court?

Those experiences made me who I was on the Supreme Court. You draw much more from your experiences than you do from the law books. Clerks can look up the law. Only you could have walked the walk.

4. Justice Venters recently told us that he didn’t understand why trial judges sometimes get worked up about being reversed on appeal. You’ve been on both sides of the appellate process in your capacity as a judge—you’ve overturned trial and Court of Appeals judges and you’ve presumably been overturned as a trial judge. Were you ever reversed as a trial judge in a decision that you felt was incorrect or unfair? On the other hand, did you ever, as a trial judge, get reversed and, upon reflection, agree with that decision?

I’m afraid I wasn’t as cool about getting reversed as Dan was. It bothered me to get reversed because it not only meant I had to do it over, it meant all the lawyers and people involved had to do it over, often times at great cost. Because of my mistake. And sometimes, especially in serious criminal cases, that can cause a lot of emotional trauma upon innocent people. And yes, I was reversed in cases in which I disagreed. But in fairness to the appellate courts of this state, in most cases where I was reversed, and had time to reflect, I concluded they probably got it right.

5. We have interviewed several trial judges as part of this series and they have told us that they often struggle to apply the decisions or principles of law handed down by our appellate courts. Do you empathize with them in that regard? Is there anything you believe appellate courts, particularly the Supreme Court, could do to make it easier for trial judges to correctly and consistently apply the law?

 

As a former trial judge, I tried to write my opinions for them….not for law professors. That meant I tried to keep it simple and short. I think their criticism is perfectly justified. Our opinions are too often too long and too complicated. We’ve made a total mess out of slip and fall and open and hazardous cases. If I were a trial judge right now, I would be totally confused about the law if I were trying a slip and fall case.

6. The Kentucky Supreme Court and the Kentucky Court of Appeals are courts of review. How important is it to defer to certain rulings and findings of the trial court and how difficult is it to resist the temptation to reverse the trial court where the law was arguably applied correctly but the result seems wrong or unjust? Can you think of any particular cases where you have affirmed a trial court but had doubts about the decisions that court made or thought to yourself “I would have handled that differently”?

Well, I think we all give great deference to trial judges. We’ve been there and we respect them. And we know how difficult it is out on the trial bench in the heat of a trial. After all, in my opinion, the Appellant has the burden. Otherwise in our oral arguments, the Appellant would not be allowed to go both first and last. And yes, we’ll uphold trial judges sometimes when we would have handled it differently. Quite often, I would have let a juror go on voir dire for cause, just to be on the safe side. But, I might not think the trial judge in that instant abused his or her discretion in not striking that juror.

7. Former Justice Mary Noble, especially toward the end of her tenure, became rather critical of the Court’s embrace of “harmless error” in criminal cases. Criminal defense attorneys have echoed that criticism and suggested that there’s not really any principled way to differentiate between harmless errors and errors which warrant reversal. How do appellate judges distinguish between the two and is there any risk of the concept of harmless error becoming an overused escape valve for appellate courts to avoid making the often unpopular decision to overturn criminal convictions?

Well, Mary—who is like a sister to me—and I were most times on opposite sides in that debate. And we came to that issue with our own experiences…mine in law enforcement and prosecution. If we demand perfect trials, then we will not have any convictions affirmed. The suggestions that there is not harmless error in the explosive dynamics of a week-long trial defies common sense. A judge erroneously making an evidentiary ruling that has nothing at all to do with the rights of the accused nor his guilt or innocence is a harmless mistake. What difference does it make if the judge incorrectly allowed a witness to testify to hearsay about the color of the car when the color of the car had no more to do with the case than who won the Cardinals and Reds game that day?

8. Some attorneys are of the view that oral arguments rarely help your case but they can often hurt your case. Do oral arguments impact the outcome of a case? Has your vote ever been swayed by oral argument? Can you provide the Bar with some guidance as to what to do and what not to do during oral argument?

You must understand that we spend a tremendous amount of time studying briefs and preparing for oral arguments. So, we have studied about everything that each of the lawyers have to say about the case. That naturally leads to us at least be leaning one way or the other going into oral argument. Sometimes we may be leaning quite heavily. But sometimes we overlook something, and a lawyer will change our mind. Or maybe we have questions to ask that will influence us. Then the answers that the lawyer gives us in oral argument persuades us. I’d say that oral arguments will either convince me or change my mind in about 25 percent of the cases. As for advice to lawyers arguing. Be very nice and courteous to your opponent. We like nice people. Candidly admit your weaknesses and mistakes. We like and

admire people who have the honesty and self-confidence to do that. Plus, it gives you great credibility.

9. You have probably reviewed thousands of appellate briefs in your career. Now is your chance to tell the Bar what the justices want to see more (and less) of. What are some of the do’s and don’ts of appellate briefing from your perspective?

You are right. Thousands. That means a lot of reading. So, my advice to lawyers is not to think you have to use all of the fifty pages allotted. Almost always when the entire fifty pages are used, the lawyer starts repeating themselves. When I see a 15-page brief, I’m thinking genius. If you can’t say it simply, you don’t understand it well enough. No one appreciates brevity like appellate judges.

10. When deciding whether to grant discretionary review, what are some of the factors that you and your colleagues consider? Are there often strong disagreements on the Court about whether to accept a case for review?

Last question first. Yes, some of our most heated and contested discussions will come on whether to take a case for review. As for factors that I considered? First and foremost is, do I think the Court of Appeals got it wrong? If they got it wrong, we should fix it. That’s our job. If you were the litigants and the state’s highest court thought the lower court was wrong and walked away from it…..what would you think about your court system? We are a “discretionary review” court. We can take a case for whatever reason we choose. Contrary to the argument of some of my fellow justices, we are an error correction court. The US Supreme Court? It is a certiorari court. Big difference. You can look it up.

11. Trial and appellate judges often have to become “mini-experts” in various areas of law all at once, but presumably, like everyone else, there are certain areas of law or legal topics which interest each judge more than others. What areas of law or legal topics particularly interested you during your time on the bench? Are you able to shed any light on how other justices on the Court might answer that question?

Well, because of my background I naturally lean toward criminal cases. And, if I had an expertise in that area, I’d like to think it is search and seizure. Many years ago, when I was Commonwealth Attorney, a Maryland Appellate judge named Charles Moylan spoke several times to our group on search and seizure. He was captivating. The fourth amendment has history written all over it and I’m enraptured by that famous William Pitt statement about the “majesty of the ruined tenement” and “the King of England cannot enter.” As to other justices and their special interest? They would have to answer that for themselves.

12. Can you take us behind the scenes of how a case is decided by the Supreme Court, particularly the deliberations among the justices once a case is submitted?

The most uplifting and inspiring part of serving on the Supreme Court has been provided by the passion and commitment to fairness and justice by my fellow members of the court, dealing all the time with the cases of total strangers. Each justice is assigned a case to write. The opinion is written, and votes taken. Often, we disagree. So, we argue. And some arguments become quite heated. As they should. There are no small cases and sometimes we spend a lot of time on a relatively minor case. But, to use the parlance of Shakespeare, we “are quick to take quarrel in a straw if honor is at stake.” Or, in our case, justice is at stake. But always two things happen. It is always about the individual justices’ notion of right and wrong—no selfish motives. And it always ends with us cooling down, remaining close friends and moving on to the next case. You may be coming across the table at someone on one case

(not literally) and that same person will be your most vocal ally and supporter on the next case. It’s wonderful, actually, to watch this work.

13. There is often sharp disagreement on the Court about certain cases and issues. How do you all address those differences while maintaining collegiality? Has your position ever changed or been swayed by an argument or position of one of your colleagues? To what extent do you and your colleagues “lobby” or try to persuade others to come to your side? Are there any particular legal decisions, lines of reasoning, or trends embraced by your colleagues with which you strongly disagreed?

Wow! Lot of questions there. There is not enough time and space to answer all these. Let’s go with collegiality. For 12 years I served on the state Supreme Court with my best friends. If we weren’t close before we got there (and many of us were) we became close once we were there. Much of this grows out of a mutual respect that we have for each other based upon our shared experiences in the arena of human tragedy. I look around that table and see people who have walked the walk and talked the talk. So, when they spoke….I listened. It wasn’t like I was sharing space with lawyers who had spent their careers running titles, and that’s all. Outside the conference room we tried to spend time together as well, especially while we were in Frankfort. You eat and drink together, then you laugh together. And if you laugh together, you like each other. And when it is time to get serious, you can do so and remain friends through some grueling disagreements. To summarize the other questions: Yes we lobby each other and try to persuade, and yes there are many opinions and lines of reasoning, we disagree with each other and will do so till the day we die. That is called conviction.

14. This past year saw what some might characterize as an unusually high number of contentious “political” cases come to the Court—“political” in the sense that they attracted a great deal of attention from the other branches, political advocacy groups, and the media. The pension and medical review panel cases come to mind, but there are others. How did the Court navigate those politically troubled waters? Both the pension and medical review decisions were unanimous, although there were concurring opinions. Did the Court think it was especially important in those cases to speak with one voice?

We always thought if was important to speak with one voice. Not essential. But important. No one will sacrifice their own integrity. But we like to have our majority as large as possible. On highly visible cases with a state divided, and our opinion controversial, I think it always reassures the public of the rightness of our decision when we all agree. I will say this about the unanimous decisions in the pension case. Everyone was on the same page from the get go. It was so blatant and obvious, we all started in agreement. It did not require any persuading nor cajoling. It was a no brainer from the start. We only had to write the opinion that pulled it all together, as Justice Venters did so adeptly.

15. One major case where the Court did not speak with one voice was the Kindred v. Clark, Kindred v. Wellner, and Extendicare Homes v. Whisman group of nursing-home arbitration cases, which produced two 4-3 decisions from our Supreme Court and an unanimous reversal (in part) by the US Supreme Court. Justice Venters recently took us behind the scenes of that “extraordinary” case, as he described it. Can you give us your perspective on that case, given the significant interest it attracted?

Well, we had two of the best justices that have ever sat on the Kentucky State Supreme Court dueling it out on that one. Justice Hughes and Justice Venters. I was with Dan. It wasn’t because we had a mind set against arbitration. It was, and is, that we think access to our courts is a sacred right for every American. It should not be lightly considered nor taken away without there being a clear and defined declaration that a person is giving up that right. I think Dan has spoken to that much better than I can. And I think Justice Hughes is also

sensitive to that concern as well. I think the disagreement just comes down as to how best to preserve that interest and at the same time follow the law favoring arbitration.

16. What are some of the biggest challenges you see facing Kentucky’s judiciary now and in the immediate future?

Our judiciary is at risk. We have become too expensive and too inefficient. It takes longer and longer for cases to be disposed of. Unless we become more responsive to the needs of the people, they will turn more and more to alternative conflict resolution methods such as arbitration. People are losing faith in our court system. If you talk to most people who have been litigants in our court system, they are hardly ever happy with the process. And their chief complaint is that it takes too long and too expensive.

17. In responding to Governor Bevin’s criticism of the judiciary, you said “What Gov. Bevin says goes by you like the idle wind, and I don’t think people pay a lot of attention to what he says.” Has the criticism from Governor Bevin and others affected the Court’s work, and do you think it erodes the public’s confidence in the judicial system? To the extent he’s inclined to listen, what kind of successor do you hope he appoints to fill your seat?

I think you answered the first question by your introduction to it. The criticism by the Governor or anyone else for that matter does not affect our work. If it did, we judges and justices would be in the wrong line of work. Remember, every decision a judge or justice makes will usually invoke criticism from the losing side-sometimes both sides. We do criticism for a living. As to how the Governor’s comments may affect public confidence, our court was divided on this. Some thought it hurt our image and we should respond to it. Others thought we should ignore what he said and not lower the court system to what might be perceived as a political debate. I was mostly of the latter group because of what you just quoted. “I don’t think people pay a lot of attention to what he says.” I would not dare to answer your last question—what kind of successor I hope for the Governor to appoint to take my place? That would throw me into a process I need to avoid right now.

18. What advice do you have for your successor?

Be thankful, and be humble. And remember that time is fleeting. You only have a short time in the long march of history to make a difference. Don’t squander it.

19. What will you miss the most about being on the Court? The least?

That’s easy. The Capitol and my teammates are what I will miss the most. I’m sure Stan Musial and Lou Gehrig missed their teammates when their time was up, and they had to leave baseball. But when you can no longer hit the curve, or field the ground ball, you owe it to your teammates to leave. What will I miss the least? The gargantuan load of reading.

20. What is next for you?

I have no idea. I’m living on my belief system right now and my faith in God.