court-of-appeals-oral-history-transcript

TRANSCRIPT: VIRGINIA COURT OF APPEALS ORAL HISTORY Interviewees: Judge Norman K Moon; Judge Sam W Coleman III; Justice Barbara M Keenan; Judge James W Benton, Jr.; Justice Lawrence L Koontz, Jr Interviewer: Dr Cassandra Newby-Alexander Interview Date: March 27, 2013 Location: Community Idea Stations, Richmond, Virginia Length: One audio file from video, approximately 100 minutes START OF INTERVIEW Cassandra Newby-Alexander: After a long and controversial discussion among legislators in Virginia in the 1970s, the Court of Appeals of Virginia was established on January 1, 1985 The court serves as an intermediate appellate court providing appellate reviews of the final decisions of the circuit courts in domestic relations matters, appeals from decisions of an administrative agency, traffic infractions, and for criminal cases except where a sentence of death has been imposed Originally the court was established under the leadership of Ernest Ballard Baker with ten judges Currently the court consists of eleven judges sitting in panels of at least three judges at locations as the chief justice designates This system provides convenient access to various geographic locations throughout the Commonwealth of Virginia Today I have the distinct honor to talk with five of the original ten judges on the Court of Appeals of Virginia The first person I’d like to introduce as part of our discussion is Norman K Moon, who served on the court of appeals from 1985 to 1997, and chief judge from 1992 until 1997, when he was confirmed as a judge on the US Court of Appeals of Virginia Oral History District Court for the Western District of Virginia He took senior status in 2010 Judge Moon began his career as a private attorney in Lynchburg but was soon appointed as a judge in the 24th Judicial District Court in 1974, a position he served until appointed to the court of appeals Judge Moon is a graduate of the University of Virginia, both as an undergraduate, law school, and receiving a master’s of law at UVA Our next guest is Sam W Coleman, who served on the Court of Appeals of Virginia from 1985 until 2001 He was a senior judge on the court from 2001 until 2012 After graduating from the University of Virginia and Washington & Lee law school Judge Coleman’s path helped him to begin his career as a circuit court judge in Scott County, Virginia Coleman served on the education and compensation and retirement committees of the Virginia Judicial Conference on the Legislative Study Commission on Appellate Courts His illustrious career as a judge has spanned twenty-five years Our next guest is Barbara M Keenan, who was a judge on the Court of Appeals of Virginia from 1985 until 1991, when she was appointed justice on the Supreme Court of Virginia She became a judge on the US Court of Appeals for the 4th Circuit in 2010 Now, Justice Keenan is an alumna of Cornell University and George Washington University School of Law While beginning her career as a prosecutor she was appointed to the general district court in Fairfax at the very young age of twenty-nine Thereafter she became the first female circuit court judge and then again made history as the first female judge appointed to the newly formed court of appeals Continuing these firsts, Justice Keenan was also the first person to sit at all four levels of the commonwealth’s judicial system after her appointment on the Supreme Court of Virginia Court of Appeals of Virginia Oral History Our next guest is James W Benton, who served on the court of appeals beginning in 1985 and retired in 2007 Before he became a judge he was a partner in the law firm of Hill Tucker Marsh, a distinguished Richmond law firm that pioneered legal challenges to segregation and discrimination in Virginia The firm was involved in some interesting cases, including the famous 1954 Brown v Board of Education decision, and the Green v County School Board of New Kent County that challenged the freedom of choice plan that sought to undermine the Brown decision Judge Benton, a Norfolk native and graduate of Temple University and the University Of Virginia School Of Law, has spent his entire career pursuing his passion for equality, civil rights, and fairness before the law 04:48 And finally we have Lawrence L Koontz, a judge on the Court of Appeals of Virginia from 1985 to 1995 and chief judge from 1985 until 1992 He was elected justice on the Supreme Court of Virginia in 1995 and is currently a senior justice on the court He’s a Roanoke native and a graduate of Virginia Tech and the T C Williams School of Law at the University of Richmond Judge Koontz began as a juvenile and domestic relations court judge in 1967 where he served nine years until he was appointed to the circuit court He is one of two justices in Virginia who has served on four levels of Virginia’s court system Justice Koontz has a distinguished forty-three-year career as a judge Welcome, all of you, to today’s discussion All: Thank you CNA: I know that all of you have had an opportunity to come together on a private and personal level to talk about not only your experiences but to catch up on what each other is doing, but today we want to focus a little bit on your experiences as judges, Court of Appeals of Virginia Oral History and really pioneers, on this court of appeals All of you were there at the formation, all of you helped to really construct the administrative side of the court, and to make it a functioning court, so successful in fact that most people have forgotten any controversy regarding the formation of the court So I’d like to begin by asking you a little bit about what your experiences were the first time you heard that you were supposed to be a part of this newly formed court here in Virginia Barbara M Keenan: Well it was very exciting for me The circuit court in Fairfax County where I sat had sat since the time of George Washington It was a place that was bound in tradition, and very well qualified people I was sitting with, it was just such an established place, so for me it was very exciting to begin to start an entirely new venture It’s a little frightening in a way because part of me thought, well what if I don’t like this job? I’m going to be leaving a job that I really like quite a bit So there was an aspect of charging into the unknown, but it was just too good an opportunity to pass up in the sense that it was something that would probably never be done again in our lifetime CNA: Judge Benton? James W Benton: Well I was excited because there was an opportunity for the first time in Virginia to have appeals of right A lot of my practice had been on the federal side where we had appeals of right in virtually all cases and this was going to be, in my view, a grand opportunity for Virginia to go along that route And of course for me, coming from private practice onto the bench added an extra dimension of excitement CNA: How did it add an extra dimension? JWB: Well, I was joining a group that I knew consisted of nine other trial court judges and I had a little apprehension about going on as the one lawyer on the court, but I Court of Appeals of Virginia Oral History talked to some people, some of the judges, the local judges, and I felt pretty confident that I would be able to the work Lawrence L Koontz: He’s really too modest He was more than just capable of doing the work But for me I thought it was a unique opportunity to institutionalize a brand new level of the court system in Virginia, which had not occurred and probably won’t occur, certainly in my lifetime and in the future I guess if history would remember anything, what I would like to be remembered is these were ten–well I can say nine and me–very, very capable people and from day one I think we’ll all agree that we were committed to making this court excellent, not just that it’d handle cases but it’d more than that We had a series of meetings to decide how we were going to function day to day and just how we were going to process our cases, and I think most everyone on the court would agree that we rapidly came together as a team and everybody was equally committed I think we can safely say that we did a good job 10:01 CNA: Well I certainly would love to have been a fly on the wall, to listen to your discussions about how you formed this court, so give me a little taste of what you all talked about and maybe even some of the arguments that went on in how you thought the court should really form itself JWB: Well to begin with, we had no furniture [Laughter] Norman K Moon: I can tell you one thing that I remember distinctly, one of the questions was since we were all coming on, on the same day, how would we determine who was senior, and the seniority system? Well I didn’t give it a great deal of thought I was sort of in the middle of the age group, the middle of the experience of the judges, and, with a name beginning with M, in the middle of the alphabet So I said, well, I could Court of Appeals of Virginia Oral History suggest something that wouldn’t favor me, that wouldn’t really make any difference to me, and I said well I suggest we it alphabetically, and Judge [Bernard G.] Barrow immediately said, “I’ll go with that.” [Laughter] Well I think there were four or five judges whose name started with B, two Bakers, Barrow, Benton, and then M was the last– [Laughs] I was the last in seniority Of course it didn’t make any difference except how you were seated in court I don’t think there was any other difference that seniority made, but that was one of the first things As a matter of fact, I think when we met with Rob Baldwin, the executive secretary, he said that was one of the first things we needed to do, was to determine seniority BMK: Well another thing that we did, and Sam was talking about this last night and he probably can give more details than I would remember right now, but he was saying how we invited in people from other states We invited judges in from other jurisdictions, people who could give us a perspective on how a brand new court should start As you said, it was a little bit contentious, the beginning of the Court of Appeals in Virginia Some people didn’t want us, didn’t think they needed another court in Virginia, and perhaps saw it as an erosion of their influence to have another court in Virginia So our natural place to look wasn’t necessarily within our own state as to how we should get started, and that’s what Sam was saying last night Sam W Coleman: Well one of the other things too I think we faced and confronted early on was how we would sit as far as whether we would sit in Richmond, for example The supreme court at that time had about a two- or three-year backlog and we were very aware of that and wanted to try to be user friendly, so one of the things we wanted to early on was try to be more accessible, so rather than hold court just in Court of Appeals of Virginia Oral History Richmond we decided that we would hold it in four locations in the state So that was one of the early things that we did to try to be more accessible JWB: And I think we all agreed from the outset that we would take our oath on the same day, [Murmurs of agreement] which I thought was fairly phenomenal, that we could– BMK: It was 4:00 in the afternoon [Laughs] JWB: –reach that conclusion That’s right NKM: I think one of the big things we did early on too was decide that we would comply with the statute, which said we had to give a written opinion explaining why we denied a petition for a writ of error, and also we had to give a written opinion as to why we decided a case Now that same law I think was applied to the supreme court, and they fulfilled it by their decisions, most of them, when they denied a petition they said, “Not finding any reversible error, [Laughs] the trial judge is affirmed.” Well we decided the way we interpreted it, and I don’t recall a lot of discussion about it, but from the get-go we– Every litigant before our court got a written opinion explaining the reasoning behind our decision, I mean no matter whether it was a criminal case, that you had a right to get a written opinion, and we turned out a lot of written opinions 14:47 One of the things that this court did that was remarkable to me, in a way, I went through the library at the University of Virginia Law School, and if you looked at the shelf they had, in the stacks, the law from each state, case law from each state The Virginia law was just a small fraction of that of most states that had courts of appeal, smaller states than Virginia just filled up many shelves, many more than Virginia, and the supreme court was probably, I guess back then, turning out about a hundred opinions a Court of Appeals of Virginia Oral History year Well, we didn’t have the precedent on a lot of issues and this court was able to develop and add to the law so many precedents that practitioners and judges could rely upon LLK: I agree with what you’re saying I think the other thing that we did was we decided when we were told we’d be sitting in four different parts of the state that we would not have a permanent panel in Southwest Virginia or a permanent panel in Northern Virginia because we didn’t want the law of one section of the state to be different from the other law SWC: There were several judges on the court, though, that proposed that and advocated that we have permanent regional panels and that we sit, and that when we had a conflict that we would resolve those en banc, and we decided not to it that way, to have rotating panels and everybody had to rotate at least, with every other judge on the court, once a year JWB: I think one of the things that helped us immensely was several sessions that we had early on Rob Baldwin, who was the executive secretary of the supreme court, set up in Williamsburg I think three days where we sat together and we had judges from other places to come in to talk to us about intermediate appellate courts and how they functioned There was a judge from Maryland who was the chief judge of the Maryland Court of Special Appeals, and I believe the other judge was from Vermont, and we had just talking sessions about how this multi-judge intermediate court should function and I think that gave all of us an idea of these things that we needed to work on, and we went about doing it fairly quickly Court of Appeals of Virginia Oral History BMK: And I think one thing they also emphasized to us was the importance of collegiality in a group, and that was really something that all of us listened to very carefully because we didn’t know each other None of us– I mean we had ten people coming together to be a brand new institution and nobody knew each other I don’t think I had ever met– I might have met Sam at one committee meeting, but none of us knew each other So hearing from the judges from other states reminding us: When someone sends you an opinion, look at it; critique it; send back your comments Don’t say, I’m too busy; I’ll get to you after I mine Small courtesies that make a big difference in terms of efficient operation and also a group pulling together as a group, so we learned a lot from those judges in terms of not just how to operate as a court but how we should treat each other, and I think that was one of the real secrets to our success SWC: I think Lawrence gets a lot of credit for that because he opened the process up to– Any decision that we had to make, he didn’t take it on himself to make without consulting with the rest of us, and I think as a result of that it was a very collegial group, and has been over the years, and we continue to get together BMK: Right And Lawrence used to say too, about the opinions themselves, it’s just too easy to write your own opinion You know if you’re in a panel of three–and nine of us, as Jim says, had been trial court judges and we were used to just giving our own opinions He said this is a group product, so don’t give up, even if you have some differences work at them and minimize them to the extent that you can, and that was a really good lesson for us because we were all in a real transformational process from being individual thinkers to being group thinkers Lawrence sensed the real importance of that from the very beginning Court of Appeals of Virginia Oral History 10 LLK: Well, y’all are kind to say that about me, but history ought to record that this was simply a unique group of people Every single person on the court wanted the court to be successful and did everything we could to make it successful, and in a very short time I think we became friends and not just colleagues What Barbara was saying about the opinions, I’ve always held, and still hold, you have to like and respect a colleague to really care much about their opinion, and I think we became a pretty close group and therefore it meant something to us what– Each opinion was important to us 20:19 SWC: You know another decision we made early on about the opinions, we were concerned about a backlog and there was discussion about– We were getting a lot of unpublished opinions cited to us so there was some discussion about whether we needed to streamline it and not state the facts in our unpublished opinions and therefore they couldn’t be cited back to us as authority There were a number of judges on the court that advocated for that and actually for awhile a lot of us implemented that practice, and I recall Jim Benton never did I would talk with him about it and he said the litigants in this case deserve a reasoned answer and a reasoned opinion stating why we have held the way we do, and I think we followed that, went back to that, and never again did we issue unpublished opinions that just said, “The parties know the facts in this case and this is our analysis,” and provide for that I think we tried from the outset and continued to try to be user friendly, that we really wanted– We would invite members of the bar to our conferences, to our workshops, and have them tell us, critique our opinions and where we were going in various areas as far as domestic relations, workers’ comp, and criminal law, and the bar, I think, appreciated that Court of Appeals of Virginia Oral History 31 SWC: Well I grew up, I guess, thinking that I would never be anything but a lawyer I came from a long line of lawyers My grandfather was, my father, his two brothers, my brother, my son, so it was just natural for me, I guess, to pursue the law as a career My father died when I was in the first year of law school and before that I really had sort of planned to go to Atlanta with some other friends that were going there and try to practice law there After my father died my uncle prevailed on me to come back to the small town practice that he had in Gate City, which is far southwest Virginia, and I thoroughly enjoyed it I enjoyed the practice of law In fact I guess the judge that I appeared before most often was Joe [Josepn N.] Cridlin, who was, like Lew Griffith, was a real gentleman and somebody that fairness just exuded from him really You felt like you were being treated fairly at all times So I guess he was sort of my role model but I wasn’t sure that I really wanted to go on the bench when the opportunity presented itself I thoroughly enjoyed the practice of law I would have to say if I had continued– It was very stressful and I was involved a lot in politics at the time so between the practice of law and politics I’m not sure I’d be here today, to tell you the truth I went on the bench and I thoroughly enjoyed being on the trial bench, I was there for ten years prior to going on this court, and I thoroughly enjoyed attorneys appearing before me and litigating cases, so I wasn’t sure I really wanted to be on this court I did, as a trial judge, I wrote a lot of opinions, more so than other colleagues that I had in that circuit, so I found some I liked for that, that I thought I would enjoy writing opinions, so when the opportunity presented itself to go on this court I thought I would follow that One of our colleagues we were talking about last night, Bill Hodges, he said, “Except for the reading and writing on this court, it’s a great job.” Court of Appeals of Virginia Oral History 32 [Laughter] Well, it’s all reading and writing, [Laughs] and it really was a shocking change to go from the circuit court where you were in court every day, with litigants and lawyers before you with motions and controversial issues, to go to a court where our most exciting experience was the UPS man stopping by once or twice a week [Laughs] and bringing you a stack of cases I relocated my office in Bristol because I thought I needed to be more central to the area where I served Well, the lawyers never darkened my door It was really unlike the situation in Richmond where you have several judges there and court personnel, but literally there were days that nobody walked in the door, which really was a great atmosphere for reading and writing [Laughs] and getting your opinions ready, so it didn’t bother me to have that situation But I thoroughly enjoyed, have enjoyed ever since then, that process CNA: Before I move on to Judge Moon I have to ask, what persuaded you to become a judge, a trial judge? 1:09:48 SWC: You know, I suppose– The legislator, who was a friend of mine from Scott County, asked me when Joe Cridlin retired, the one that I just indicated, if I had any interest in being a circuit court judge I wasn’t sure really that I did want to that I mean as I say I enjoyed the law practice, but I thought, you know, I could try it and see if I did, if I enjoyed it, and if not I could always go back to practicing law But I did, I mean to decide cases and get involved in that process, whether you did a good job or not if you felt like you did the right thing in a case, why, it was very satisfying and gratifying I’d have to say though, I did start that career with some reservation about whether I wanted to that, but I really had three great careers, first as a trial attorney and then as a trial Court of Appeals of Virginia Oral History 33 judge and then on the court of appeals, so it’s been a wonderful career at all levels, and having colleagues like this was part of the reward CNA: Judge Moon NKM: Well, I think I became a lawyer, when I think back about it, I think probably the greatest influence was suffering the injustice of being a middle child, [Laughter] and the things I was deprived of just by saying, well you’re not as old as your brother, and then my younger brother, for some reason, he got everything my older brother got [Laughter] So I spent my life thinking I was being treated unjustly I can remember, I don’t know why, but I remember seeing a movie, Quo Vadis, in which Peter Ustinov played the role of Nero, and the arbitrary power that he exerted over people was just horrible For some reason, I mean out of that movie I got the idea I wanted– I knew I hated arbitrary power and I thought a lawyer could something about that Now I’ve seen that movie again and it made no impression on me at all, and I don’t know why I took something away from it at that time that I don’t see in the movie anymore It’s still, I’m sure, a good movie But then while I was still in high school I met the only other federal judge from Lynchburg, A [Alfred Dickinson] Barksdale It happened that his daughter and I debated together as a team and we would go over to his house and he would critique our style So pretty soon I thought, that’s the guy that’s–his job is one I’d like to have So, I don’t know why– I remember telling my father– My father one day asked me, what are you going to do, what you plan to do, and I said, well I’m going to be a lawyer, and I set out to that and every move I made was toward becoming a lawyer I think in the back Court of Appeals of Virginia Oral History 34 of my mind I was always thinking about Judge Barksdale and wanting to be a judge, and I think I wanted to be a federal judge [Laughs] which ultimately it came that way But I think of what judges might have influenced me I remember that question was posed to me by one of the senators in a questionnaire when I was before the senate for confirmation, and I answered that the judge that I most admired was Earl Wingo, who I know Koontz remembers, but he had been a general district judge and juvenile judge in the city of Lynchburg The great thing about him was his consistency If a client came to your office and gave you the facts you could say to the client, if that’s the truth and that’s what’s before Judge Wingo, I can tell you what he’s going to You don’t need a lawyer If they’re the facts, you don’t need a lawyer, and ninety-nine times out of a hundred you were right That’s what I think the law ought to be, is consistency It ought to be that people shouldn’t have to go to court to resolve so many things, that you ought to be able to operate a business knowing what the law is, or if you’re married you should know what the marital law is and how your property will be split up without having to go and have some judge sit down and try to figure it out for you That’s sort of been my guiding principles in my own mind, the idea that the judiciary stands between the people and arbitrary government and the law should be so consistent that you don’t have to litigate if you know what the facts are 1:15:16 CNA: Well it sounds as if all of you have had some extraordinary role models and people who’ve inspired your lives, and I was wondering, as we kind of wind down our discussion, what are some of your favorite memories of being on the court and interacting with your colleagues? Court of Appeals of Virginia Oral History 35 LLK: Well mine started early, I don’t know whether it’s my favorite one, but I guess we hadn’t been trying cases but a couple months and a lawyer came before the panel and Judge Coleman and I were on the panel, and I forget now who the other one was It might have been Judge Barrow But anyway, this lawyer came in and made a passionate plea that we give him relief from the trial court, and he went on and on about it He said, “This was tried by one of the best circuit judges in this state He is absolutely one of the best judges I’ve ever appeared before,” and he said, “But this is the only error he’s ever made in his whole career.” And I looked down at the sheet and Judge Coleman was the trial judge [Laughter] SWC: You told me that I don’t think I was on the panel or I [Laughs] wouldn’t have been– LLK: Well maybe not SWC: –deciding the case, but you told me that later LLK: You remember that lawyer? SWC: Oh yeah, Lonnie Kern [Laughs] LLK: My second memory, and this may seem sort of silly to you but it set the tone for the court, at least for me We were at one of those early-on meetings, organizational meetings, and we were in Williamsburg, and our actual meeting was on a lower level where our rooms were up above, and we all, for whatever reason, hit the elevator at the same time and here we came down Judge Keenan was on the elevator, and of course I know I had been taught, and I think everybody on the elevator had been taught, you let a lady get off first So we were literally climbing over each other, [Laughter] trying to make room for Barbara to get off, and the point of the story is she Court of Appeals of Virginia Oral History 36 looked at us and she said, “If you boys’ll just get off the elevator we’ll be all right.” [Laughter] So then I knew we were going to get along [Laughter] CNA: What about the rest of you? Favorite memories? JWB: Some of my best times were in our annual retreats We decided early on that every year we would go away for a few days and just talk about what we were doing and how we were doing it and get to know each other a little better, and I think that over the years they were some of the events that I really enjoyed, an opportunity just to put your feet up, take your necktie off, be informal, and talk about how we were processing For me that was really a good part of the job As to interesting things, I don’t know I guess my– I always think of a lawyer that came into our court, this is when we first started up, and the lawyer stood up at the podium and said, “May–,” and the lawyer fainted, [Laughter] literally fainted in the courtroom The enormity, I suppose, of what the lawyer was about to just came over the lawyer, and I always remember that as something that happened while I was on the bench CNA: How long did it take before the lawyer came to again? JWB: Well fortunately one of the attorney generals was a certified EMT and she helped the lawyer and I think we put it off until the next day so the lawyer could recover, so they are two of my memories LLK: Did you rule for him or against him? JWB: I can’t– [Laughter] I can’t remember I can’t remember CNA: It would be a shame if you ruled against the poor person [Laughs] LLK: He’d faint again CNA: [Laughs] The rest of you? Court of Appeals of Virginia Oral History 1:20:01 37 BMK: Well you know the thing that I remember most about our experience on the court of appeals, in addition to the tremendous professional satisfaction in what I think we were able to accomplish for people, the litigants who came before us, is the wonderful bonds of friendship that we formed, and it came about so naturally and so spontaneously We got together after court We were out of court for the day at 3:00 People who played tennis would play tennis, those who didn’t might watch and make fun of them, you know, we’d all get together If somebody was in Northern Virginia I had people come over to my house, Lawrence would have people, we would all exchange– We were friends, and just enduring friends, and we were talking about this just when we got here today, that the test of a wonderful friendship is that it takes you about– No matter how long it’s been since you’ve seen someone it takes you just a few minutes to revert back to form and be right where you are, enjoying each other’s company To me that is one of the priceless thing that I’ve taken away from my time on the court SWC: I would reiterate what Barbara said Over the years we all socialized together, when we were on a panel together we would go out to dinner and go to Birchmere in Northern Virginia to things, and have visited in each other’s homes We know a lot about everybody’s personal life as far as children and divorces and everything else that we’ve experienced So I think we all have a close bond of friendship that is rare on a court, since we did come on together One of the things that I would like to share, Bernard Barrow, who was one of the original members, a very good friend of mine and we did a lot of things together, he called me one day and asked me if I would like to go fly fishing He knew I had some interest in fly fishing So I told him I would and he said, “Well there’s a school that we can go to, an Orvis school,” and I said, [Laughs] “Well, Court of Appeals of Virginia Oral History 38 let’s go Where is it?” He said, “It’s in Napa Valley.” [Laughter] I said, “Well let’s try to find a place a little closer to home, Bernard,” so we did and found a place in North Carolina and he came down and he and I went to the school together He followed up on it a little bit but it’s become a passion of my life now and I, over the years, have– I fish a lot and I attribute it all to Bernard What a great influence it was on me and it’s been a great diversion for me over the years BMK: And if I could jump right in here for just one second, even though it’s not my turn, I also introduced Sam– I went on his first date with him, [Laughter] with his wife, Kathy [Mays] Kathy was a wonderful employee of the Supreme Court of Virginia for what, thirty years, or twenty-some years She was the director of judicial planning She was fabulous We loved Sam, we loved Kathy; it was so obvious that they should get together, but they just never did So I said, okay, we’re going to go out on a date, the three of us, and we went to Stella’s in Richmond– SWC: Right BMK: –and they discovered they both loved to fish, and the rest is history So we had other impacts on each other’s lives, other than just the law JWB: Well since we’re talking about Sam, [Laughter] I knew Sam was a great fisherman, and I like to surf fish in the ocean, so I convinced Sam to go surf fishing with me We were fishing off Virginia Beach and Sam was catching this fish, and we eventually started calling it the Gate City Flounder [Laughter] And they were all skates [Laughter] That’s all he caught the whole day, was skates SWC: Well, I’d like to edit this part out where I related the fishing part of that as being one of the memories of this because [Laughs] I don’t want to leave Kathy out of Court of Appeals of Virginia Oral History 39 this because actually Barbara Keenan and Johanna Fitzpatrick kept asking me, “Why don’t you ask Kathy Mays out? Why don’t you ask Kathy Mays out? She’s such a wonderful person,” and I’d had dealings with her, she was in the executive secretary’s office, and she was and continues to be a wonderful person I said, well, I live in Southwest Virginia, it’s so far to carry on a courtship of any kind, and I just kept putting it off and putting it off Finally Barbara did set up our meeting together, which led to my arranging to have a fly fishing trip with Chief Justice [Harry L.] Carrico–because he expressed an interest in learning to fly fish–and Kathy So I called and I told her I’d come up to meet one day and take them both out and teach them a few of the basics Well in the meantime Chief Justice Carrico had gotten engaged He had no interest in learning to fly fish [Laughter] Kathy didn’t tell me that [Laughs] So I showed up at the designated time ready to take Cathy out to go fly fishing, and when she showed up with a bottle of wine I thought, something else is on her mind other than fly fishing [Laughter] So I knew that you and Johanna had been up to no good 1:25:13 BMK: Done some due diligence SWC: But that is one of the wonderful things that has happened to me since I’ve been on the court of appeals, is marrying Kathy Mays, who they all know CNA: What a wonderful story [Laughs] Judge Moon? NKM: Well, after I went on this court I was in a bank building I didn’t see any lawyers I think I saw the UPS [Pronounced “ups”] man, and no lawyers and no judges around me at all So what I enjoyed most was getting together, as they said, with the other judges, particularly with– For some time there was a panel I was on with Judge Barrow and Judge Keenan and we would come to Richmond and handle about twenty or thirty Court of Appeals of Virginia Oral History 40 cases, I think, in a day or two days These were petitions that had to be done, but we expedited them But we had a great time, we went out to dinner, and we had the type of experience I wasn’t having back in the bank [Laughs] So I think that’s what I enjoyed most, was just the socializing with the other judges CNA: Well all of you obviously bonded very beautifully together, and you had an enormous caseload, and I was wondering, as you kind of collectively look back on those cases, were there any cases or types of cases that you remember that really impacted the way that you viewed your role on the court, or the role that the court played in these types of cases, cases that maybe you found to be particularly challenging or cases that really profoundly impacted you personally? LLK: Well the professor in you is coming out That’s a hard question CNA: [Laughs] LLK: I don’t know I guess I’d have to think about it longer than time would permit now, but I think the whole area, as we have discussed, of the equitable distribution statute and interpreting it, and having a sense that we are clarifying it for the trial judges and the practicing bar, I found that very satisfying because I had tried so many of those cases, or similar cases, as a circuit judge and I was never real sure that what I was doing was right I hoped it was But I always thought, well, if I were still a trial judge I would really appreciate what the court’s doing, so that was very satisfying to me JWB: I think the other area that we maybe effected a change was in the workers’ comp area I think that at some point a number of us concluded that the test that the Supreme Court was using to define certain kinds of workers’ comp injuries probably was not the best and could have been better shaped, and I think our cases eventually got there Court of Appeals of Virginia Oral History 41 and I think the Virginia Supreme Court got there also So I found the area of workers’ comp was an area that I thought we had an influence on the development of the law BMK: I think it was very challenging and satisfying too in the criminal law area, where the supreme court had always been such a conservative court and here we were starting our new court and most of us had a little bit more expansive view of individual rights and constitutional rights So it was particularly satisfying to be able to render opinions that recognized those rights and to also try to it in a way that wouldn’t get them reversed, because the Supreme Court did have– The next line up and final place in Virginia was the Supreme Court of Virginia, so we were always trying to kind of watch our backs, [Laughs] trying to, in making these decisions, tailor them so that they did mesh with existing law even though we were nudging out the boundaries of individual rights 1:29:54 SWC: Well I would agree that certainly the equitable distribution and the workers’ comp area were areas where we made a tremendous impact on the change, and I guess my comment that I’d like to make now is sort of unresponsive to the question in a way but I think it’s timely, particularly in view of the cases that are being argued before the United States Supreme Court today and yesterday, and that’s the DOMA case and the gay-lesbian marriage case In thinking about those I thought about a case that we decided years ago, the Sharon Bottoms case, and three of us were involved in one way or another on that case, but it was a custody dispute between the mother of a child, who became engaged in a lesbian relationship, and her mother, who was trying to take custody of the child away The circuit court had awarded custody to the grandmother and in order to that the law required that there be a finding of unfitness as far as a parent is concerned Court of Appeals of Virginia Oral History 42 before you can award custody to a non-parent So that was our review, the standard review, was whether or not the lesbian relationship rendered her unfit, and the trial judge made findings that would indicate that other than that she was a fit parent, but the “immoral relationship,” I think was expressed in there, and that it was actually at the time considered to be illegal even though I don’t think it was ever enforced But custody of the child was taken from her, and we reviewed that, and in a unanimous opinion Judge Moon and I, and Judge [Larry G.] Elder, were actually on that case, and we reversed and sent it back for further hearings, and that was appealed to the Supreme Court, and the Supreme Court, in a divided opinion, four-three opinion, reversed us and held that the immoral relationship prohibited the mother from having custody of the child Justice Keenan at the time, I will report, was in the dissent on that In the four-three she wanted to uphold our opinion But you know I think of that, changes that have been made sociologically and having gay parents adopting and surrogate parents and the changes that have been made since that time I believe that was a 1994 case, I believe– BMK: I think we got it in ’95 SWC: –’94 or ’95, yeah But I guess seeing the development of the law in that case, you know, is something I think ultimately our court has proven to be right in that But it shows how the law develops, and that was part of it NKM: The irony of that case was that the grandmother who got the child had raised the mother in a home with a man to whom she was not married, who had molested the lesbian mother That was the thing that got me about that case Court of Appeals of Virginia Oral History 43 BMK: Well and there was a lot of friction on the Virginia Supreme Court when that case was being– I mean there was a lot of– Lawrence, I don’t think– No, you hadn’t joined us because Justice [Elizabeth B.] Lacy and Justice– LLK: I came in ’95 I don’t think I– BMK: Yeah I wrote the dissent and Justice Lacy and Justice [Henry H.] Whiting joined me in the dissent Just as an aside, I remember one of the justices, when we were walking out after the conference–it wasn’t the most enjoyable conference because of how strongly people felt about the issue–I remember one of the justices said to me, and I had never expressed an interest in any kind of additional appointment, but he said, “You’ve just cooked your goose You’ll never be appointed to a federal court.” [Laughter] So, it’s kind of interesting, an interesting aside, but people were just feeling so strongly on that issue I mean one of the judges said, “I couldn’t go to church on Sunday if I voted that way.” And this was something that was just– There was nothing wrong with this woman, but to some of the judges it was just so fundamentally problematic that her sexual orientation was different from most people, or perceived to be different from most people, and it was very, very hard I mean those issues were, as Sam said, I mean they were big, and there was a lot of difficult discussion surrounding them even at the time 1:34:44 CNA: Well it sounds to me as if the court was really in the front of really paving the way for the way in which we think of these kinds of issues today, and all of you are responsible for that I’d like to ask you one last question, and that is, how you want your role and how you want the court to be remembered? Since you all were there at ground zero, you were there at the beginning, you were there forming this court, how you want your role and how you want the court’s role to be remembered? And since I Court of Appeals of Virginia Oral History 44 have hammered poor Justice Koontz to start all my questions off, I’m going to defer to Judge Moon and ask him if he would start NKM: Well, I think the court has met its mission I think they have achieved everything the legislature thought the court should do, and that’s what I’m proud of, for what little role I had in that occurring I just would like, for my own legacy or whatever it be I would like for people to think that I did a good job and didn’t stand in the way of somebody who might have done better SWC: I think all of us, when we were expressing our view of those judges that we had looked up to, we emphasized that fairness was something that we were impressed by in all of them, and I guess our legacy will be whatever we have done without thinking about it, to tell you the truth, and I suppose I want to be remembered as being fair and willing to listen and willing to consider other points of view rather than close minded, which judges should not be and cannot be, I don’t think, to be good, can be closed minded, and unfortunately there are [Laughs] some that can’t see any side but their own view So I guess that’s the way I’d like to be remembered BMK: I’d like to be remembered as a member of the court that brought the law closer to the people, that we helped by giving people a second opportunity to have their case considered when ordinarily they wouldn’t get a second look in the legal system I think that one time when you go through the system if you think you’ve been unfairly treated, if you go then to a second forum where they give you a written decision telling you why you lose, I think people are more able to accept They can still be very disappointed, but more able to accept the fact that at least somebody listened, somebody heard, and somebody told them why, and that’s how I’d like to be remembered Court of Appeals of Virginia Oral History 45 JWB: I want to adopt what Barbara just said I don’t think I can say it any better I think that that really speaks for my sense about what we tried to on the court LLK: Well for me personally, if anybody cares to remember me, I would like for it to be known how aware I was at the time, and am today, of what a great opportunity I had to be where I was when the court came along It was intellectually satisfying, it was personally satisfying, and I just think I was lucky to have such a unique professional opportunity In so far as what the court means to me, I sort of agree with Jim, what everybody has already said, as was always usual in my working with them when we were all together on the Court of Appeals I agree with what they’re saying This was an important addition to the judicial system of the commonwealth and I will always believe that we complied with our mission, and I think the court still is, and I’m very proud of that CNA: Thank you all for your time This has been an incredible journey into the lives, each of your lives, but also the life of the court Thank you all so much All: Thank you END OF INTERVIEW Transcriber: Deborah Mitchum Date: April 22, 2013