TRANSCRIPT: JIM SESSIONS€¦ · Web viewJudge Koontz began as a juvenile and domestic relations court judge in 1967 where he served nine years until he was appointed to the circuit

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.

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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,

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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 do 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

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talked to some people, some of the judges, the local judges, and I felt pretty confident

that I would be able to do 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 do 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

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suggest something that wouldn’t favor me, that wouldn’t really make any difference to

me, and I said well I suggest we do 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 do early on was try to be more accessible, so rather than hold court just in

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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

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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 do 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.

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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 do 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.

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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 do 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.

10


BMK: They were excited, I think, the bar, because the supreme court was such a

remote institution. I mean I can say as a practicing lawyer and as a circuit court judge the

supreme court was way out there. You just never were in touch with it, you never saw

them. They were at conferences, they sat in the front row, but they kind of talked to each

other mostly, and it was just a very insular–from an outsider’s perspective–a very insular

group. So we were all conscious of that, I think, starting as appellate judges. We didn’t

want to be perceived as insular. We wanted to make it really clear to lawyers that we

were going to be learning from them too.

JKB: So there were a whole series of problems that we had to come to grips with,

but you ask about difficulties. One of the first difficulties that we ran into was our first

chief judge, E. Ballard Baker, died. He and I were the two judges in Richmond and we

had offices next to each other. I think maybe within the first month I got a call at home

one night from Pam Sargent, who was a deputy attorney general, and she told me that

Ballard Baker had died. I think it was about 10:30 or 11:00 at night. The next morning I

went to see David Beach and informed him of that, and he was just stunned and wanted

some verification. But Ballard died, he was the person we elected as chief to lead the

court, and we had to quickly adjust to that difficulty, and it really was because it added

just another burden that we had to deal with; that is to regroup and reelect another chief

judge, and of course we elected Lawrence to that position. That was one of the initial

issues that we had to come to grips with.

CNA: Let me ask you all a quick question, following up on that. After Judge

Ballard died–oh, excuse me, Judge Baker died–it was such a sudden death, he died of a

heart attack; do you think that somehow that made all of you pull together even closer

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and collaborate even more, or do you think the collaboration would have been the same

or at the same level if he had not tragically died, and especially so soon after the

formation of the court?

NKM: I think it probably would have been the same. After Judge Koontz was

elected chief I think he went full speed ahead. He was able to, you know, not at the

moment, but in due time, as soon as possible, I think he was able to get a clerk’s office

established separate from the supreme court, arrange for us to get a separate building, and

that was all working through the legislature.

25:03 BMK: Let me take–.

NKM: I don’t believe that could have happened any faster. And we were all–. We

knew people died and you had to get on with things, so I don’t think his death really

slowed us down much, as an institution.

BMK: And I apologize, I didn’t mean to interrupt there, but I would say that it

probably made us a–. He was a lot more formal then we were, and he was a lovely

person, a gentleman, you know, a true Virginia, Richmond, gentleman, but he was of a

different generation than most of us and I think we would have been a more formal

group, that we would have proceeded more on rules rather than sitting around the table

saying, you know, what’s up, what makes sense, so I think it did have a profound effect.

It’s not that one would have been better than the other but the institution I think probably

is very different than it would have been but for his unfortunate and untimely death.

CNA: And that was really the foundation of my question, do you think that his

death triggered more collaboration among all of you, and it sounds like there was at least

some degree, as opposed to did it speed things up or slow things down. I think that you

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all had to work with the legislature regardless of who was the chief judge. Judge Benton,

you mentioned that one of the first things that you all realized was that there was no

furniture, [Laughter] so what kinds of things, on a practical level, did you all have to do?

Where did you meet where there was furniture?

JWB: Well fortunately for me I was in Richmond and we had offices that were

literally for judges, and about eight rooms for law clerks, but no furniture. They were all

left without any office space. I don’t think any of them–. Well I know for a fact none of

them had any designated office spaces, and they had to scramble to set up offices.

LLK: It went beyond furniture, if you recall. We started the process of having the

briefs filed and setting up getting the cases into the system, but there were about three

weeks or so when I thought something had gone wrong because I had no case, [Laughter]

I had nothing to decide, and I thought well, gosh. What kind of job is this? And then of

course I rued that day, because the business just flowed in, but I can remember that gap.

BMK: Yeah, and there were transition issues too with the circuit courts that we’d

been sitting with. For example, in Fairfax our chief judge at the time, Judge [Barnard F.]

Jennings, was not a big fan of there being a court of appeals, and that’s an

understatement. [Laughter] So the day I changed over and became a judge of the court of

appeals my administrative assistant was actually using a typewriter that belonged to the

circuit court of Fairfax County and he sent his clerk down to pull the typewriter, because

it was not to be used by the Court of Appeals of Virginia. So, you know, in ways big and

small, we had to learn a new way of getting along with people.

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CNA: Now that sounds as if he may have represented some of the conflict that

you all encountered early on, so explain a little bit more about the source of the reticence

that some had about the court.

BMK: Well I know that at my investiture–and this is just on a personal level,

before I guess addressing it more broadly–at my investiture when he introduced me–. The

chief judge of the circuit introduced me and he said, “That court that’s supposed to be a

higher court.” I mean he said that to the audience of my family, friends, and people from

all over, so I mean it was that kind of open–

CNA: Contempt. [Laughs]

BMK: –feeling. But, you know, it was a real split. I think maybe everybody

would agree. I think most of the practicing bar welcomed us, as Jim said, because they

couldn’t get a writ so often from the Supreme Court of Virginia because it was getting the

cases from every circuit and was turning them down, many of them, working as hard as it

felt it could, but there were just so many cases that weren’t getting a second look.

JWB: I think there were very few lawyers around the state who opposed the court,

very few.

29:58 SWC: But there were very few circuit judges, I believe, that advocated for it. In

fact they saw it as another level of review, and having been a circuit judge at the time I

felt somewhat insular, I guess, from review because the supreme court at that time, as I

recall the percentage of cases they would review was like two or three percent, so the

chances of my getting a decision reviewed from the supreme court were small. So I felt

that I had my own little fiefdom, in a way, and I say that, I think there were a lot of other

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circuit judges in the state who did feel that way and didn’t welcome the court of appeals.

It was very controversial, I think, among trial courts at the time.

NKM: I was very reticent about it too, and one thing, I thought that it was going

to be sort of nickel and dime and it would not be much of a court, and for some reason I

was put on a committee to draft rules for the court in the year before any of the judges

were elected, and although I wasn’t so much in favor of the court I did decide that if there

were to be a court I’d rather get on it than stay where I was, although I really liked the

trial court. But I know I was one of the people who was not a bit enthused over the court

to begin with.

SWC: I had that same experience, really. I mean I went on the court with some

reluctance, to tell you the truth, because I enjoyed being a circuit court judge. I did have

my own little area there that I was the circuit judge in, and I wasn’t sure that I liked it.

Plus there was a lot of reticence I think because of the jurisdictional aspects of it, I mean

workers’ comp, domestic relations, criminal. A lot of the circuit judges wanted civil

jurisdiction and if they wanted to be on the court of appeals they would have wanted civil

jurisdiction. I think most of us went on with probably some expectation that that

jurisdiction might be expanded in the future, because there was a lot of discussion, and I

think in several sessions of the legislature after that there were bills introduced to expand

our jurisdiction to civil, and many of us anticipated that. But I think, looking back on it, it

was a stroke of genius in a way, the way they divided the jurisdiction and provided for

the appeal of right in certain cases and then by writs in the criminal cases.

BMK: And the cases we got were cases involving real people, and I think that’s

why it was such an important function that we were fulfilling. They were popularly

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perceived as the cases the supreme court wasn’t as interested in: domestic relations, you

know, fighting husbands and wives, dysfunctional families; workers’ compensation,

injured people but perhaps not legally interesting in terms of cases; criminals, I think it

was fair to say the supreme court wasn’t as interested in the development of the criminal

law. So we seemed to get the cases that were the handoffs of what they were less

interested in but they turned out to be the cases that made the biggest difference,

generally speaking, with few exceptions, in people’s lives, so we were all very happy that

we got those cases.

LLK: Norman, you made the point last night at dinner that I thought was right on,

and you might want to make a comment about it today, about equitable distribution.

NKM: Well, it turned out that equitable distribution was coming through the

legislature about the same time as the court, and it had already–. The law was in effect, as

I recall, before the court actually started up. But this was such an earthquake in the law of

domestic relations, in the property obtained by the persons during the marriage, and there

was no precedent in Virginia for how this would be handled. Every trial judge was trying

to interpret this law and reasonable people could come to different interpretations, and if

we had not had the court of appeals at that time and if this had to trickle through the

supreme court I just wonder how long it would have taken for that law to get to a point

where people could rely upon it, because even when I left the court in ’97 I know there

were still many issues coming up, and it was the bread and butter of the court of appeals

whereas if it had been left to the supreme court and there had been no court of appeals

there probably would have been one or two cases a year–

BMK: And as Jim–.

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NKM: –and things just would never have been–. You’d never be sure if your

decision was valid or not.

BMK: And as Jim was saying, they were appeals of right, and that was just an

absolute landmark change in Virginia law, because other than appeals from the State

Corporation Commission and capital murder cases there were no appeals of right in

Virginia, as I recall. So now, for the first time, people had a right to a second look, to

have another judicial body say whether their case was correctly decided, and that was

huge.

35:16 JWB: As an example of the impact that the court had, at least on the practicing

bar, I can remember I think maybe for the first five years of our existence we had lawyers

who would come in to argue cases who had never had an appellate argument in Virginia,

I mean lawyers who’d practiced ten or twelve years, and they would come and they

would express to us their pleasure at being able to come into a court and argue their case

on appeal and say, you know, during the time I’d practiced I’d never had a case. In fifteen

years I had two writs granted by the Virginia Supreme Court in my practice, so it was

monumental from the perspective of the practicing bar.

CNA: I was just wondering if you all could tell us a little bit about the whole

process. Since there were so many different cases that had no precedents here in Virginia,

what process did you go about to create these precedents so that future court of appeals

judges, district court judges, et cetera, could use those rulings to help guide them, because

you all were making groundbreaking decisions, and I can’t help, as a historian, thinking

this is similar to what the Supreme Court in the United States had to do, had to create,

after the formation of the court following the 1789 ratification of the Constitution. They

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had to in some ways start from ground zero but in other ways there were other operations,

court operations, internationally and especially in England, and of course the court

operations in colonial America. But what did you all do?

LLK: Well I think you have to start in the context that the legislation provided,

and still does, that in the area of domestic relations and administrative agencies the court

of appeals is the last word, unless the supreme court determines that a particular is so

important, of great precedential value, that they’ll take it. So as a practical matter it was

intended that this new court resolve those issues, so we started off, at least I think, first

and foremost with a very sensible or sensitive thought, that this is really this court’s

responsibility, in this area of the law, to make it clear. So I think with the experience of

the judges, and Judge Benton on the court too, we were all aware of the problem areas.

We’d all been trying cases in which we always wondered, well, am I deciding this right,

or am I deciding it wrong, so we sort of jumped at the opportunity to make it clear. We

worked through a process of first identifying this really is more significant than some of

the other cases we were hearing, and then in those cases we made special efforts to make

it clear what the law was.

SWC: You know when I think about the equitable distribution statute it was

certainly a challenge and a daunting task in a way for us, but when you think about it, it

was even more so for the trial courts because here they had to apply the law and they

were all over the board. So it was up to us to try to come together and make something

logical out of that, and we often looked at other states. So many of the other states had

equitable distribution statutes so I think in those early years, in the early decisions, we

would try to look to what other states did. And a trial judge too, [those] domestic

18


relations cases–and that’s one of the reasons I think so few trial judges offered

themselves to be on the court–it was not the sexy issue that you want to decide. I mean if

you heard one child custody case and a contempt citation for failing to pay child support,

or alimony as it was then called, it was not your best day in circuit court to do that, but

from an intellectual point of view on our court it affected more people than any other area

of the law in the commonwealth, and I think those early decisions that we made were all

basically landmark decisions in the equitable distribution area, concepts like

transmutation, [Laughs] and even the equity of the property, was unheard of. You either

awarded alimony to the wife, and then gave her the children, [Laughs] but–.

40:18 LLK: You know I remember–. You might have written the opinion. I forget

which one of us wrote it, but we spent a lot of time in an equitable distribution case

deciding where the trial judge should start. Should there be a presumption of fifty-fifty, or

should there be a presumption of a hundred percent then no percent, and just where to

start, and I remember that–. I can’t remember which one of us wrote the opinion but I

think we decided, didn’t we, that there should be no presumption, but that it was all right

to start at fifty-fifty and then go from there.

NKM: I think it would have been much easier if there’d been a presumption that

the husband and wife shared the marital property, and if one thought that they were

entitled to more than the other they would have to prove that they were entitled to more,

but that wasn’t it. You couldn’t come out with that presumption as a start. You couldn’t

really say there was a starting point, like Judge Koontz is saying, and I think it would

have simplified the law for everyone, particularly the lawyer, if you could tell your

clients this presumption. You may not even have to–. You could have settled the cases,

19


and the trial judges didn’t know, so the law was always in a state of flux because I don’t

know today whether that’s been settled or not. But I think the law should be as certain as

possible to–.

BMK: Plus a big issue was–. I’m sorry.

NKM: No, I–just to prevent conflict. I mean if you know what the law is then you

don’t have to go to court, if you can agree on the facts.

BMK: And a big issue was what is “separate property,” what do you have to do

after you’re married to keep your property separate so that it doesn’t become part of the

equitable distribution calculus–

SWC: Transmutation. [Laughs]

BMK: –when in–. Yep, mm hmm, when does the property transmute, or change

its legal character from being separate property to marital property.

SWC: You know another effect that the equitable distribution statute had, I think,

on the law at that time, was you now had a lot of money that you were talking about in

divorce cases a lot of times and a big estate, so a lot of practitioners that didn’t practice

domestic relations law all of a sudden became practitioners [Laughs] and followed the

money trail, I guess, to our court.

JWB: So we had these new statutes that we had to deal with, with no precedent,

but we also had what I would call the old law, that is workers’ compensation, where there

really was not a substantial body of law in Virginia and we had to look to the decision of

other states. We looked at Indiana. Our statute was modeled on the Indiana statute so we

looked at the decisions of that state and slowly but surely we began to work through and

fill in all of those gaps in the law that had existed.

20


BMK: And there were some really difficult–. There was difficult precedent with

the supreme court. For example, the supreme court had defined, in the workers’

compensation area, sexual harassment as being an “injury by accident,” and therefore

covered by workers’ compensation. Well to me, and I think a lot of people, it made no

sense because the supreme court had also defined “injury by accident” as a sudden

structural or mechanical change in your body. Well how could sexual harassment be

evidenced by a sudden structural or mechanical change in your body? It couldn’t. Well,

we had to figure out a way to articulate some of our decisions without flying in the face

of what the supreme court had said, and do so in a way that was true to the law but

recognized the fact that they were the superior court, so it got dicey sometimes.

LLK: In that vein, we were extremely careful in what we were holding and how

we were saying it. I remember one of the early opinions that I wrote. The court held that

if the employee had a temporary partial disability that being locked up for a crime was

grounds for terminating the benefits because they couldn’t make themselves available for

selective employment. But in that opinion I think you’ll find–well I know you will,

because I wrote it–that we do not decide what the effect on total disability would be if

you were incarcerated, and Judge Moon some time after that straightened us all out and

said if you’re totally disabled and go to jail you lose your benefits. [Laughter]

45:28 NKM: I don’t recall that, but I’ll take credit for it. [Laughs]

CNA: Well it sounds as if in these early years that so much of what you were

doing was collaborative, it was groundbreaking, but it was also very difficult and you had

a huge caseload that you were trying to navigate through, so what kind of administrative

support did you initially have and how did you acquire more?

21


LLK: Well we each had a law clerk and a secretary and, I’m trying to remember, I

guess we had a central legal staff, didn’t we?

JWB: No.

LLK: We didn’t?

JWB: No, we didn’t. In fact–.

BMK: Not immediately.

JWB: Not immediately.

NKM: Well, John Tucker was the first.

BMK: Bob Bixby [Robert L. Bixby] was–.

LLK: Oh, okay. That came later.

NKM: Oh, Bob Bixby was?

BMK: Mm hmm.

JWB: In fact we shared–. The administrative clerk for the court was the same

clerk of the Virginia Supreme Court when we started, so David Beach acted as clerk for

both courts and then he assigned Pat Davis [Patricia Goding Davis], who was his deputy,

to function as our liaison. So we were really trying to put it all together and at the same

time pull away a bit from the Virginia Supreme Court. I think it was later, as you said,

when Bob Bixby became our central staff lawyer, but we operated for awhile without any

central staff to help us.

NKM: One thing though, Rob Baldwin was the executive secretary then of the

supreme court and he’d put a lot of thought into this court over the few years while it was

being debated. I think he was pretty sure it was coming on. I thought we received as

much support as we could from the executive secretary’s office and I think the chief

22


justice was doing all he could to help us. To Judge Koontz’s credit, I think he was able to

work with the legislature and some of the people over there that really went to bat for us.

So we got the support out of the executive secretary’s office, and one thing, even before–.

I don’t think we can say enough about what Rob Baldwin did. Even before we were

elected, knowing we were coming on, he made reservations for us at NYU for the

appellate judges’ conference, for three or four of us to attend, before he even knew who

we would be. That summer, that first summer, I don’t know, three or four of us went up

to NYU and attended the appellate judges’ programs that they had.

JWB: He was really interested in our court. I was in Richmond, first with Ballard

Baker and then after Ballard died Marvin Cole was assigned, and Rob Baldwin would

come down on occasion and sit down and just ask, you know, how are things going. But

to give you an example, Rob came to us and said, “I have some money for computers.”

He says, “It’s designated only for computers and I would like for you all to have it and

you can start up with IBM computers.” Apparently the supreme court had not taken him

up on that. [Laughter] So we were the first court to have a computer system set up

internally so we could communicate with each other in distant areas through the system,

and I think maybe five years, or three years, after we started with our computer system

the supreme court finally got on board and they then got money to set up their own

system. So he was very, very instrumental, I think, in helping us overcome a series of

problems.

SWC: Those computers at that time didn’t have the capacity to send our opinions,

did they, because as I recall at first we circulated our opinions in writing to each other.

23


50:00 JWB: Well that was before we got the computers because we had PROPS. I don’t

know if you remember.

SWC: Yeah.

JWB: There was a system called PROPS–

SWC: I do, right.

JWB: –that allowed us to do that.

SWC: So it was a short time that we just circulated the opinions in writing.

JWB: Yeah.

BMK: And it really slowed down the business of the court. I mean I was in

McLean in Fairfax County then and to mail something to the Tidewater area, actually I

think one transmission took a full week, just by US mail. It wasn’t reliable, and you can’t

run a business like that when just that one mailing was just to get another judge’s

impression and then that judge had to mail it back. Then I had to make changes and mail

it back to the other–. So you can just picture three-, four-, seven-day increments of time,

and the court in the very beginning was not moving quickly, so we really seized on the

idea of computers as something that could help us function much more efficiently.

SWC: I think we were very aware too of the need to stay current, particularly

since the supreme court had been far behind, and one of the things we implemented early

on at Judge Barrow’s suggestion, and he was one of the first judges on the court from the

Tidewater area, at the time all of the criminal cases, we required a three-judge review,

and he proposed, and we implemented, that first it be sent to one judge and then if they

wanted to appeal from the one judge’s denial of the order they could then have a three-

judge hearing. I think the percentage of denials at the one-judge level was very effective.

24


I don’t remember what it was but I think it was only thirty percent, maybe, of the ones

that were denied appealed for a three-judge review, and that sped up the process a great

deal.

NKM: But even with the one judge the client got a written opinion explaining

why his appeal was denied and sometimes they would be convinced that their conviction

was justified, so.

CNA: I was just wondering, since, Judge Benton, you were such an advocate for

explaining in the opinion the process, what made that such an important element for you

in how this court functioned?

JWB: Well, I had a fundamental belief that litigants are entitled to have a

decision. You could go through the criminal process and never get anything in writing

that you could look at. You were indicted by a grand jury, you would have a probable

cause hearing and they’d find probable cause, then you’d go to trial, the jury would say

“guilty,” and at no point during that process would there be anything in writing that a

defendant could look at to say, okay, this is what was found. So I always thought that it

was critical for the legitimacy of the court to have a written explanation in those criminal

cases when we were saying to a criminal defendant, who is going off to the penitentiary

maybe for forty, fifty years, why that was the case. Secondly, I believe that by giving a

written opinion, if the case went to the supreme court they would have a sense of why we

were denying a review to that case. So I’ve always believed that when you go through the

judicial process at some point it’s important for the litigant to have, in writing, an

understanding or a reason why this case is being disposed of in the way that it was.

25


SWC: Jim, I think too all of us that had practiced law before had had the

experience of a case that we wanted to appeal to the supreme court and we would get

back, “Finding no reversible error, we affirm.” We all had experienced that and it was not

a satis[fying]–particularly when you felt like you had a meritorious appeal, to have

nothing more than that explanation was something that we wanted to avoid.

CNA: Judge Moon, you were talking earlier about your experiences as a judge

and how you had a chance to sit down and make some suggestions about how this court

should function, and so I was wondering if you could talk a little bit more–and Judge

Coleman as well, you made mention of this–talk more about how your background really

played an important role in the way in which this particular court was formed and some

of the procedures put in place, and even the way that you approached cases.

54:57 NKM: Well, I don’t think that my background was that different from many other

people. It just happened the chief justice appointed a committee to draft rules for this

court and pretty much we started out with the rules of the supreme court and so many of

the procedures were going to be pretty identical and it was just a matter of tweaking the

language in some respects. There were some major differences because, as they said,

there was an appeal of right in most instances, not a petition, other than in the criminal

cases. So I don’t think that I had any particular insight that other judges didn’t have at

that point, and I don’t think I added any more than the other people on that committee.

There were practitioners on the committee too so there was a lot of give and take about

how the rules should be written, but I can’t take credit for any experience that I think

made the court any better.

26


CNA: Well I have a question for all of you, and I guess I’ll just go down the line,

starting with you, Justice Koontz.

LLK: Oh you can start with Judge Moon if you want to. [Laughter]

NKM: I have less seniority and we always make the person with less seniority

speak first.

CNA: Oh, okay, well then–.

JWB: And he was the chief judge, so I think you should start with him also.

CNA: I should start–. [Laughs] So this is an example of the discussion that went

on, on this court.

LLK: These are my former friends. [Laughter]

CNA: Well, you know, I’m curious about what really–. Who in your background

really impacted your career and the way that you look at the law?

LLK: That would be a hard question. I can tell you how I decided to go to law

school, which it wasn’t probably a very good reason, but I was at Virginia Tech in the

corps and me and the military never did get along, you know, all the polishing and the

parading and all that. So I was elected to be a defense attorney on the honor court, so I

literally started defending people who were in trouble with the honor court. I did that for

my junior and senior years there and I really just became wrapped up in making sure that

people were treated fairly when they came before that honor court. Why was I so worked

up about that? When I arrived at Tech as a freshman, about sixty days after I’d been

there, about 3:00 in the morning, we were rousted out of bed, we were required to put our

uniforms on, it was raining and cold, and every cadet marched down to what we called

the lower quadrangle, which was the square inside of the dorms. They brought this young

27


man in, I think he was a sophomore, and they brought him in and they literally took all of

his cadet buttons and all, off his uniform, and marched him out, and as they marched him

out each company turned their backs on him, and they put him in a cab and he left. I

asked later, well why would he do that? Well his option was, you either go through that

process or we’ll put this on your record that you were a cheater, or whatever it was, so he

avoided a bad record. But I was moved by that. I mean I was–. Well obviously to this day

I’ve never gotten over it. So it made me determined that if you’re going to do that to

someone there ought not to be any mistakes made. You ought to be sure you’re doing it

right. So that’s sort of how I got wrapped up in the justice system.

CNA: It sounds as if you were brought up with certain passions about fairness. Is

that a correct assessment?

LLK: Well, I must have been. I can’t sit here and tell you what specifically

existed in my background that made me feel that way. I just know it’s true and it’s never

wavered since I got into the law.

1:00:03 CNA: And has there been anyone who has really influenced the way that you

have operated as a judge, or as an attorney?

LLK: Well there were some judges that I admired greatly when I started

practicing, and the one that probably had the biggest influence on me was a district court

judge. He’d been my Sunday school teacher and when I started practicing I was

appearing before him a lot. He was always just, I thought anyway, so fair, and I just

wanted to be like him. So if I had to say one person in the system that made the

difference to me it would be Judge [Beverly T.] Fitzpatrick, which is why later on in life

he was part of my ceremonies. Each time I went on a different court he participated.

28


CNA: Very interesting. Judge Benton.

JWB: I had the good fortune to practice with two lawyers that I think were just

outstanding, Oliver Hill, who handled one of the Brown v. Board of Education cases in

the United States Supreme Court, and Sam Tucker, who was an extraordinary lawyer

who read law, never went to law school. He litigated Green v. New Kent County, and

several other cases. When I went to the firm I spent the first eight years there trying

school desegregation cases and housing discrimination cases, and a big part of what we

did was to try cases on appeal because quite often we were in courts that were in some

instances hostile to the claim of our clients and we had to, almost in every case, appeal

verdicts to the United States Court of Appeals for the 4th Circuit. They were, for me, my

heroes in terms of the law, so I learned a lot from them. I learned a lot about just the

whole appeal process working with those two men. Oliver was awarded the Presidential

Medal of Freedom, the highest civilian honor that one can get in the country, so they

were just tremendous. There was a tremendous feeling within the law firm, and that was

very helpful to me as I went onto this court.

CNA: That’s extraordinary. Justice Keenan?

BMK: Well, I guess my influences started a little bit closer to home. My

grandmother lived with us when I was growing up and she and my other three

grandparents, none of them had ever been to a day of school in their life, but she was

fascinated with courtroom television. She loved trials and I would sit there as her little

sidekick and she would critique the lawyers [Laughter] and she would get me to tell her,

at the commercials, what the lawyers should have said, how would you ask the question

differently, and when I think about it, she was awfully smart, to be able to pick up those

29


nuances. So we watched our favorite daytime TV shows and she told me over the years–.

She died when I was a teenager but over those years of being maybe ten to fifteen she

said, “Lawyers are so important,” and any time she ever had a problem she went to see a

lawyer. She said, “You should be a lawyer because lawyers help people who can’t help

themselves.” That really stuck with me and it really piqued my interest in being a lawyer

for that reason.

Then when I finally got through law school and got my first job in the

commonwealth attorney’s office in Fairfax I met–. One of the new judges was Judge

Lewis Hall Griffith, and I think he was possibly the best judge I ever appeared in front of,

and I met him on my very first day as a lawyer. He was so polite to people, he was

considerate, but he didn’t waste a lot of time either. He treated people with dignity,

explained things to people, and he helped them order their lives and get along, go forward

in their lives, from whatever dysfunctional system or whatever dysfunctional problem

had visited their lives and really created a lot of problems, and that had a profound impact

on me. I saw how he operated, how people reacted, and how it was just a fundamental

core of social order to have a place where people bring their problems, so I think those

were two major forces in my life.

1:05:37 CNA: Well I have to ask, what was your grandmother’s name?

BMK: Oh, her name was Barbara. I was named after her, and of course I could do

no wrong. [Laughter] She was shameless. I mean she, you know, there were four children

in my family but I got the treats first. I apologize for it now, but it–. [Laughter] We were

best friends.

CNA: What an amazing story. Judge Coleman.

30


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.”

31


[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 do 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 do that, but I really had three great careers, first as a trial attorney and then as a trial

32


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 do 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 do you plan to do, and I said, well I’m going to be a lawyer, and I set

out to do that and every move I made was toward becoming a lawyer. I think in the back

33


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 do. 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?

34


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

35


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 do 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?

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1:20:01 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,

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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

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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

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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

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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 do 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 do

that the law required that there be a finding of unfitness as far as a parent is concerned

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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.

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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 do you want

your role and how do 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 do

you want your role and how do you want the court’s role to be remembered? And since I

43


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.

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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 do 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

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Documents

TRANSCRIPT: JIM SESSIONS€¦ · Web viewJudge Koontz began as a juvenile and domestic relations court judge in 1967 where he served nine years until he was appointed to the circuit