JUDGE DAVID TAPP
I seek election as the Justice of the 3d Supreme Court District following an extensive career in public service because the Supreme Court is uniquely situated within the framework of our government to protect and improve our communities. Since the earliest days of the Union, state courts have been uniquely situated to enforce not only their laws but federal constitutional law as well.
Harken back to our introduction to Constitutional Law I. We are all aware that the judiciary serves to check the otherwise unbridled will of the executive and legislative branches of government. While most students of history equate the principle of judicial review with the 1803 decision Marbury v. Madison, it was the state courts which first acted on this principle. In at least eight instances in seven states, decisions evidencing the concept of judicial review pre-date Marbury.
The state supreme courts also play a vital role in determining issues which raise significant social concerns, even when those issues may be destined for review by the U.S. Supreme Court. As once observed by a New York state appellate judge: “Today's state court dockets comprise the battlefields of first resort in social revolutions of a distinctly modern vintage.” Consequently, the Kentucky Supreme Court is the true gatekeeper of public policy. It is my desire to implement lessons learned from a lifetime of justice system involvement on a broader level.
If the judiciary is not going to remain in the limited role as envisioned in our state constitutions, but rather expand into areas of public policy which affect the courts, there are several initiatives which I have been involved with that might well benefit numerous Kentucky communities. These include the expanded use of Medication Assisted Treatment to combat Opioid Use Disorder, SMART courts which address high-risk probation supervision, expansion of Hepatitis C surveillance within the courts, and adoption of e-discovery specific rules of procedure. A brief description of each is provided.
My court initiated the first use of injectable extended release naltrexone (Vivitrol) within the justice setting to voluntarily treat criminal defendants diagnosed with Opioid Use Disorder. Unlike other FDA approved treatments, naltrexone is the only medication which is itself not an opioid and which cannot be illicitly diverted. This effort paid great dividends, including the expansion of the availability of naltrexone throughout Kentucky and in other states. SAMHSA is now utilizing our experience as an example for other courts.
Likewise, my office implemented Kentucky’s first SMART court which provides enhanced supervision for community supervision defendants who are at a high risk of re-offending or failing to successfully complete probation. Unlike “probation-as-usual,” which is a Monday through Friday, 8 a.m. to 4 p.m., approach that fails to effectively monitor the riskiest offenders, SMART provides enhanced 24-hour supervision, true accountability, and the swift, certain, and proportional use of sanctions to encourage compliance. In an empirical study conducted by Morehead State University, data demonstrated that SMART defendants re-offended less often, used drugs less frequently, and were more likely to pay restitution and costs, all at a cost savings to taxpayers.
Hepatitis C is a public health crisis in Kentucky. We lead the nation in infection rates. Approximately 1 in 30 baby boomers nationwide test positive for Hepatitis C; that rate jumps to 1 in 3 of the justice-involved population. Testing this population to enable treatment is problematic. Intravenous drug users are rarely self-motivated to undergo testing. Accordingly, my office partnered with the Lake Cumberland Health Department to allow medical professionals to offer confidential screenings on criminal motion days. Non-custodial defendants may, at their choice, submit to a quick screening, and if positive for Hepatitis C, they are then referred for treatment. This program is also used as a model in other jurisdictions.
Lastly, Kentucky remains one of the last jurisdictions to adopt e-discovery specific rules of civil procedure. The criminal rules were slightly modified in 2016 to ensure that digital data was encompassed in demands for preservation and production. Given that almost all records of whatever kind are now maintained digitally, Kentucky’s antiquated rules regarding the preservation and production of data require a considerably different approach than that required by rules drafted in the era of tangible documents. Currently, I am collaborating with the KBA to propose appropriate rule changes.
These recent examples of innovative leadership within the courts also demonstrate the type of leadership which would benefit all Kentucky communities.
1. In your career, have you ever woken up in the middle of the night and wished you had handled a case or legal issue differently? Describe the situation and any lessons you learned from the experience.
This scenario has occurred on numerous occasions throughout my career. Like any profession involving a tremendous amount of discretion, retrospection readily supplies a host of “I shouldn’t have done that…” epiphanies. Most of the time, the correct solution of a particularly thorny issue remains elusive. Occasionally, a better solution is revealed.
As a judge, we see many instances of individuals who struggle with co-existing disorders including mental or emotional issues, educational deficiencies, and frequently substance abuse. On occasion, those issues are not immediately apparent and sometimes litigants appear at first to be contumacious. Over the years, I’ve experienced several instances where it became obvious much too late that the misbehavior of a particular litigant was simply beyond his or her immediate control. Each one of these encounters reinforces the need for patience and to be hypervigilant for telltale indications of incapacity or impairment.
2. Give an example of a circumstance where you faced an ethical dilemma or problem and explain how you solved it.
Social media presents almost daily ethical issues. Participation in Facebook or similar platforms means that judges are far more accessible and visible. As a result, litigants, families, and their friends will persistently and inappropriately initiate digital contact with the court regarding the merits of some party or issue. In addition, social media sometimes establishes a digital “relationship” between a court and a third party which can raise the specter of partiality. Within the past couple of weeks, I received a voluntary agreed order of dismissal in which the plaintiff is someone that I interact with on Facebook and with whom I collaborated on a community wide substance abuse issue. Had this been anything other than a voluntary dismissal, I would have disqualified myself from presiding. As a result of the ever-increasing frequency of this problem, I initiated a policy of filing written notices of ex parte contact of voluntary disqualification. However, short of establishing a conflict database which includes all social media interactions, it is difficult to self-police this issue.
3. What do you believe are the most important qualities of a judge, and how has your professional background and life experience helped you develop those qualities?
Though obviously not the only examples, two of the most important qualifications of a modern judge directly conflict with each other. Judges must be decisive. As a lawyer and a judge, I’ve personally witnessed the chaos which results from a judge who simply refuses to rule. The reasons for this are many. Sometimes it’s because the court simply does not grasp the issues and doesn’t know what to do. Sometimes, judges don’t rule because they have a personal relationship with the litigants or lawyers whom they do not wish to disappoint. And perhaps, in the most egregious circumstances, some judges simply do not care enough to decide. Delays attributable to an indecisive judge benefit no one and are inimical to the code of conduct and to the orderly and reasonably expeditious disposition of litigation. In some instances, these delays have resulted in the appointment of special judges to “clean-up” the backlog of cases created by the indecisive judge.
Balanced against the need for a court which is focused and stead-fast in discharging its’ duty to decide is the equally important characteristic of patience and neutrality. Cases sometimes develop slowly. Counsel’s arguments, the facts of a particular piece of litigation, and the law itself can be incredibly nuanced. With talented counsel, the court may be powerfully swayed by an argument only to be diametrically persuaded by the rebuttal argument a few minutes later. In this sense, courts must be patient enough to allow the entire issue to be developed fully.
These competing interests—decisiveness and patience—are difficult to reconcile. My own prior experiences as a law enforcement officer, prosecutor, and litigator (and perhaps as a parent of three daughters) have all been instructive. Sometimes, whether on the side of a darkened rural roadway or in the midst of the examination of a witness, speedy and intuitive decisions must be made with full recognition of the importance of getting the decision “right.” At the same time, well over a decade of experience as a presiding judge has enforced the lesson that patience is virtuous, particularly where novel or complicated facts and law may exist.
4. As a potential or sitting judge, what do you consider to be your greatest strengths? Weaknesses?
My wide-ranging experience is a strength. I am currently Judge of the 28th Circuit (Pulaski, Rockcastle, and Lincoln Counties) having been initially appointed in 2005. Prior to being appointed, I served as Judge of the 28th District (Pulaski and Rockcastle Counties) following election in 2004. Prior to being elected, I served as a prosecutor, law enforcement officer in Kentucky and Hawaii, and as a private attorney engaged in civil and criminal litigation in both state and federal courts. I am licensed to practice in all state courts within Kentucky, the federal courts in the eastern and western districts of Kentucky, and the Fourth and Sixth United States Circuit Courts of Appeal. Since becoming Circuit Judge, I’ve presided in an estimated 18,000 cases and 200 trials. I was chosen by my colleagues to oversee the education of Kentucky’s 148 Circuit and Family Court judges, and have presented at more than 50 professional conferences.
Aside from my professional experience, my greatest strengths are rooted in faith, family, and community. Like most, my life has been met with personal challenges. These experiences have allowed my faith to mature and I have garnered insight into the issues which confront all people. My family keeps me grounded, encourages a steadfast work ethic, and holds me accountable for my errors. My community provides the framework for my social existence and the opportunity to assist those less fortunate.
My weaknesses arise from the inherent nature of the profession. Serving in the judiciary can be extraordinarily isolating. The constraints of the code of conduct can inhibit robust discussion with non-judicial colleagues. Thus, like many members of the judiciary, particularly those in a rural community, the opportunity to engage in peer support or form close relationships with attorneys can be challenging.
5. What or who are the major influences in your life and why?
Without question, my family and faith are the single greatest influences in my life. I have three daughters, one of whom will soon sit for the Indiana and Kentucky bar exams. I am a widower who remarried three years ago. The circumstances surrounding my daughters and the loss of their mother produced profound effects in how I approach all things—relationships, responsibilities, and day-to-day existence. I am blessed beyond belief to have found a warm and supportive spouse at such a late juncture in my life. She and my children encourage and support my endeavors and I hope in return that I lead by example.
6. Have you witnessed any particular injustices inside or outside the courtroom and how did you respond to those circumstances? How will you respond to similar circumstances as a judge?
Injustice within the courts abounds. Most of those unfortunate occurrences are on a scale too small to garner individual notice. Collectively, however, they demand reform. The pretense of compassion for crime victims knows few limits. Some legislative and executive branch members loudly express their concern and sympathy for victims of property and violent crime, while the hand holding the pen simultaneously endorses evermore frequent legislation which diminishes offender accountability and obscures the truth of sentencing. Offenders are awarded an array of custody credits largely at the whim of correctional officials and in disregard of victims’ rights to be accurately informed of release dates. Government officials muddle the meaning of commonly understood terms in order to facilitate the release of prisoners by labeling violations like absconding from supervision, committing new crimes, tampering with drug screens, using heroin and methamphetamine while on probation or parole, not paying restitution or child support, as “technical” violations. These injustices dishonor the people of the Commonwealth whose vehicles are ransacked in the night, whose homes are burgled while the owners are laboring at work, and those assaulted by violent criminals because by happenstance, they were in the wrong place at the wrong time.
As judge, I’ve tried to stress accountability for offenders, to ensure that victims are aware that the court lacks little control over offenders once they are consigned to correctional officials, and to educate the public about Kentucky’s opaque “truth in sentencing” procedures. Moreover, my development of Kentucky’s first SMART high-risk probation supervision program is consistent with the basic tenet that offender’s effective probation supervision means more than turning a blind eye to offender drug use, unemployment, and recidivism. Unlike much of Kentucky’s historical approach to corrections, I embrace the notion that “the absence of failure does not equate with success.”
7. Who are your judicial role models and why?
I identify with three justices of the United States Supreme Court, each unique in temperament and philosophy. The first is John Marshall Harlan, II, not to be confused with his grandfather of the same name, a man of disparate belief. Harlan exhibited two notable characteristics that I find most appealing: his collegiality with other members of the Court and his disdain for the view that the Court should be available to redress every social harm.
My favorite justice would have to be Thurgood Marshall because of his lifetime of advocacy for the principles he held dear. Marshall once stated, “You do what you think is right and let the law catch up.” Those words were not rhetoric, they were the code Marshall lived by, from his early work and as Justice of the Supreme Court.
Lastly, I greatly admire the late Justice Anton Scalia. My admiration stems largely from his wit, his writing style, and his collegiality. Scalia is the architect of the modern resurgence of textualism and a sometimes-unanticipated advocate for criminal defendants, authoring the Crawford Confrontation Clause opinion, the Sixth Amendment Apprendi decision, and Kyllo which enlarged Fourth Amendment protection. Scalia was insightful, funny, caustic, and brilliant. Moreover, his deep friendship with Justice Ginsburg exemplifies the mutual respect and professionalism that more justices should emulate. As Scalia has pronounced, “If you can’t disagree ardently with your colleagues about some issues of law and yet still be friends, get another job for Pete’s sake.”
On a less academic note, I greatly admire “my judges”—the ones I grew up with as a young lawyer: Judges Mike Henry, Walt Maguire, Bill Cain, Dan Venters, Jennifer Coffman and Karen Caldwell. From each I learned important, and sometimes hard, lessons. I would hope that each is satisfied with how their young lawyer turned out. I am grateful for the privilege of serving in their courts.
8. Describe a circumstance where you took a difficult or controversial position and how you handled it.
I am reminded of a case years ago in which the attorneys for the plaintiff became very angry with me. It was a routine residential foreclosure in which the defendants had defaulted with no effort whatsoever to defend or participate in the proceedings. As a result, I had only the information provided by plaintiff’s counsel. It was drawing close to Christmas and having obtained judgment, two attorneys for the plaintiff appeared seeking a writ of possession and the sheriff’s assistance in evicting the home’s occupants. Basically, counsel was asking to boot this family out only a day or two before December 25th and I said no. My refusal and directive that counsel return after the holiday genuinely angered these attorneys; I mean it was palpable, they were MAD! As it turns out, several days after Christmas, I was contacted by one of the attorneys who sheepishly disclosed that, as it turned out, the plaintiff had the wrong property address and the family they intended to evict had no connection whatsoever to the litigation. This little case, one of no real significance to anyone as it turned out, taught me to always be true to my own conscious, that even when the law entitles you to do something, and even with the protection of immunity when I erred, I should never feel compelled to do something which offended my own notion of right and wrong. This little incident also reminds me to this day of the impact of what judges do on a daily basis. This situation was, in the grand scheme of things, a nothing case to the Court and to the lawyers. But to the family which lived in that home, it is hard to imagine a worse scenario than having law enforcement bang on their door with a writ demanding they vacate the premises only a day or two before Christmas. Bah, humbug!
9. How would you describe your general judicial philosophy?
This is a surprisingly complex question, despite its brevity. Taken in its simplest form, I am a servant of my community, one charged with the interpretation and enforcement of the laws promulgated by the other branches. And, having stated that, it really answers nothing.
On a more complex level, the primary goal of any court should be to foster clarity of the law. While no Kentucky-specific estimates are available, there are over 300,000 federal regulations, 4,500 federal criminal statutes, and an untold number of pages of published case-specific law. The federal tax code alone, according to Business Insider magazine, is over 74,000 pages in length. Kentucky’s own statutes, regulations, and case law are no less overwhelming. Against this backdrop, attorneys and judges struggle to guide the layman’s conduct of his or her personal and economic conduct.
In 2010, a Northwestern University School of Law professor Anthony D’Amato discussed the concept of uncertainty as it relates to the law: “[R]ules may become more uncertain on the books. For example, a statute that seemed to mean one thing may be construed by a court to mean something different…. The court's decision becomes a part of the meaning of the rule, so that the rule now becomes more complex—it is a statute plus a judicial decision.” In turn, the meaning of the "law on the books" may also become increasingly uncertain and convoluted due to additional legislation or as people modify their own behavior in an effort to evade or comply with the law. Uncertainty can be created by action from any of the branches of government.
There is a desirable public interest in citizens being able to predict with some degree of certainty the legal consequences over time of their personal actions, even in the most run-of-the-mill cases. Courts at all levels can enhance the stability of the law, and thus promote the predictability of public and private action.
To the extent that the question posed seeks an assessment of my approach should I be successful in this election to the Supreme Court, I suppose the role of a Justice should be to, whenever possible, seek consensus. Collaborative decisions are more impactful as they near unanimity. Clear majorities, whetted against intelligent arguments in support and in dissent, diminish lingering disputes regarding legal rights and obligations and thus provide guidance for similarly-situated parties in the future. A strong justice strives for accord and is mindful that while narrow rulings may resolve a particular dispute, they provide a less reliable template for similar issues and may unnecessarily prolong final resolution of a constitutional or statutory concern. Recognition of “new” rights or liberties should be measured. As Justice Frankfurter stated, “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”
10. What are some of the most significant challenges facing Kentucky's judicial system and how do you propose to address them?
Some of the issues confronting Kentucky involve the administrative arm of the courts, the changing role of the courts, the lack of data driven accountability, and the need for greater innovation and technical competence.
First, non-elected, non-attorney judicial branch staff develop policy on a wide range of issues affecting Kentucky citizens, such as pre-determining bail bonds, developing procedures guiding the disposition of children who are dependent, neglected, and abused, and handling civil issues including foreclosures. Such policies threaten the independence and uniqueness of the judiciary. In addition, because of the growth in involvement of administrative policy makers, the judicial branch is continually expanding, thus threatening its historically limited role. Moreover, the legislature continually tasks the judiciary with additional responsibilities to monitor the behavior of post-conviction criminal defendants while increasingly limiting their discretion in doing so.
Second, the role of the court is changing and not for the better. The National Center for State Courts and the State Justices Initiative noted in a recent report the “[d]ramatic decline in the rates of civil bench and jury trials.” In a ten-year span from 2005-2015, Kentucky civil jury trials declined precipitously, falling 60 percent across Kentucky from 292 to 118. This decline in trials is attributable to numerous factors including procedural rules which encourage a vigorous motion practice to avoid the expense of trial, ever-more prevalent provisions for binding arbitration, and a declining pool of attorneys skilled in litigation before jurors. Moreover, it appears that judges are less inclined to use trials as a method of speedily resolving disputes. Judges must drive dockets. When they don’t, justice lags, trials decline, and the justice system becomes less about resolving disputes and more about managing growing dockets.
Third, to ensure that cases do not lag, the Supreme Court should encourage adherence to national standards relating to the disposition of cases. Trial courts should be conducting trials. Appellate courts should be resolving cases in a timely manner. Currently, the Kentucky Court of Appeals has no data available regarding “time to disposition.” We cannot adhere to national standards without collecting basic data.
Lastly, unnecessary civil docket delay may be reduced by implementation of rocket dockets similar to those employed in criminal courts for those civil cases which lend themselves to the assignment of early and firm trials dates with comprehensive scheduling orders, the consolidation of product liability or mass tort cases to appointed special judges rather than random assignment in multiple circuits, and re-evaluation of Kentucky’s summary judgement standard. Civil rocket dockets are not new. When appropriately managed, rocket dockets reduce litigation costs and provide for the speedy and just disposition of many civil matters. The consolidation of mass tort cases may sometimes be appropriate for consolidation before a single special judge or a panel of judges who demonstrate competence in highly technical areas, thus reducing delay and expense. Lastly, interpretation of Kentucky’s summary judgment standard has discouraged disposition of cases which lack merit because of the specter of “fanciful” issues of material fact. Summary judgment should not be a disfavored procedural shortcut but one of practicality truly designed to promote the speedy, just, and inexpensive disposition of an action following adequate opportunity to conduct discovery. The inquiry should be on the facts actually established rather than the present practice of ruminating on what facts might someday be adduced.