Judge Denise Clayton,
Kentucky Court of Appeals
The subject of our third installment of the “Judicial Focus” series is Kentucky Court of Appeals Judge Denise G. Clayton of Louisville. Judge Clayton’s judicial and legal career is perhaps best epitomized by one word: trailblazer.
Judge Clayton became the first African American woman to serve on the Kentucky Court of Appeals upon her appointment to the bench in October of 2007. Previously, Judge Clayton served as Chief Circuit Judge for Jefferson County, and was the first African American woman to serve as a circuit court judge in the Commonwealth. Judge Clayton has also served as a district court, family court, and drug court judge. Her breadth of experience on the trial bench is a rarity among Kentucky’s appellate judges.
In addition to submitting answers to our written questions, Judge Clayton was kind enough to spend nearly an hour with us in her tenth-floor office at the Jefferson County Judicial Center on the morning of May 16, 2017.
Asked about some appellate judges’ characterization of their position as “isolating,” Judge Clayton has a different perspective. The location of Judge Clayton’s downtown Louisville office gives her the opportunity to interact on a fairly regular basis with her former colleagues on the trial bench. We asked if this led to awkward moments, given her capacity as an appellate judge sitting in review of those same judges’ decisions. Judge Clayton simply smiled and replied: “sometimes.”
But having served as a Kentucky trial judge in every possible capacity, Judge Clayton is sensitive to both the difficulties of trial courts and the limited function of appellate courts: “Our job is not to second-guess the trial court judge. We are a court of review.”
Judge Clayton has particular empathy for family court judges, who often are called upon to make rulings that require delving deeply into a family’s troubles and sifting through often conflicting testimony and evidence. But, she emphasizes, every trial judge’s job, whether at the district, family, or circuit level, is uniquely difficult. “We try to keep that in mind sitting as a reviewing court,” she says. “Trial judges have to make quick judgments about complicated issues, and appellate judges often have more time available to them before deciding a case.”
For all her professional success, Judge Clayton is, at her core, humble, and this humility, coupled with her enviable knowledge of law and procedure, has earned her the widespread respect of the bench and the bar.
When Kentucky Supreme Court Justice Lisabeth T. Hughes was nominated by President Obama in 2016 to a seat on the U.S. Court of Appeals for the Sixth Circuit, Judge Clayton was at or near the top of most lists of possible successors should a Supreme Court vacancy occur. Judge Clayton was aware of this speculation and would have welcomed the opportunity, but she is quick to add that she enjoys her work on the Court of Appeals. “I have always been happy and focused on whatever job I was fortunate enough to have at the time,” she tells us, and she has never been one to dwell on “moving up.” We asked what’s next for her. She smiled and answered that she isn’t focused on that right now. “Wherever I am,” she says, “is where I am happy.”
Q: Can you tell our readers a little bit about yourself? Maybe even something that those who know you might be surprised to learn?
A: I was born in Louisville. My parents and grandparents were educators. I don’t have any surprising details to reveal. Although, I will share that my childhood career goal was to become a bus driver. I thought it would be fun to ride around the city all day.
Q: You are one of the few appellate court judges who has served at every level of the Commonwealth’s Court of Justice—as a district, family, circuit, and appellate judge. How has that experience informed your work as a judge on the Court of Appeals?
A: Serving as a trial judge has been a significant influence on my work at the Court of Appeals. I understand and appreciate the difficult job that trial judges have. Although we are reviewing the orders of the trial court, I understand that I am not substituting my personal (meaning what I would have done or what have liked to do) judgment for the trial court. I know the stress of making decisions in a short period of time. As a trial judge, I hoped not to be reversed, but if I was, I hoped that the appellate court would be clear as to what it wanted me to do upon remand. I try to keep that in mind now in my opinions.
Q: As a former trial judge and now as a Court of Appeals judge, you have been on both sides of the appellate process. Were you ever reversed as a trial judge in a decision that you felt was incorrect or unfair? Conversely, did you ever, as a trial judge, get reversed and think “you know, I got that wrong”? And as an appellate judge, do you empathize with trial judges who often struggle to apply the decisions principles of law handed down by appellate courts?
A: I have been reversed as a trial judge and an appellate judge. It is not something that is very pleasant. So I do empathize with trial judges who must apply the decision’s principles of law as determined by the appellate courts. That is why the appellate courts should be clear in its directions to the trial courts. There have been times when I disagreed with the decision of the higher court. However, there have been times when I agreed that I was wrong. There were also cases in the court in which I was sitting that did not have the authority to consider another choice so I actually welcomed the higher court’s decision to “make new law”.
Q: You have worked for the Legal Aid Society in the past. Did that experience give you a greater sense of understanding about the inequities and disparities that often confront people of limited means who find themselves, either in criminal proceedings or civil litigation, struggling to navigate the legal system? Do you believe that judges have an obligation to try and correct these inequities? How can they do so?
A: Sometimes judges can correct certain inequities. As an attorney for Legal Aid, my biggest concerns were whether or not the judge demonstrated a bias against my clients, and whether the judges understood some of the particular aspect of the law. My practice included representing victims of domestic violence in DVO hearings and in divorce cases. At that time I was at Legal Aid, the DVO hearings were a new procedure. I hoped that the judges were trained on these issues. I also represented clients in eviction cases. There are defenses to eviction, and I hoped that the court would listen to those arguments. My other work at Legal Aid was in consumer law and bankruptcy. People of limited financial means don’t usually have any great options, no safety net, and are subject to laws that do not provide any protection or assistance. I really admired my clients at Legal Aid. So many of them kept fighting and working even when confronted with tremendous obstacles.
Q: We have asked our previous interviewees, Justice Noble and Judge Tapp, whether oral arguments impact the outcome of a case. Some attorneys don’t think so. Has your vote ever been swayed by oral argument? And along those same lines, can you provide the Bar with some guidance as to what to do and what not to do during oral argument? What does a good oral argument look and sound like?
A: My vote has been swayed by oral argument. We have had arguments that swayed the votes of the entire panel. A good oral argument would include addressing your strongest points first; be ready for questions and respond to them to the best of your ability—this includes saying that “I am unable to answer that question”; be clear; do not attack opposing counsel or the trial court; don’t attack our Court, do not misstate the record or the law; and if you have made all the points that you believe are necessary and there are no other questions from the court, then you should offer to end your argument early.
Q: What about when it comes to briefing? What do you look for in a strong brief? What are some do’s and don’ts of appellate briefing?
A: The points I made regarding a good oral argument are applicable to the briefs. Make your best argument first; acknowledge cases that may be controlling but are in opposition to your position—you may be able to distinguish them, but even if you can’t we will address them; do not attack the trial court or opposing counsel; do not be sarcastic; be careful with humor, you may not be as funny as you think you are; be clear and direct; remember only the presiding judge has the record, therefore attach to the appendix any pertinent information that is part of the record; and follow the rules for submitting a brief which includes properly citing to the record.
Q: Can you take us behind the scenes of how a case is decided by the Court of Appeals, particularly the deliberations among the judges once a case is submitted?
A: We sit in three judge panels. We preside over cases in each of the seven appellate districts. We usually are assigned cases three months in advance. For example, in August, we will receive cases that are designated for the November panel. As a panel, the number of cases we receive may vary, but for example, if we receive 30 cases for a particular month, I will be presiding judge on 10 of those cases. I screen the cases, determine if any are to be set for oral arguments, and I draft the opinions for those 10 cases. On the other 20 cases on which I am the associate judge, I read the briefs and decide if I am going to concur or dissent. I pose any questions that I have to the presiding judge about his or her case. If I dissent, and one other judge joins my dissent, we then have to write a new majority opinion. Unless oral arguments are held, we do not met as a group to discuss all of the cases before us, therefore any discussion about a case is held as needed.
Q: How does the Court or panel decide whether to publish a particular opinion?
A: We consider whether: the opinion establishes a new rule of law or alters or modifies an existing rule or applies an established rule to a novel fact situation; the opinion involves an issue of continuing public interest; the opinion involves an issue of continuing interest to the state judiciary and the practicing bar; the opinion criticizes existing law; the opinion resolves an apparent conflict of authority; or if there is some other reason the judge decides to publish a case.
Q: Many have expressed frustration with how long it takes a case to make its way through the Court of Appeals and the appellate process generally. Can you shed some light on the length of that process? Are there any ways you can think of to expedite cases?
A: It takes months for a case to be assigned to a panel. The parties have 30 days after the notation of the service of judgment to file a notice of appeal. A prehearing statement is to be filed within 20 days of the notice of the appeal or cross-appeal. In civil actions except custody and dependency, neglect and abuse cases, juvenile case and domestic violence cases, a prehearing conference will normally be set. The appellant’s brief is to be filed within 60 days after the date of the notation on the docket; the appellee’s brief is to be filed 60 days after the appellant’s brief; the reply brief is filed 15 days after the last appellee’s brief was filed or due to be filed. Also when motions are filed prior to the briefs being tendered, this delays the assignment to the panel. Those motions go to a separate motion panel for decision or certain motions go to the chief judge, or if it is an emergency the motion is decided by whichever judge is next on the rotation list to receive an emergency motion. Of course, the record from the trial court has to be timely certified and the designation has to be filed within 10 days of the filing of the notice of appeal. The burden is on the appellant to make sure that this occurs. After the parties have completed their work, the case then has to be assigned to a panel. This may be 5 or 6 months after the trial court’s decision. As previously stated, the panel will receive cases that are designated for three months later. Cases involving custody are expedited, and no prehearing conference is scheduled. We have put new procedures in place to further expedite cases involving children. Since there is a liberty issue at stake in most criminal cases, we hope to expedite those cases. Parties can ask the Court to expedite the appeal. Some cases are just difficult and require more time. Entire trial records, including the video record, are often reviewed, especially when the parties don’t cite to the record or cite to it incorrectly. We are not required to search the record if counsel has not properly done so, but we often do. An opinion may also take longer because the judges have questions or are drafting concurring or dissenting opinions.
Q: Sometimes different panels of the Court of Appeals reach different outcomes in cases involving a similar set of facts. Is a panel generally aware when another panel is facing a similar issue? Is there any effort to flesh out any inconsistencies among the different panels?
A: We are aware of inconsistencies of those cases which were decided earlier. If two panels are simultaneously looking at a similar issue, we may not be aware of it. We may be informed of it by our central office when both cases are submitted to be rendered. If there are inconsistencies each panel may reconsider its decision. If there is an earlier published case, we will follow it. If it isn’t published, we may distinguish our current case, and not follow it. We do have the option of going en banc. Of course, the Supreme Court may possibly grant discretionary review to clarify an issue.
Q: Every judge has a pet peeve or series of pet peeves: things that attorneys (or others) do that just won’t fly. What are your personal pet peeves?
A: Being dishonest or disrespectful to the Court. Failure to follow the rules.
Q: What are some of the biggest challenges facing Kentucky’s judiciary now and in the immediate future, from your perspective?
A: The lack of adequate funding for the Court of Justice, and the attacks on the independence of the judiciary. I am also concerned that judicial elections will become more expensive and divisive.
Q: Who are some of your closest friends on the bench? Do you ever seek their input or guidance when deciding a particularly difficult case?
A: I have known my colleague in the 4th appellate district, Judge Irv Maze, and Judge Sara Combs for several years. I talk with them frequently. I am now Chief Judge Pro Tem and I talk with Chief Judge Joy Kramer frequently. Additionally, depending on the issue I may ask any and all of my colleagues for guidance. Each judge has knowledge of a particular area of the law which may result in me seeking guidance from that judge. When appropriate, I enjoy discussing general legal issues (not specific cases) with my friend, Justice Lisabeth Hughes. I am also fortunate to have great staff attorneys and I have the opportunity to confer with other staff attorneys of the Court of Appeals who are very helpful.
Q: What traits do you admire in a litigator or advocate? What traits do you wish we saw a little bit less of?
A: I admire honesty, civility, and preparation. I would like to see less of the opposite of those traits.
Q: What do you enjoy most about your job? What do you enjoy the least?
A: I enjoy the opportunity to consider legal issues and craft a solution to the issues presented. I enjoy the camaraderie of the people I work with, especially the people on the 10th floor of the Judicial Center. I miss the interaction with attorneys and litigants that I had in the trial court.
Q: Diversity of both the bench and bar has been an area of focus for you. How would you rate the Commonwealth’s progress on this front? What more can or should be done to increase diversity and give traditionally underrepresented groups greater opportunities in our profession?
A: I think the KLEO program and high school programs such as the Law and Government program at Central High School have helped to increase diversity. I know that there is also a law program at Seneca High School which I hope will increase diversity. There may be other high school programs doing the same thing, but I am not familiar with them. The Brandeis School of Law has increased the diversity at the Law School. All of these programs are helping underrepresented groups to have an opportunity to consider law as a profession. As a Commonwealth, our judicial racial/ethnic diversity has literally not budged over the years. We are not really adding to the number, we are just replacing those we have lost.
NOTE: This is the third in a recurring series of interviews with Kentucky judges. The editors of KAS Monthly thank Judge Clayton for her time in answering these questions.
[Image Credit: Kentucky Court of Justice.]