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

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

 

KAS Monthly: Why did you decide to retire from the bench this year?

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

 

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

 

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

 

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

 

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

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

 

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

 

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

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

 

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

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

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

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

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

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

 

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

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

 

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

 

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

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

Justice Cunningham: The most uplifting and inspiring part of serving on the Supreme Court has been provided by the passion and commitment to fairness and justice by my fellow members of the court, dealing all the time with the cases of total strangers. Each justice is assigned a case to write. The opinion is written, and votes taken. Often, we disagree. So, we argue. And some arguments become quite heated. As they should. There are no small cases and sometimes we spend a lot of time on a relatively minor case. But, to use the parlance of Shakespeare, we “are quick to take quarrel in a straw if honor is at stake.” Or, in our case, justice is at stake. But always two things happen. It is always about the individual justices’ notion of right and wrong—no selfish motives. And it always ends with us cooling down, remaining close friends and moving on to the next case. You may be coming across the table at someone on one case (not literally) and that same person will be your most vocal ally and supporter on the next case. It’s wonderful, actually, to watch this work.

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

 

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

KAS Monthly: This past year saw what some might characterize as an unusually high number of contentious “political” cases come to the Court—“political” in the sense that they attracted a great deal of attention from the other branches, political advocacy groups, and the media. The pension and medical review panel cases come to mind, but there are others. How did the Court navigate those politically troubled waters?

 

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

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

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

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

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

 

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

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

KAS Monthly: What advice do you have for your successor?

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

KAS Monthly: What will you miss the most about being on the Court? The least?

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

 

KAS Monthly: What is next for you?

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

 

 

NOTE: This is the eighth in a recurring series of interviews with Kentucky judges. The editors of KAS Monthly thank Justice Cunningham for his time in answering these questions.