Judicial Focus

Q

&

A

Justice Daniel Venters (Retired),
Supreme Court of Kentucky

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 Venters: Despite serving more than 35 years in the judiciary, I never aspired to be a judge. I approached law school with the idea that I wanted to be a small-town lawyer helping ordinary people deal with their legal problems and I never lost that ambition. I still believe that a lawyer’s highest calling is helping people in trouble.

 

I became a district judge in 1979 because the position in Somerset was open and no lawyer in the district (Pulaski and Rockcastle Counties) wanted to take it. I was 28 years old and it seemed like an experience that could be helpful to a young lawyer. After 4 years on the district court bench, I decided to run for circuit court and got elected at the age of 33. I stayed nearly 20 years before returning to private practice. Five years later, in 2008, I joined the Kentucky Supreme Court.  

My early childhood was spent in the coal regions of West Virginia, Western Pennsylvania, and Eastern Kentucky because my father’s job was related to the coal industry. When I was 10, we moved to Ohio and I grew up in the Columbus suburb of Grove City. I majored in economics at the Ohio State University and then went to the University of Kentucky for law school. 

 

I have had regular employment since I was 17. My first job was a gas station attendant where I learned some simple mechanical skills. I worked throughout college as a restaurant cook, a laborer in several different factories, and a driver education instructor. I worked during law school in the law school library, in the attorney general’s office, and in a Lexington law firm.

 

I am married to Somerset attorney, and now Family Court Judge, Jane Adams Venters. We have five children and twelve grandchildren.

 

More Surprising Things to Know:

 

  1. I have a tattoo on my right leg: A compass rose to remind me that one must always know where he is headed and that it is the compass inside that will that show me the way.

  2. I am moderately-skilled guitar player and collector. I currently have about 27 guitars, including a few that I built myself. I like the acoustic blues guitar players of the Delta and the 60s rock music I grew up on.

  3. I am an avid sailor and have spent a week or two each year for the past decade sailing with friends around the unique islands of the West Indies

  4. I enjoy do-it-yourself projects around the house and building model airplanes and boats.

 

KAS Monthly: What made you decide to retire from the bench this year?

 

Justice Venters: The Supreme Court of Kentucky is the hardest-working group in government I’ve ever been around. Very few people understand the enormous volume of reading, research, and writing required, as well as the broad administrative tasks justices handle overseeing the administration of the judicial branch and the practice of law in Kentucky. In its most simple terms, I am getting tired. I am 68 years old, in reasonably good health, and I want to have some time to travel, enjoy my grandchildren, and pursue other interests adventures, free from the demands of public office.

 

KAS Monthly: You are one of the few appellate court judges who has served at every level of the Commonwealth’s judicial system—as a district, circuit, and appellate judge. How has that experience informed your work as a justice on the Kentucky Supreme Court?

 

Justice Venters: Serving 5 years as a district court judge during the infancy of Kentucky’s unified court system and then 20 years on the circuit bench exposed me to an extraordinarily wide range of legal problems. I have often drawn on that experience as an appellate judge. To paraphrase the insurance company commercials, “I know a thing or two because I’ve seen a thing or two.” I presided over many thousands of cases and more than 400 jury trials as a circuit judge. District judges work close to the people and learn quickly how to deal with people in legal crisis. Many of the more unusual factual situations or a unusual areas of law which arose before the Supreme Court during my tenure involved things I had seen before as a trial judge. I was very comfortable with the issues because often I had seen how they played out in the trial courts. 

 

KAS Monthly: 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 Venters: Many of the cases I decided in nearly 25 years as a trial judge were appealed. Most were affirmed, but some were reversed. I never kept track of the numbers because that never seemed important to me. When my decisions were overturned on appeal, I sometimes thought the appellate judges were wrong and sometimes I realized belatedly they were correct. I really didn’t care, and to this day I don't understand why some trial judges get so rattled when appellate judge doesn’t agree with them. I don’t need the affirmation of appellate judges to prove that I was a good trial judge and their occasional disapproval did not signify that I was a bad judge. Appellate judges were entitled to their opinion and if that differed from mine, so be it. I took comfort in knowing that if I erred to the substantial disadvantage of a litigant, someone up the appellate ladder could correct it. And if you’re offended by contrary opinions, you have no place on the Supreme Court. I like to remind our trial judges disgruntled by a reversal to look at my dissenting opinions. As a justice on the Supreme Court, I have been outvoted (“reversed” by my colleagues) far more often than any circuit judge has been reversed.  

 

KAS Monthly: Along these same lines, trial judges 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 apply the law?

 

Justice Venters: I empathize with trial judges conscientiously trying their best to apply some of the more complex principles that necessarily come out of appellate decisions. The law is inherently complex because it governs a complicated society. In our effort to write succinct opinions we sometimes omit or obscure details that might have helped lawyers and trial judges trying to apply the precedent in future situations with slightly different circumstances. Two areas of law stand out immediately in this regard: Our decisions on the unanimous verdict problem posed by multiple identically-phrased jury instructions in criminal cases and our array of “slip and fall” decisions. I think it would be helpful and entirely appropriate for members of the Court to speak generally at trial judge education programs about such issues, and to better explain the rationale behind such rulings. 

 

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 Venters: I believe that oral argument generally helps both sides because it leaves the justices with a clearer understanding of what each side is trying to argue. Everyone’s points are better understood after oral argument. Of course, in the rare cases in which one side simply has no good point to argue, the weakness that might have been obscured in the written brief is likely to be exposed.

 

At the Supreme Court, the justices have read the briefs and understand the issues before oral argument, so they are likely to have a loosely-formed opinion about how the case should be decided. The oral argument presents the justices with an opportunity to resolve lingering questions or doubts. Most of the time, the oral argument confirms the justice’s initial inclination but not always; I know of several cases in which an obscure point brought to clarity in the oral argument greatly affected the Court’s decision.

 

Tips for oral argument:

  1. Oral argument is a serious occasion. You can be relaxed but not informal. Don’t supplement your argument with amusing anecdotes or chit-chat.

  2. Listen closely; not every question asked by a justice is meant to challenge you. Be aware that a justice may be using questions to emphasize an important point to influence the other justices.

  3. Be ready to discuss important facts and pleadings in the lower courts. Know the record.

 

KAS Monthly: Imagine your ideal appellate brief and tell our readers what that brief looks like. What are some of the do’s and don’ts of appellate briefing from your perspective? 

 

Justice Venters: The ideal brief strictly adheres to the requirements of the rules. It has a statement, or counter-statement, of facts that focuses only on the facts pertinent to the issue and omits all others as extraneous. Remember, the document is called a “brief” for a reason. Brevity is essential because appellate court judges are reading scores of briefs for dozens of cases all the time. Before detailing any argument or explaining any analysis, there should be a clear and concise statement at the beginning precisely setting forth each issue to be decided and exactly what relief that party is asking the Court to provide. Re-write and refine each argument and each idea until it is expressed as concisely as possible; be clear and succinct. The better briefs are almost always short.

 

Be scrupulously honest; any misrepresentation diminishes the credibility of your arguments.

 

Appellants should put forth their strongest argument for reversal first.

 

Avoid florid and ornate language (which will help achieve brevity) and avoid sharp rhetoric. Expressions of your personal outrage are never convincing and may obscure your more persuasive arguments based upon clear reason.

 

Use appendices to provide the judge with easy access to the statutes, trial court exhibits and pleadings, and other documents that are important to your argument.

 

And if your brief is secured by staples, make sure the open ends of the staples are bent down to prevent pricking the readers hands. You don’t want your brief to inflict actual physical pain upon the judge reading it.

 

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

 

Justice Venters: There is no formal list of factors to consider. Each justice applies his or her own standards when voting to grant review, but generally they look to these questions:

 

     a. Does some aspect of the Court of Appeals’ opinion seem unsound?

     b. Is some aspect of the case a matter of statewide importance?

     c. Does the case present an area of the law that the Supreme Court has never addressed, or has not addressed recently?

     d. Does the case present an area of law that is unsettled, antiquated, or conflicted with inconsistent decisions of the lower courts?

 

A “yes” answer to any of those questions will more likely lead to granting discretionary review unless there is very little likelihood the issue will ever recur, or some peculiar circumstances of the case makes it unlikely the Court could render a helpful opinion. For example, any or all of these factors might exist, but if a new statute intervenes to resolve the issue, granting review could be a waste of court resources.

 

Each justice may assess the factors differently. Discretionary review is more likely to be granted or denied if one justice feels strongly enough about the issue to persuade justices who were otherwise indifferent. Sometimes, the experience of a single justice may provide unique insight that was overlooked by the others, or even by the party seeking discretionary review. 

 

There is often strong disagreement among justices on whether to grant discretionary review. A staff attorney for the Court will have prepared a thorough memorandum on the case. The justices thoroughly examine and discuss at the conference table each request for discretionary review. A vote is then taken, and it’s on to the next case.

 

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 Venters: Cases generally reach the deliberation stage by one of two possible routes: Those that have oral argument and those that do not. For the most part, cases before the Court on discretionary review will have an oral argument. Whatever special factor led to discretionary review also suggests the value of oral argument. Cases before the Court as a matter of right (for example, a direct appeal from the circuit court or an appeal of original writ action in the Court of Appeals) generally do not have an oral argument, although exceptions occur in special circumstances. 

 

When a case has been orally argued, the justices will read the briefs before oral argument. No preliminary opinion is drafted. Immediately after the oral argument, the justices confer and each one briefly states his or her thoughts on the resolution of the case. Ordinarily, a majority of at least four justices find themselves in general agreement, and so one of them takes on the task of preparing a written opinion. When that opinion is drafted, it is circulated electronically to all other justices for review and comments. The case is placed on the docket for the next Court conference, where each point is thoroughly discussed, and a vote is taken. Some justices may suggest minor or major revisions; some may disagree altogether and hold the case over for the drafting of a dissenting opinion. The revised opinion or the dissenting opinion is then docketed for a future Court conference and the case is again thoroughly discussed and debated by the seven justices. That process continues until a draft of an opinion is supported by at least 4 justices and any dissenting opinions have been reviewed.

 

When a case by-passes oral argument, the drafting of a proposed opinion is assigned randomly to one justice. The draft is then circulated to the other justices, who then read the briefs along with the proposed opinion and electronically post comments and criticism for the consideration of the all justices. At the next Court conference, the proposed opinion is discussed and debated, following the same course described above for orally-argued cases. 

 

Many cases are quickly resolved by a concurrence of all justices, but some cases generate a great deal of debate and discussion, going through several rounds of writing and re-writing before a final decision is agreed upon.

 

KAS Monthly: How does the Court decide whether to publish a particular opinion? On a related note, sometimes the Court will “de-publish” a Court of Appeals opinion. How and why is that decision made?

 

Justice Venters: Generally, opinions of the Supreme Court are slated for publication for the same reasons that discretionary review is granted: It presents a matter of statewide importance, it clarifies an unsettled or confused area of law, it puts an antiquated area of law into a modern context, it changes a previously settled area of law, or it otherwise adds something useful to the common law of Kentucky. That is why discretionary review cases almost always result in a published opinion.

 

As the final arbiter of Kentucky law, the Supreme Court of Kentucky sometimes “de-publishes” a Court of Appeals opinion in conjunction with the denial of discretionary review of that opinion. Here are some reasons why that might happen. The Supreme Court may generally agree with the outcome of the Court of Appeals opinion and find no special reason to grant discretionary review, yet nevertheless discern a flaw or disagreeable element about the analysis presented in the opinion. Sometimes, the Supreme Court is aware of issues developing in other cases that will conflict with or supersede the Court of Appeals opinion. Because we have no process by which the Supreme Court can edit Court of Appeals opinions, it has on a few occasions de-published Court of Appeals opinions that contain a simple mis-quoted or mis-cited authority.

 

It may also be that a Supreme Court, sharply divided about the correctness of the Court of Appeals’ opinion and whether to grant review, avoids the uncertainty about where the issue might ultimately land by denying review, leaving the Court of Appeals opinion in place but limiting its effect by de-publication. 

 

KAS Monthly: It’s rare for a decision of the Kentucky Supreme Court to be reviewed by the U.S. Supreme Court and, therefore, rare for the justices of that court to have to consider issues on remand. This happened recently in the Kindred v. Clark case. You authored the original majority opinion which was reversed in part and vacated in part and you authored the majority opinion on remand. To the extent you can, take us inside that unusual process.

 

Justice Venters: The Kindred v. Clark case, which incorporated Kindred v. Wellner and arose from a consolidated case that included Extendicare v. Whisman, was an extraordinary case. I’ll say at the outset here, contrary to a widely-held perception, the Kentucky Supreme Court does not have an anti-arbitration bias. I have authored at least six opinions addressing the Federal Arbitration Act and all of them except one, the consolidated trio of cases associated with Kindred v. Clark, uphold arbitration clauses. A fair review of our opinions discloses that Kentucky courts disfavor compelling arbitration upon people who did not freely “chose that summary mode of adjustment,” (Ky. Const. § Section 250), as for example, when an arbitration agreement is buried in a contract of adhesion or unknowingly executed by an unauthorized agent, especially in light of our constitutional mandate (Ky. Const. § 7) that the right to jury trial “shall be held sacred.”

 

There is also a federal constitutional right to a jury trial and one part of the original Kindred decision, styled in our Court as Extendicare v. Whisman, was designed to test whether the federal policy favoring arbitration trumped the federal and state policies against unknowing and involuntary waivers of the right of access to the courts and the right to a jury trial. Before our opinion was drafted, I thought the U.S. Supreme Court would be interested. 

 

Extendicare was a power of attorney decision, not an arbitration case. We decided it on two grounds—one based exclusively on our interpretation of the powers contained in the respective power of attorney documents, and one holding that we would not infer an agent’s authority to waive his principal’s right to a jury trial; a clear statement granting that power was required. Ultimately, the U.S. Supreme Court rejected that theory and held that the federal policy in favor of arbitration did indeed trump the unknowing waiver of the right to a jury trial. That Court then remanded the case for us to consider whether our interpretation of the express language of power of attorney documents was “tainted” by our preference for clear statement explicitly granting the power to waive a jury trial.

 

As your question notes, and the dissenting opinion illustrates, upon remand the Kentucky Supreme Court was again sharply divided on what the U.S. Supreme Court had asked us to determine. The dissent regarded the remand as a duty to reconsider and rescind our initial interpretation of the power of attorney; the Majority read the U.S. Supreme Court decision as mandating only that we determine if our initial interpretation had been tainted by our erroneous subordination of federal arbitration policy to the constitutional right to a jury trial. Having authored the first opinion, I was very comfortable concluding that my analysis of the power of attorney language was entirely independent of the theory rejected by the U.S. Supreme Court. Justice Wright, who was not on the Court for the first opinion, agreed, as did Justices Keller and Cunningham. 

 

KAS Monthly: As in the Kindred cases, 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?

 

Justice Venters: I don’t want to take the mystery out of this topic, but it is easy to forget when you read the vigorous dissenting opinions that the justices agree with one another far more often than they disagree. Quite often that harmony results from a conscientious effort to understand our differing perspectives and approaches to a legal issue. The cooperative effort to understand each other’s views breeds the kind of respect and trust that carries the Court across the turbulent times of dissension. I served on the Court with fellow justices that I had known for many years, and for whom I had great respect before we worked together on the Court, so I started out with a mutual admiration for each Justice. Then, when you spend long hours for several days discussing and debating serious problems you develop a mutual respect and trust for one another that is not unlike a family. Collegiality is maintained because no justices have a personal interest in the cases and no claim of ownership on any particular theory of law. Collegiality is maintained when each justice feels that his or her views have been heard and considered by the other justices. Agreement is not necessary to achieve collegiality, but mutual respect is.

 

My position on a matter has frequently been changed by the dialog around the conference table or discussion with individual colleagues or my law clerks. I suspect my colleagues regarded me as “the Justice least likely to change his mind once its set.” I acknowledge that as a personality flaw and try to deal with it. Around the conference table, the effort to persuade other Justices is often intense. Away from the conference table, its matter of personality and style. I rarely if ever tried to “lobby” another Justice to win his or her concurrence to my opinions. For me, it was simply a matter of saying, “here’s what I think; you can make up your own mind and either agree or disagree.” Other justices may feel more comfortable trying to persuade others on issues they have a particular interest in, and I am entirely fine with that. For the most part though, the justices are just too busy concentrating on reading and writing to spend much time in personal one-on-one lobbying on a particular case.

 

KAS Monthly: This past year saw what most would 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? 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?

 

Justice Venters: I think all justices would agree that a unanimous opinion sends a strong message, but each would also agree that it’s more important to present a legally-sound opinion than a unanimous one. The unanimity of the pension opinion and the medical review opinion reflects the fact that those opinions stand on solid, well established legal principles. However desirable it is to have unanimity, I don’t ever recall any serious attempt to artificially produce unanimity. I don’t know a single instance in which a justice surrendered his or her differing or dissenting opinion for the sake of unanimity. 

 

2018 did indeed present an atypical accumulation of what you are calling “political” cases, but throughout my time on the Court we have had many very significant “political” cases. I think the perception that this is a new thing results from the news media’s attention to the dramatic political-shift in Kentucky governance, from decades of Democratic control to burgeoning Republican control. Our “big” cases are getting more media attention. But looking back, the legislative redistricting case, Legislative Research Commission v. Fischer in 2012, in which the Court struck down the statute redrawing the political boundaries of the legislative districts, was a very significant “political” case. The Beshear v. Haydon Bridge cases of 2010 and 2013, which involved the dubious political practices of sweeping reserved funds from agency accounts to cover budget imbalances, had great political consequences. And there have been others: local bans on public smoking, guns on university campuses, local minimum wage ordinances, same-sex adoptions and child custody cases, and slot-machines disguised as off-track horse racing.  

 

The Court navigated the recent burst of “political” cases as it has done all such cases throughout my decade on the Court. We treated these cases just like we treated every other case coming before the Court. We paid no attention to the political drama and we decided the case based solely on our respective beliefs on what the law of Kentucky required. Serving with a total of eleven different justices and several specially-appointed justices, I never once heard or saw any expression that loyalty to a political faction influenced the disposition of case; nor did I ever see or hear any concern of any Justice for the political consequences of a case outcome.  

 

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

 

Justice Venters: The most serious challenge to the Kentucky’s judicial branch of government is getting the best experienced lawyers to endure the challenges and sacrifices of serving in judicial office. To meet that challenge, the state must increase its financial and non-financial commitment to the salaries of judges and court staff. But the corresponding challenge to Kentucky’s judiciary is to earn that increased financial commitment by remodeling itself to provide a more efficient, faster, and user-friendly means of performing its core responsibility of dispute resolution. 

 

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

 

Justice Venters: Fortunately, my successor is seasoned judge. She has served in the front-line trenches of the family court and on the Court of Appeals so there is little I can tell her about being a judge. What I can say is that she should be ready to read and study because she will be defending her views and advocating her positions on cases with colleagues who are among the smartest and hardest-working lawyers in Kentucky.  

 

KAS Monthly: What is next for you?

 

Justice Venters: I have intentionally avoided making specific plans for re-employment and I do not want a full-time law practice. I want to taste the freedom of having little or nothing to do. I want to spend more time with my 12 grandchildren and visit friends and relatives around the country. I don’t golf, fish, or hunt but I like to work around the house, build model boats and airplanes. I build, repair and play guitars and I love to sail boats on the ocean. I want to do some of all of that. But, soon enough I will be looking for opportunities to use my knowledge and experience in a productive way in service to individuals or the community.

 

 

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

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