JUDGE LIBBY MESSER
Being a Family Court judge has been my career goal since the summer after my first year of law school when I served as an intern for a judge in Fayette Family Court. This experience changed my entire law school and career path. For me, taking the bench is not a stepping stone, a political opportunity, or a last endeavor at the end of my career; taking the bench has been the culmination of years of work to that end and an opportunity to broaden my service to my community. My career has been dedicated to public service; specifically serving families, protecting and supporting children, and taking on roles to help prepare me for this position.
My path to the bench has been unique to many other Family Court Judges. I am, unapologetically, not a divorce attorney. Before putting on the robe I was an Assistant Fayette County Attorney for nearly a decade. After a couple years of paying dues in general District Court, I was, thankfully, selected to be the lead prosecutor of the Family and Juvenile Division of that office. In that role, I prosecuted Public offenses in Juvenile District Court as well as Dependency Neglect and Abuse (“DNA”) and Status offense cases in Family Court. In addition to my regular prosecutorial court duties, as lead prosecutor my role was to serve as liaison between the courts, community partners, and the County Attorney’s office. I was primarily responsible for the legal training of our community partners, including but not limited to, law enforcement and the Cabinet for Health and Family Services.
This office leadership position allowed me to take on leadership roles within the community as well. I served on numerous multi-disciplinary teams and associations related to child abuse, Family Court, and Juvenile Justice. This included everything from the Violent Crimes and Gang Intervention Task Forces and the Child Sex Crimes Prosecution Team, to the Model Family Court Stakeholders Committee, Truancy Intervention Team, Family Accountability Interventions Response Team (FAIR), the CASA Board of Directors and many more. I built relationships with the key players in the Family Court system as well as worked with community providers to develop resources for our families and children and to create better access to those resources. I was able to make connections between the varying entities and understand how they all fit together in the broader system. I believe this unique background and perspective is the reason I was nominated by the Fayette County Judicial Nominating Commission and why I was ultimately appointed Family Court Judge.
I became a Family Court Judge for the opportunity to make a broader impact in our community and in the lives of families and children in Fayette County and the Commonwealth. I believe families are the primary building block of our society. I believe that that healthy, supported families and safe, educated children build stronger, safer, communities. That is why I believe that no court has greater responsibility to the community than Family Court. I have seen the profound impact that an informed, respectful, and caring Family Court judge can have on the life of a child and in the success of a family. I believe that Family Court judges who show respect for the parties and their role in the broader system and make rulings based in law can impact not only the lives of the parties before them but also the perception of Family Court in the legal profession. My training and experience as a prosecutor coupled with my work in the quasi-criminal civil DNA courts makes me uniquely qualified to do that. I have all the attributes of a prosecutor – a dedication to truth, justice, fair play, and the law – coupled with an understanding of the complex nature of our Family Court system. As a prosecutor I was very cognizant of my responsibility to represent the entire Commonwealth, not just one party or interest. It is important that we as judges maintain a similar perspective. We must view each case objectively and without personal bias and put egos aside, so we can make fair rulings based in law. As a Family Court judge, I try to do all in my power to continue to improve upon the great work being done in Fayette County and strive to have a truly positive impact on the profession and the families of my community.
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.
As a Juvenile Criminal and Child Abuse and Neglect prosecutor, being kept awake at night by my cases was part of the job description. When you are dealing with the lives of children, whether they are the victims or the perpetrator, you are constantly second guessing yourself. You are always re-thinking and debating how to balance the interests of a child perpetrator who comes from a difficult background with the interest and rights of victims to be made whole or the safety of a child with the rights of parents to appropriately parent their children. I don’t think I have ever taken a case to trial where I did not second guess a strategy or how I handled a witness or wish I had asked one more question or better explained a piece of evidence. However, I know in my heart that I approached every case with a fair and open mind. I know that I sought justice not only for the victims, but also for the offenders. I know that in every case I tried to do what was fair, what was right, and what was just under the circumstances. Every case made me a better lawyer and a better advocate. I tried to learn more about the system and the services we have for children and victims. Each time I faced a novel circumstance or a need that I could not find a resource to address, I used that information to work with stakeholders to improve the system. I wanted the next victim, or the next child to have that new resource. Because of that, I spent fewer nights awake second guessing, and more nights awake brainstorming ways to make a difference and advance the system.
2. Give an example of a circumstance where you faced an ethical dilemma or problem and explain how you solved it.
On this side of the bench, ethical issues come up routinely; whether they be conflicts from my former role as prosecutor on a case, ethical concerns with observed behavior of attorneys in my courtroom, attempted ex parte communication, or simply when it is, or is not, appropriate to recuse from a case. I first try to gather as much information as possible. I will review the record and take testimony from the parties involved on the record but in a closed court setting. I then turn to the Rules of Professional Conduct and Judicial Cannons for guidance. If the answer is still not clear, I will turn to the Bar Association or Judicial Ethics Commission opinions and see if there is an opinion that gives some guidance or, if necessary, request an opinion on the issue. I will often consult with other judges to see if they have encountered similar situations and how they have handled it. In the end, an answer typically becomes clear, and it is often what your gut told you in the first place.
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?
The most important qualities for a judge are to be fair and unbiased and to consistently follow the law. As a prosecutor, especially in juvenile and family court, I represented the interest of the entire Commonwealth, not one person, party, or interest. That taught me to approach a case seeking truth and what is fair, not to focus on winning the day for one side or the other. I also have a nearly pathological respect for the rules, and fair play. It is ground into you from day one; rules matter, laws matter and prosecutors will follow them. I believe the statutes, caselaw, and rules should be applied consistently by the Court. The law, when applied consistently and accurately, is the great equalizer. If all parties know the rules coming into the courtroom they can appropriately prepare.
While good judges need to be consistent in their application of the law, a good Family Court judge also realizes that not all families or children are alike, so each case is different. Good judges need to be open minded. I have three children of my own who have taught me countless lessons that I apply every day. I realize that sometimes as a parent you just must do what works for you and your family and what gets everyone through the day alive and sane. That may mean more screen time than you would care to admit or skipping the broccoli. It is important not to pre-judge families or parenting styles based on your own values but rather look at what works for each family so long as the children are safe, healthy and educated. I approach each case with an open mind knowing the strategies we use for that case and family will not be the same as I used for the last (or the next). This does not mean that the rules and the law change from family to family, but it does mean that the considerations, important facts, priorities and potential outcomes are going to be different for each family within the bounds of the law.
4. As a potential or sitting judge, what do you consider to be your greatest strengths? Weaknesses?
The overwhelming majority of the cases I deal with as a Family Court Judge are not high-dollar divorces; they are Dependency, Neglect, and Abuse cases and Domestic Violence cases. Through the nomination and appointment process for the position of Family Court Judge, I touted my unique background in these public service areas as my greatest strength. Not only has this background given me the personal attributes discussed in the responses above, but my role as a leader in Juvenile Justice and in DNA court has given me a unique insight into our court system. I know the resources we have for families and youth, and where there are gaps. I know the players, from the various child welfare agencies, to local government agencies, law enforcement, and the schools, from the faith community to the mental health system and addiction recovery resources. I know how all those agencies work together, and where there is room for improvement. That knowledge and perspective was a missing link on our Family Court bench. I believe my nomination by the local Judicial Nominating Commission, and eventual appointment, confirms that others recognized this need as well.
My greatest strength is also my greatest weakness. I do not have years of experience doing private divorces. That is an area of law I have not focused on since law school. I am having to get up to speed on the current law in this area. I am learning from the great Family Law practitioners we have in Fayette County. I spend a lot of time prepping those dockets, researching my cases, and turning to my colleagues on the bench for guidance.
5. What or who are the major influences in your life and why?
The most important influences in my life are my family. I have watched my grandparents and parents example of what it means to be strong leaders for their families and communities. They are small business owners, community activists, teachers, and corporate business men, but first and foremost they are parents. The instilled in me a deep respect for family and for how a family can impact their community. I have watched them deal with family tragedy, substance abuse and addiction, transition and turmoil with grace and dignity; all while putting the needs of their children first. I have two older brothers who taught me to not only stand up for myself, but to stand up for others and for what is right. My oldest brother is a Commonwealth Attorney and the other is an Assistant High School principal who works with at risk youth. They model what it means to be compassionate community leaders. I am influenced by my husband and my children and the lessons they teach me every day about parenting, patience, and humility.
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?
Several years ago, it became clear that Kentucky had a real problem with the over incarceration of our youth. As a juvenile prosecutor this was a tough pill to swallow. However, after reviewing the data it became clear that we did not have a consistent, objective, method for evaluating whether incarceration was necessary, or even allowable, within our juvenile system. It was obvious that some changes needed to be made to address the over incarceration for low level and status offenses and our disproportionate minority confinement. To address this, I volunteered to serve on the Juvenile Detention Alternatives Initiative, a multi-disciplinary committee to research and develop a risk assessment tool and other interventions to help address this problem. While all the members of this group did not always agree, and still do not, I think that there have been some real improvements made to our juvenile justice system. There is more work to be done to better balance community safety and family’s access to resources with the over confinement of youth. However, I believe it is necessary for groups like this to be inclusive of different perspectives and work to develop a system that provides equal access to justice for all. As a Judge I will continue to be open minded about flaws in our system that create injustice, whether intentional or not, and will work to partner with others to effectuate changes to address those injustices.
7. Who are your judicial role models and why?
As a trial attorney I was blessed to practice every day of my career before some amazing judges all of whom have shaped my practice and influenced the type of judge I am and strive to become. A couple come to mind as being particularly influential. My first real exposure to a Judge was as an intern and staff attorney for Judge Kimberly Bunnell of the Fayette Circuit. Whether she was presiding over a case in general Circuit Court or Family Court, Judge Bunnell exemplified fairness and a steady judicial temperament. She taught me that the best judges are well prepared, courteous and informed. I also practiced for many years in front of Judge Joe Bouvier of the Fayette District Court. Judge Bouvier is notorious for his even temper and quiet sense of humor on the bench, but more importantly he is a wealth of legal knowledge. He is generally thought of as the local authority on current case law, and he quite literally “wrote the book” on case law relevant to trial practice; a book I keep on the shelf next to the desk in my chambers and refer to regularly. No matter how many years he is on the bench he will never stop learning and striving to make rulings well founded in the most current law. I have had the benefit of practicing in front almost all the current and former Fayette County, Family Court, Judges. I have learned from each of them. There are attributes of each that I attempt to emulate, such as Judge Lucinda Masterton’s ability to work with interested parties to find practical and real-world solutions for children and families in crisis. I plan to continue to learn from my colleagues as I strive to do what is best for the Families of Fayette County.
8. Describe a circumstance where you took a difficult or controversial position and how you handled it.
When you are a prosecutor in Juvenile and Family Court your position is always difficult. You are mandated to serve interest that are not always aligned. I was obligated to seek justice for victims while still working to serve the best interest of their juvenile perpetrator. I had to fight to protect and serve the best interest of neglected and abused children while still working to try and strengthen and maintain the family unit. These interests are, on their face, incompatible. However, over the years I learned that there is a way to balance these interests. It requires looking at each case, each party, and each set of facts objectively to determine what is just. I always sought to maintain open lines of communication between myself and my victims, so they understood the needs of the youth and the limitations of our system. I worked closely with agencies to ensure that we worked towards outcomes that were adequate consequences for mis-behavior but also addressed the needs of the offender to change their trajectory. The victim, and the entire Commonwealth, are served when we put a youth on a path to productivity rather than a path to prison. For my abuse and neglect cases I tried to review petitions with an objective eye to determine whether prosecution was necessary or whether services and an alternative disposition may be adequate to protect the child. In those cases where prosecution was indeed necessary, I reviewed case plans to help assure that the requirements were reasonable and likely to bring about a change for the family rather than cumulative or punitive. I sought to ensure the Court, the attorneys and the Cabinet for Health and Family Services were following all legal procedures and were doing all the things necessary to give the family a real chance at reunification within a reasonable period. By doing this the, in those cases where reunification was not possible, the Court could feel confident that families had been given a fair chance under the law and termination of rights and adoption was, in fact, in the child’s best interests. Not only is this just the right and just thing to do, it assured that adoptions would not be held up by legal technicalities or loop holes.
9. How would you describe your general judicial philosophy?
I believe that families are the most important building block of our society so what we do as judges in Family Court is of vital importance to our community. I am dedicated and committed to furthering the best interests of children. I make every effort to obtain as much information as necessary, in every single case, to ensure the decisions I make serve those interests. I believe that in Family Court we are blessed with many tools to do this and I believe in using everything at my disposal. When a party is in front of me it is because the thing that they hold most dear, their family, is in crisis or transition. That fact is never lost on me; they deserve a judge who is committed to making the most informed decision possible. That means being patient, understanding and compassionate. It also means being cognizant of the fact that parties are there because they need someone else to make decisions. They need those decisions to be informed but also be made efficiently. That means being prompt, being prepared, and being decisive. Prolonged or unnecessary hearings, continuances, delayed findings and orders, and general indecision do not benefit these families or allow them to move forward. Instead it causes additional pain and increases costs for those already struggling with a difficult transition. My role is to apply the law fairly, consistently and efficiently and to help come to practical, reasonable, and just
resolutions for every family before me and to assure that all parties have equal access to the court.
10. What are some of the most significant challenges facing Kentucky's judicial system and how do you propose to address them?
The greatest challenge facing the judicial system, like most other systems, is a lack of resources. How do you make an informed decision regarding the life of a child when you know the social worker on the case has two to three times the state - and federal - mandated caseloads? You know that you are not getting as much information as you need, and the family is not getting all the necessary supervision and services. How do you address the safety and behavior concerns of a fourteen-year-old runaway who has become the victim of human trafficking but tells you in court she fully intends to return to her perpetrators as soon as you release her? Jail is not, and should not be, the answer for this child. But we lack the resources for other safe secure options for her other than release to the family who is begging you to keep her somewhere safe because they cannot. What do you tell the mother who is working her case plan and is in recovery, but cannot visit or bond with her child because the nearest foster home that could be found is four hours away, she lacks reliable transportation, and the Cabinet only has man power to supervise one visit, for one hour, every other week? This is not conducive to just results for those who are trying to do the right thing.
As a prosecutor, I served on numerous committees, boards and task forces to try and address these issues and find more resources. As a Family Court Judge, l continue to advocate for the real-world families and children who make up most of my caseload. I continue to work with community partners and think outside the box to identify additional services for these families and children. I will continue to work with our legislators, our local government officials, our faith community, our schools, and anyone else who can help address the real needs of our community and our kids.