Interview of Lee Johnson, May 22, 2023
Interviewed by Jim Concannon and Richard Ross
Retired Supreme Court Justice Lee Johnson is interviewed by his law school professor, Jim Concannon and colleague, Richard Ross about his career as an appellate judge on both the Court of Appeals and the Kansas Supreme Court. Justice Johnson's path to the Supreme Court was a little different than most who served. He was a small town lawyer, a mayor and businessman from rural Kansas. He was appointed first by a Republican governor to the Court of Appeals; then by a Democrat governor to the Supreme Court. The diversity of cases in his legal practice was a positive. The interview clearly describes how the Court of Appeals functions, and how the appointment of several judges from that court to the Supreme Court influenced how they decided cases. The role of dissents was discussed to point out their importance to the decision process. Upon his retirement, Johnson returned to Caldwell where he was born.
Blueprint for Investing in the Future of Kansas Children and Families; child sexual abuse; country lawyer; court nominating committee; Court of Appeals; dissenting opinion; Hot Court; judicial selection process; Merit Selection of Judges; Rural life; small town lawyer
Lee Johnson was born and raised in Caldwell Kansas, and he returned there to live when he retired from the Kansas Supreme Court in 2019. He graduated from the University of Kansas in 1969 with a degree in business administration and then completed two years of active duty as a sergeant in the army. He was admitted to Washburn Law School the fall semester of 1972 but chose instead to return to Caldwell to be vice president of his father’s independent insurance agency. He was actively involved in the small community. After he was appointed as mayor of Caldwell in 1976, he worked closely with the city attorney, and that rekindled his interest in studying law. So he finally enrolled in the fall of 1977 at Washburn Law School where he graduated with the highest possible distinction--summa cum laude. After graduation, he returned to Caldwell and practiced law there for twenty-one years with his spouse Donna as his secretary and office manager. For ten of those years, he was the city attorney. He, of course, continued to serve the community, for example, as president of the Sumner County Bar Association and other local boards of directors.
Richard Ross: Today is May 22, 2023. I’m speaking to you today from the Kansas Supreme Court conference room. It’s located in the Kansas Judicial Center in Topeka. I’m excited to interview the Honorable Lee Johnson, a retired Justice at the Kansas Supreme Court.
I’m also very honored to co-interview Justice Johnson with the esteemed Jim Concannon. He retired in 2019, and he has the distinction of being the longest-serving faculty member in the history of Washburn Law School, both as a professor and as the dean of the law school from 1988 to 2001.
My name is Richard Ross. I was the Reporter of Decisions from the Kansas Supreme Court and the Court of Appeals for thirty-eight years. A little longer than fifteen of those years, I worked with Justice Johnson, both when he was on the Court of Appeals, as well as the Supreme Court. Justice Johnson and his wife Donna were neighbors of mine. We’ve been friends a long time, and Justice Johnson has been a mentor of mine.
Also with us today, and this is a critical part of preserving this interview is our videographer, David Heinemann. Dave is an attorney, and a lobbyist, and he served as a former Speaker of the House Pro Tem in the Kansas House of Representatives.
Today’s interview is part of the Humanities Kansas [Culture Preservation] oral history program. The Kansas Oral History Project is a not-for-profit corporation and was created to collect oral histories of Kansans who were intimately involved in shaping and implementing public policy for the State of Kansas. It covers all three branches of government, but for our purposes, the judicial branch, this particular accumulation of oral histories is called “The Kansas Courts and the Rule of Law.” Individuals, corporations, and the nonprofit cultural organization, Humanities Kansas, make funding for this project possible. Recordings and transcripts of these oral histories are preserved and available to the public at the Kansas Museum of History, the State of Kansas Library as well as through the website, ksoralhistory.org.
It’s my pleasure now to turn this over to Jim, and he will introduce our guest and proceed with our interview.
Jim Concannon: Thank you, Richard. There have been six of my former students at Washburn Law School who have served on the Kansas Supreme Court, but Justice Johnson is the only one of them who is retired and is being interviewed as part of this series. So it’s a special privilege for me to be a part of this interview. I will give a brief introduction of a highly respected Kansas judge and a friend and ask a few questions about how he came to be an appellate judge and his role as a judge.
Lee Johnson was born and raised in Caldwell, Kansas, and he returned there to live when he retired from the Kansas Supreme Court in 2019. He graduated from the University of Kansas in 1969 with a degree in business administration and then completed two years of active duty as a sergeant in the army. He was admitted to Washburn Law School the fall semester of 1972 but chose to return to Caldwell to be vice president of his father’s independent insurance agency.
And in Caldwell, he did what you do when you’re seeking to build a business in the community that then numbered about 1,500 people. He served as president of the Caldwell Alumni Association, vice president of the Jaycees, and director of the Sumner County Fair Association. He was the first president of the Sumner County Shrine Club.
After he was appointed as mayor of Caldwell in 1976, he worked closely with the city attorney, and that rekindled his interest in studying law. So he finally enrolled in the fall of 1977 at Washburn Law School. While there, he compiled academic credentials we wish every appellate judge could have. He wrote top paper in twelve different law school classes, including my first- year course in civil procedure and graduated with the highest possible distinction as summa cum laude.
After graduation, he returned to Caldwell and practiced law there for twenty-one years with his spouse Donna as his secretary and office manager. For ten of those years, he was the city attorney. He, of course, continued to serve the community, for example, as president of the Sumner County Bar Association and other local boards of directors.
Justice Johnson has the distinction of being appointed as an appellate judge by governors of both political parties in Kansas. He was appointed as judge of the Court of Appeals in 2001 by Republican Governor Bill Graves and then was appointed as a justice of the Supreme Court in 2007 by Democrat Governor Kathleen Sebelius, even though Lee was a registered Republican.
And I want to discuss what a wonderful testament that is to how well our merit selection method of choosing Supreme Court justices works, but before we go there, let’s focus on your time and practice in Caldwell. It seemed as though the entire population of Caldwell, Kansas was in the courtroom in this building both times when you were sworn in as a new appellate judge. Would you talk about that and describe how growing up in Caldwell and being a small-town, country lawyer there for two decades influenced your judicial philosophy and approach to deciding cases?
Lee Johnson: Well, I think first growing up in a small, rural town impacted my work ethic, which carried through in several areas and certainly was a boon when I got on the Court of Appeals where I had to write around a hundred opinions a year.
But as far as the country lawyer part of it goes, I think that impacted both Governor Graves and Governor Sebelius. They both mentioned the variety of cases that you have to take. I got tickled when I read in the Wichita Business Journal an article about Carol Beier when she beat me out for the Court of Appeals, and it talked about her being in Foulston Siefken on the litigation team and on this committee and that committee. I told my wife Donna, I said, “Well, I’m all of that, but also I’m on the snow removal team for our [legal] practice.”
You had to take whatever came in the front door basically, and the biggest thing you had to realize is when it was over your head and send it on to the big boys in the city. But that really impacted my Court of Appeals time because the Court of Appeals takes all the appeals. Every docket was a variety of cases. Then that helped when I got on the Supreme Court because none of my colleagues knew anything about probate, and I’d handled over 200 probate cases. So I think the demographic was important along with other diversity on the courts.
And the philosophy part of it, after the first time I was up for the Court of Appeals and didn’t get it, the young lawyer in town came to me with a big frown on his face, and he said, “Small town lawyers all over Kansas are sad tonight that you weren’t chosen.” I kept that in mind. I tried to be a representative of that constituency within the confines of the rule of law obviously. I think it was General Eisenhower who said, “The best thing that can happen to a boy is to grow up in a small town,” and that was true for me.
JC: Even with your stellar academic record at Washburn, I suppose most people would have thought that the odds were pretty heavily weighted, kind of as you suggest, against a lawyer practicing in a community that was down to 1,300 people by then becoming an appellate judge. What made you think that ultimately it could happen?
LJ: I didn’t think it would happen. In fact, you probably don’t recall, but you and I had a conversation when I was a law student, and you were a professor. Professor Kuether assigned a case for us in Legal Research and Writing that was an actual case. We went to the Supreme Court and watched the actual case being argued. I really got interested in the appellate practice because I liked to research and write. You told me that that was probably a virtual impossibility for small-town people, attorneys that aren’t involved in politics.
But when Kay Royse passed, they sent a postcard to every attorney in the state, and my wife Donna threw it in my lap and said, “There you go, big boy. That’s where you belong,” and it didn’t cost anything except time. So I put together the application, and I have to admit when I put it in the mailbox finally after fretting on whether I was being pretentious to even presume that I could do that or be there, I didn’t give myself much chance to get on the court.
And to follow through with that, when I arrived up here for the interviews actually in this room, I was waiting, and there were several people there that I was aware of that were active in the State Bar, some judges, and I thought, “What in the world made you think you could be here?” So I decided, “You know, when I leave that room, I want everyone to know who Lee Johnson is so that when I don’t get it, I can feel comfortable that they rejected me.” And I was lucky enough to get selected to interview with the governor.
So I kind of carried that philosophy through my time on the court after I actually got there. I thought I didn’t really expect to be here. Probably no one else expected me to be here. In fact, when I got to the Court of Appeals, the sentiment was, “Who the heck is Lee Johnson? Where the heck is Caldwell, Kansas?” I owed it to myself, and I owed it to those that got me here to just be Lee. So that’s what I tried to do.
JC: Let’s talk a little more about that process. When you were appointed to the Court of Appeals, judges of that court were selected in the same way that justices of the Supreme Court still are selected today. You mentioned the nominating committee, a group composed of a nonlawyer from each Congressional district and lawyers elected by Kansas attorneys who did background investigations and interviewed the applicants and ultimately submitted three names to the governor who then would select one of them. And each time you would have interviewed not just with the commission, but also with the governor, you and the other nominees. I guess you did that a total of three times between the two governors.
LJ: Actually I did it four times because I interviewed for a district court judgeship in front of Governor Finney. So I had Governor Finney once, Governor Graves twice, and Governor Sebelius.
JC: Well, that even expands my question then – recollections of that interview process with the governors. What did they want to know about you as part of that process?
LJ: The first interview was different than the others. Governor Finney wanted to know what happened to the judge that I was replacing and wanted to know why Sumner County, which was the county where the judgeship sat, the wheat capital, why it didn’t grow more soybeans. I explained to her the rainfall difference between southeast Kansas. So much so that when we left, Donna, my wife, asked, “How did it go?” and I said, “I don’t think I got the judgeship, but I’m up for Secretary of Agriculture.”
So that wasn’t a very pleasant experience, but Governor Graves was awesome. I was in there for like an hour. He hit all facets. He wasn’t a lawyer, and actually Governor Sebelius wasn’t a lawyer, but they were both focused on getting the best judges they could get. Even though they were different parties, they were alike in that regard.
Governor Graves hit more on personal things, but also had done some research or had been contacted because he said things like, “I understand that you write well” and stuff like that. Governor Sebelius was probably more succinct. It was a shorter interview, but very intense and serious. They didn’t try to ask about how you would decide a case. They were more into your work ethic, your writing skills, just basically getting to understand what kind of person you were.
JC: Did the fact that you were a Republican come up in the discussions? Was that ever a factor?
LJ: No. It didn’t. I can’t think of anything with those two governors that was even vaguely political.
JC: And really you never had been particularly active in partisan politics in any way.
LJ: No, not at all. If the current system would have been in place, there’s no chance I would have ever been appointed because the governor would have gone, “Who’s Lee Johnson? Where’s Caldwell, Kansas?” They wouldn’t have even known to consider me.
JC: That’s kind of where I want to go next. I am interested in your thoughts about the changes that have been made or proposed to be made in the way judges are selected, and it does take a little bit to set that issue up. But obviously it isn’t surprising that politicians and special interest groups may end up being unhappy with appellate court decisions that determine the applicable law is different from what the politician or interest group would like the law to be.
In Kansas, appellate judges are accountable to a vote of the people whether they should be retained in office or not –, what, every six years for the Supreme Court and every four years for the Court of Appeals–, but some of the politicians and interest groups have gone beyond trying to influence the retention vote against a particular judge or justice and have sought to change the method by which we select our judges. Fifteen years ago, it was to elect them as Republicans or Democrats, one way or the other, but more recently, to eliminate any role for lawyers in the process and give the State Senate a veto over the governor’s appointment.
That’s the change you alluded to, I suppose, with Court of Appeals judges now. It’s really that second method that I described. Governor Kelly has chosen to go ahead and use a nominating commission by executive order, but the governor isn’t required to and is really free to appoint any lawyer to the position subject to Senate confirmation.
JC: What’s your thought about it? Is this change an improvement or a digression for the court system?
LJ: Down on the farm, we have a saying, “If it ain’t broke, don’t fix it,” and I don’t think it was broke. So they found a solution where there was no problem.
When I got to the Court of Appeals, I was pleasantly surprised with not only the camaraderie, but that it was a “all pull the wagon in the same direction” kind of feeling. There were ten of us. Everyone was focused on getting it right. There was really no political aspect to it on the court whatsoever.
In fact, when I applied for the Supreme Court, we were at lunch at Terry’s, and Christel Marquardt said, “I just read that you’re a Republican. I had no idea.” I’d served with her for six years on the Court of Appeals. It was a wonderful group of people and great jurists and good legal minds. They were all there from the old system.
On the Supreme Court, at one time, there were two justices that had come directly from private practice, two that had come from the district court, and three from the Court of Appeals. And there was geographical diversity and practice diversity. We had federal prosecutors, probate attorneys, civil, and that diversity was really important. Plus the same thing- It’s wonderful to serve with people that are intelligent and that you can seriously argue with without making it personal. So it worked for all of those years in both courts, and there’s just no reason to change.
JC: And if the result of changing would be that we wouldn’t have people like you applying for vacancies, then the whole state of Kansas would be the worst for it, I can tell you.
LJ: You cut down the pool when you don’t give everyone an opportunity.
JC: Throughout your years on the Court, you worked closely with Richard Ross as the Court’s Reporter of Decisions. I think it’s time for Richard to talk about your years on the two courts.
LJ: Is he going to start by giving me another “Do Better” slip on my opinion?
RR: I’ll wait until later for that. I do want to talk to you. The two courts that you were on, not everyone gets the chance to serve on, both appellate courts. They are very distinctly different in the way they operate. You mentioned before there were ten members on the Court of Appeals when you first got on, and I noted that when you left a few years later for the Supreme Court, it was up to twelve, and now there’s fourteen. That’s not particularly relevant to how the two courts operate. Can you describe the two courts, how the appellate system works in those two courts?
LJ: Let me start with the relevancy of the number. It has to do with the use of district court judges. When we had ten, we usually tried to have four dockets of three judges. So that’s twelve. So the first couple of years, two or three years, we very often sat with a district court judge, which made it a little bit different than sitting with someone that you deal with all the time, but it was also enlightening for me to get their perspective and that sort of thing.
But back to where you were wanting to get to is the Court of Appeals was very high volume. Each judge sat on ten monthly dockets, and there were thirty cases per docket, ten assigned opinions [to each judge]. So if you take ten months times ten opinions, that’s a hundred a year.
My most prolific year I filed ninety-seven opinions. If you do the math, that’s one every two-and-a-half business days. The only problem is, with those thirty cases, you’re reading two briefs, at least two briefs a case plus pre-hearings on all of them. So you’re looking at a week, a week-and-a-half of reading before the docket. So you don’t have that two-and-a-half days.
So it’s very high volume, and where that comes into play is that with three of you, you need two votes for a particular position to be in the majority. Very often, if you could get another one to go with you, that’s it. You’ve moved right on. You didn’t really discuss it. You didn’t try to soften your position to assuage [the dissenter]. You just said, “Write a dissent.” And perhaps that’s where I got started writing so many dissents.
But when you got to the Supreme Court and there’s seven of you, you’ve got to convince three others. Very often you have to compromise your positions or soften your position to gather a majority. Obviously with seven people, there can be seven ideas instead of three. It’s just different. The small group dynamic is different.
RR: The process was similar though in your discussion of the opinions.
LJ: Oh, yes.
RR: Three and seven. You had more than one, but you still—
LJ: We got some Court of Appeals judges on the Supreme Court. We kind of changed the process. When I first came on the Supreme Court, you had a whole week of arguments, and then you had an administrative conference and all that before you’d go conference the cases. And I remember one time I presented a case for conference eleven days after the argument.
And on the Court of Appeals, we’d hear the argument in the morning, and we’d go right back and conference them. So we started doing that on the Supreme Court where we just heard the arguments in the morning and conferenced the same day. It’s a much better system.
RR: I remember when that happened. Four judges from the Court of Appeals on the Supreme Court made a huge difference in the process.
LJ: Yes. That made it real similar to the same decision-making process.
JC: I can jump in with a couple questions about the process of deciding cases that I don’t think have been raised in the other interviews. Those who’ve never watched an oral argument in an appellate court might assume that the lawyers present uninterrupted presentations of their positions on behalf of their clients, much like lawyers do in a closing argument before the jury. But as your smile indicates, that isn’t what happens. Appellate judges are free to interrupt lawyers at any time to ask questions.
You in particular earned a reputation for asking incisive and intricate questions during oral arguments and also quite a reputation for the frequency with which you asked questions. What was your philosophy or purpose in asking questions? Was your approach different from that of your other colleagues?
LJ: My reasons are probably multiple reasons. One, the arguments were going to be in the morning and in the afternoon. I’m going to have to make a decision on how I’m going to vote. So part of it is to help me make up my mind. That’s part of it.
Part of it is, I’ve already made up my mind from the briefs and the pre-hearing that this is the way it should be, but I’m going to give you a chance to tell me, to show me the error of my ways. I didn’t feel comfortable voting one way without the attorney that’s going to lose in my way having the chance to tell me where I’m wrong.
And quite frankly, sometimes those questions are directed toward your colleague. I don’t know if that’s right or wrong, but that’s what happens. When somebody asks a questions one way, and you think, “Well, let’s get the other side of that story out.” So you’ll ask a question that points out the rest of the story on that other question. So there’s multiple reasons.
I used to say that on the Court of Appeals, it was interesting to see that when you asked the first question, you’d get one of three responses: deer in the headlights, scared to death; anger for “How dare you interrupt me? I’m right here in my legal pad”; and the third is, “Judge, I’m glad you asked that question,” and you gave them the opportunity to get in and we could have a discussion, and it was fun.
So part of it was fun to get into a good legal discussion, and people used to say, “You can tell which way they’re going to vote by the questions,” but by the time I left the court, you couldn’t tell which way we were leaning because everyone’s trying to get everything out on the table, get all the arguments out on the table.
I think part of the moving toward a hot court on the Supreme Court had to do with when they started having more of us coming up from the Court of Appeals, maybe.
RR: Would you explain that? Hot court?
LJ: The hot court is asking questions. A hot court has read the briefs and has received a pre-hearing memorandum that gives all the facts, an impartial statement of the facts, a review or summary of all the law, and how it should apply or how it could apply.
So we’ve all gone through all of that before we get to the argument. In fact, some of them are submitted on the briefs without the oral arguments. A lot of people say, “Well, oral arguments don’t count,” but of course, they do.
JC: To follow up on that, how frequently would you say the answers to your questions at oral argument caused you to change the way you decided the case from what you thought initially or at least altered the kind of opinion you wrote?
LJ: I would say the alteration was more frequent, of course. Not too often does it make 180 degrees difference, but occasionally it does. And I would say more often the side that I thought would win their position has lost in oral argument rather than persuaded from the other side, if that makes sense to you because they give it away by not understanding what their case is.
But very often it makes a difference in how the opinion is going to be written up, and ultimately, not for the litigants—win or lose is what they’re after—but ultimately for the law, what’s written up is what’s important for the future.
JC: When you think of oral argument having value in those various ways, you mentioned that a number of cases are submitted without oral argument, particularly on the Court of Appeals. I guess both courts have summary dockets, but the Court of Appeals uses it more, and there, oral argument isn’t permitted, and you just decide the case on the written briefs. Is that just a function of the volume of cases, or is the assignment to the summary docket really a statement, “This case is going to be affirmed, and it really shouldn’t have been appealed in the first place”?
LJ: I’m not sure I’m an authority on how they get vetted to assign it because I wasn’t involved in assigning them, but typically those are maybe single-issue cases with precedent that make them less likely that it’s going to be—it’s not going to be a close case. But I will say very often on the Court of Appeals out of the thirty cases, you may have ten that are argued and twenty on the summary, and I said very often when we’d go into conference summaries, “I wish I had this question answered on this one.” There are questions that pop up. So it’s not ideal, but like I said on the high volume, when they’re filing 2,000 appeals, you’ve got to do something to get through them. That was a concession to the logistics, I think, more than anything.
RR: I think part of the determination is if the issue involved in the case has been litigated multiple times, and it doesn’t look like it’s going to change. So put that case in the summary calendar.
LJ: Right.
RR: I want to switch at little bit to the actual writing of opinions. I don’t think that in the prior interviews with justices this has even been dealt with. It’s dissents, the importance of dissents, and how dissenting opinions operate, and how you view dissents in both courts because there’s a difference.
LJ: As I mentioned on the Court of Appeals, you didn’t have as much time to conference and debate each individual one. Very often, if you had to, “Well, we agree this way,” and if the other one cannot accept that, they have to write a dissent. But on both Courts, the case is assigned to a jurist before oral argument. When the docket comes out, they assign who’s going to write which case.
For instance, on the Supreme Court, I’m assigned a case, and we come into conference, and there are two other people that agree with how I think it should be decided. Well, that means I’m in the minority. So what they normally do is then they give that to the next person in seniority to write the majority, and that person gives me one of their cases that they’ve been assigned to write the majority. Then they will write the majority opinion and then give it to me because I’ve already indicated I’m going to write a dissent. I’ll write a dissent, and then they will take it and circulate it among all the justices.
If I’m incredibly unlucky, one of my majority colleagues will go, “I like how that dissent reads. I want to change my vote,” which means that I tear up that dissent I’ve spent a week writing, and I have to write the majority again. So that not only causes me a lot more work, it also delays the issue.
What’s been somewhat of an issue is getting the opinions out timely. There are a lot of things in the background that people don’t realize. It’s not just being lazy. It’s just things take time. It takes time to circulate them because each person reads it, and they may have some changes that they want made. “Well, I can agree with this if you’ll change this part, or if you’ll fine-tune this part.” Sometimes they’ll just get to the point where they’ll say, “We just have to sit down and reconference it.” We’ll come back in here and start from scratch and reconference it.
So on the Court of Appeals, it was more “Write the majority. Write the dissent. Circulate it.” You didn’t flip as much. Usually if you had two people that agreed on the majority and one writing in dissent, it didn’t matter if all the rest of the people on the court agreed with the dissent, that panel wouldn’t change.
RR: And sometimes you’re dissenting once you see the majority opinion, and it just may not be going the way that you thought conference had discussed it? Or you’re seeing a different view of it once you’re seeing the majority opinion.
LJ: Right.
RR: Then you write a dissent. You said it was unfortunate if it flipped, but in reality, of course, it wasn’t because that’s your whole goal, but I understand.
LJ: Right.
RR: It takes so much longer when that happens.
LJ: Right.
RR: And the public does not understand how long that takes.
LJ: You write the dissent hopefully to persuade someone on your court to change and make your view the dominant view, but I think there’s other reasons to do that. One reason I think is very often the fact that– Chief Justice [Lawton] Nuss mentioned it when I retired– is that I didn’t often change their minds, but I fine-tuned the majority opinion. Sometimes a dissent will persuade the majority to fine-tune something to soften it up or make it more generic, which accomplished parts of why you’re dissenting.
Another reason is to let the loser know that that argument was considered because it’s there. But like Justice [Ruth Bader] Ginsburg says, most dissents are written for the future age. You hope that down the road, someone will pull up the case, read your dissent, and it will gradually become the dominant view in the future.
Also there are times when one can dissent but won’t publish it, what Justice Ginsburg called “the graveyard dissent.” For instance, on the school finances cases, if you had an insignificant point or not the main point that you disagreed with, it was more important to speak in one voice than to quibble over some minor details. So there were times when you raised a dissenting opinion in conference that you don’t actually publish it.
RR: Thank you.
JC: I’ve read dissents in the Court of Appeals where it sounds like the dissenting justice is really trying to encourage the Supreme Court to grant a petition for review.
LJ: Exactly. On the Court of Appeals, one of the people you’re speaking to is the reviewing court. Exactly. And sometimes you’re speaking to the legislature, that this law needs to be changed. This is what’s wrong with that law. It’s not doable.
JC: Kind of a corollary maybe to the point about dissents. In several high-profile cases, you determined that the Kansas Constitution conferred greater rights than those recognized under similar provisions in the US constitution. I’m thinking the death penalty cases, some of those, for example. What principles guided your analysis when you were considering an argument that the Kansas Constitution granted greater rights than the federal constitution?
LJ: I think I quoted that article that was written on that, that historically the Kansas Supreme Court decided its own interpretation of the Kansas [Constitution] and didn’t defer to the federal [courts]. That’s the main reason. We have a state constitution. It’s not the federal constitution. It’s the state constitution. The Kansas Supreme Court is the highest court in the land when it comes to interpreting the Kansas Constitution. So we ought to do that and not defer to an interpretation of a similar provision in the US Constitution.
For instance, the cruel and unusual 8th amendment; in Kansas [that provision] is cruel or unusual, and there’s a difference between “and” and “or.” To interpret the Kansas [provision] as [if] it’s “and” doesn’t do justice to the founders that used “or.” Obviously, federal jurisprudence can give a roadmap or be persuasive, but it shouldn’t be mandatory. That’s just how I felt.
RR: Are there cases that come to mind that you found were the most interesting or the most difficult for you or that you were most proud of? In other words, are there outstanding cases?
LJ: I just was talking to Ashley Jarmer, my former research attorney that wrote the pre-hearing memo on an oil-and-gas case with a rule against perpetuities issue, which is everyone’s nightmare except mine. That particular case had the capability of creating chaos in the marketable title of mineral interests in the state of Kansas. She and I were able to put together a creative, yet I think legally sound argument to maintain the status quo and not upset decades, if not centuries worth of deeds.
I was proud of that case, our work on that. When you talk about “difficult,” I probably agonized more, probably stressed more on the registration cases, when you’d see how people’s lives were absolutely devastated by the sex offender or the violent offender registrations, which was based on the fallacy that that was not a punishment. There wasn’t anything I could do about it, and it was stressful.
The emotionally draining obviously were the sexual abuse cases. I had to defend—as an attorney, I was appointed to defend the defendants in some child sexual abuse. That’s emotionally devastating. Up here, it’s the same way. When you have to reverse a conviction on somebody that has done egregious acts because even the guilty person is entitled to a fair trial, it’s not a pleasant thing. It takes away a few hours of sleep.
RR: That might be the most misunderstood ruling to the public.
LJ: I imagine.
RR: They don’t understand the difficulty of that.
LJ: I have heard the most at the golf course and around town about the horrible ruling on the Carr case [Kansas v Carr]. My answer is, “What part of the 300-page opinion didn’t you agree with?” But I understand. I understand what people are thinking. It was egregious.
RR: Hopefully, this kind of discussion for people who don’t understand how that works, maybe this will resonate with them. They’ll understand. That’s our hope.
LJ: Yes.
RR: Are there other issues or other things you would like to bring up?
LJ: I’ve watched some of the other court interviews, and the point I’d like to make is the great contribution the staff makes to the operations of court, and how essential they are. People probably don’t realize how much manpower and money is necessary to run the court system and to get our opinions out. The Clerks’ Office does yeoman work. We couldn’t have operated without the Reporters’ Office to help us get the opinions right, get them correct, get them grammatically correct and typographically correct and make sure that the cases cited to say what we say they say.
Personally, a judicial assistant would help me edit the opinions before they went to you, and of course, kept everything running. The two research attorneys were just invaluable. I think my second docket on the Supreme Court was a Hutchinson explosion case, and the record came up in twelve bankers’ boxes, and my research attorney—I just had one—had to go through twelve bankers’ boxes of transcripts and exhibits and all of that and summarize it for me. It’s just unbelievable how much work they do and how essential they are. So I just wanted to give a shout-out to the staff and to all of the support people.
Secondly, Justice [Ed] Larson had mentioned about the administrative duties of a departmental justice. I just want to expand on that. In addition to the individual administrative duties, the court as a whole has pretty onerous administrative duties that take a lot of time.
I had hoped when I went from the Court of Appeals writing ninety-seven cases a year to maybe writing twenty-five or so that it would give me more time to contemplate my navel and fine-tune and make a Nobel Prize-winning product, but I found out that the time we spend in administrative conference, promulgating rules, when it was furlough, how are we going to take care of speedy trial? Budget, budget, budget. How are we going to make the fishes and loaves go when they didn’t give us enough money? It was just really a surprise to me how much of my time was consumed in what I considered non-justice stuff, administrative stuff. So people don’t see that.
RR: But there’s probably not much of a solution to the problem either.
LJ: No, it has to be done. Part of that, before I got here, was self-inflicted. I think in years past, the chief just made unilateral decisions. Some of my predecessor colleagues wanted to be involved in it. Then if you solve something by committee rather than one single person, it takes longer.
But I think it’s better. And all of us have a different background. I’ve got a little business background. So that helps in some areas. Other people have backgrounds that help in other areas. It’s a better situation.
RR: Anything else? What are you doing now? You’re retired.
LJ: I have nine-and-a-half acres of yard to take care of and 125 acres of pasture to take care of. That basically takes most of my time.
RR: It’s been a pleasure to visit with you. It’s been very insightful, I hope, and I’m honored to have that opportunity.
JC: And me as well.
LJ: I’m honored that you chose to interview me and that you thought I had something worth listening to. Thank you.
RR: Thank you on behalf of the State of Kansas for your work on both the Court of Appeals and the Supreme Court. And thank you on behalf of Humanities Kansas for participating in this oral history project.
LJ: You’re welcome.
[End of File]
June 28, 1947
Mayor, Caldwell City Council
Judge, Kansas Court of Appeals 2001-2007
Justice, Kansas Supreme Court 2008-2019
Kansas Judicial Center, Topeka, KS
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