Interview of Richard Ross, March 13, 2024

Eric Rosen: Good morning. Today is March 13, 2024, and we are in the Kansas Supreme Court conference room, and just for introduction, this is where the Supreme Court meets to discuss cases, to analyze issues, and formulate opinions that will be much a part of the work that we’ll be discussing today. My name is Eric Rosen, and I’ve had the honor of serving on the Kansas Supreme Court since 2005. Today we’ll be talking with Richard Ross who for nearly thirty-nine years, specifically from 1977 to 2016,  served as our Reporter of Decisions. And what we’re going to be talking about is the process that involved the editing and the efforts of his office and his staff of creating the Kansas Reports.

Before I get started, just a little bit of background. Richard was the youngest ever appointed to the position to serve as Reporter of Decisions. Like I mentioned, he served in that position for thirty-nine years, and he was editor of over 132 volumes, 81 Kansas Reports, and we’ll discuss what that entails, and 51 Kansas Court of Appeals Reports.

Before we do that, let me give you a little bit of background about Richard. It is indeed an honor again to do this this morning and to talk with him. He was born in 1949 in Manhattan, Kansas, and his family moved shortly after his birth, 1951, to Topeka, Kansas.

He received his education in the Topeka public schools, attending Southwest, which later became Whitson Elementary School, Capper Junior High, and then graduated from Topeka West High School in 1967.

What I want to first ask you, Richard, is that I’ve noticed when I’ve gone back to Topeka West and looked at the Graduate Hall of Fame, there are more graduates that are in the Hall of Fame including yourself from 1967 than perhaps any other class. What I’m wondering and what that generated in my mind, was there anything in particular that you experienced either with your peers educationally, family wise that created such an environment where your classmates flourished? We have local, statewide, national, and international people of influence and have reached a high degree of acclaim. Let me just kind of start there with your life. Can you think of anything you think that could help—

Richard Ross: I don’t know of anything in particular, but I have heard many times from teachers that there are some classes that stand out more than others, and that ours was clearly one of those classes, clear from grade school. Many of those people from grade school are still friends of mine, and that was another unique thing about our class. Young people today don’t experience that because there’s so much movement around, but back when I was there, people stayed in their homes and they stayed in their schools. There wasn’t a lot of mobility. It was an exceptional class. I had to compete against a lot of very brilliant people, and I was just treading water.

ER: I think you’re understating your contribution to your class, but that’s interesting. It really does kind of stand out, and I’ve been to different events at Topeka West, and like I said, your class, and even when I go to other Hall of Fame ceremonies, there seems to always be somebody from your class.

RR: We do have three more than any other class, which is pretty outstanding since there’s not that many in the Hall of Fame right now.

ER: Again, I think it speaks to you.

RR: And you’re also in the Hall of Fame. Let’s make that clear.

ER: I’m not talking about that. I’m talking about what your class contributed. So from Topeka West in 1967, you graduated and went to Washburn University, graduated with honors. And then right after that, you went to law school at Washburn and graduated in 1975.

Let me ask you the same thing about Washburn and maybe in particular Washburn Law School. Was there anything that you experienced in your education there that contributed to such a great career and success that you’ve had here in the Kansas Supreme Court?

RR: I’ll first say that after I graduated from Washburn University, I did take a year off. This was in the middle of the Vietnam War. I thought I was going to be drafted. I had a very low draft number. When I took my physical, I was told I had flat feet, which I knew, and that would keep me from being in the service.

So it gave me an opportunity. I kind of needed a break from school. So I spent a year working, and then I backpacked in Europe for ten weeks right before I started law school. I got back just in time to start law school.

College, I wouldn’t say it was easy for me, and there were some very challenging subjects. The professors at Washburn were great, but I seemed to handle it fine, and I was working thirty hours a week, and I continued to do that in law school my first semester. I realized that this is a whole different ball game. I didn’t do as well on my grades that first semester as I had anticipated I would, and I knew it was because I was working too much. So I quit work and concentrated more in law school.

I had a really good class. Probably every class is good in law school. You’ve got brilliant people. But the professors there are very good and challenging, and law school is challenging.

ER: Yes, it is.

RR: It never occurred to me that this position existed. I didn’t know anything about it.

ER: I want to get into that. So you graduated in 1975.

RR: Correct.

ER: And you had, as I did, just an excellent experience at Washburn Law School. Tell us about your first job. How did that happen? I think it was here, wasn’t it?

RR: It was. When I was in law school my last year, I was an intern at the District Attorney’s office. So I did some trial work there. And then my goal at that time was to get a position in Washington DC. I loved Washington DC, and I thought, “What a great place to live and to work.” I had gone back to apply for a number of positions, some I didn’t get called back on, but two in particular, I made the final two cuts. It was taking them a long time to make a decision between me and another person on both of those positions.

I was studying for the bar exam. A friend of mine who was a research attorney called me and said there’s a position open in the Reporter’s Office. And I thought, “I wonder what that is.” So I thought, “You know, I probably need a back-up plan. I need to have something when I graduate. So maybe I’ll interview for that job.”

So I called the reporter, and he told me that I needed to bring seven resumes because I needed to go to each justice’s office and give them a copy of my resume. I thought, “Well, that’s interesting.”

ER: I would have been very intimidated.

RR: I thought I would only be interviewing with the Reporter. So I came up with my seven, and I talked to him. Then I went around to all the offices. He didn’t introduce me. I just had to go around to them.

ER: And you say “he.” Who was the Chief Justice at the time?

RR: I’m talking about—the Reporter was Bill Dumars. The Chief Justice was Harold Fatzer.

ER: I needed that perspective.

RR: So this was kind of an interesting situation. I went around, and most of the justices, I met them, they took the resumes and said, “Nice to meet you.” No discussion whatsoever.

ER: Let me just kind of frame the time. This was 1975, the summer. Tell us, was this building here at the time?

RR: No, this building did not exist. The legislature hadn’t even approved building the building. This was the Supreme Court. We didn’t have a Court of Appeals then, and they were at the Capitol Building. So my office was in the Capitol Building on the fourth floor.

ER: And the Supreme Court Chambers and that courtroom has been refurbished, but what was it like back then? There was a need to obviously have a new building because the legislature allocated funding for that, and the Supreme Court had been advocating for that for a long time. What were your confines?

RR: I think the legislature also wanted that space. They wanted more offices for their work. Chief Justice Fatzer had been the Attorney General. He had a political background. He knew how to get things done. He pushed this through. It was not an easy thing. He pushed it through, and they started building the building, which then opened. It was dedicated in 1976.

ER: September of 1976. So you first interviewed at the old Supreme Court.

RR: Well, let me tell you about how I actually got the job.

ER: Please do.

RR: I went around to all the justices, and then I ended up with Chief Justice Fatzer. He sat me down. He looked through my resume, and I had listed an attorney, a very prominent Topeka attorney, Ward Martin. I used to mow his yard. That’s how I knew him. He let me use him as a reference. Chief Justice Fatzer goes through and he looks down at that, and he said, “Did you know that Ward and I were roommates in law school?” I had no idea.

ER: Sometimes the stars line up.

RR: I soon got the job. So that was great. At the time, I didn’t really understand what all the work was, and it did change considerably over the time I was there.

ER: And I appreciate, Richard, that the connections are nice, but certainly I imagine your resume reflected the skills and ability that—

RR: I did have an English degree with honors. I was a good writer. I had some skills that fit this.  And then I ended up not getting either of those two jobs at DC.

ER: So you started there. Tell us what your responsibilities were initially. I want to get to the challenging role that you had as the Appellate Reporter.

RR: Initially, just like the Supreme Court met in the Capitol building, it was a lot different in publishing the reports. The state printer was located on the corner of the grounds that this building is located.

ER: I think I remember the building.

RR: So they printed the Kansas Reports, easy access. But at that time, there were no computers. We didn’t even know about computers. There were no word-processing machines. There were soon after I started.  In my office, there was the Reporter and a First Assistant and a Second Assistant and a Law Clerk.

The First Assistant was appointed from my law school class. She had about a month before I was. They gave her the entire month to study for the bar. She was getting paid at a higher rate than I was as Second Assistant. But regardless—

So our job was to look through the Advance Sheets. Now, an Advance Sheet is a kind of a month publication of the cases that were filed. It’s kind of a preliminary print-out just to get it out to the public and to the bar before the bound volumes. The bound volumes are the permanent volumes of the decisions of the Court. The Advance Sheets are not permanent; they’re just a means to get the information out quickly.

So, we had to read the Advance Sheets. And, unfortunately, I started working the day after I took the bar exam. A lot of the questions for the Kansas portion of the bar exam were cases heard by the Kansas Supreme Court that showed up in the Advance Sheet that I was reading. I’m thinking—

ER: How bad did you panic?

RR: A lot. “I didn’t get that right.” It was very painful.

But at that time, the printer did hand set lead lines. So, every line was set, and there could be fifteen errors on a page. It was horrendous.

ER: So who created the advance sheets that you reviewed after that? Was that an effort of the Reporter’s Office?

RR: Yes. The Reporter does all the publishing.

ER: So the Advance Sheet is created.

RR: Working with the State Printer.

ER: Right. Then you review the advance sheets. And we’ll talk about these volumes.

RR: The justices each had administrative assistants who typed on a typewriter. During my time there, the Selectric typewriter came into being. It was like gold. That was just this novel thing. But they would type the opinion, and then we would get the copy, the typed copy, as another copy—we would get a copy, but the original would circulate back to the members of the Court for their review and their comments.

And nobody was supposed to write on that original copy because that’s the one that was going to get filed. But in our case, we could write on the copy. But any time we found an error, a misspelled word on the page, that administrative assistant would have to retype the page, and we’d have to re-review it. It was very painful.

ER: So, in those days, this is really interesting to me because I came on the Court where we had the advantage of computers, transcription, all kinds of things that allowed editing to be not a complicated process. How we edited might be, but the act of doing it was not that complicated compared to what you were dealing with initially.

RR: Then we got the first word-processing machines before any of the judicial offices got computers. So there were two secretaries that were hired in the Reporter’s Office by my predecessor to do word processing. They would get the opinions, and they would rekey them into the word processing. Then they would sit, and they’d read back and forth out loud to see if they had any corrections on that. I never proofed their work, but they were proofing their work. It was a lot of work.

ER: Richard, I think what you bring to this, not only your career, but to this conversation is just probably more technological change occurred during your tenure than in any other time in the Court. I might be wrong about that in terms of the advent of typewriters.

RR: I’m sure you’re right.

ER: And that kind of thing. But this is amazing, the transformation that you helped bring along in your career because you’re starting off with this basic—if there’s a mistyped word, you’ve got to redo the whole page. And I’m wondering how it worked when—because I know how I work. I’ll change things after I’ve thought about it, and it’s circulated. “No, I want to say it this way.” Was that type of thinking restricted back then?

RR: Yes, I think self-restricted. Later on when I did more work directly with the justices as opposed to the administrative assistants, administrative assistants by and large weren’t very keen on getting corrections. And some in particular were very—

ER: I can imagine.

RR: Some of them were somewhat difficult to work with because of that. And I understand it. Then they’d be upset and they’d retype it and then make another error in the new one. It was kind of crazy.

ER: I don’t want to jump around too much because I want to follow—this is kind of a transgression, but as a result, were opinions shorter then, do you think?

RR: You’re very observant. They were definitely shorter. I think with the advent of using electronic research, that’s what made opinions just balloon in size. It was just so easy to add more to it.

Justice Fontron was on the court for just two months before he retired. I worked with him, and he was legendary in his short opinions, very interesting. He was a very interesting writer. But it’s difficult to write short opinions. Somehow, he mastered that, and he was sort of the gold standard I think of how to do that.

But definitely the opinions were shorter. Definitely. No doubt about it.

ER: So you started in 1975 as an assistant, and then the move. I don’t want to spend too much time, but how did the move work? You were a part of that, too. This is incredible. I was thinking about this as I was preparing for today’s discussion that you’re one of the few people—I mean, there’s other people that can talk about it, but you’re pretty fresh out of it. You experienced the move as a professional. How did that work? How did that go?

RR: When you’re talking about the move—

ER: The move from there to here, across the street. I’m looking at the Capitol right now. I know in distance, it’s short.

RR: I should probably say that it was a little over a year and a half that I went from Second Assistant to First Assistant and then the Reporter. It was very fast movement.

ER: A fast track.

RR: I won’t go into how that happened, but it was a good move for the court, and I was surprised when they chose me. It was an unexpected thing for me.

ER: Tell me how old were you?

RR: Twenty-eight.

ER: Twenty-eight years old, and you’re in this position.

RR: So I was the youngest in the country. I was doing the work– I’ll put it that way– I was doing the work for my predecessor. He didn’t spend a lot of time in the office, and I would take his work and redo it, frankly. That went on for long enough that I decided I needed to go get a different job. So I started to apply to private practice, and I’d had one interview.

Fatzer had retired, and Chief Justice Alfred Schroeder called me to the office and asked me my plans. I told him, “Well, I’m just starting to interview,” and he said, “Don’t make a decision. We’re going to the Judicial Conference. When we come back, I want to talk to you again.”

And then he called me down and said, “We want you to be the Reporter,” and he asked me when I wanted my predecessor to leave. And I was aghast. But it was time for him to leave. It was a good time for him to leave, and he served thirty years. Then I think eventually he was very glad he did it at that time.

So on the move part, he was part of—they had the plans on this building, and he was the contact person for the Reporters Office, and I could tell that some things weren’t going to be set up the way it should be for the office, but I didn’t have the ability to speak up about that. So it was a very awkward thing for that. I had to sort of do it after the fact when we were moving in or right before we moved in. I had to make some changes to my office space.

I think we were all excited to move over here. The legislature, it cost like ten million dollars for this building, and it was a cost overrun. The legislature was not happy about that. So there was some angst between the two branches. Imagine that.

But the move I think went smoothly. But when we moved over here, we got computers, and it was all set up. Whatever they agreed to with this contract, they got—it was called Wang. That was the name of it. I was on a committee that helped decide what we were going to get, and I just kept saying at every meeting, “It has to be compatible with the State Printer. It has to be compatible,” and I was assured it would be.

It was absolutely not. It was a nightmare for my office. A nightmare. It was awful.

ER: You had the Wang computer. Some of us do remember those, and it was not compatible with the State Printer.

RR: Not at all.

ER: With what the State Printer was doing. Wow.

RR: I was spending a lot of hours up there trying to redo stuff and get that—they finally got rid of the Wang and got something different that was compatible, and that was very welcome.

ER: Did you see any kind of difference in how—I’m just curious—in how the court functioned. State history-wise, all three branches were under one roof up until 1976. While it was a short move not under the same roof, was there any difference in terms of how the relationship with the legislature, the executive branch changed as a result or not that noticeable?

RR: I’m not sure I can completely answer that, but I think when you’re all in one space, and you see each other—

ER: That’s what I was wondering.

RR: That’s probably a good thing, and when you separate—and that was really part of it. Both branches I think really wanted to emphasize they were separate. So I think that part was good. But when you don’t say hi to people or talk to them, it’s easier for things to move apart.

I should say that the Court of Appeals came into existence before we moved over, and the Court of Appeals judges, only two of them were in the Capitol building. The other five were located in an office building downtown. That was hard for my office to go back and forth.

ER: And just to revisit that, the legislature passed a Constitutional amendment creating the Court of Appeals, actually re-creating.

RR: Right.

ER: It was short-lived in the late 1800s.

RR: They didn’t pass it. The people passed it. They voted on it. But they created the Court of Appeals.

ER: What did that do? I was thinking again, just still talking about your transition to the position, your moving over here, and then all of a sudden, there’s a brand new court that you’re also responsible for the editing of their reports and creating reports. Tell us about that. What kind of an undertaking was that?

RR: It was a lot more work involved.

ER: Did they increase your staff appropriately?

RR: I fought for an increase over many years. Every once in a while, I’d get somebody. Not initially. I would say, probably very few people know this, but I took work home every day from the time I started as a Reporter.

ER: I can tell you, to the time you finished.

RR: Yes, I did. The first, I would say twenty-eight years, I read every opinion. And I read every opinion after my staff did its work, and we haven’t talked about what our work was yet.

ER: That’s next.

RR: I couldn’t complete all that at work. I always took work home. And then with the Court of Appeals, there were just more opinions, and then there’s more people to work with, and it takes time to go back to an office and explain the corrections and changes and proposals. The work load really was significant, but the quality of the judges was the same.

I always respect how our state chooses our judges, the justices in the Appellate Courts because people rise to the top that want the position, and they’re qualified. So for the most part, they were easy to work with. It was just the world load was hard.

ER: Let’s talk about your work. As I introduced you, I talked about this being the room which I for the last eighteen years have sat in a variety of different chairs, that table, and what we do is we hear oral argument, read the briefs, discuss the cases, decide the issues, the seven of us–the Court of Appeals: it’s a panel of three– but we decide the issues, and then write for the most time, most of the time a unanimous decision and circulate that amongst ourselves because you’re writing for the Court, and then we create a product, and it’s handed off to you. And sometimes in that process, you get kind of a preview of what we’re doing.

But talk about your work and how you start with the opinion and what you do and what the goal is because I always thought it was trying to make our opinions uniform. Well, you can’t do that when you’ve got seven different authors writing in their own styles. Tell us a little about first how it starts off and then what you do with it.

RR: First, we receive a copy of the written opinions at the same time that you circulate.

ER: Right.

RR: So it’s a simultaneous process. But in my office, a staff person—initially I was part of that, but when I took over, I really wasn’t doing the initial review of the opinion, but we have access to the record, which you relied on obviously, and so our job was to try to find any error that might exist in the opinion, and it might be an error of fact. It might be an error—somehow the statement of law or the particular law might not have applied as well as another statement, but everything that is cited as authority was reviewed by the person that was doing that initial check, and by “review,” that means reading what was cited and really discerning whether that supported the proposition that it’s cited for.

We challenged a lot. In the law, there’s certain references before a cited authority. It’s kind of a key word that would indicate that it supports it in full, or it’s a contrast, or it supports it in part. So our job was to make sure that the correct introduction to that cite with that key word was there so that you could rely on that authority for that particular purpose. And we frequently challenged that.

ER: And when you say “challenged”? That would be pushed back?

RR: Maybe that’s a bad word.

ER: No, no. I was the recipient of maybe one challenge. But that’s significant because again, throughout your career here, I don’t know, have you totaled up how many different justices that you’ve worked with, but we each have our own particular style and our own particular kind of wishes for what we want on the written page, and there is a give and take between your office and what is done, and sometimes it will be—I can speak for myself—there’ll be a suggestion, and I’ll say, “Ooh, that’s a really good suggestion,” most of the time it is, but other times, I reject them. Explain that give and take that you have with either the authoring justice or other contributors to the opinion.

RR: I think, as you referenced, every judge, justice has their own writing style, and they may have different backgrounds on grammar and punctuation, that kind of thing. But our role was to—and I had to repeat this a number of times when someone was not—a justice or judge was maybe disagreeing, and I knew that they really needed to change something, and it wasn’t just a style. So I would tell them, “You’ve written this opinion. You’ve had all this background.  You’ve heard the arguments. You’ve gotten the pre-hearing memo from your staff, and you’ve had your discussion in the conference room. You know what this case is about, and then you know what you’ve written.” But just like all of us, I think, when we write something, we know what we’re writing or intending to write, but sometimes if you let it sit, and you come back to it just a few days later, you realize, “Oh, it doesn’t say what I’m intending. I need to make this”—

So I would say that you don’t have the luxury of putting things aside. You just have to keep moving along. My office is the one that’s looking at it cold. Sometimes we see it in a way, we know what you’re trying to say, but it might be a little bit ambiguous, and maybe you want to look at that.

But I also would say that you’re the author. Your name is on the opinion. We’re making suggestions, and unless it was really wrong, I would let them know that they make that decision. But if it’s really wrong, which is not very often, but I’d have staff come back to me, and they’d say the justice or judge wouldn’t change this, but this isn’t correct. And I would review it and if I thought my staff attorney was correct, then I would go down and talk to the judge or justice.

I had a pretty good percentage of getting them to change it. In fact, when Judge Abbott was the Chief Judge of the Court of Appeals, and he would often reject what someone in my office, the change that they wanted. It was more of a, I wouldn’t say “substantive,” but just wording more than grammar or punctuation, and they’d come back to my office, and he wouldn’t change it. I’d say, “Well, that’s wrong. Let me go talk to him.”

I would go down to his office, and he had a little bell on his door so he could tell when somebody walked into the main office, but he would hear that, and he would holler out, “Okay, Richard. I’ll change it.”

ER: Without any problem.

RR: Without me even going in there. All he wanted was to talk to me. I’d go in, and we’d have a little chat. He was great.

Anyway, it was different working with every judge and justice. Some were very accepting. Others had a little more resistance. And then over time, you said uniformity, the writing shouldn’t be uniform, but the grammar, punctuation, and the citation style in my opinion needed to be uniform. And I worked on that even when I was Assistant Reporter, trying to make some changes, and it met with some resistance from the administrative assistants, but I eventually got a Court that was agreeing with me, and we printed out our own citation style, and at some point, the Supreme Court had a little edict that declared that the Reporter’s Office had full authority over grammar, punctuation, and citations.

ER: And that was for consistency’s sake, I imagine.

RR: Yes, and that was wonderful. That just helped move things along. And I think it was obviously for the better in my opinion. But the actual style—everybody needs to have their own style, and I didn’t want to mess with that.

ER: Yes, and I think that’s reflected in the reports and in your work. You’ll go back and look at an opinion. I remark that while the writing style, the writing ability of that particular justice on this case was brilliant. It just depends on the flow, and you wouldn’t want to disrupt or change any of that in the individual contributions.

RR: I think the biggest thing that we’ve contributed to the opinions is to verify the cited authority and analyze it. I think that’s why attorneys need to be on the staff because they’ve gone to law school, and they can understand how all that works. But I think that makes those opinions stand out as being authoritative.

ER: So, Richard, as our backdrop here, we start at Kansas Reports 223 and go clear to 303. If my math is serving me correctly, that’s eighty-one volumes. It’s a lot of volumes.

RR: It’s a lot.

ER: Tell us. So you put together, you have the opinion. The majority, sometimes a concurring opinion or a  dissent. They are then—now we do it like on Fridays when they are ready to be published and viewed for the public. How did it work when you first started? Were there different time periods?

RR: Yes, it was definitely different.

ER: I hear stories about, depending on who was Chief Justice, being more demanding on the timelines.

RR: For many years, almost no justice wanted to have an opinion held over. What that means is, you have eight different weeks of oral argument, and the Friday of that week of oral arguments was the day that the prior set of arguments, opinions were filed and made public. If you held something over for whatever reason, maybe you’re waiting for a dissent, or there’s a variety of reasons why something might be held over and not filed on that day.

But back then, that was—nobody wanted to come into the conference room and say, “I need to hold this over.” So we often received opinions on a Tuesday or even a Wednesday for the Friday filing, and we had to work all night.

ER: I was going to say, that had to be a very late night. There’s no way.

RR: But that’s just how that worked. And over time, opinions, a lot of it was different cases, and you had big events like all the school finance cases or these huge capital punishment cases that I know one had over 400 pages in the opinion. That is a lot of work. That’s a lot of hours by a lot of people, and you get behind. So that holdover thing became more common.

And then eventually, it’s got to where you are now, and so opinions get filed when they’re ready, but usually on a set day, and that helps the press and everybody else in the release of those opinions.