Slipping Backward law in the american west Series Editor John R. Wunder University of Nebraska–Lincoln Volume 8 Back Slipping ward A History of the Nebraska Supreme Court James W. Hewitt university of nebraska press • lincoln and london © 2007 by the Board of Regents of the University of Nebraska All rights reserved Manufactured in the United States of America Library of Congress Cataloging-in-Publication Data Hewitt, James W. Slipping backward : a history of the Nebraska Supreme Court / James W. Hewitt. p. cm. (Law in the American West) Includes bibliographical references and index. isbn-13: 978-0-8032-2433-9 (hardcover : alk. paper) isbn-10: 0-8032-2433-8 (hardcover : alk. paper) 1. Nebraska. Supreme Court. 2. Nebraska. Supreme Court—History. I. Title. kfn512.h49 2007 347.782` 03509—dc22 2006029781 Set in Quadraat. Designed by R. W. Boeche. Contents List of Illustrations. vi List of Tables . .vii Preface. ix Acknowledgments ................................xi 1. An Introduction to the Nebraska Supreme Court The Past is Prologue ..................................1 2. “The Judicial Mowing Machine Thus Cuts a Wide Swath” The Simmons Court, 1938–63 . 19 3. “A Real Physician of Applied Liberty” The White Court, 1963–78 ............................48 4. The Norman Conquest The Krivosha Court, 1978–87 ..........................85 5. “With Malice toward None” The Hastings Court, 1987–95 .........................128 6. Is the Law an Ass? An Idiot? A New Twist on the Court’s Efforts ......................170 Appendix 1 Associate Justices of the Nebraska Supreme Court, 1938–95 . 193 Appendix 2 Letter to Charles M. Harper. .202 Appendix 3 Chief Justice Paul White Memorial Speeches, 1968–70 .......205 Notes ..........................................209 Bibliography ....................................223 Index ..........................................231 Illustrations Following page 84 1. The Simmons court, 1939 2. The Simmons court, 1950 3. William B. Rose 4. Edward F. Carter 5. Paul and Leslie Boslaugh, January 1961 6. Paul W. White 7. Hale McCown 8. Harry Spencer 9. Norman Krivosha 10. The Krivosha court, 1984 11. William C. Hastings 12. The Hastings court, 1990 Tables 1. Chief Justice Simmons dissents, 1938–63 . .29 2. Dissents by members of the Simmons court, 1938–63. .43 3. Decisions of the Simmons court, 1938–63 .............44 4. Simmons court opinions, 1938–63 ...................45 5. Nebraska Supreme Court cases, 1965–75 ..............53 6. Decisions of the White court, 1963–78 ................79 7. White court opinions, 1963–78 ......................80 8. Chief Justice White dissents, 1963–78 . 81 9. Dissents by members of the White court, 1963–78 .......82 10. Decisions of the Krivosha court, 1978–87. 123 11. Krivosha court opinions, 1978–87. .124 12. Chief Justice Krivosha dissents, 1978–87 .............125 13. Dissents by members of the Krivosha court, 1978–87 . 126 14. Decisions of the Hastings court, 1987–95. 164 15. Hastings court opinions, 1987–95. 165 16. Chief Justice Hastings dissents, 1987–95 .............166 17. Dissents by members of the Hastings court, 1987–95 . 167 18. Court statistics ..................................188 19. Decisional efforts of chief justices ..................189 Preface I began practicing law in 1956 and made a number of appearances before the Nebraska Supreme Court, beginning in 1957. I lost my first case, won my last, and pretty much broke even in between. But in the forty-five years that I appeared before the court, I formed an abiding respect for it, for most its mem- bers, and for the whole system of litigation as a method of settling disputes. From the fall of 1985 until the fall of 1986, I was privileged to serve as pres- ident of the Nebraska State Bar Association. Nebraska’s bar is a unified bar, which means that all lawyers practicing in Nebraska must belong to it. As pres- ident, I was privileged to meet frequently with the chief justice and to learn of the problems and concerns of the court. I spent six years, from 1983 until 1989, as a member of the American Bar Association’s Committee on the Federal Judiciary. The committee was charged with the responsibility of investigating every candidate for a federal judicial post, including appointments to the U.S. District Court, the Court of Appeals, or the Supreme Court, and reporting its findings with a recommendation to the Senate Judiciary Committee. While I was on the committee, I had the task of investigating all the can- didates within the Eighth Circuit (containing Nebraska, Iowa, Minnesota, Missouri, South Dakota, North Dakota, and Arkansas), and all committee members worked on Supreme Court nominations. The nomination of Robert Bork, whose choice kicked off a firestorm of partisan wrangling that has not abated since, came before the committee during my tenure. These experiences gave me a very substantial interest in the work of appel- late courts and in the politics of judicial selection. When it came time for me to select a topic for my PhD dissertation, my thoughts naturally turned to some- thing about appellate courts and the way they work. And this book is based on that dissertation. x preface I began my graduate studies in history while still serving as vice president and general counsel of Nebco, Inc. I realized that the time would come when I would need to step aside for someone younger, and so I indulged a long-stand- ing interest in history and took classes early in the morning, during the noon hour, late in the afternoon, and through individual reading. I received my mas- ter’s degree in 1994 and then embarked on a PhD candidacy. I completed my coursework, took my comprehensives in 1998, and then began writing my dis- sertation. I had a two-year hiatus from my dissertation because of an unsuc- cessful candidacy for Nebraska’s legislature. I finally finished the dissertation and received my degree in the spring of 2003. I retired from Nebco, after forty- one years of service, at the end of 2002. In concert with my advisor, Professor John R. Wunder, I chose the Nebraska Supreme Court as my dissertation topic. Dr. Wunder felt that there was a great need for histories of all of America’s state supreme courts, and no one had ever attempted a history of the Nebraska court. I decided that modern-day jurispru- dence in Nebraska really coincided with the arrival of Chief Justice Robert G. Simmons, who took office in November 1938. I end my study with the court of Chief Justice William C. Hastings, who left in 1995. I thought that an analysis of the more recent history of the supreme court would lack historical perspec- tive and objectivity. Therefore, I focus on the chief justiceships of Simmons (1938–63), Paul W. White (1963–78), Norman Krivosha (1978–87), and Hastings (1987–95). I read 14,335 cases, every decision handed down by the court under the four chief justices. I have attempted to analyze many of the decisions herein. I have concentrated more on what the court said, and how the public and the bar re- acted to its statements, than I have on how earlier decisions inevitably influ- enced later decisions. I have tried to write for the general public as well as for the bench and bar. Many lawyers have helped me with suggestions for this book. But I rate the judges who served from 1938 to 1995, and the ratings are mine, and mine alone. I have tried to rate them without bias, but I am quite sure that some will disagree with my conclusions. However, if the work in general adds to public knowledge about the court, what it did, and how it functions, I will be quite satisfied. Acknowledgments I am deeply indebted to Professor John R. Wunder of the University of Nebraska–Lincoln history department, a wise lawyer and wide-ranging scholar whose suggestions and attention to detail pointed me in the right direction and spurred me onward. Chief Justices Norman Krivosha and William Hastings, and Justices Leslie Boslaugh and Hale McCown, all from the Nebraska Supreme Court, consented to be interviewed and offered many helpful insights and analysis, for which I am most grateful. Former court administrators Jim Dunlevey and Joe Steele, Chancellor Harvey Perlman of the University of Nebraska–Lincoln, and former Lincoln Journal edi- torial page editor Dick Herman all contributed many nuggets of fact that made this work much richer for their recollections. Shannon Doering, a former su- preme court clerk, offered much helpful information concerning the inner workings of the court. I am grateful to Leslie Boslaugh, the Nebraska State Historical Society, and the Nebraska Supreme Court for use of their photographs in these pages. But most of all, I must recognize the tremendous contributions of my wife, Marjorie, who typed innumerable copies both of the dissertation from which this book sprang, and draft after draft of the manuscript; who offered many valuable suggestions; and who graciously allowed me the time to read and write and study over a period of almost ten years. Without her help, this book would never have been written, and I can never repay her. Slipping Backward 1. An Introduction to the Nebraska Supreme Court The Past is Prologue A Little Lower Than The Angels To lawyer and nonlawyer alike, the words supreme court summon the image of a huge marble pile, high on Capitol Hill, with Corinthian columns and fifty-three steps leading from the street up to the huge bronze doors. Few think of the Alaska Supreme Court, the South Dakota Supreme Court, or the Utah Supreme Court. People think of Justice Benjamin Cardozo, never realizing that he spent three times as long on the New York State Court of Appeals as he did on the U.S. Supreme Court; or Justice Willis VanDevanter, never knowing that he was chief justice of the Wyoming Territorial Supreme Court; or Oliver Wendell Holmes, never appreciating that he wrote two hundred more opinions as the chief jus- tice of the Supreme Judicial Court of Massachusetts than he did as an associ- ate justice of the U.S.