COVER STORY

Faces of justice By Julie Swearingen

Justices Adolpho A. Birch Jr., left, and E. Riley Anderson PHOTO BY DANA THOMAS

14 BAR JOURNAL, AUGUST 2006 ■ Growing up in poor, single-parent families during the Great Depression, neither E. Riley Anderson nor Adolpho A. Birch Jr. were likely candidates to one day serve together on Tennessee’s highest court. ■ From their homes in and Washington D.C., the two were called upon early to help support their families and put themselves through school. They sacked groceries, delivered newspapers and messages for Western Union, operated a switchboard and sold food at ball parks to bring in money. ■ But from these humble beginnings grew a drive, determination and a work ethic that propelled both men into respected legal careers. ■ As they approach the end of their careers on the — each will retire Aug. 31 — it is appropriate to look back at their lives and review the impact they’ve had on Tennessee, its system of justice and its legal community.

Justice Anderson

t’s 1951 and a young engineering sions and serving a rare four terms as “I just feel extremely fortunate, student walks along Kingston Pike in chief justice. lucky, that I was in the right place at IKnoxville, trying to cover the four- And it all might never have the right time,” he insists. or five-mile distance from his home to happened except for the seed of inspi- However, colleagues, friends and the University of Tennessee campus in ration planted by the Knoxville lawyer his opponents on the tennis court will time to make his first class of the day. who drove Anderson to class that day, tell you that he is an intense He has his thumb out, hitchhiking. speaking enthusiastically about his job competitor who is not afraid of hard A car pulls over and the driver, a all the way. work, qualities that seem to be, at least local lawyer whose name has long been Anderson toured the lawyer’s office partially, a result of his upbringing. forgotten, offers him a ride. later that afternoon and found it all When Anderson was two years old, Little does young Riley Anderson very interesting. Armed with his his father, a college student with a know, as he settles himself into the newfound admiration of the law, he part-time engineering job, died in an passenger seat of the lawyer’s car and changed course, got his undergraduate automobile accident, leaving his shuts the door, that he is about to degree in finance and went on to grad- mother, Mary Catherine Tillery embark upon a journey that ultimately uate with honors from the UT College Anderson, to raise their two young will carry him all the way to the of Law in 1957. boys on her own. Both of Justice hallowed corridors of the Tennessee Today, Justice Anderson, 73, is a Anderson’s parents were orphans, so Supreme Court. soft-spoken man with a ready smile there was no family to lend support. In On Aug. 31, Tennessee Supreme and a friendly chuckle. Reminiscing many respects, Mrs. Anderson’s story is Court Justice E. Riley Anderson will about his career in the cozy sitting just as inspiring as her son’s. retire after writing or participating in area of his office, he says he’s simply Mrs. Anderson went to work as a more than 3,000 appellate court deci- been lucky. (Continued on page 16)

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ward attendant at Eastern State Hospital, by delivering newspapers and working in decided I wasn’t a good fit for the job. I a mental hospital in Knoxville. a nearby grocery store. There’s only one had the job about six months.” “It was a depression era job,” Anderson job he remembers that “wasn’t a Later, as an undergraduate, he worked says, “a job where you got housing and you successful venture. the 3-11 shift at the local Fulton plant, a were paid a little money, not much. You “Around the age of 12, I worked as a bellows assembly business that also got meals. It was sort of a cradle-to-the- switchboard operator at Eastern State produced naval shells for the military. grave job except there wasn’t any Hospital on weekends,” he says. “I worked It was his job to inspect the four-foot provision for children. She had a single the night shift, and I couldn’t stay awake. cylindrical shells. room at the hospital, so we stayed with a It was a security system for the wards and After law school, Anderson joined the friend of hers who kept children.” they would call on the hour just to check Oak Ridge law firm of Frank Wilson & For about four years, the boys saw their in and let you know they were OK. Well, Gene Joyce. He was managing partner his mother mostly on weekends though they I went to sleep two or three times and final 10 years at the firm, now known as lived very close to the hospital. didn’t answer the calls,” he laughs. “They Joyce, Meredith, Flitcroft & Normand. “Later, she began taking in foster chil- dren and was able to establish a home where we could all stay together,” he says. One of Anderson’s many accomplish- Anderson contributed in all areas of law ments as chief justice was the creation of ustice E. Riley Anderson has helped implement numerous projects to a commission to help improve the state’s J enhance the public’s understanding of and access to the court system: initi- foster care system. ating the nationally acclaimed S.C.A.L.E.S. (Supreme Court Advancing Legal Eventually, Mrs. Anderson started a Education for Students) program; supporting new court rules creating a presump- nursing home business with some part- tion in favor of cameras in the courtroom; increasing the use of technology and ners, and that grew into a chain of automation; paving the way for mediation and alternative dispute resolutions; nursing homes. improving the administration of justice by appointing commissions for gender “She was active in association work, and racial fairness; creating a “law school” for journalists; and supporting the became president of the American Nursing Judicial Evaluation and Performance Program as a means for judges to improve Home Association, lobbied the legislature their performance at every level. and attended the very first White House Justice Anderson’s impact in the area of civil law includes McIntyre v. Balen- Conference on Aging,” he says. tine, 833 S.W.2d 52 (Tenn. 1992), the landmark decision adopting a system of “My mother was a very strong person. comparative fault in Tennessee. He has authored leading decisions concerning Not only did she work long hours but she the insurance contracts, conflicts of law, taxation, antenuptial agreements and was involved in a lot of civic activities. residential lease agreements. In 1993, Justice Anderson authored a unanimous She led by example.” opinion holding that in certain circumstances physicians have a legal duty to As a youngster, Anderson pitched in warn non-patients (Bradshaw v. Daniel). In Tennessee Small School Systems v. McWherter, Justice Anderson authored the third in a trilogy of cases challenging the inequality of the state’s school funding scheme. Justice Anderson’s decisions also have consistently protected the right of privacy for all citizens, including the right to procreational autonomy (Planned Parenthood v. Sundquist and Davis v. Davis). He has authored opinions involving criminal proce- dure, death penalty cases, search and seizure, confessions, evidentiary rules, and hundreds of other issues. He recently authored the court’s opinion joining a clear majority of other jurisdictions upholding the lethal injection protocol as a means of execution in Tennessee (Abdur’Rahman v. Bredesen). He has also written for a majority of the court in 1990: Justice Anderson is the last member of the “Court of the ’90s,” who holding that execution of mentally retarded defendants is cruel and unusual was sworn in by Gov. Ned McWherter in punishment under article I, section 16 of the Tennessee Constitution (Van Tran the old Supreme Court chambers in the v. State). state capitol. From left: Martha Craig — Compiled by Supreme Court Staff Attorneys (and former law clerks of Justice “Cissy” Daughtrey, Frank F. Drowota III, Anderson) RODD BARCKHOFF and LISA RIPPY. To read their complete analysis, go Lyel Reid, Charles H. O’Brien, E. Riley to http://www.tba.org/Journal_Current/200608/andersoncontrib.html. Anderson and McWherter. 16 TENNESSEE BAR JOURNAL, AUGUST 2006 could, the education of the public.” Improving public education about the court system is also the reason the court began the S.C.A.L.E.S project, which allows high school students throughout Tennessee to experience an actual hearing before the Supreme Court. Changes in the court system while Anderson was chief justice also included an overhaul of the Code of Judicial Conduct for judges; adoption of a sexual harassment policy for the judicial depart- ment of state government; and the adoption of court-annexed alternative dispute resolution to settle legal disagree- ments without litigation. The court also took steps while Anderson was chief justice to reduce unnecessary delays in capital cases. On the day of our interview, all five justices are gathered together at the Supreme Court Building. They are on Justice Anderson is surrounded by one daughter and his grandkids. In retirement, he what is called “death protocol” because says he plans to spend lots of time with them on the lake. there are two executions scheduled — one at 1 a.m. and another at 3. He practiced law in Oak Ridge for Anderson has worked to make courts “Death protocol means we all come nearly 30 years until being appointed to open and accessible and stressed programs over here 24 hours before, stay together, the state Court of Appeals in 1987. He to educate Tennesseans about the judicial have our meals brought in and just wait was the first appellate court judge branch of government. and see what comes,” Anderson explains. appointed by Gov. Ned McWherter. He He played a key role in the adoption of On this night, the scheduled execu- was then elected to the Court of Appeals the rule allowing cameras in courtrooms; tions are for Sedley Alley, convicted of in 1988 and to the Supreme Court two the creation of a court system Web site; raping and murdering a woman in 1985, years later. He was re-elected to an eight- the S.C.A.L.E.S. (Supreme Court and Paul Dennis Reid, who received year term in 1998. Advancing Legal Education for Students) seven death sentences for a string of In 1994, Anderson was elected chief educational program for high school in several fast justice by the five-member Supreme students, which won an American Bar food restaurants. Alley’s execution was Court. He was re-elected in 1997 and Association award; and a “Law School for carried out; Reid received a stay from the 1998 and agreed to serve again for a short Journalists” conducted in partnership U.S. Supreme Court. time in 2005 following Justice Frank with the First Amendment Center at Anderson says the capital cases are the Drowota’s resignation. Vanderbilt University. most difficult part of the job. “They’re the Anderson says he has loved being Anderson thought the program to hardest cases. I remember when it has a judge. allow cameras in the courtroom could been close. And I particularly remember “I was interested in doing something make a real difference in the public’s when, as chief, I’ve been on a secure that had more impact. As a lawyer, you perception of the legal system. “I felt that phone with the warden communicating represent individual clients. You help with aberrant cases like the O.J. Simpson about whether to go ahead or not. Those that client, but you don’t necessarily case and with the Judge Judy’s of the are pretty tough times,” he says. “You tell change the law in any way. I was inter- world, the public really didn’t get an yourself that you have a job to do, and ested in doing something that impacted accurate picture of what was going on you do the best you can.” more people, helped more people.” with the courts. If you think about it, There are many cases he’s participated And make an impact he has. we’re the only branch that includes the in, however, that make him very proud. In addition to handing down rule of people in our decision-making process As an example, in the 1990s, there were a law, the Tennessee Supreme Court has through the use of juries. And yet I felt series of school funding cases in which administrative responsibilities that are like the public’s perception of us was not the court held that public school funding far-reaching and diverse. As chief justice, very good, so I wanted to improve, if I (Continued on page 18)

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was unconstitutional because of the Justice Birch Every single morning. Before school.” disparity in resources between rural and efore he ever got into the business of After school, he donned a Western urban counties. delivering justice, Justice Adolpho Union uniform, popped a few telegrams In 2002, Anderson wrote the last of BA. Birch Jr. delivered a whole lot of into his hat to keep them safe and rode the three separate decisions that were other things. his bicycle to deliver the telegrams to handed down on the matter. It required Justice Birch, 73, who will end a 43- receptionists in the House and Senate that school teachers’ salaries become a year judicial career with his Aug. 31 office buildings. He usually never saw the component of the Basic Education Plan, retirement from the Tennessee Supreme congressmen who were getting the which was a method of funding devel- Court, has delivered just about every- telegrams, but, he says, “You could oped by the McWherter administration thing but babies, maybe. read their names and know they in response to the court’s initial school Growing up in Washington, D.C., the were important.” funding decision. oldest son of an Episcopal priest and a And he often did whatever odd jobs In his letter of resignation, Anderson school teacher, hard work was a part of needed to be done at church to ensure his wrote, “The work of the court in admin- Birch’s life from early on. His mother died father could deliver his sermons. “I grew istering justice has been challenging when he was five years old, and he and up in the church. I mean really, really and rewarding and I have looked his brother were raised single-handedly grew up in it. Turned on the lights every forward to every day, but ‘for everything by their father. time there was something going on. there is a season.’” “The first job I ever had was at a Turned on the gas heat. Unlocked the In this season of his life, Justice grocery store in D.C.,” he says. “I sacked doors. Locked ’em up again,” he says, Anderson has much to enjoy. In addition groceries and weighed up green beans, shaking his head. to getting in more golf, tennis and and I delivered grocery orders for people, Being the son of a priest had its draw- reading, he looks forward to spending because nobody had a car back then. I backs. “When your father is the priest, time on his pontoon boat and taking his had a little wagon and I would pull the you can’t do anything in the neighbor- grandchildren, who call him “Papa,” groceries in it. And from that point on, I hood without someone calling him and tubing on Fort Loudon Lake where he remember that I always wanted to have a informing on you. ‘I saw your boy do this lives with his wife, Pandy. job, because a job meant that I could or that.’ I was real careful when us little 8- earn money, and I liked to and 10- and 12-year-old boys got earn money.” together,” he laughs. “I was real cautious.” On weekends, during To help pay his way through college Senators baseball games and and law school, he drove a taxicab, deliv- Redskins football games, he ering people from one part of town to worked as a ball- another. “I know my way around D.C. It’s park vendor not hard to remember it because my delivering hot paper route was up in the ‘third alphabet.’ dogs to rows I know all those streets up through there: and rows of Allison, Buchanan, Crittendon, Dele- hungry fans field, Emerson, Farragut, Gallatin … all at Griffith in a row.” Stadium. “After class, I would study a couple of And hours, drive the taxi until around eight, like many get something to eat, study again. On boys of his Friday, I started at noon and drove ’til time, he had midnight. On Saturday, I started around a newspaper 10 or 11 and drove ’til midnight. On route. “I deliv- Sunday, I drove a couple of hours then ered the studied the rest of the day.” Washington Post. I He graduated from Dunbar High got up at four School and attended Lincoln University, o’clock every ultimately earning his undergraduate and morning to throw law degrees from Howard University. As newspapers from the an undergraduate, Birch studied philos- time I was in the 10th ophy and psychology, cramming In retirement, Justice Birch plans to spend time with his four or 11th grade to the everything into three years and skipping grandchildren. Front row, from left: John III, Erin, Elena. Back time I left for college. the fourth year so he could go on to law row: Michael Phillip and Justice Birch.

18 TENNESSEE BAR JOURNAL, AUGUST 2006 school. He struck a deal with school administrators Justice at every level that if he successfully Justice Adolpho A. Birch Jr. is the only judge in Tennessee to have served at completed law school, he every level of the court system. Before he was a judge he served as an assistant would be awarded his under- public defender and assistant district attorney in Nashville. Then he began his graduate degree along judicial career: with his law degree. It’s small wonder, Davidson County General then, that Birch became Sessions Court, 1969 the only Tennessee judge to serve at every level of Criminal Court, 1978 the court system. Birch, who in 1996- Court of Criminal Appeals 1997 was the state’s first appointed, 1987 African-American chief elected, 1988 justice, began his judicial re-elected, 1990 career in 1969 as a General Sessions Court Tennessee Supreme Court judge in Davidson appointed, 1993 County. He previously elected, 1994 had served as an assistant elected chief justice, public defender and PHOTO BY DELORIS DEVLIN/THE TENNESSEAN 1996-97 assistant district attorney in 1993: The Hon. A.A. Birch is sworn in to the Tennessee re-elected to court, 1998 Nashville. In 1978, he Supreme Court by Gov. Ned McWherter. became a Criminal Court judge and in 1987, he was appointed to the Court of Criminal Appeals. He was elected to the their competency. It was kind of difficult.” want to detract from those persons who appellate court in 1988 and was re- Birch says he probably benefited from knocked at it and knocked at it and elected in 1990. Gov. Ned McWherter affirmative action in some ways — “not knocked at it. I have to share whatever it appointed Birch to the state Supreme the structured, formal affirmative action, is people say I have done with those who Court in 1993. He was elected to the but I think that the desire in the ’60s to have gone before me.” court the following year and re-elected to even things up, straighten things out a Birch prefers to point the spotlight an eight-year term in 1998. bit, certainly was to my benefit.” on people like the late, great attorneys Birch says serving on every level of the And these days, he sees a great deal of Z. Alexander Looby and Robert E. court system was never a goal of his; it just improvement in the area of discrimina- (Bob) Lillard. Looby was an African happened that way. However, he had tion. “It’s certainly made much, much American businessman and attorney always planned on being a lawyer. “I don’t progress,” he says. “It’s not perfect, but who crossed the state of Tennessee know where it came from, what its origins there is far less discrimination now based arguing against discrimination and Jim are, but I do know that I never wanted to on race. The discrimination now seems to Crow laws. In 1951, Looby and Lillard be anything but a lawyer. The judge thing have moved on to class and other areas.” became the first black men to be elected came long, long after.” Birch has been described by Gov. Phil to the Nashville city council since 1911. But being a lawyer was still a big dream Bredesen “as a trailblazer in the legal In 1978, Lillard was appointed by the for an African-American coming through profession,” but is slow to take credit for governor as judge of the First Circuit the ranks in the ’60s, at a time when a his part in opening the door for other Court, 10th Judicial District. black police officer was not allowed to African Americans. After law school and an 18-month arrest a white person, and a black man “People want to say that, but I’m stint in practice with a lawyer named J. F. could not eat in a restaurant side-by-side always quick to point out to them that McClellan, who had a real estate practice with a white man. for every door that was opened to me on Charlotte Avenue, he joined an asso- “When I started practicing law, black there were others before me who ciation of lawyers that included Bob lawyers were simply not regarded as equal knocked on it very hard and were not Lillard and went by the name Lillard, to white lawyers,” Birch says. “Their allowed to get in because of segregation Steele & Birch. integrity was always in play and in ques- and discrimination,” he says. “And Even as a lawyer, Birch preferred tion, their ability was always in question, because I was allowed to get in, I don’t (Continued on page 20)

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being in the courtroom. “I liked being involved in controversies that I could help people with.” The civil rights movement provided him with plenty of opportunities to hone his trial skills. “In 1963 things were getting better in the profession and in the city,” Birch says. “The sit-ins had just occurred, and they were very much a part of my life because I was one of the lawyers who represented the students who were sitting in. There were several other lawyers who helped, too. “Every one of the students was convicted and fined $50,” he says, “but it was an exciting time. You could see things were changing, you could see that the pendulum was swinging and you The Tennessee Supreme Court 2005-06, from left: Janice Holder, E. Riley Anderson, could feel freedom in the air. It left you William Barker, Adolpho A. Birch Jr. and Cornelia Clark. feeling very hopeful.” Birch says one of the highest points in his career came after Tom Shriver was But Tom was a very forward-looking Gov. Buford Ellington. As luck would elected district attorney. “He was a dear fellow and a decent guy, and I was just have it — and this is how I think it friend of mine then and until he died. one of the prosecutors in his office, like happened, I haven’t verified it — the He appointed me as an assistant in 1966, any other, and that was a very satisfying governor wanted to appoint Bob to the and I was what I call an ‘across the and rewarding experience.” sessions court. Well, Bob was 50 or 60 board’ assistant. Back then, very few Birch says he thinks his first judicial years old at that time, a member of the southern states had black prosecutors, appointment came to him by default. “I city council, a prominent person, and a but those that did restricted their never knew the whole story, but Bob good lawyer making plenty of money, and activity to prosecution of black crimes. Lillard was a very close political friend of he couldn’t afford to take the job, for all those reasons. He told the governor ‘No, I don’t want it, but he might want it.’ And that’s how I heard that it came to me.” Birch found that he loved being a judge. “It was a great honor to be a “… for every door that was opened to me there were judge, and I was very fortunate to have been immersed so deeply in politics at others before me who knocked on it that time.” Like Anderson, as a justice on the very hard and were not allowed to get in Tennessee Supreme Court, Birch has found capital cases to be the most diffi- because of segregation and discrimination. … cult. “You know it’s part of your duty, but it’s not a pleasant part. It weighs I don’t want to detract from those persons who knocked heavily on you, but you simply tell your- self that your duty requires that you be at it and knocked at it and knocked at it. involved and to the extent your duty requires it, you involve yourself. That’s all you can do.” I have to share whatever it is people say I have About Justice Birch, Gov. Bredesen has said, “The state has been fortunate to done with those who have gone before me.” enjoy the benefits of his dedication to public service for over 40 years. I wish — Justice A. A. Birch Jr. him all the best in his retirement.”

20 TENNESSEE BAR JOURNAL, AUGUST 2006 Justice Birch plans to stay active in his retirement, but to what extent he is not sure. He says he’ll listen to what other people think he should do for a while and then sort it all out and make a decision later. In the near future, however, he plans to spend time with his children and four grandchildren. He has a son who is a lawyer for the National Football League in New York and twin daughters — one who is a radiologist in Nashville and one who is a lawyer with Coca-Cola, North America. After so many years spent working, it’s hard to imagine Justice Birch sitting still for very long. “I don’t know what that’s going to be like,” he says. “I haven’t been without a job to go to in 50 … well, 60 … I guess 65 years. It will be different.”

Julie Swearingen is a freelance writer from Springfield, Tenn., and a former director of communications for the Tennessee Bar Association.

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