elizabeth b. lacy - stanford university
TRANSCRIPT
Elizabeth B. Lacy
January 31, 2008; September 25, 2008; September 10, 2009;
October 6, 2009; January 11, 2010; January 19, 2010
Recommended Citation
Transcript of Interview with Elizabeth B. Lacy (Jan. 31, 2008; Sept. 25, 2008; Sept. 10, 2009; Oct. 6, 2009; Jan. 11, 2010; Jan. 19, 2010), https://abawtp.law.stanford.edu/exhibits/show/elizabeth-b-lacy.
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Terms of Use This oral history is part of the American Bar Association Women Trailblazers in the Law Project, a project initiated by the ABA Commission on Women in the Profession and sponsored by the ABA Senior Lawyers Division. This is a collaborative research project between the American Bar Association and the American Bar Foundation. Reprinted with permission from the American Bar Association. All rights reserved.
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ABA Senior Lawyers Division
Women Trailblazers in the Law
ORAL HISTORY
of
ELIZABETH 8. LACY
Interviewer: Vicki 0. Tucker
Dates of Interviews:
January 31, 2008 September 25, 2008 September 10, 2009 October 6, 2009 January 11, 201 O January 19, 2010
ORAL HISTORY OF ELIZABETH B. LACY
FIRST INTERVIEW
January 31, 2008
This is the first interview of Elizabeth B. Lacy, which is being taken on behalf of Women
Trailblazers in the Law, a Project of the American Bar Association Commission on Women in
the Profession. This interview is being conducted by Vicki Tucker.
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Would you give me your full name please?
My full name is Elizabeth Bermingham Lacy.
And where and on what date were you born?
I was born in Parris Island, South Carolina, on January 12, 1945.
You were born in Parris Island, is that where your parents were from?
No, my family is from Wisconsin. My father was a Navy Air Force pilot and
he was stationed in Beaufort, South Carolina where they had an Air Force
base. He was at that point training pilots. Parris Island is known as a Marine
base, but it was the only military base that had a hospital. So that is where I
was born. My parents were actually staying on the Doubleday Plantation in
Beaufort. Mr. Doubleday, the publisher, allowed the Navy officers to use
some of the smaller houses on the plantation.
Now, this was right at the end of World War II? Was your father in World
War II?
Yes, my father was in World War IL He was stationed for most of the time
in Alaska but then was down in South Carolina doing some pilot training.
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
He was discharged very shortly after I was born. In fact, I probably was in
South Carolina for maybe six months of my life, although I have had to spell
Parris Island with two "r's" and Beaufort County throughout my life. But,
actually as it turns out, South Carolina has played a rather important part in
my life.
Tell me a little bit more about your parents. What was your father's name,
and when and where was he born?
Well, my father was John Edward Bermingham, Jr. He was born in
Fondulac, Wisconsin, probably around 1915 or something like that. He grew
up there, went to Carroll College in Waukesha, Wisconsin, on a football
scholarship, and then worked in Chicago. When the war came, he was in the
Navy. When he was discharged, he and my mother returned to Oshkosh,
Wisconsin, where he bought part of a business with Remington Rand office
machines. He had that business throughout his life until he retired. My
mother was born in Random Lake, Wisconsin, which is right outside of
Milwaukee. She was two years younger than my father. They met at Carroll
College. After she graduated, she went to Chicago. They were married
when Dad went into the service or was getting ready to ship out. Then she
kind of followed him around, but not to Alaska, where he was stationed. She
was in Seattle, Washington, for a long period of time because that is where
he flew in and out to go to the Aleutian Islands.
Did your mother have an occupation outside of the home?
My mother did not while I was growing up. If you notice, I qualified that
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
because she was very active in different things in the city. We lived in
Oshkosh, which was at that time a town of just under 40,000 to 50,000
people. When I was in college, she went back to work as a secretary to the
head of the Education Department at the University of Wisconsin in
Oshkosh. From there she went back and got her Masters in Education and
wound up being a tenured professor at the University and retired at age 65.
At the University, she taught, but also a lot of what she did was academic
advisement for students, particularly for older students. At the end of her
career, a lot of her time was taken up with advising nursing students.
Wisconsin had passed a statute that required all nurses to have the four-year
rather than just the three-year education degree. So many nurses throughout
the state had to go back and get another year of schooling. Many of them
were in their 40's or 30's and had been out of school. The University of
Wisconsin at Oshkosh had the four-year program. So she spent a lot of time
encouraging and working with women that were going back. She was quite
active and quite a well-respected member of the faculty. Of course, all of
this happened after I was long gone from Oshkosh.
Well, that was going to be a question I was going to ask you - whether she
had started doing that while you were still at home and you could see the
influence of that.
Well, I really couldn't. She was incredibly active, but she definitely at that
time was a stay-at-home mom.
What about your grandparents. Did you have the chance to spend a lot of
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Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
time with them? Were they around generally while you were growing up?
My father's parents were in Fond du Lac and my mother's were in
Milwaukee. So none of them were actually in Oshkosh. In fact, most of my
father's siblings lived in Fond du Lac and my mother's siblings lived in the
Milwaukee area. I think I did see my aunts and uncles and grandparents and
cousins - not all of the time, certainly not on a weekly basis, but for
holidays. I would go up to my grandmother and grandfather in Milwaukee
and would spend time up there and thoroughly enjoyed that. Of course, we
could take the train up there and that was exciting. My parents were pretty
good about keeping their relationships with their siblings and their parents -
that meant I did too. It was certainly very different than it is today. You
don't have cell phones and all that, and Milwaukee was 70 miles away.
Before four lane highways, that was a long trip. We made sure that we kept
up with them.
That's very nice to have in your background.
I do think it set a pattern for me that grandparents are important. They are
people who should be part of your lives.
Well, I don't want to jump ahead too far, but you do have two sons, and in
your adult life, you had moved on from Oshkosh, largely outside and fairly
distant from Wisconsin. Living in Texas and then in Virginia, has it been
difficult for you to foster the same relationship with your children and your
parents?
Well, actually not. Although I credit my parents with that more than
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Ms. Tucker:
anything else. Of course, the first six years that Pat and I were married, I
basically wasn't working, which is nice because you have a little more
flexibility than working. And also I probably should correct you and I'm a
little hesitant. It is true that Pat and I had two children. But he had two boys
from his first marriage. They were 6 and 7 when we got married, and they
always lived with us. So it was really four boys. We would take the four
boys out to Wisconsin in the summer. My parents would come and visit us
for Christmas initially and when that got too crazy, they'd come out for
Thanksgiving. That was a little more doable. As the boys got older, either
by sets of two or individually, they would go out and spend time with my
parents. Even as the years went on, the boys had a very, very close
relationship with my parents. In some ways their relationship with them was
closer than their relationship with Pat's parents, who lived two doors down
from us. I really credit that to the way my parents made the kids feel. Kids
gravitate and go back and forth on their perception of the grandparents. I
don't mean to say anything negative about Pat's parents. Now that I'm a
grandmother myself, I do regret that they weren't even closer or we didn't
see them more often, because I can really feel how hard it is when you're not
around those grandchildren. Of course, I didn't understand that as a mother.
It was not on my horizon. So, yes, they've maintained an unbelievably close
relationship with the boys.
Do you have any special recollections about any particular grandparent?
Were you closer to one than another?
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Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Probably I was most close to my mother's mother. She was a very gentle
woman and very quiet, unlike my mother and myself. You always felt like
she was happy to see you, she included you. If she was baking bread, you'd
help her. It isn't so much that she ever went out of her way, but you were
always part of whatever she was doing. Maybe it's because I didn't see her
as much as I saw my other grandmother, who I found fascinating. But my
other grandmother, my father's mother, worked as a waitress until she was
80 years old. At the end, she was just doing banquets and things like that.
She worked in a hotel. And when my father's father died, I was quite young.
I was only maybe three or four when he died. So, she was on her own for a
long time. My other grandmother was not working and was at home.
I want to go back to your parents a little bit. What kind of interests did they
have outside of their work? Your mother was active, you said, in a number
of activities. What were the kinds of things she was interested in that you
can recall?
Well, one of major things that my mother has always been interested in and
done was writing. She did a lot of writing throughout her life. Some got
published as little articles and some not. Some of the writing was simply for
herself and, as the years went on, she did more of that. When I was growing
up, I remember her being involved as some kind of visiting nurse where
they'd go when women would have babies.
Was your mother a nurse?
No, she was not a nurse. She was an English major. She worked as a
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
librarian for a number of years when they were living in Seattle, Washington.
She had a job as a librarian for a foundation in Washington before that. Her
interests? She loved to garden. She wasn't in a junior league or that type of
thing. But she liked to bake. She baked a lot and took care of us kids. But
writing and reading were always two of her passions. She loved that. My
dad was a sailor, and he got me into sailing quite young. He initially was
sailing on what they called an "A boat," which was a scow boat, on Lake
Winnebago, which is the lake that Oshkosh is on. He raced those. Because
the city was right on the lake, sailing and racing were a big deal every
Saturday and Sunday if the lake wasn't frozen. Then you did ice boating in
the winter.
Not ice fishing?
Ice fishing, little shanties, and all of that, oh yes. I didn't do that. My dad
would do that. But, he really was a sailor as a young man. He also went to
college on a football scholarship, so he was very interested in sports. I know
they played golf a little bit, but they kind of dropped that. Really sailing
became the focus of his life.
The weather was perhaps more conducive for sailing?
Yes.
Either winter or summer?
It was basically summer sailing. Our non-work lives and non-school lives
really revolved around the water and sailing. When I was seven, maybe
eight, he bought me an M-16, which is a smaller 16-foot boat.
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
I'm glad you clarified that because when I heard M-16, I thought of the
weapon.
This is a scow made in Lake Geneva, Wisconsin. Buddy Melgus made them.
For awhile I sailed with Dad a little bit, but that didn't work out really too
well. Then there was a guy- I don't think Dad hired him- who would
skip the boat, and I'd crew for him in all of these races. That went on until I
was in junior high school, maybe seventh or eighth grade.
So you were very young when you first started sailing?
Oh yes. By eighth or ninth grade, I was sailing the boat myself with another
crew. But there was a huge group of people - there were 20 or 30 of us
doing this. And we'd race every Saturday and Sunday. I'd often have my
boyfriend as my crew. By this time, Dad had moved out of the sailboat and
into power boats. He would pick me up out of the water when I turned over.
So, that's what our weekends were. Mom would be on the boat, and they got
progressively larger boats. I kept the sailboat until we sold it - maybe my
sophomore year in college. By then, Dad was very much into power
squadron. He was an officer. He was a teacher. He'd taken the navigation
courses and all of that. Mom had taken some too. She never wanted to be on
the boat and him have a heart attack and not know what was going on or be
unable to read the charts. We had a series of locks that could take you from
our lake, Winnebago, all the way up into the Great Lakes. They'd cruise
around Lake Michigan, Lake Superior, and go into Canada, Charlevoix.
They had friends and there would be three or four of the large cabin cruisers
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
- by large, let's say 30 to 40 feet. We are not talking 80 feet. And that was
our summer. They did that for years and years, well after I was out of
school. My brother did a lot of power boating. He used to run marinas in the
summer. When he was in high school, he would take boats for people up and
down the locks. He ran our boat a lot. He is seven years younger than I am,
and he was always the power boat guy and I the sailor. But, we didn't take
family vacations. We'd go to a regatta maybe. That was certainly Dad's
interest. I'm not sure Mom was that crazy about it, but that was what they
did, and she was a trooper. They did lots of sailing, lots of water.
Well, Virginia then, particularly Richmond, sounds like a good place for you
to have ended up, based on the water activities we have here.
I don't think that I could live someplace that was not near water. I know
some are water people and some are mountain people. I'm just real glad my
husband's a water person too.
Were you parents involved in politics?
I don't know if I could use the word "politics." I know they were very
involved in the community. They were involved in things like the local
theater. Not so much as actors, but as the other people. My dad was very
involved in Kiwanis, and Rotary, and different kinds of initiatives that the
city was doing. The Diocese built a Catholic high school, Lourdes Academy,
while I was growing up and which I went to. They were very much involved
in that kind of fund raising. There was only one high school before the
Catholic high school was built. I can remember every Friday night in the fall
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
my Dad would be selling Kiwanis peanuts at the high school football games.
Of course he loved going. My memories of them as a younger child were
that they were socially active, whether it was a bridge group or a supper club
or something like that. They were very much a part of the community
through the various organizations that supported community life back in the
50's and 60's.
They had very diverse interests and were active in the community. Did that
have some influence on you and what you've chosen to do in your life?
The answer is yes, although it never was something we would sit and talk
about. I just grew up believing that that's how you lived your life. You gave .
things to the community. You were active in the community. That wasn't a
good or a bad thing. It was just the way life was lived. It was just what you
did. A lot of my friends' parents were doing the same thing. You are talking
about a pretty small town of 40-50,000 people, and quite close. A lot of
things happened in that town just because the people did it. It was up to the
people who lived there. As I say, it was not a matter of sitting down and
being told, "You really need to give back. Your community is only going to
be as good as the people that are willing to get involved." It was just what
you did.
It was their actions rather than any specific teaching?
Right.
Did your parents give you any sense of having gender issues or limitations
on what you were supposed to do as a female?
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Justice Lacy: I don't think so. If anything, they did a lot to dispel any idea that there was.
As I look back on it now - I certainly wasn't aware of it at the time. The
sailing is an example. It was competitive. There were one or two other girls
who sailed, and some of them were skippers, too. They weren't all crew by
any means. There were a lot of girls around, but they weren't always sailing.
My dad literally threw me in a boat, but he never said to me "Do you want to
sail?" That's just what we did. It was just a non-issue. There was never any
"Gee, should she or shouldn't she?" Or even in my own mind, "Should I or
shouldn't I?" Plus, on the educational level, I was just expected to get good
grades. That was not a point for discussion. You did. If you didn't, they
weren't mad or anything. But it was, "You got a B? What is this?" So, their
expectations were always high and I think I knew that. You were expected
to do well in school, obey the teachers, and keep the rules. But gender-wise,
there was never any feeling of things you should or shouldn't do. I
mentioned this small town - there were things for young people to do there.
We had what's called a junior theater. Every summer, there was a major
musical production like "Kiss Me Kate," "Westside Story," or "Carousel."
We had an adult choir and director, but everything else was done by the kids
from about eighth grade up to seniors in high school. I was not a lead singer,
believe me, but I was in the chorus. I remember writing out a check for
about $10,000, something like that, because I was treasurer and we had to get
the copyright. This was in high school. So there was a lot to do in the city.
Every year, they had a city-wide youth council - I suppose it would be
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Ms. Tucker:
Justice Lacy:
something like Metro-Richmond Youth Leadership- where you would be
an officer. For that day, I was the police chief. Because the city was very
active, there were very few gender issues growing up. I will tell you one
thing, though, which is kind of skipping ahead. My brother, who is also a
lawyer, is seven years younger than I am. When he went to law school and
graduated, my dad was telling us how pleased he was, because my dad said ' '
that he had always wanted to be a lawyer. Well, I had never heard that, and
I'd been practicing for seven years at that point. He didn't discourage me
from going to law school because I was married by that time. But, I thought
it was very interesting that he had never said anything about the fact that he
had wanted to be a lawyer until my brother graduated. I don't know what to
make of it. I just was very interested in the thought. He came down to my
swearing in when I graduated and got sworn in.
Well, I think we have probably covered some of this, but can you tell me one
of your earliest memories of living in Oshkosh? Tell me about your
neighborhood.
Well, I only really had two. When we first moved to Oshkosh, we lived in
this little place called Pare Ko Tue, which was actually outside the city. It
was a series of houses, some big, some little, right on the lake, and there
were four or five families there. My family just had me at that time. My
brother wasn't born. But the other families had two or three kids, so there
were lots of playmates in the neighborhood, and we were right at the lake.
I'm talking ages three, four, five at this stage, before school. I can remember
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Justice Lacy:
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riding my bicycle, kids playing all of the time together, and ice shoves
coming up onto our front yard. In my second neighborhood, they built a
house again on the lake, but there is a parkway across from it. Again, it was
a neighborhood with children. We'd ride our bikes everywhere - to the
library downtown. There were lots of baseball games, which I hated, every
day after dinner in the sand lot in the yard next to this one girl's house.
Were girls expected to play?
Oh yes, it was girls and guys at all times. We played; I hated it. I was not,
and I'm still not, a baseball fan. But, yes, in fact one of my best friends was
the best pitcher we had. It was all integrated. Every activity we did was
integrated. Obviously, we did girl things with girls, but it was a very, very
active neighborhood. It was a Mayberry kind of place, though maybe not
quite that folksy.
It felt small to you?
Well, it didn't feel small to me because I didn't know anything else. Things
have changed so much now, even from when my children were growing up.
Safety was an issue, but the issue was avoiding getting hit by a car when you
were riding your bicycle. You weren't worried about other people. We
never locked our doors. It was a very different time when you could let your
children get on the city bus and ride all over town.
Or play in their front yard?
Yes, or play in the front yard, walk or ride bikes to friends' houses - I did
that all of the time. I still think there is more of that in Oshkosh than there is
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
in Richmond, but it was a different time. It was a good time because you
really learned limits, learned responsibility. If you were home late you got in
trouble, but not because the parents are always worried about children.
There was a lot of opportunity for developing individual interests, individual
responsibility, playing with friends.
Not the structured type of activity that we have now?
Yes, exact! y.
You mentioned a little bit about your brother, your younger brother. Is he
your only sibling?
He is. He is seven years younger than I am. My mother did have a little girl
who would have been between us. But she died right at birth. John is seven
years younger than I am. That's a pretty big gap in a way. We're best
friends now and have been for years. But I don't remember a whole lot
about him growing up because I was at an age where there was a lot going on
in my life. I knew I had a brother. We were in the same house and all that,
but my memories of him were as just a little kid around and sometimes in the
way. In fact, I had to baby-sit for him and that wasn't much fun.
It sounds as though you did some babysitting like we've probably all done at
a young age, but your parents did not rely on you for a lot of babysitting of
your brother?
Well, yes, I did. That's the way I earned money was by babysitting all
around the neighborhood. I did a lot of babysitting, but I don't think I did
much in high school. My parents expected me to baby-sit. By the time I got
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
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old enough to baby-sit, say eleven or twelve, it was very shortly thereafter
that I became very involved in other activities. I didn't need to be a latch
key kind of kid. But, yes, I babysat. That was my money maker, twenty-five
cents an hour.
But you didn't charge your parents?
Oh,no.
In the 50's that would not be the bargain?
No. That was not the bargain.
Tell me about your friends.
Oh my gosh, I had a lot. I always felt like I had a lot of friends, both
neighborhood and school friends, both guys and gals. Growing up, it was
about half and half with a lot of guy sailing friends. You just had a group
that you went around with, and we really did a lot of water stuff together,
from middle school on up through high school. We would just go out during
the day. Some of the guys and gals had motor boats. Some of us had sail
boats, and we'd be out water skiing and sailing around. That was a very
typical day until we all started working, because we did work in the summer.
And most of my friends, the guys - not all, but many of them - were
athletes. They were track stars or basketball, football. That was a big part of
it. The girls were cheerleaders. I was a cheerleader. We would often go to
somebody's house after school to watch American Bandstand. We knew all
of that. We had lots of parties. Most of my friends were different class
officers in school. Singing was a big deal growing up. We had some
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Ms. Tucker:
Justice Lacy:
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excellent choir directors for the public schools. I went to a Catholic grade
school, and it was as much of a badge of honor to get into the a cappella
choir in high school as it was to be on the football team. There were a
number of football players in a cappella choir and that group would put on
musicals every summer and winter. We did a lot of that kind of music. We
listened to records, too, but there was quite a bit of musical activity growing
up back then. I was very involved in that, and my friends were too. It was
kind of what you did.
Did you also learn to play an instrument?
I decided that I really should play the piano. I started doing music when I
was in about fourth grade. Sister Corolla was the choir director at St.
Mary's, and she did fabulous things. When I was in about seventh grade, I
thought I should learn to play the piano. My piano teacher did not agree with
me. The problem was that I had been reading music for three or four years,
so I knew what all of the different times were, and I knew the notes. But my
fingers had no idea. I would just get frustrated playing little kindergarten
songs. I wouldn't want to do that, so I wouldn't practice. Then I obviously
could never play though I still wish I could. My niece is a wonderful piano
player, but I never really did master the instrument. Now one of my sons
plays guitar, base guitar, a lot. No, I never learned.
Well, let's see, you talked about grammar school. You attended a Catholic
school. Was that co-educational?
It was co-educational. It was run by the Agnesian nuns and it was a typical
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Catholic school. Forty, forty-five people in the classroom was very typical.
I think I got a very good education there. I was very active in the school. It
was a K through 9, though I actually transferred to the public junior high for
ninth grade. That was just a huge issue both for my parents and for the
school. I had friends at both - in the public schools right down the street
from my house, and a brand new modern junior high. Junior high was grades
7, 8, and 9. It was just wonderful to go to this new junior high school.
What led you to make that move?
I'm not really sure. I think I got mad, and maybe my father got mad, too, at
something that was happening at school. Maybe I just asked to go to this
public school because really a lot of my friends had transferred to that
school. So, they let me go. I remember it was very traumatic for my parents
to let me go to this public school. This Catholic high school, Lourdes
Academy, was being built and was going to open the next year. It was going
to open with ninth and tenth graders so I could go to the public junior high
for my ninth year and then I would go to Lourdes the next year. That was the
deal. But it was a wonderful year, a great time.
Did you perceive any difference in the education that you received in the one
year in the public school versus what you would have gotten if you had
stayed in the parochial school system?
Probably n~t. I got all A's in school. As I said earlier, it's what was
expected from me and they came relatively easy. It's not that I was brilliant,
but I really enjoyed doing the work. I liked getting my homework done.
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Ms. Tucker:
Justice Lacy:
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Buying books and school supplies in September was one of the most fun
things in the world to do. What was so different was that I went to a school
that was set up on a high school level where you changed classes and had
long corridors, as opposed to being basically in a self-contained classroom
everyday. So, it seemed terribly different. Plus it was a lot bigger. Well, it
wasn't bigger than St. Mary's, because that school was K through 9. What
was ·bigger was that there were just three grades in this whole school. You
didn't have the little rug rats on the playground. It had a band room, a choir
room, and a big gymnasium in a brand new building. That part of it was fun
- science lab desks and things like that. I feel pretty comfortable that if my
parents had any question about the educational value they would have never
let me go. But they didn't have me switch for the educational value either. It
had to do a lot more with maybe my whining and maybe their being mad at
something. So that was my year in public school.
You said your mother read a lot, loved books. Did you read a lot as a child?
Yes, I did.
I'm not sure you had time to?
Well, I always enjoyed it. My mom always encouraged going to the library.
It had big bronze lions in the front that you could climb on and that was fun.
In the summer, for every book you read, you colored a ring on the caterpillar.
Going to the library was always just a fun and great thing to do. Part of it
was "look, I finished all of these books. You know, isn't that great? Now I
can do more." I'm sure I wanted to please my parents as all kids
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subconsciously want to do. Just having books and magazines around the
house was just modeling. I know she started reading to me when I was
probably in the womb.
Do you remember any favorite books?
Oh, yes, I had two favorite books. One was in the Book House series, and it
was the first book of that series. This is when I was quite young. I would
just love to read that. It had a combination of poems, stories, and pictures.
The second one was called "A Child's Prayer." It goes, "Bless this food, and
bless this bread, and bless this soft and waiting bed." It had a little girl in it
and I thought that was me. I recited that thing and loved the pictures. I now
found new copies of it and have given them to my own grandchildren. So,
those books I remember. I also can remember sitting down and taking out a
volume of the encyclopedia and just reading through it. I thought it was so
interesting.
Did your parents have a set of encyclopedias in your home?
Yes. They had the World Book. The big red World Book. Every year,
you'd get the supplement for the update. I can remember reading Vanity
Fair, thinking I'd never finish that one. And the Nancy Drew books I loved.
I read all of the Nancy Drew books. I never got into the Bobbsey Twins.
Those were guys. I liked Nancy Drew because she was a girl like me. I
could identify with her. I had some dolls and collected angels but not too
many. I played paper dolls a lot, cut-outs and that kind of stuff. But, when
you get out of the real play stuff it was probably more reading and sailing
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that were my two friends.
Did you have favorite subjects when you were in school?
I always liked English. Science projects were never my fun things. I liked
math a lot. In fact, when I went to college, I planned on going as a math
major. When I got to college, it was the era of the new math. We started
having to learn about circles, and bigger than and less than, and that ended
my career in math. But math was a favorite. I loved algebra; I didn't like
geometry that much but I really liked algebra. I liked history classes a lot.
That kind of carried through in college.
Did you have favorite teachers?
I had probably more favorite teachers in college, though a couple of them in
high school. I liked them all. In grade school, you only have one teacher. I
didn't like Sister Elaine in the fifth grade. But I liked Sister Theresa in the
sixth grade. She was pretty cool. It was a little different than it is today in
terms of favorite teachers. But, teachers were always very important parts of
my life.
But, no one of them stood out in terms of having particular influence on
choices that you made?
Not really. I can't say that anyone did, but again, I really liked school. I
didn't mind going to school. So, it wasn't like I needed someone that would
kind of make a light bulb go off or touch me in a way that another teacher
had not. That just wasn't a problem.
Well, tell me about your achievements in high school.
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Well, high school, Lourdes Academy, was very interesting because it was a
new school that started. We were always the top grade. So anything you
wanted at that school, we had to do it. There were no traditions. We made
the traditions. And, it was a co-institutional school, too.
What do you mean by that?
Well, the girls were on the top floor, and the boys were on the bottom floor.
The boys were taught by the Christian Brothers and the girls were taught by
the School Sisters of Notre Dame. We had a big gym, and we had a football
team, basketball team, cheerleaders. We had mixed choruses. We had
mixed theater productions and that type of thing. We didn't eat together for
lunch, at least while I was there. You always sat at the same table. The boys
who sat at the table before us would love to leave glasses upside down with
water on it to see how we'd handle it. Because it was a new school, it was
the kind of situation where we had to decide what we wanted to be called.
What are our school colors? Did we want a yearbook? We had to do it. We
had never done a yearbook before. There were no seniors to help us, and that
was true for everything that we did. It was very exciting. And we did a lot.
We really did. We had a good basketball team. We had a very active student
government. We did all of that stuff. I was yearbook editor. I think I was
on the student government. I'm pretty sure. I also was president of the
youth council. For the town, it was different, because this was a city that
forever had had one high school. This was the first time that we had two
high schools.
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So, they had not had a Catholic high school before?
No, they had not had a Catholic high school before.
So, the typical pattern would be that you would go to the Catholic grammar
school, but once you finished you would go to the public high school?
Yes, there was one high school. In the city of Oshkosh, the old public high
school was right in the middle of town. It was great for dances, or football or
basketball games. It was the caricature of a soda shop where everybody went
after a dance or game, like in "Happy Days!" That was what we had when it
was downtown. But we were outgrowing it, and in my junior or senior year
they built a brand new high school - Oshkosh West was what it was called.
It was in the same part of town where the Lourdes high school was built -
maybe eight blocks away or something. So, the kids in Oshkosh West were
also going through some changes just because it was a new building. There
had only been one high school and we were the first class in the new one.
We knew everybody at both schools because kids had gone to the elementary
schools together, the junior highs, and some of us went to Lourdes. There
was no rivalry between the two schools.
So, the new public high school replaced the - ?
The downtown one, right. Yes, it didn't make it a second one. They closed
down the old one. All of the traditions accompanying the old building were
gone, but they still had students in all four years. That was a very formative
thing for me. At Lourdes, if we wanted it, we had to do it and we had to
think of how to do it. We had to convince, sometimes, the administration or
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faculty that we should do it. We were also very close knit because we were
the only class all the way through.
So the first year that you went to Lourdes, there was only the one class of
tenth graders?
There were two - the ninth graders and the tenth graders. And, yes, just
those two. The girls wore uniforms. The guys wore uniforms. You had to
have little pleated skirts, plaid.
Were they a certain length?
Oh yes, a certain length. Of course, you rolled them up and then rolled them
down when you saw somebody. You had these little beanies and clip-on ties
for school assemblies; you kept them in your locker but you could never find
them when you wanted them. There were a lot of fun and funny things that
went on as we went through that time period of just working through the
whole thing. The education was excellent. I didn't have any problem
making the transition to college. It was an academically demanding time.
You just took trig. You took calc. We didn't have things then like AP
courses, but they were tough courses.
Did you have honors classes?
I don't think they did that either. I don't remember that at all. Only kids that
could really do the work would take trig or calc or four years of Latin. You
were expected to do the work. I was in a class with all girls, too, so, I never
had that social issue of "Gee, I don't want to look too smart for the guys."
Was that a change from the grammar school with 45 children in a classroom,
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boys and girls in the same classroom?
Yes.
Was the public junior high co-educational then?
Yes.
Did you like the classrooms being one sex only? Did you have thoughts at
the time about whether that worked better for you or didn't? Did the kids in
general like that or did they think it was unnecessary?
Well, I think everybody liked it. First of all, it was a brand new experiment,
a brand new school. You didn't have the lure of the school saying, "This is
crummy." I don't know what it would have been like even four years after
we graduated. It may have been different. I'd been in co-ed classes all
along. Going into a single sex class at the time kept me from being reticent
about being as good as you can be academically or being as interested as you
could be academically. So the timing of it may have precluded an idea that it
was any different. You were just going through those hormone changes and
the dating and all that kind of stuff. Although we "dated" - I hate to use
that word in middle school - and we had co-ed classes, it never seemed to
be a problem there. The environment was that was what you were expected
to do. The difference, and I don't want to minimize the importance of it, was·
that it was a brand new school. If you wanted to do it, you did it. But also
they were very careful about things, because it was co-institutional. You
always had a girl and a guy involved. You would have co-editors, a boy and
a girl. You had a valedictorian for the girls and a valedictorian for the boys.
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Not one for the class?
No. You couldn't really have one for the class because there was no
baseline. They were taught by entirely different teachers than we were. It
wouldn't be fair to do that.
Do you recall if they had different classes? Were they given different
options?
No, I think the curricula were pretty much the same. It may have changed
over the years. Part of it was as a start-up school, they had a limited number
of teachers. The boys were all taught by Christian Brothers, but it was run
by the School Sisters of Notre Dame. Every order of nun that was
represented in the city contributed one nun to the faculty at the high school.
For example, I had a Franciscan nun and there were different nuns who
would teach. But the class offerings were not as broad as they would be as
time went on. There just weren't that many kids. Until four years came up,
you really just had a limited number of people. I don't ever recall
discussions with my guy friends about different class offerings. It was the
pretty standard classic offerings. It was not billed as college preparatory, but
there was no shop class. It was pretty much standard.
No home economics?
No home ec. They just didn't do it. I don't know if that was the plan or they
just couldn't spread themselves that thin with such a small student
population. I had never thought about that before. But from what I can
recall, they were pretty much the same.
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You mentioned earlier that you could go to the public junior high for one
year if you went to Lourdes in the tenth grade. Once you were at Lourdes
and in the tenth grade, was there any thought for the subsequent years that
you would change back to the public high school?
At one point in time, my best friends, three or four of them, did transfer to
the public high school. I really wanted to do that, too. It wasn't that I didn't
like Lourdes, but they had a capella and our choir wasn't quite that good. It
was hard. My parents let me talk about it a little bit, but I don't think they
ever liked the idea. My dad was one of the guys who raised money for that
school. Academically, there was no reason to change. The downside, in
retrospect, of a brand new high school was that colleges wouldn't know it.
The career advising in terms of colleges was pretty weak at Lourdes. It was
there, but it was very Catholic oriented, very Midwest oriented, Wisconsin
oriented, and Oshkosh oriented. That part of it probably wasn't as good,
although I'm not so sure that the public high school was all that much better
at that time.
So, I take it then you didn't really press the issue of transferring, so it never
came to a head?
If my mom and dad were here, they may have a different viewpoint, but I
don't think it ever was really in the cards for me to do it. I don't think they
would have ever let me do it unless something unbelievable happened in the
school, and nothing like that happened.
What about your dating? We have some sense of your social activities, but
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what about dating in high school?
Oh, I usually had a boyfriend. I probably had two really long-term
boyfriends, but the second one was through most of high school - from at
least sophomore year through senior year. He did transfer to the public high
school. He came from a different Catholic school, St. Peter's. Now, I can't
even remember how I met him, but then he was my crew for a number of
years on the sailboat. He was a basketball player for the public high school.
We went around as groups, but there was more pairing up than I think is true
today. There were lots of parties and dances. There was a sock hop every
Friday night in the public high school gym when I was there. Then
periodically everybody would break up and go with somebody else. It was a
pretty large group - 30 or 40 kids.
That's a fairly sizable group.
We were pretty good friends and did a lot of things together. We were the
sports teams, the cheerleaders, the yearbooks, and the student government
people. We were just real busy. Most of my girlfriends had a boyfriend.
That part of the social life was pretty important. I don't want to sound like I
was reading and sailing all the time.
Did you work after school? Did you have a job?
I worked in the summers, but I never worked when I was in school. One of
my summer and Christmas vacation jobs was in a jewelry store that some
neighbors of ours owned. They did a lot of weddings, which meant cleaning
the silver, wrapping the presents, and some sales in the store. One summer I
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worked for the telephone company when they first got those big IBM punch
cards. I then worked in a telephone line where you try and track unpaid
long-distance calls back. I always had to work in the summer. That was
kind of the job.
Were you working to help with college expenses or was this just your
spending money?
Yes, it was basically the latter. I never gave any of that money to my
parents. It was never for college but I always was expected to work. I could
never not work. Once I reached a certain age, it was, "Where were you
going to work this summer?"
And, I assume it wasn't too hard finding jobs then?
It wasn't terribly hard. I had a pretty good reputation - I could read and
write. The companies and stores around town were pretty good about hiring
people for summer work. A lot of the guys worked in construction and were
on the water, a lot of water-related jobs. Your dad would say, "Well, if that
doesn't work, I'll talk to so-and-so." Everybody worked.
Do you feel like you had any particular role models or mentors when you
were in high school? I'm not sure we even used the term "mentor" in those
days.
Not particularly. I can clearly say there were no women that I looked at as
being "Gee, I want to do that when I'm an adult," because most of them were
at home. You didn't question what you were going to do. You're going to
get married, have kids, and see where you go from there. So I can't think of
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anybody that I aspired to emulate. There was no encouragement of women's
career aspirations, at least when I grew up. That isn't to say that women
were affirmatively marginalized. But their role was pretty clear. It's very
ironic to me because through college, we did a lot of things and undertook
lots of community projects. For example, the March of Dimes dance every
year raised a couple thousand dollars, which was a big deal.
That was a lot of money back then.
That was all kids. We did a lot of stuff that the community supported.
Women were involved. We were academically, socially, and
organizationally very much a part of all of this. As much as girls were
encouraged and expected to be achievers in just about every realm - social,
academic and community - there was no encouragement, at least to me, in
terms of what you should do when you graduated from college. It was
almost like then you fell off a cliff. There is a hole at the end of all of this.
This train is going way up this mountain and that's the end.
Did that have something to do with the major you picked in college since
there would be no pressure to do something that was pre-med or pre-law?
I did have some pressure in college. I started out as an English major and
then transferred to history. My Dad said, "You know, that's fine but you
better get your education minor because you've got to be able to do
something when you get out." It wasn't like get your PhD in history, go to
law school, or you have to be able to do any of the professional things. It
was "You've got to be able to teach." So I did.
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There was no question that you would go from high school to college?
Absolutely no question. I didn't fight that. That was what I wanted to do,
too; I just assumed. There was never any indication that I wouldn't go to
college. To some extent, going on to college did break down a little bit of
around socioeconomic lines. Almost all of my really good friends, girls and
boys, were all going to college. The ones that weren't going to college, it
was basically an economic issue for girls and boys.
You went to college at St. Mary's College in South Bend, Indiana, but what
colleges did you want to attend? Did you have more than one in your sights?
One of the colleges that was not in my sights - because my parents made it
very clear it would not be - was the University of Wisconsin in Madison.
They were not going to let their daughter go to that "sin hole." As I
mentioned earlier, the academic advising or college counseling at Lourdes
was pretty limited to schools like Rosary in Chicago, Mount Mary in
Milwaukee, and St. Theresa's in Minnesota. I knew about some of the
colleges. I was fortunate because my mother and father had gone to college.
But the kinds of advice and things that we would get were very Midwest
oriented. People knew about Harvard and Yale, but women weren't allowed
there at that time. The advising that I got, and the panorama of places to go,
was basically Wisconsin colleges or Catholic girls' colleges in the area. St.
Mary's was considered, "Wow, that's really far away." I had a couple of
neighbors - they were IO or 15 years older - who had gone to St. Mary's.
That's how I had learned about it. They happened to be two people I really
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liked, particularly one of them.
Were these older friends or friends of your parents?
Basically friends of my parents though a little younger than my parents.
They seemed a lot older to me, but if I was 17, they were probably 27. So St.
Mary's was a choice. I visited Rosary and Mary Mount. I don't even know
that I visited any non-Catholic co-ed schools or even any co-ed schools. But
I really liked St. Mary's. I liked the fact that it was far away. I always was
one of these kids who loved going to camp in the summer. The idea of
spending a whole week at camp was wonderful. I loved going to see my
grandmother.
Did you go to camp every summer?
Yes as a young child before I started sailing and for some time while I was
sailing. We were Campfire Girls.
So it was organized activities?
Yes.
Was it part of Girl Scouts?
Campfire Girls. No, it's not part of Girl Scouts. But you were Bluebirds,
then you were Campfire Girls. You lived in these kind of log-cabinish
things. You sang around a campfire and put candles in muffin cups on the
lake. I loved it. I just loved it. I thought it was wonderful fun. I didn't like
the food much. They'd clip for the stuff you'd buy. We made lots of
lanyards. I loved it. I really did. I'm saying that because sleepovers were
always fun things for me. We didn't really take family vacations. I had
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traveled to Chicago. I don't know that I had gone much farther than that. I
had gone up north with my parents. I liked the idea that St. Mary's was three
states away, and I liked the idea very much that Notre Dame was there. I
also knew, although I wouldn't have known this word particularly, that it was
a more "selective college," and I liked that idea. It's got a beautiful campus
if you've ever seen it. There's the golden dome right across the street.
What's there not to like?
Why did you think that it was a more selective college? Was it more
difficult to get into?
I thought that at first because of its proximity to Notre Dame. Maybe
because it was farther away and wasn't a school I had heard of. The fact was
that it was more difficult to get in there than many of the other schools that I
was looking at. I had scored well on the SAT' s and I was valedictorian of
my class. I had a good record. Had I applied to Vassar or Northwestern or
something like that, I don't know what would have happened. That wasn't
anything on my radar scope. But even there, I wasn't terribly worried about
getting in.
Did you apply to more than one college?
I think I did, but I knew that St. Mary's was the one. After I had seen it,
that's the one I wanted to go to. Once that came through that was the end of
the process.
Do you remember having any angst about the application process?
No. I probably was just cocky enough to think, "Of course I am going to get
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in." You know, it was a different time; it was such a different time.
It was like you decided where you wanted to go and that's where you went.
Pretty much, yes. Remember, I'm looking at an all-girls' college, a Catholic
college, so I had eliminated a whole lot of competition right there. Maybe
that was why I subconsciously felt pretty confident that I could get in there.
Did your family have any influence on where you went other than excluding
you from the public institutions?
Not all of them - it was just Madison and Wisconsin. That was it. I think
they were very pleased with the choice I made. I think they understood my
need, or my desire, to get out and go someplace different. Dad left Fond du
Lac and went all the way down to Waukesha, which was to Carroll College.
It was a big deal then. While my mother's change wasn't quite that big, to
go to Carroll, she was the first person in her family to go to college and she
was the youngest of seven kids. They were the only ones of their siblings
that came to a place other than where they had grown up. So the idea of
being exposed to something beyond Winnebago County didn't intimidate
them. It didn't intimidate me. They knew I wanted to do something like
that. I think they'd rather have me in South Bend, Indiana in an all-girls'
Catholic school than someplace in Chicago.
Tell me about your memories of college life. What were the living
arrangements like?
The freshman dorm, Holy Cross Hall, was a four story, huge building that
had lots of wood and marble floors with parlors downstairs, maybe one
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elevator that only the nuns could use, and big hallways. I was in a double,
and my roommate was from Oklahoma. I just loved it. We had the best
time. We would roller skate up and down the hallways, and we'd have
parties in the rooms. We had this big room in the middle of the fourth floor
in which there were seven or eight girls. It looked right over the circular
driveway. It was wonderful. St. Mary's had and still has a geographically
diverse student body. My roommate was from Oklahoma. Of the two girls
next door, Judy was from Michigan and Carol was from Atlanta. There were
people from New York, Chicago, Texas, California- from everywhere. I
just loved it. The classes were very challenging and very interesting. We'd
go to Notre Dame football games, lectures, and musical events that came to
that campus. We would go all the time. It was a beautiful place, very
collegiate. Walking the halls, you couldn't wear pants unless you had your
trench coat over them. There were tunnels that connected the buildings so
you didn't have to go outside in the winter except to the math building. You
had to check in and out, no cars, and you had big rooms in the basement of
each one of the dorms. Holy Cross was the freshman dorm. Then they had
an upper class dorm, but each had a big room that had the TV's in it. You
had phone booths because you didn't have phones in your room. This is the
kind of thing people look at now and you could almost make a sitcom out of
it. It was intellectually very challenging. Some of the women I met are still
my best friends. We see each other a lot because I am on the alumnae board
now. I have always been very close to St. Mary's. I got a good education
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there. As in high school, if you wanted to do it, you did it. For example, my
friends and I wrote and got adopted a student government, which they had
never had. It had elected officials and a judicial council that dealt with
infractions. We really worked very strongly with the administration. This is
'61, '62, so I think they were glad we were not there rioting. At that point,
they were willing to give us a lot. I give full credit to the administration.
They knew it was time to really engage the women in the college in much
more responsibility and direction for various policies of the college and for
their living experience there. We put that in place at the end of my junior
year. That was really exciting. It was very new and different. Even though
it was Indiana, which wasn't that far away, because of all the women were
there from everywhere it was an incredibly opening experience to many
things. All of a sudden I was spending vacations or holidays in Oklahoma or
New York or Boston or Chicago or Atlanta. That clearly meant I was never
going back to Oshkosh.
Well, I take it that you did not have a friend from high school who also went
to St. Mary's?
No, I didn't know anybody there.
Do you remember what if felt like the first few days?
There was some fear. There was a little fear. It was a little intimidating.
When I walked in, my roommate from Oklahoma had already gotten there.
She wasn't in the room, but she had some of her stuff out. There were two
pictures in a leatherette folder. When she came in, I pointed to one of them
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and said I thought it was her father and maybe her older brother or a brother
and a boyfriend. I pointed to the one I felt was her boyfriend, but no, that
was the brother. The other one was her boyfriend who was at Georgetown.
It's like, "Oh, my goodness." So that's a little intimidating. Getting used to
even hearing a southern accent was really a change. Her dad was in "uhl." It
took me a long time to figure out that "uhl" was "oil." But it was more
exciting than scary. Part of the reason for that was that my life until that time
and the people I was with - both my contemporaries, my teachers, and my
family- had done a lot to just make me feel confident without, hopefully,
being cocky. This was an "Exciting thing to do," and "You'll be fine. You
know you can do it." They were excited about my going. They hated to see
their oldest child leave but there was never "If you're having trouble you can
always come home." That was not the message I got.
We talked a little bit about your major. You changed from English to
history. Why was that?
I was thinking English was going to be more comparative literature, but it
was really English literature. I didn't like the constriction of that. I felt that
history was much broader. At that time, we also were expected to have
minors in some other area. I had a minor in philosophy, a minor in religion,
and then I had a minor in, ultimately, secondary education. It was a pretty
broad spectrum of courses. I thoroughly enjoyed all of it. I didn't like
Spanish. But other than that, it was okay.
Did you have to take a foreign language as a requirement to graduate?
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Yes. Because I had four years of Latin, I could have taken just one year of
Latin. But of course, intelligent me said, "I ought to take a foreign
language." Then I'm in a language lab and all of that. I just hated it.
What were your intellectual interests when you were in college?
I really liked philosophy. I found that very challenging. We had to take a
logic course which was really interesting. I really liked that. I also enjoyed
the history. I liked writing the history papers. I still loved the literature but I
took fewer and fewer of those courses. I wound up with a minor in English
too.
How many minors did you have?
I had a lot. If the maximum was 18 hours, I always took them. I really did
like school. I've always liked the challenge of reading, the conversation in
the class, and listening to the teacher. At St. Mary's they had and still have
"comps" or comprehensives at the end of your senior year. You take written
and oral exams in your major near the end of your senior year that covers
everything you've done. Everybody gets scared to death of comps. It's like
a bar review course for college. It was fun. Easy to appreciate now. Yes,
easy to say now that it was fun at time. I'm sure I was panicked. We played
Jeopardy and all that stuff with the girls in the lounges.
Did you learn to play bridge?
Of course. I played a lot of bridge. I didn't watch much television. We
weren't allowed to have TVs in our rooms. I can remember that in my junior
and senior year one of my friends got something like a 6-inch little
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television. She'd sneak it into her room. We'd all go watch Mission
Impossible with Robert Vaughan if you didn't have a date on Friday, which
didn't happen very often.
You might have graduated in '66, which was when Star Trek started, I think
- '66 or '67.
Yes, but I was never a Trekky. I did see the Beatles, though, on television. I
did see that.
What books did you read when you were in college that had any particular
influence on you?
I really can't remember.
Did you read for pleasure?
I didn't read much for pleasure in college. It was almost exclusively course
material. If I did, I really don't remember. I may have read some novels
along the way, but I don't remember anything in particular in college.
What was your financial situation in college?
My dad paid. They took care of tuition and board and all of that. I had an
allowance of $25 a month. If I needed something, I would tell them. For
example, I remember we flew out to New York for a football game on a
chartered plane. Then I stayed with a college friend who lived in Scarsdale.
If my parents agreed with what I was going to do, then they would pay for it.
So, I had no debt, but I didn't have any money, either, when I graduated from
college.
But most of the extra expense was from outside interests or traveling but not
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necessarily because you ate too many pizzas out at the pizza place?
Well, no, because you couldn't. You didn't have a car. If you wanted to go
into town you had to take a bus. Downtown South Bend was not exactly a
really thriving place. So everything was really on campus. At that time on
campus, we had our meals in a dining room like you would have at home
with lots of wood, mahogany, walnut, I guess. It was gorgeous. The tables
were about half the size of this table here and we would eat family style
every night with a nun at one end who would pass the food around. We had
a dinner at 5 and one at 6. They turned that into a buffet for breakfast and
lunch. Not until my junior year did they build an actual dining hall where we
then could come and go when we wanted to, within certain hours, and where
you didn't have to be seated. But there was no place to buy a pizza. They
had one little thing downstairs in one of the dorms where you could get ice
cream and maybe a sandwich or something. But there wasn't any place to
spend money. My dad loved it.
You weren't that far from Chicago. Did you go to Chicago much from
college?
We really didn't. I felt we probably would. Maybe the girls do today, I
don't know. There really was so much going on on campus between the two
campuses. In the spring - in the warmer months - if you found a guy that
had a car, then a lot of us would drive up to the Michigan dunes, which
weren't very far away. You'd spend time on Lake Michigan and the dunes.
I remember my senior year when a lot of my friends would go into Chicago
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to get their wedding dress and their bridesmaids dresses. That was the
biggest thing.
Were you involved with any sororities or honor societies?
They didn't really have any sororities. I don't know whether I was in an
honor society. I wasn't Phi Beta Kappa. But neither Notre Dame nor St.
Mary's had sororities or fraternities. Notre Dame at that time had geographic
clubs. You had the Texas Club, the Minnesota Club, the New York Club,
and the Chicago Club. They had great social events. You did stuff with the
guys from all different clubs. But we didn't have any sororities.
Were a lot of extracurricular activities done jointly with the two schools?
Not too many. There were some. Choir was one, and glee club. The
Thespian stuff was joined. At that time they didn't even have girl
cheerleaders. None of the sports were co-ed. There was some cooperation
between the student governments for jointly sponsored projects. But at that
time, I can't think of too much else that was joined.
Were you able to take classes at Notre Dame?
Yes. There were co-exchange classes but not for any of your basic classes
and not for anything I was in. The co-exchange classes were in an area
where Notre Dame had the course that St. Mary's didn't. A lot of the guys
took art classes as well as educational courses on our campus. That started
maybe my junior year and grew from that. By that time, I was far enough
along that there wasn't anything for me to take. But yes, there were joint
classes - and there still are today.
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Did you have any favorite professors?
I had some favorite professors. I loved Professor Poindexter, who was one
of my history professors. Then there was a woman who taught English
history, and she was just fabulous. She looked English. She was really
good. There was a nun - Sister Ann something - and I really liked her.
There was a major called Christian Civilization or Western - Christian
Culture. It was a hybrid. The history and English departments put that
course together. I took a couple of classes. That professor was fabulous.
The dean of students was a nun named Sister Basil Anthony. She was a big
influence on me. She and I got to be very good friends in particular because
of the student government. I was a class officer. She knew that it was time to
start not only letting us, but pushing us, to do some things. Not all of her
fellow nuns agreed, like the academic dean. She was tall, probably 6 feet.
The Holy Cross nuns wore these halo things so you add about 6 inches to
that and, boy, if her shadow came around the corner, you got out of her way.
This concludes the first interview.
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ORAL HISTORY OF ELIZABETH B. LACY
SECOND INTERVIEW
September 25, 2008
Today is September 25, 2008. This is the second interview of the oral history of Elizabeth B.
Lacy, which is ~eing taken on behalf of Women Trailblazers in the Law, a project of the
American Bar Association Senior Lawyers Division. This interview is being conducted by Vicki
Tucker.
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
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Justice Lacy, the last time we spoke we went through a lot of your early
years up into college. Is there anything that you can think of that you would
like to add to our first discussion?
No. In reviewing it, it appears that we really discussed just about every facet
of anything from my pre-college years. So, I don't think there is anything
that we left out that would be of much significance or interest.
We talked about the fact that you did not feel, growing up, that your parents
had placed any limitations on you during your childhood in the things that
you could do because you were a girl. And, you gave examples, such as your
involvement in sailing activities and community activities. I know that you
have a younger brother who is seven years younger. Do you believe your
parents would have treated you any differently had you not been the eldest
child and there not have been seven years between you and your brother?
Did your father treat you more like a son?
Well, yes and no. In some ways one would say that my father treated me like
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a son, for example, with regard to sailing, but my Dad was not the type of
person that would necessarily go out and throw balls with you or put up a
hoop. He didn't do that with my brother either, even though my father, as I
said, was a football player and went to college on a football scholarship. He
was of the generation that, it's fair to say, fathers went to work. They were
'with the kids, but they weren't necessarily the soccer coaches and the
football coaches and things like that. So I don't know if I would have felt
any different, or if it would have been different, if I had been the second
child rather than the first child. I really can't answer that question. The
seven years difference, I think, wouldn't have made a difference if I was the
first or the second child.
You finished high school in 1962 and you finished college - we talked
some about college - you finished college in 1966. There were lots of
political and social changes taking place during those time periods. J.F.K.
was elected President in 1960, the Cuban Bay of Pigs, the Cuban Missile
Crisis happened in '61, '62 ...
'62.
I know I asked you if your parents were involved in politics, and you said no.
What was that time like in Oshkosh?
I was there pre-college primarily. Even in college, I wasn't in Oshkosh that
much. But, I'm sure there were certain political - lots of political activity
going on in Oshkosh. Wisconsin was a populous, progressive state. I know
my parents always voted; that was considered to be a responsibility. I don't
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recall political discussions at home. I do recall the election, Kennedy's
election. Everybody was watching the conventions at that time because the
conventions really meant something. That's where everything happened.
Then Lyndon Johnson becoming Vice President. I remember just people
talking about that. And I, particularly, was interested because Kennedy was
new, he was young; much like we see today with the younger candidates.
But, that's about the extent that I remember until I got in college. Now in
college, politics became much more a topic of discussion. I recall my
freshman year, at the Bay of Pigs event, we were all gathered around the
television. One of my suite mates heard that the boy she was dating at the
time, who she eventually married, was on one of the Navy ships, so we were
much more aware of the political arena. Of course, the Viet Nam war was
coming up and that really became a focal point in my later years in college
and in law school, too.
Do you remember what you were doing the day J.F.K. was assassinated?
Oh, certainly, I was in school at St. Mary's. I was in class, and it was just
before Thanksgiving vacation. I remember walking down to my room, it was
a quad, and across the hall was a quad. One of the gals across the hall was
from Dallas. And, I'll never forget - I mean we were all just appalled about
what had happened to the President, and all she could talk about was John
Connolly. And, I just couldn't believe it, you know. And, actually, the boy I
was dating at the time was from Dallas. He was to go home with me for
Thanksgiving for the first time. I was a sophomore, he was a junior. He was
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very worried about what kind of a reception he would get from meeting
people when they found out he was from Dallas. I found it very interesting
that he would have that concern, but he did, he was a little worried about
that. Nothing happened, but I found that very surprising.
Tell me, what effect did, not only J.F.K. 's assassination, but Robert
Kennedy's and Martin Luther King's as well?
Well, yes, that would have been in my law school years.
Did you have any involvement in the Civil Rights movement?
I didn't. Remember, I'm at St. Mary's College, a Catholic women's college
in the Midwest. Although we had some, I don't know if they were African
American students or if they were international students, but we had some
people of color, but very, very few. It's increased dramatically now.
Growing up I was never exposed- basically, the ethnic groups that I knew
were the Norwegians and the Germans and that was what my ethnic diversity
was. There were no Latino and very little African-American in our area. But
having said that, I didn't quite understand discrimination, or racial
discrimination. I had never been exposed to it and it was very hard for me to
grapple with or to understand why people would go to separate parts of the
theatre or the bus or restrooms. I mean, I didn't understand that. I can
remember my roommate, who was from Atlanta, and we had many
discussions about this. I can remember her saying to me at one point that she
understood and she agreed, in her head, with the Civil Rights movement, but
in her heart, it was harder emotionally just because of the way she had been
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brought up. She had grown up in Atlanta and discrimination and Jim Crow
were the way of life in Atlanta.
Did you go to visit her in Atlanta and experience any of the segregation
firsthand that you could tell us about?
I really didn't. I didn't go visit her until she got married, which would have
been in 1966. As a result, I never really was in a place where I saw what was
going on in the South. I just didn't. Now, I certainly was aware of, in New
York, or even Milwaukee, Chicago, different parts of town of those cities,
which had some real economic segregation, of course. But see, even
Chicago, at that time, you had the Polish part, you had the German area.
Milwaukee had the same thing. So, I was used to, if you want to call them
racial ghettos.
They were ethnic.
Yes, ethnic, but that was - I mean that was kind of a good thing, it was a
neighborhood, that was your neighborhood. So I would have put a black
neighborhood or ghetto, if you will, in the same kind of situation. And, of
course, I also was somewhat aware of discrimination against Catholics and
Jews.
Did the fact that John F. Kennedy had the issue of being a Catholic and
whether he was electable, did that resonate with your family, your area?
Oh yes, it did. We all were very pleased that it was an issue that did not
block him from the nomination or, obviously, from being elected President.
We felt that it shouldn't and, you know, we were happy about that.
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Do you think that the fact that he was elected President, was the feeling that
that would help get everyone over anti-Catholicism?
I suppose that was the underlying thing. I think, at the time, those who were
in favor of Kennedy, and of course as a high school kid you were, you just
didn't want that to prevent him from it. I don't know. I never felt the
personal discrimination on a Catholic basis, although I know that there was
some.
But, you were in that environment?
I was in such a Catholic environment that I wouldn't notice it.
I think we talked a little bit about your social life at St. Mary's college. Is
that where you met your first husband?
Yes. He was a year ahead of me. He was from Notre Dame, and originally
from Dallas, as I said. We had a very active social life. It probably wasn't
the same as sororities and fraternities on public, big university campuses, but
we were very busy socializing. Notre Dame had what they called geographic
groups, such as the Texas Club, which were like fraternities. There were lots
of things going on with that and, you know, there were dances. We just, we
were pretty, pretty active. And, even in light of the fact that we didn't have,
couldn't have, cars. My senior year we got to have cars between Easter and
graduation.
And there was?
Lots of parties. And, that was the first time they'd ever allowed that.
Did this facilitate bridal shopping?
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Well, that probably was it. But, I think we persuaded the nuns we could do
it, should be able to do it, because there was so much stuff we had to take
home that we really needed two cars and our parents couldn't, or wouldn't,
drive two cars. So, if we could bring a car back then that would help us
move out. I'm sure they saw right though us!
So, there were many trips to Chicago and to the Dunes?
The Dunes. Oh definitely, yes.
Well, so how did you two meet?
I think we met at a social, or freshman or some kind of a social, over at Notre
Dame's campus. Then, we just kind of kept seeing each other and that was
it.
Were you engaged at the time you graduated?
Oh yes. When I graduated, my wedding was set for August. We graduated
in June, and I got married in August.
What percentage of your class would you say you fit into?
Probably 75%. Well, very close. Even those that weren't getting married
were engaged. It was a very high percentage of people getting engaged.
And, what do you want to say about him? What his background was? What
his interests were?
He came from an Italian family in Dallas. His dad worked for LTV. He had
an older brother and two younger sisters. He had gone to a Jesuit school, it's
called Jesuit in Dallas, and came up to Notre Dame. I think he may have had
some kind of scholarship. He was a very smart guy. There was a big
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contingent of Dallas students both at St. Mary's and at Notre Dame. That's a
big drawing area for the schools. He worked hard. His family, his parents,
really had to sacrifice for him to go to Notre Dame. I don't know about
loans so much, but I think between scholarships, and they were a great
family. We always said that his dad- his name was Sam- never walked
into a room or a store without coming out with 15 new friends. But, Sal was
a very smart, very nice guy. He was a neat guy and we dated and went
together for a long time. Of course, we got married.
So you graduated from St. Mary's in June 1962.
No, '66.
Oh, I'm sorry, that's right.
I'm old, but I'm not that old.
I'm sorry. High school was '62. So you graduated in June of 1966, married
in August 1966, and where did you go from there? Is that what took you
back to Texas?
Back to Texas, right. Yes, and in fact that summer, you might recall that that
was the summer when Whitman stood in a Texas tower shooting people on
the University of Texas campus. So my father, in Wisconsin, was not real
excited about the fact that that was where I was going within a month. So, it
was a little tense, but we went back to Austin. Sal was a second year law
student that year, and I taught school. That's when I taught school, and we
had an apartment. You know, at that point did what married kids did. We
supported ourselves. I taught, and he had part-time jobs. At one point he
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drove a school bus, I remember. I worked for a law firm when I finally went
back to school and, we actually lived in one apartment (that later was torn
down for the LBJ Library), which was great because it was so close to the
law school. After it was torn down, we lived, literally, in federally
subsidized housing. They built a new kind of four-plexes and duplexes a
little ways from the city, and we sure qualified because we had so little
income. Actually, there were about five couples out there all of whom
included guys in law school.
You said in the first interview that your dad had encouraged you, despite
your many majors and minors in college, to make sure that you got a
teaching certificate so that you could teach. Was it a foregone conclusion
that when you finished college and were married you would teach?
Well, pretty much. He was in law school. I had applied to graduate school
at the University of Texas. But you know, we had to live, and you didn't ask
your parents for money. Once you got married, I mean, that was it. You
supported yourself once you graduated, probably not just got married, but
once you graduated from school; then it was your turn to be the adult. And, I
probably would have taken kind of any job in Austin. I'd never been to
Austin before we got married, and the Catholic Holy Cross network is what
helped me get this job at the school, St. Ignatius. And, so they said "here's a
job you can have." Well, of course, I was going to take it, you know. It was
teaching elementary school, and my teaching certificate was in secondary
education. But, I didn't have to have the state certification because it was -
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Because it was a private school?
Because it was a private school, yes.
And it was in the parochial school system?
It was in the parochial school system, yes.
So, you taught for a year?
I taught for one year. I was getting paid $300 a month for 9 months total. I
had 35 kids in an un-air conditioned classroom. They were great. I loved the
teachers. It was fun. But I knew I didn't want to continue doing that. And
actually, I re-activated my application to graduate school thinking that, well,
I could get a masters in a year. And, then I'd be finishing and Sal would be
finishing. Even though, I kept saying $300 a month even if we have to
borrow that, I just wasn't making enough money to make sense to keep
working at something I really didn't like. So, I knew I wasn't going to teach
a second year. I was going to go back to school.
When you finished teaching that year, did you go to graduate school or did
you go to law school?
Well, I went to law school. As I was revitalizing my application to graduate
school, Sal came home one night and said "I think you'd like to go to law
school. Here are the LSAT forms. Why don't you fill them out and take the
test?" That's how I went to law school.
Had you ever thought about it before?
No. It had never, ever crossed my mind. And part of that is because, first of
all - law school was for guys. Lawyers were men. My academic advisors
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at St. Mary's really were not - they kind of let you fall off the cliff at then
end, you know. And they did not have any suggestions, I mean, just going to
law school, going to medical school. There were some girls who went to
medical school. That was a little bit different. But, the whole concept of
going on to a graduate career, professional career, that was just not done.
And my husband was in law school. My goodness, that wouldn't work, and
it was my job to find a job or work until he got out of law school. That was
the mind set people had and so that's the mind set I had. But, then I found
out that I didn't really like working, or I didn't like the work I had.
You didn't like teaching?
I didn't like teaching.
So, you took the LSATs. Did you do a lot of thinking about whether you
really would like it? Did you sit in on any classes?
No. No. All I thought was, he said "I think you'd really like it." And this, I
figured, was a man that knew me. By that time we'd been married well a
year, so he'd known me for four or five years. And I looked at him and I
thought, "you know, if you and your friends, who I knew well at that point,
can do law school, I know I can do it." I had never even thought about
whether or not I could or should do it, but I knew I could do it. I had the
intelligence and the ability to do it. As he said, all I could do with a Masters
in History was teach history, so it sounded better than history. And I
thought, well, "why not?" I guess that's kind of in line with many things that
have happened in my life. You know, "why not?"
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Not so much that you planned for it-
Correct. But the opportunity came. "Well, I'm ready; I've got the
qualifications. Let's do it." It's kind of like even moving from Wisconsin or
Indiana down to Texas, having never seen where I'm going, never seen the
school in which I'm going to teach. You know, just "Well, okay, we'll try
this."
Had you been to Dallas to visit?
I had been to Dallas, but, you know, Dallas and Austin are very different
places. Very different places.
I've never been to Austin.
Well, let's put it this way, I'm glad the University was in Austin and not
Dallas. Dallas is great, but, you know, it was that same kind of, "Well, okay,
let's try it and make the best of it, and, if it doesn't work, it doesn't work."
But I went into it thinking "Well, okay, I can do this." Did I know what a
tort was? No. I knew what a contract was.
You did not know any women who were lawyers?
No, I didn't know any. At that point though, that's interesting, because of
being in the law school environment with my husband, I did know of women
law students. There were not a big number, but there were women in my
husband's class, and so I did know women law students.
Any thoughts about having children at this point in your life?
Well, at that point, probably not.
Your generation, at that point people would be?
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Justice Lacy: Well, yes and no. You know, two points I'd like to make on this law school
business and also children. At that time, to get into law school, they had at
Texas, a sliding scale on what your grade point had to be given your LSATs,
and the higher your grade point, the less the LSA T had to be. There was no
US News and World Report ranking at that point, so they really could make
some other value judgments. I think that I could have gotten in under any
circumstances, but I started in the summer of 1967. Lots of guys had been
drafted or were leaving to go into the National Guard. The family, whatever
that classification was that gave you a pass, was kind of being eased out or
was gone at that point. So, they had empty seats in that law school class. So,
as tragic as the Vietnam War was, and it certainly was, I think there were a
number of women who were able to get either into professional schools or
perhaps into management trainee programs, things like that, because so many
of the male college graduates were being otherwise occupied at the time.
The other part of it was, that was the time when the Pill became just so
widely available. For the first time, one could really talk about having a
career, rather than just a job, and you could do some planning. You know,
up until maybe say five or ten years before that, ten at the outside but even
five years, the Pill just wasn't, if it was around, it was not talked about much.
But now, you could control that. So while there was discussion about having
a family, yes, it was in a much more planned way than it ever had been
before. So when I started law school, we weren't thinking about having
children at that point.
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Well, and perhaps this is something that you would rather not talk about, but
given your religious beliefs, did the Pill create issues for you?
At that time, it really didn't. Remember, this was also the time of Vatican II.
So it was, everything was kind of, much more open and the priests weren't as
doctrinaire as they may even be today. So, it didn't give me much pause; no.
Still doesn't.
Under the circumstances, it sounds like the University of Texas Law School
was the only place you applied to because of your husband, number one,
already being there, and you were in Austin and that made sense. Are there
other law schools in that area that -
Not in Austin.
- that you considered?
No, I didn't. Obviously we were there, it was a really good law school and it
cost $400 a semester. No choice; I mean, easy, easy decision.
So you entered as a first year when your husband was in his third year?
He was starting his third year. I started actually in June of 1967. Texas, at
that time, had a program where you could start in the summer and you
literally would graduate in basically two years and three months or
something. They had a summer school. Freshman classes that were offered
in the summer school, so you could take torts, contracts, so forth - so I
started in June. My husband started as a third-year that August but then I
graduated in August of 1969, which was just three months - one summer
school session later.
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After he did.
Well, no, no. He graduated -
One year earlier?
Yes, but I'm saying with my class that I would have graduated with had I
started in August of '67. So, see, it was a pretty long haul for law school.
Well, tell me what you thought about law school.
I loved law school. Of course, as I told you before, I've always liked school.
I liked the intellectual challenge; I liked the social part of it. So going back,
and I think for all of us that may go back to school after we've been out in
the working world for even a year, it's wonderful to go back to school. So, I
really liked it. Texas was pretty big at that time and there were 500 kids, I
think, in a class. I can't remember exactly how big it was, but we started
with that summer session. There were a number of people in that summer
session who, like me, had worked for a while and didn't go straight to law
school from college. So, it was an interesting mix of people. Second careers
for some, you know, things like that. And, of course, I knew all or a number
of the students in the rising 3L class because they were my husband's
friends, and I really enjoyed it. I liked the way a law school teaches a person
to think, that was kind of up my alley. I liked that kind of analytical
approach to things, so I thoroughly enjoyed it. I worked part-time at one
point. I wasn't on Law Review; I don't think I was on Moot Court either,
because I really was working. In those days, that stuff wasn't that important.
Well, Law Review was, but I wasn't in Law Review and you know, you
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didn't have the kind of summer job recruitments we see now. You had some,
but I wasn't interested in that. I'd work in the summer or work at the law
school.
But you were still going to school in the summer, too?
TQat's right. It was a very different time for jobs. There was certainly
competition academically, and also for jobs when they came out, but jobs
were much more plentiful. They were just inventing things like the
Environmental Protection Agency and all of the federal agencies, so there
was a huge, huge market for that. And there weren't as many national firms
then either. There were big firms, but they hadn't spread throughout the
country. I think Baker Botts and Vincent Elkins may have had an office in
Washington, DC and that was about it. So, that part of it was very different,
but I made a lot of friends, and still am friends with, people that I went to law
school with. We still keep up, and it was great.
Did your husband work during the time that he was in law school, too?
He worked. As I said, sometimes he drove a bus, and yes, he did have some
part-time jobs, too. When he graduated, his first job, I think, was working
for a State Senator. I can't remember if that was during law school or when
he first got out. Oh, no, he clerked for a federal district judge, that's what he
did, for two years.
So, he was a little constrained because he couldn't leave Austin while you
were still in law school?
Justice Lacy: Yes.
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So, whatever job he took, I assume, right out of law school, had to be in that
area?
Well, I can't remember specifically our conversations at that point. I think
that had he decided to go to Dallas, because he always thought he'd go back
to Dallas, had gotten a job offer up there, he would have done it. Then we
would have just commuted that year. But, he did get this federal clerkship
and got it rather early so that kind of worked out great. I mean, he wanted to
do a federal clerkship, so that worked out well. But, it was a two-year
clerkship, too, which made it difficult for me when I was graduating and who
I was going to interview with. We always thought he was going to Dallas
and of course he had a year left on his clerkship, so I did not interview with
any law firms in Austin. I interviewed with the Texas Legislative Council,
which is like the Legislative Services in Virginia. You staff the committees,
and you drafted the bills. We did that kind of work; there were maybe 20
lawyers, and that's where I worked.
Did you have any mentors in law school? Were there any women professors
in law school?
Not that I can remember. They were all men. There was a professor named
Vince Blasi who came and taught. I think it was his first year teaching after
clerking. He taught Constitutional Law. (Actually he's a quite well-known
professor now. He was splitting between UV A and Columbia for a while,
but I think he's just back at Columbia now.) But anyway, Vince was more
our age, particularly that summer group because we had some older kids,
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relatively speaking, and he was really good. I hate to say he was a mentor in
the sense of guiding us, but he was a nice helping person because he was a
professor, you know, but he was much more our age. But we had some
really good professors and they were all very helpful. Cordial, although
there's always the gruff 9ne, you know, a curmudgeon to everybody. And it
was still the days of the very Socratic method. We just were beginning to
have clinics. I think there was only one clinic. There were no such things as
"skills" courses. The only "skills" course was Roy Mersky teaching us how
to use the law library, that was about it.
I don't remember anybody ever teaching me how to use the law library.
Yes, we did have that, but that was it.
Did you feel any discrimination in law school?
Yes, there was - you did feel that. It was frustrating. The guys used to say,
"Why are you in law school? Why did you want to go to law school?" Well,
there were three or four girls, and we were all good friends, and we would
get together and come up with answers to questions like that. You know, we
would say, "Because we want to be on the Supreme Court." Or, then our
other answer was, "Well, why did you go to law school?" You'd get those
kinds of strange questions.
Did you get those questions from your fellow law students?
Yes, yes. Definitely.
Was there a sense of you are taking the place of men?
There was that and also just, "It's just weird you being here, you shouldn't be
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here," kind of thing. "You just shouldn't be here." "Girls shouldn't be
lawyers," type of thing. The other thing that happened that was really
disconcerting to me, and probably was a good learning tactic for the future,
was that there was a rumor started that I was having an affair with the
Constitutional Law professor because we all were going out socially. That
really bothered me and that really hurt. It certainly affected me, I mean, I
just didn't want to ever be seen around him at any point in time. Finally, he
said something to me, and I had to tell him why I was acting that way. My
husband and I talked about it and he said "Oh, don't worry about it." But, it
really bothered me that that kind of really character assassination - vicious
stuff.
Was that linked to the grade that you had gotten in the class?
I don't know what it was linked to. I don't know if it was just people being
mean or people just, maybe even making a joke. I don't know, but it was the
kind of thing that you hear that, someone finally tells you and it's just very
upsetting. I learned, though, that it wouldn't be the first time, and it was just
something you had to live with. I mean, that just happens.
Did you feel as though the professors treated women students differently
than the male students?
I have thought about that question a lot and I don't really think they did, but I
may not have been as sensitive to it as, perhaps, some of the other women
who had been in co-educational classes. See, this is the first time I had been
in a co-educational class since I was in 9th grade and then only for one year.
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When I was in all women's classes, if there was a mean teacher, everybody
was constantly on point, so I never felt that I was being picked on or
anything like that. And I'm not sure I could really see that in anybody else,
but the other problem is, sometimes I was the only woman in the class, so I
didn't see how anybody else was being acted upon. At one point, my
husband was picked on. We were never in class together because we were
always on different tracks. But after he graduated, he came back to audit a
sales class, a UCC class. Of course, then we were sitting next to each other
because we had the same last name. And the professor asked, it was 8:00 in
the morning, and the professor asked him a question. He said, "Mr.
Levantino, would you give us this case?" and Sal started saying, "Well, in
this case the plaintiff is suing the defendant." The professor cut him off and
said, "Sir, the plaintiff always sues the defendant. Do you want to get on
with it?" I thought that was pretty awful, which really made me feel like
everybody gets picked on. Actually, that was the last day he audited that
class. So I think those kinds of things happen to everybody.
- harsh on everyone?
Yes, I think so. So, I can't point to anything in particular.
And you didn't participate in Law Review or Moot Court, not because you
weren't invited as a woman to participate, but -
I couldn't.
- circumstances.
I couldn't say that. I don't know that for a fact. I don't think I had the
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grades to get onto Law Review. There wasn't anything that I had my heart
set on so much that I didn't get to do that made me start wondering if gender
had anything to do with it. And again, I came from a background where
gender didn't - I didn't think about it. I didn't really think about gender
until later on in my life, and I was just beginning at that point to understand
discrimination because I had been in these all-women environments where
you did everything you wanted to do. Or tried to anyway.
So, you finished law school then in 19 - ?
'69. August of '69.
August of '69. Then you had the difficulty of what jobs you could even look
for in terms of the situation with your husband?
Yes.
What was the job market like for women coming out of law school in 1969?
Well, some of my female friends got just fabulous jobs. One of my very
good friends, who had good grades, wanted to work in Washington but, did
not get a job offer. I'm not sure how many firms she interviewed at. She
wound up running an elevator in one of the Senate office buildings for, I
don't know, a year maybe. Then she got a job in the Washington D.C. court
system, and then went into Fairfax County in the County Attorney system.
She actually was responsible for getting another of our classmates, David
Stitt, into the County Attorney's office. Then, she answered a blind ad for
The Wall Street Journal, and wound up working as the executive assistant for
the President of Dow Jones Publishing Company for a number of years.
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Then came back and was in the General Counsel's office for PBS. She was
smart. She knew what she was doing, so I don't know the extent to which
her situation may have been adversely impacted by her gender. Other
women in my class pretty much got the jobs they were looking for.
Did most of them go to law firms to work?
A couple went to federal agencies and a couple went to law firms, yes.
How many women were in your graduating class, from roughly a class size
of 500?
Yes, we had about 10% women at that time but, you know, I really only
knew the ones that were in my section. As I recall, getting jobs really wasn't
much of a problem. It really wasn't.
So you went to work for the Texas Legislative Council?
Yes.
Did you consider a clerkship yourself?
No, no, it was strictly where I felt I could work, in all honestly, and not be
promising anything over a year because I figured we would be gone in a
year, and I felt like that's why I didn't even apply at a law firm. And I felt
with it being a government job, government lawyers are fungible, I guess.
That was my thought. I just felt like it just wasn't the same kind of
investment in me that a private firm would have to do. I had worked for a
private firm part-time all the way through law school, but I didn't even apply
with them. I told them I wasn't going to apply, so I don't know if they
would have hired me or not.
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Did they ask you if you were going to apply? Do you think they expected
that you might?
No, I don't know because I pretty much pre-empted it. You know - I mean,
I made it pretty clear right from the start, and it was a great firm. If I did
have a mentor, there were two lawyers in that firm who really were very,
very supportive, and I would have considered my mentors.
I assume they were male?
Yes, oh yes.
Did you talk to them about what your options were out of law school?
Not really, because I kind of knew what I didn't want to do. I mean, as a
matter of ethics, I just didn't feel like I could go to a private law firm and try
and work, because I'd have to say I'm only going to be here one year. Why
waste their time interviewing me, because I know a law firm wouldn't hire
you for a year.
Well, then, I'm curious about what ways in which they did mentor you?
What did you take away from that? Was it work ethic?
It was work ethic. A lot of just, you know, how do you practice law, because
you didn't learn that in law school, and just discussing various legal-related
and operational aspects of the law with them in the firm. It was a small firm.
There were only maybe three or four lawyers in the firm.
What did you do at the Texas Legislative Council?
Oh, my gosh. Just about everything. I staffed committees that drafted
consumer legislation, and regulation of cosmetologists. I drafted all kinds of
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legislation, but those were some of the study committees that I recall being
assigned to. There was one called the "dirty movie committee." Senator
Hall from Rockwell was looking into how the state could regulate
pornography, and it was really funny because I was the staff person, but there
was a lot of the evidence that we got that they wouldn't let me see. In fact,
he ultimately ran for Lieutenant Governor and lost, but he's now been a
Congressman from Texas for years in the United States. The work there was
fabulous. At that time, Barbara Jordan was a State Senator. A woman
named Sissy Farenthold was in the legislature - she ran a very serious race
for Governor at that time. She was the Democratic candidate and came close
to winning. Sarah Weddington was just beginning to argue Roe v. Wade at
that point. I think it came out in, was it '72?
'73.
'73, yes. So, this was earlier. There was a bunch of women that, you know,
we were all good friends and kept together. Anne Richards was in town but
she actually lived in Dallas at that point. Her husband was with the ACLU.
We also had the woman Senator from- Kay Bailey Hutchison. She was a
stringer for The Houston Post, usually covered the Senate. There were lots
of women around and Texas was really great about - the gender
discrimination was minimal at that point. You just saw women doing things
everywhere. They were fundraisers; they were office holders; they were, not
so much in law fields but, they were very active in the political arena at that
time. It was great.
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What was your relationship with your colleagues at the Council?
At the Council? Great. There were three or two other women lawyers and,
as they say, maybe about half a dozen guys. It was a big bull pen. We didn't
have separate offices, we had separate desks. And it was before computers,
so you typed everything. We didn't have secretaries. We would actually
type the statute on the redline that would then go to the editor and all of this.
The members would come "in and sit at a chair next to your desk. If they
didn't want anybody to know what legislation they wanted, they'd try and
whisper to you. It was really interesting.
These were the members of the?
Legislature. You know, of course you worked crazy hours because they
were in session for six months every two years and while they were there -
well, the first month or so they weren't that busy but after that it was around
the clock sessions. So it was very, I didn't have any problem at all.
So, was this position was available because the legislature was in session that
year?
No, it was a full-time year-round position, because in the interim is when you
did all the committee staffing and all that kind of stuff. And they'd come
back for special sessions, or a lot of legislators would. They knew they
wanted certain bills introduced, so you'd be there year-round full-time. It's
just that the hours were really long during the session because you had to be
there. We had to be there. Sometimes we were just sitting up in the gallery
watching, but if one of your bills came up that had floor amendments, then
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you had to deal with that. So, I find that, like anything else, although I never
really planned on being a judge, the training-the practical training that I got
at legislative drafting, and of course, the legislative process - was just
invaluable all the way along. I mean, so much of our law now is statutory
law. It was just a great experience. It was very helpful.
It also gives you a good idea of how many people can look at the same
language and interpret it to mean something different.
Oh yes, and how important things like commas are. I often think back to
those days when I was sitting on the bench as a Justice because words are
important. They are very important.
Is there anything you didn't like about the job?
Well, probably. I didn't like some of that - the legislative groupie stuff.
My deal has always been, if I've got work to do, let me have it, you know. I
don't have to deal with and fool with the groupies that are around and there
were many of those. I kind of wanted to get in, do my business. You know,
it was hard for me to "glad hand" and "hail fellow, well met" with the
legislators, and that's their bread and butter, so I did a little bit of that. And
we didn't lobby as such because, you know, we were just there to do the
work. I suppose I found that I didn't like the real slow times, which
sometimes in the off summer- it would get really slow because they didn't
want to be holding committee hearings and, you know, just like anything
else, time goes faster when you're busy. But otherwise, it was very
energizing. A lot of adrenaline. My gosh, I was what, 24-years old or
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something like that? A very exciting place to work.
And you were in the halls of power?
Oh yes, and those were really big halls. The Texas capitol is really, really
big. One of the Congressmen at the time, a guy named Ralph Yarborough,
always said that the Texas capitol was "a building built for giants and
inhabited by pygmies."
How long were you at the Legislative Council?
I worked from '69 when I graduated to January of 1972. A guy named John
Hill, who was a plaintiff's lawyer from Houston, was elected Attorney
General and he had been Connelly's Secretary of State, I believe, which I
didn't know. I really put my foot in my mouth that one time I was with him,
but I didn't know him at the time. Anyway, he asked me to come to work for
him in the Attorney General's Office. He was kind of a reform candidate.
Everybody came in -Texas had its Watergate before Watergate- and
there were a lot of unsavory dealings that were revealed with the then
Speaker. There was a huge reform effort, and John Hill was elected as
Attorney General to replace Crawford Martin. Price Daniel came in as the
Speaker of the House. I mean, it was just a big - it was at that time Texas
was still, of course, primarily a Democratic state, but within the Democratic
party there were very clear factions of conservative, liberals and so forth. So,
I came in with an Administration that had been kind of swept in to clean up
Texas, to clean up Austin and bring good government to good people - you
know, that type of thing. So, he asked me to be Assistant Chief of the
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Consumer Protection - Antitrust and Consumer Protection Division. And
that position, I think, had a lot to do with the work that I had done on
consumer legislation drafting while I was in the Legislative Council. I think
now would be a good time to end, because there's lots to talk about at the
Attorney General's Office. That's where I made my Supreme Court
arguments and that's where I did a lot of lobbying, all kinds of stuff.
Well, let's leave that for the next session.
This concludes the second interview.
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ORAL HISTORY OF ELIZABETH B. LACY
THIRD INTERVIEW
September 10, 2009
This is the third interview of the oral history of Elizabeth B. Lacy, which is being taken on behalf
of Women Trailblazers in the Law, a project of the American Bar Association Senior Lawyers
Division, on September 10, 2009.
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Our last interview ended with you being asked by the new Attorney General
of the State of Texas [John Hill] to join him in the Attorney General's Office.
Tell me how that came about.
Well, as I had said, I had worked for the Texas Legislative Council, which
was a staffing unit of the legislature. I had met the new Attorney General at
some meetings, and I think there were a number of people who worked in his
campaign who were friends of mine through mutual acquaintances. He was
staffing up and asked me to join him in the Consumer Protection Antitrust
Department.
Is that the same sort of work you had been doing with the Legislative
Council?
To some extent. I had staffed a Senate-run committee that was putting
together some consumer protection legislation. So, to that extent, there was
that overlap.
So, you had some background.
Some background on that.
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Ms. Tucker:
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What influenced you to take the job?
It was very exciting. The incoming Attorney General was a man named John
Hill. He had been a plaintiff's lawyer out of Houston. He made a lot of
money prosecuting airline crashes. He was an outstanding trial lawyer and
well-respected. He had also been John Connelly's Secretary of State. And
as I said, a number of my friends were going to work for the Office. The
prior Attorney General had been in that office for a number of years, so it
was kind of a new day, and it was an exciting challenge.
And your other jobs had seemed more temporary in nature, and I think part
of it, as I recall, was that you were trying to accommodate where your
husband would ultimately have his permanent job.
Yes. By that time, my husband had taken a permanent job as the Legal
Advisor to the President of the University of Texas. So the transition into
staying in Austin for a while - that decision had been made at least for a
while, so this did not seem to be a problem.
And what responsibilities did you have in the new position?
I was Assistant Chief of the Antitrust and Consumer Protection Division.
And in that regard, I litigated cases and also didn't have the direct oversight
responsibility that the Chief of the Division did, a guy named Joe Longley.
The Attorney General was very interested in getting the Consumer Protection
bill passed. What I wound up doing for a good amount of time was working
with the Chief and the legislature, negotiating with the insurance companies
and others - the car dealers and the manufacturers - on getting this
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legislation passed. Also at that time, the legislature was enacting new ethics
legislation. I had worked on that when I was in the Legislative Services and
so I was kind of on detail to that group and also kind of on detail to the
Speaker of the House, who was working on some of this legislation in
conjunction with the Attorney General. The Texas legislature meets only
every two years. So at my first year and ensuing legislative sessions I was
detailed quite a bit to the legislature.
So, you were working not so much for the Attorney General's Office, but for
the legislature?
No. It was for the Attorney General, because he was very much in favor -
you know, he was really supporting and had pushed in his campaign the
passage - of this legislation. We were like consultants from the Attorney
General's Office. I also was involved in some class action suits -
tetracycline, among others, I worked with some Washington law firms and so
forth on that, in the Antitrust and Consumer Protection territory area.
Is there a case or an issue that you were most proud of having handled during
that period?
Well, from being Antitrust and Consumer Protection Assistant Chief, I went
into being a Special Assistant to the Attorney General. That was still on the
administrative staff, but in that position, I reviewed all of the appellate briefs
that went out. I was involved in major litigation regarding a boundary
dispute between Texas and Louisiana. It was an original action in the United
States Supreme Court between Texas and Louisiana and also the United
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States Government, because the prior litigation had brought the boundary
down the Sabine River, along the Texas/Louisiana border, to the mouth of
the Sabine in the Gulf of Mexico. And now the issue was - was where was
the line - where did it go out into the Gulf? Texas had a nine mile
ownership, if you will, of the undersea bed, whereas Louisiana had three
miles and then the United States had the other six. So, the subtitle of this
litigation was who gets to drill for what oil and where? And that was very,
very interesting. We had a Special Master, we had the trial in New Orleans
and, in fact, it went on so long that after I came to Virginia, I was a special
consultant to the Texas Attorney General's Office for about a year as we
were finishing up before the United States Supreme Court. There were a
couple of other cases that were very meaningful to me. I was involved in the
redistricting litigation, which really wound up being my argument before the
United States Supreme Court. Texas was in the throws of going from multi
member to single-member districts and having to deal with it. At that time,
Texas was included under the Voting Rights Act. So I was very much
involved in a lot of the pre-clearance that had to go on under the Act. But of
course the argument before the United States Supreme Court was one of a
couple of really incredible highlights. At that time, there was still a three
judge federal court that would hear these pre-clearance cases, and there was a
direct appeal to the United States Supreme Court. When the three-judge
court made its ruling, we had to get a stay from that and I remember -
Because it was an adverse ruling?
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Justice Lacy:
Ms. Tucker:
Justice Lacy:
It was adverse, yes. And the primaries were two days away, and we had to
fly up to Washington and worked all night on this stay petition, trying to get
the order stayed so that the elections could at least go through two days later.
And actually, Justice Lewis F. Powell was our sitting judge at the time. Now
we did not see him, but he called us from his chambers and we talked to him
on the phone. The stay was granted, and I can remember that and it was
quite exciting. The other case that I would say is most exciting involved an
impeachment. All of these cases are quite unusual. I mean, you wouldn't
make a lot of money taking them. There isn't a big market for it.
Not likely to be repeats.
Right. Although I was involved with redistricting all the way through my
legal career. But the final one was an impeachment case. There were
impeachment charges brought against a county judge in Texas. It was kind
of a quasi-administrative, quasi-judicial position. He lived in the valley,
Duval County, which was known for, perhaps, the Mexican mafia, if you will
(although they didn't call them that). It was actually quite dangerous
because we had state police protection whenever we were down there. But
we came back and, in fact, we had to present the articles of impeachment to
the House of Representatives in Texas and they voted the articles. Then we
tried the case before the Texas Senate. And, it was really quite interesting to
have the Senate there as your jury; the senators were not used to sitting there
and listening. There were a lot of witnesses and it was a detailed case about
misuse of government property and employees to build roads, you know, that
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type of thing. So there was a lot of documentation - little receipts from
corner groceries and things like that. But also, a lot of protection, state
police protection. After we did that, and he was impeached, then we had to
go to the judicial ethics group and he was tried again - I forget the
procedural reason - something else had to happen and that was before a
three-judge court. It was really very interesting to do an actual full
impeachment trial while I was there.
So, it really turned out to be a lot of litigation.
Oh yes. Over the years, it was, and there were other cases, too. Most of my
personal cases were appellate cases. From there, I also then became the head
of the State and County Division, which is huge, and supervised lots of
different areas of state representation of state agencies. So anyway, it was a
very, very exciting time. A lot of things went on. We went through a
constitutional convention and I worked on that, trying to work with another
gentleman to figure out, if one article passed, but a different article didn't,
how would that transition, and working on all that type of stuff. That was
very interesting. It was a very interesting time.
Well, at some point during this time, you were made the first woman Deputy
Attorney General in Texas.
Yes, I was the first woman that was in any administrative position on a
senior staff and then as chief of a division.
Was that a big deal when that happened? Was there publicity?
Internally, it was a pretty big deal. I don't think we realized it at the time.
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
There was some publicity, but remember, at this time in Texas, you had
Sarah Weddington, Sissy Farenthold and Barbara Jordan. There were a lot of
women doing a lot of things at that time. I mean, Ann Richards hadn't even
started her stuff. So, it was a big deal in a way. I don't know if I've told you
this story, but I remember my first day in office, in the Attorney General's
Office, the Antitrust and Consumer Group was in a different adjunct
building. I was late getting to the first meeting of his senior staff, and I was
literally running down the hallway to the conference room. All of a sudden,
this little woman - Amanda Copeland, who guarded the telephone lines -
came outand said "you can't go in there. It's only for the Attorney General
and his administrative staff, and what do you think you are doing in a
pantsuit?" And, so, that story kind of went through the office. It made a big
difference, but I don't think we in the administration, or I myself, realized
that things had changed - that it was a big change. It was just something
that we all thought should happen. You know, it was that type of an
approach.
Did that open the way for more women?
I think so. John Hill was very good. We had a number of different women
who were very capable and worked for him. He recruited and he put women
in positions of senior responsibility over the years.
What was your relationship with your staff?
Well, it was quite good. You have to understand there was a lot of euphoria,
a lot of excitement. It was a new day in the Office, a new Attorney General,
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and John recruited a number of younger lawyers of our age. So, you know, it
was just one big, great, fun party. A lot of my contemporaries were going in
and people that I had worked with in my other jobs, so it fun.
So, you weren't going into a completely unknown situation?
No. I knew many people that we were going to work with.
What was your relationship with the Attorney General?
We had a very good relationship, actually. John was a great teacher, he
listened, and he really mentored a lot of people who went on to be well
known throughout the State. Yes, he was very good. He wasn't old enough
to be my father, by any means. Actually, John was probably in his mid
forties when he went in as Attorney General, which seems so young now, but
certainly was older than I was.
Well, you must have been in your middle to -
Mid-twenties.
- twenties. Did you have a lot of access in the Attorney General's Office to
the Governor?
Oh, yes. Well, I did a lot of that. And, of course, I knew most of the
legislators because I worked for them and had done a lot of work with my
Attorney General's Office with the legislators. I knew Mark White, who
went on to be Governor a few terms later. He was my client in my Supreme
Court case. I knew a lot of the politicians and worked a lot with them. But
again, and I can't emphasize this enough, in Texas at that time, there were a
lot of very active women, politically and in the legal field. It just was not
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unusual to have women lobbyists and women legislators and women
lawyers. There were not many women judges - I will say that. I didn't see
many of those, but some of that was because there hadn't been many women
going to law school at that point.
And, it sounds like there were enough numbers that it just became accepted.
I think so - at least in that area. I think it's very interesting that there was
no woman on the Supreme Court of Texas until after I was on in Virginia.
Of course, you are elected in Texas and that's a different kind of a ballgame.
And again, I'm in Austin, which is a very liberal, college town.
Highly educated population.
Highly educated, yes. But it was the political and social milieu that was very
much populated with a lot of women doing a lot of things.
Was the Attorney General's Office more political or less political than you
would have expected?
It was pretty much what I had anticipated, and actually what I saw when I
worked in the Attorney General's Office here. As I said, John Hill was an
outstanding plaintiff's attorney, and he really imposed the highest standards
of practice of everyone in his office. Now I was detailed, and Joe was
detailed, to the legislature, and that was implementing and helping John Hill
do things that he wanted done. Other things that I worked on were at the
request of, and concurrence of, the Attorney General and other legislators.
The political parts of the office were not part of the legal parts of the office.
That isn't to say some of the legal parts weren't viewed as political. John
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went after polluters in the Galveston ship channels. He pushed the
Consumer Protection Bill. He did a lot in the area of environment, and there
were certain areas of the law where he was active. Oh, another thing that
John was instrumental in, he sued Southwestern Bell. There was no public
utility commission in Texas. There was the Railroad Commission that dealt
with oil allocations and things like that, but the telephone companies were
completely unregulated. And John brought a suit against Southwestern Bell,
and, in fact, won a good part of it, and that was what led to the creation of a
Public Utility Commission. He sued Willie Nelson for failure to pay sales
tax. Willie Nelson played in Austin all the time and there was a big banner
behind Willie saying "impeach John Hill." Willie and John wound up being
best friends after all was said and done. The things that John pursued may be
viewed as somewhat of a political thing, but it really was more of his belief
- his viewpoint - that the Office should collect sales tax - even if it's
from Willie Nelson. He believed that Southwestern Bell shouldn't be
allowed to raise rates indiscriminately without any oversight; and, so, to that
extent, if that's political, that's where he was, but he did it through the courts,
and he did it with good lawyers.
Were you, as part of the administrative staff, part of the policymaking
decisions for the Office? You seem to be distinguishing between the legal
side and the policy side.
What I heard often, or what I would be involved in, is John might throw an
idea out and listen to what people said about it. To the extent that was part of
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a policymaking position, okay, but I was never in the group that would sit
down and map out what his political future was going to be or something like
that.
Did you map out your political future?
Well, John was going to run, and did run, for Governor. And when all that
was starting, there was a lot of talk about my looking at being Secretary of
State if he won, which I probably would have really enjoyed doing. Or, I
don't know, at one point there was the local legislator was retiring and we
flipped to see who was going to run to take his place. Sarah, Anne and
myself and a couple other gals, we were trying to decide who should run.
We flipped, and Sarah won, and she did then win the race. And I toyed with
that a little bit, but nothing real serious. And it was right about the time that
John started running for Attorney General that I met Pat and then wound up
leaving Texas, so there never was anything that came from that.
Tell me the circumstances around your leaving the Attorney General's
Office. Had you planned on staying for - well, you were not necessarily
there if you had gone on to another sort of office.
As it turned out, John lost his race for the governorship, so I don't know
what I would have done. Actually Mark White became Attorney General, so
maybe I could have still had my job. (Mark was Secretary of State under
Dolph Briscoe.) While I was in the Attorney General's Office, I was on the
team that worked with John in terms of his national relationships with other
Attorneys General and the National Association of Attorneys General. I
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would go to the meetings with him or do briefing books for him and that kind
of thing. We were at a regional meeting in Hilton Head, and I met Pat. That
was in May and we conversed and talked. I met him in Chicago and he came
to Austin, and we got married in September and I moved. It was that quick
and that fast. John and everybody else thought I had lost my mind, and here
I am 33 years later. Pat was working for the Virginia Attorney General's
Office - that is why he was there. And I had known Andrew Miller and
Tony Troy quite well. Andy was then the Virginia Attorney General. And I
had also known Jerry Baliles when I was in the AG's Office. Jerry and I had
worked on some intercontinental shelf litigation involving Virginia, and I
had given him some information on the things we had used when we were
doing the international law of the sea application to the boundary line in the
Gulf of Mexico with Louisiana. And through other conferences, I have
known Andy and Tony for quite a while.
Is there a national sharing of information among Attorneys General?
Oh, yes. Very often they sign on amicus briefs and cases in the United States
Supreme Court and the Attorneys General meet annually- at least annually
- and then they have regional meetings.
How did you feel about remarrying and coming to Virginia?
I was very excited. And, I also thought that my move from Wisconsin or the
Midwest to Texas probably was much harder than it would be to move from
Texas to Virginia. I thought that would be just a piece of cake. Although, I
moved here and Pat had two children from his previous marriage, and I
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instantly had two children.
And how old were they?
Six and seven. And I stayed home for six years then. Andrew Miller, the
Attorney General, had said: "why don't you come to work for me?" and I
thought about it. I just thought I would give myself a little breathing time
here to find out where the cleaners and the grocery store were and things like
that, and then I got pregnant. I had a baby, and another baby, and so for six
years I did some contract work for the Virginia legislature and for Jerry
Baliles when he was with a law firm. I did appellate work - briefing work
- not arguing. I did get admitted to Virginia when I first came.
Did you have to take the bar exam again?
No. I got reciprocity, thank goodness. When I first came, the first year I
worked as a legislative aid for Carrington Williams, who was a legislator
from Northern Virginia.
You said that you were taking a breather, but it doesn't sound as though you
really had a breather.
Well, not really, but I didn't know that at the time.
Was part of that to keep your hand in - thinking that eventually you would
go back to work? Did you think about staying at home until the children
were in college?
No, no, no. I always felt like I was on kind of an extended vacation. I
always thought I would go back to work. That was never in my mind. I did
find it much more difficult here in Richmond or in Virginia in terms of the
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fact that I was a woman and a lawyer. That just didn't fit people's, well it
was very different, very different. And people were nice enough, but the
idea of working outside the home and all that was not - more women did
not work than did. Let's put it that way.
Not many women in law firms?
I didn't know any. But then again, I was home and I was doing some part
time work. But when I say I didn't know any women in law firms, I didn't
go to school in Virginia and I hadn't practiced in Virginia. So, I wouldn't
have that and because I wasn't actually working, I wouldn't have the
opportunity to meet many women that were attorneys.
Were you surprised at the difference between Richmond and Austin?
Surprised is a word one might use.
Dismayed?
Dismayed. In some ways, kind of disbelieving. At that time in 1976, in
Richmond and probably the State, Austin was much more open and free
wheeling. You could do anything that you felt you were big enough to do. It
didn't make any difference who your parents were or where you went to
school, you know, it was much more a frontier. Richmond had been around
for much longer and had many of its ways of doing things and very
established. It was certainly a center of finance and so forth, but it didn't
have the influence or influx of non-Virginia people the way it was beginning
to and certainly has now. So, it was a different view of life.
Were you involved in any bar activities, bar associations, any women's bar
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associations?
I really wasn't, and that was probably because I wasn't working regularly.
When I did go back to work and I found out about the Metropolitan
Richmond Women's Bar Association and the Virginia Women Attorneys
Association and all of that, I was really pleased to see them. But, as you look
at the history, I can see that many of those groups started just about the same
time. Ann Marie Whittmore, for example, was just coming through and
coming up. And, I can remember I had spoken out at the law school,
Richmond Law School, about something and a couple of the women who are
now in practice were students then. I think I might have even been pregnant
when I was talking to them. There were a lot of things happening at that
point in time in Richmond that I didn't necessarily know about. My husband
had left the Attorney General's Office, and he was in a law firm with Jerry
Baliles and a couple others. They hired Margaret Bacigal and I remember he
hired her on flex-time basis. I just thought that was wonderful, and this was
back in, it must have been maybe '79 or something like that. And, of course
Kathy Mehfoud was working with him and became his partner and still is at
Reed Smith. So, things were really happening. It's just that out in the
suburbs, I didn't see it very much. But it was fine. I learned to deal with
what I needed to deal with.
At what point did you decide seek out a position, or were you offered
something?
I was offered something. As I said, I had known Jerry Baliles for quite a
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while. In fact I knew Jerry before I met Pat, and when he ran and was
elected Attorney General, he called me and said, "I would like for you to
come and work for me." And it was very clear - I think I certainly was
qualified to do it - but he clearly wanted to introduce more women into the
administration - into his administration. And at that point, I realized that I
had more experience than probably any other woman lawyer in Richmond at
that time, in the Attorney General's office or elsewhere. Not necessarily trial
work or something like that, but I had credentials that made it reasonable for
him to turn to me. And he had worked with me and knew me. When I went
in, I said "Oh gosh, Jerry, David, our youngest, was just going to be two and
I was going to have two mom's mornings out to myself for the first time in
six years" (well, I guess it was about four or five, something like that), and
he said "Well, I understand that, but I have to take office in January. I can't
put it off." And I said, "Well, I'll do it." Well, of course Pat and I had talked
about it and all of that, but I said "I need to have a salary that will allow me
to have good child care. I need to have a parking place. And I need to have
it well understood that I've worked in Attorney General's Offices before and
crises don't start at 5:00 at night. And if they do, call me on the phone,
because I will have to leave when it's time to leave and - I'll be here, you'll
get my work, but I know you guys and you tend to all of a sudden start
talking about the problem at 4:00 in the afternoon."
Which is when other things die down and you have time to stop and think
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Yes, well, it's when they've chatted all day, and then all of a sudden they
start looking at what's on their desks. That probably is a little cruel. But he
was very good, kept all of his promises, and there were times when I got up
and walked out of a meeting at 5:00 and said, "See you later."
Do you think that you would have been able to ask for those things had you
not had the maturity and experience?
I probably wouldn't have known to ask for those things. Whether I would
have known, but been afraid to perhaps. Obviously, if you were right out of
law school, I'm sure I would not have known about what I wanted to do.
But, I knew him long enough, I knew that he wanted me to come to work for
him, and I knew that it was just such a wonderful opportunity for me. And, I
went in as Deputy, the same level that I had left the Texas Attorney General
five years before, so it certainly was a good deal for me too. But, it wasn't
the end of my life if for some reason it didn't work out.
And if he had not been able to meet your terms, you would have been
satisfied with not -
Well, I don't know because I never had to face that. I'd worked in the AG's
Office. I knew that I'd get a decent salary. I knew that I could get a parking
place. So, it was a wonderful opportunity for me. I don't want to in any way
underestimate how fortunate I was to be able to have that offer. The
challenge of it, of course, was coming into an Attorney General's Office
when nobody knew me - into an administrative position and, in fact, taking
somebody's job who then wound up working for me. When I say "Nobody
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knew me" - a number of people knew me through my husband, who had
worked there before. They were still in the AG' s Office, and through either
parties or some kind of social things, they certainly knew who I was. And
again I was the first woman that was in any kind of administrative position.
All of this new group of people - we were called "Jerry's kids" - coming
in as chiefs and administrative staff as you do so often with a new attorney
general, whereas you have most of staff attorneys that are still there. So I
felt, much more so than I felt when I was in the AG' s Office in Texas, a real
need to make sure that my staff or even anybody else on the staff felt secure,
felt and had a certain level, I would hope, of respect for me. I knew I would
have to earn that. The "first woman" aspect of it was a much bigger deal
than it had been in Texas.
I was going to ask you that.
Much bigger. Interviews done in the paper, things like that. Yes, it was a
much bigger deal.
But it didn't surprise you at the time knowing the difference between -
Yes, it did not surprise me. Yes, exactly. It did not surprise me. And also I
knew, although I probably knew it with John Hill, I knew with Jerry that this
was a very pointed appointment. I mean, he really wanted to get some
women in administrative positions.
Tell me about your duties and responsibilities in this Attorney General's
Office.
Jerry did some reorganization and I became Chief of the - what was the
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name of my division? - I can't think of what the name of it was right now,
but we oversaw major litigation. I also oversaw the opinion section, the
collection division and the antitrust and consumer protection. I'm trying to
think what else, so there were maybe four or five units in my portfolio. I
tried to do some litigation, and I did do the redistricting litigation. Actually,
I worked with the legislature in drawing the districts to begin with and then
defending them. So, as I said, I keep being involved in redistricting- I did
the defense, the drawing of them, the hearing the cases, and the writing of
opinions for four decades. We also set up a lot of management and a lot of
work flow processing, word processing was just coming in at that time, so
we did a lot of that type of thing - of how stuff should go through the
office. The civil litigation section was brand new. Oh, I had consumer
counsel, another area that appeared before the State Corporation
Commission. So, I did a lot of working on cases as almost an advisor to a lot
of different people in all of the different divisions, and all of the personnel
stuff that goes along with that. And, then being on the Attorney General's
senior staff. We'd meet weekly or whatever to discuss what's going on in
each division so that there was communication among all of us as to where
things were and what was going on. So, it was not unlike what I had done in
the Attorney General's office in Texas.
How about policy? Were you involved in policy setting this time?
Certainly to some extent, and particularly with regard to what positions Jerry
would take with the National Association of Attorneys General. He was very
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active in that, and I was on that with that group in terms of putting the
briefing book together, going to the meetings and so forth. Like John Hill,
Jerry was one whose political positions were usually formulated after
listening to people talk about things, but as to the strategy of his political
moves - I was not part of that group. I was part of decision making on
some issues. For example, we determined that we weren't going to have
outside counsel in certain cases, and then I would be involved in that
decision-making. Things like that. So, Jerry and Bill Broaddus and the other
ones, we were all kind of involved to that extent.
Did you have the same relationship with the General Assembly here as you
did with the legislature in Texas?
I think I had a good relationship with those members that I worked with, and
I did do some work with them. It wasn't the same, in that in Texas I had
worked for so many of them when I was in Legislative Services and staffed
their committees and drafted their bills. So, I knew many of them much
better, and the lobbyists and all that. Here, I knew some of them through my
work with Carrington Williams. Of course, Pat had always been a liaison
and worked in the legislature and he knew them. I got to know a number of
them, and I think sometimes I would be over there testifying if they wanted
someone from the AG's Office to testify. I did a good bit of that, and
certainly was comfortable before legislative committees and you get to know
them pretty quickly.
But it doesn't sound as though you were attached to them -
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No, I was not.
- from the standpoint of your work. It sounds as though this office was
more independent than the Attorney General's Office in -
Well, no, this one wasn't. When I talked about what I did in Texas, it was
really part of "that time." Texas had gone through of kind of its own
Watergate just before Watergate actually happened, and when John Hill
came in, the legislature itself had turned over. There was this whole concept
or belief in redoing things and making sure we had the Freedom of
Information Act and ethics committees, and there was just a lot of push for
reform. So that's one reason that we would be over there advising them on
some of the issues on the floor. So that my work over there and what I did at
that time was as much a part of the times, and doesn't really reflect the fact
that that the Attorney General's Office was connected with the legislature at
all.
Did your duties at the Attorney General's Office change over time?
Here, no. And remember, I went into the Attorney General's Office in '82,
- in early '82. In '85, I went to the State Corporation Commission, so I was
really only there about three years. Three and a half years, maybe.
What did you like most about the Attorney General's Office?
Well, in many ways, it was the same type of thing again as there was in
Texas. The attorneys that Jerry brought in and that were working there were
just very well qualified, were just great people to work with, were very
dedicated to their professionalism. The cases were good, the morale and the
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atmosphere were good. It was just a good place to work.
Did you have any difficulties working in the AG's Office here because of
being a female, in terms of who you dealt with in other parts of the
government?
I'm trying to remember. I can't remember any specific problems, although I
know some of the female attorneys that I supervised in their dealings with
some state agencies had some issues that had to be dealt with. But, they
really weren't sure they wanted a woman attorney or didn't trust them or
something like that, and we just kind of- as we said, "we choose your
attorneys." And, it worked out. No, I can't recall significant problems. As I
said, the biggest deal, I think, was really working to gain the confidence and
respect of the staff when I came, because, again. I also wasn't someone that
anybody had gone to school with, you know, there was no external tie to me.
Was there anything you didn't like about the Attorney General's Office that
you can recall?
I really can't. I suppose, too, I went in with such a positive attitude, because
I had had such a positive experience, and I anticipated and expected people
to do likewise. I do recall that the building we were in was just awful to deal
with. The workload was heavy, but it was good. We got the work out and
we did what we needed to do. It seemed like we were attracting good
candidates for the office, and it was a good place to work.
Did you have work/life balance concerns or issues?
That wasn't really a phrase that anybody talked about at the time. I had a
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housekeeper who came every day, because I had kids that were ten years
apart. I couldn't send some to daycare and the older ones are too big for
daycare, so it was crazy, it really was, with four kids and two lawyers. I
didn't travel all that much, but I did travel some. Did I have work/life
balance? Probably not. Probably the fact that it's kind of like a big haze. I
remember we had this magnetic whiteboard type calendar on the refrigerator
for each month, week, or something. I mean, that was it. If it wasn't on
there, it didn't happen. It didn't exist. And probably my work/life balance
was getting through the whole list of things that had to be done and then once
they were done, they were gone from my mind. My friends will talk about
remembering how this child did this or that - I couldn't remember. I could
hardly tell you anything that anyone - I might remember things that
happened, but which kid it happened to, I don't remember. I don't know. I
don't think my work/life balance was all that great.
A lot of calls in the evening?
No. When you're in the AG's Office, you don't get that much. Most of your
clients are state agencies, primarily, and we didn't have that kind of schedule
- and, that was really good. I can't say I didn't work on the weekends, but
it wasn't all the time. Certainly, even the practice oflaw in the '70s or '80s
was much different than it is now. We didn't have Blackberries. We didn't
have e-mail. We didn't have personal computers, and we didn't have cell
phones. And, the computers that we had back then weren't really connected,
they were standalone boxes that were basically big typewriters. So, you
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didn't have that "reach-out-and-touch-me" ability. It might be very different
now in the AG' s Office. But then, it is true that once you went home - I
mean not that you didn't have work that you might not do or go down on the
weekend - but it was very different in terms of instant demand of other
people.
Was there an area of law or a case that you were most proud of having
handled?
Well, as I said, I didn't actually handle cases personally. It was really hard.
There were so many people that I was supervising. I was involved in looking
at and discussing the positions the Consumer Counsel was going to take, and
I remember this was when the Bell Telephone companies were breaking up
and there was a lot of litigation over that. And also electricity, there was the
"one-rate-increase-a-year" bill that had been passed by Jerry's urging, and
that was going on. In litigation, we had huge cases. The big construction
case over with the building of the MCV hospitals where the front was falling
off, that was a really huge case. We had asbestos litigation going on; we had
some prison litigation. And, in my section, we would sometimes be pulling
major litigation out of other sections, and my attorneys would be working
with another attorney on that, and we had a little internal office politics there.
So, once a matter went into litigation, then your litigation section would
become involved instead of leaving that with whatever section of the AG' s
Office would have handled it initially?
Well, once it was considered to be major litigation. So, that was kind of the
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key there. We had was it the VMI case - it was just starting then. I think it
was the VMI case, or was it UVA, regarding the admission of women? We
did all the tort claim litigation, too, because that had just started, the Tort
Claims Act had just been passed a year or so before. That took up quite a bit
of time, so there was an awful lot going on. Oh, I know, Jerry did the
Pulliam case, which was a Supreme Court case on the ability to assess
attorneys' fees against cases involving judges. It was actually amazing
because we got an amicus brief from AGs around the country on that one.
So, I was involved in some of that and there was some, again, class action
litigation going on. We had all the bid-rigging litigation going on then. So,
there was a lot of stuff going on that were not "my" cases but I had to be
involved in strategy decisions with regard to the cases.
Did you like that aspect, or would you have preferred to have remained more
as a first-line person for the litigation?
I found it interesting. I really liked it, and remember it was pretty similar to
what I had done in Texas. I had done more litigation in Texas, but I was
connected to litigation all the time so it never bothered me that I wasn't
sitting in the chair because I was involved in structuring the defense or the -
which was usually defense, sometimes a prosecution - but you know, doing
that kind of thing and it was quite interesting.
Did you ever think that you might run for Attorney General? At that point,
you were in a very high-level-
I don't know if it was at that point or other times that the thought certainly
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had crossed my mind. Never anything seriously, and I don't think ever
anything I said out loud. But, you know, politics is such a matter of timing,
and the timing for that certainly never was right - although it wouldn't have
been something that I would have said "no way, I wouldn't touch it with a
ten-foot pole." But, the timing just wasn't there.
Any comparison between the two offices, Texas and Virginia, other than
what you've already mentioned?
No, not really. Nothing other than what I've already mentioned. The Texas
office was much bigger and grew substantially, but you know - Attorney
General Offices tend to have the same kind of cases around the country. I
mean, sometimes it'll be one or the other, it's not always the same, but they
have the same issues and they defend the same kind of state agencies. Most
states have Tort Claim Acts, now, so you've got that, and the opinions
section.
So, it's fairly homogenous.
Right.
I assume you had a good relationship with Jerry Baliles as the Attorney
General. How about the Governor's office? Did you have a lot of contact
with-
Chuck Robb was the Governor at that point, and I didn't have that much
direct contact with him. I think Jerry and Chuck had a good relationship and
they worked well together and there was not much - things just went well;
so, there wasn't any contention or anything like that. No, I didn't have a
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Ms. Tucker:
Justice Lacy:
major connection with the Governor's office other than I knew who he was
and he knew who I was - but that was about it.
Tell me the circumstances around your leaving the Attorney General's
Office.
In Virginia, as you know, judges are elected by the legislature, and that
includes the judges of the State Corporation Commission. Jim Thompson,
who had been the head of the insurance section of the State Corporation
Commission, had been elected by the House of Delegates to fill a vacancy
(Junie Bradshaw had left), and the Senate elected - and I hate to even say it,
I don't remember who it was - but it was another person. So, a mandamus
action was brought by the Speaker of the House and others to force the State
Secretary of Elections to declare Jim Thompson the new Commissioner, and
that was heard by the Supreme Court. And, actually, someone in my section
of the Attorney General's Office must have represented the Secretary of
Elections. It was the end of March, the beginning of April, in '85, which was
very much unlike the Supreme Court, and they announced that they were
going to render their decision at noon on a Friday. I remember that the day
before, as I was leaving on that Thursday, Jerry Baliles said to me "wear
something presentable to the office tomorrow." And I'm like "do I not
always wear something presentable?" Pat was out in California at a
conference. So, the Virginia Supreme Court decision comes down. The
Supreme Court says "no." The position remains vacant because the House
and the Senate have to elect the same person. Otherwise the House could
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
always elect the judges. Well, Governor Robb was out of town, and about an
hour later, after the decision came down, I got a call from Dave McCloud,
Robb's Chief of Staff.
This is the Governor's -
Yes, Chuck Robb's Chief of Staff, saying "where are you going to be the rest
of the afternoon?" I thought- well, here at my desk doing my job. And,
the long and the short of it was that Robb flew back into town, interviewed
me and, I think, maybe Anita Poston and another woman. There were just
three women. He interviewed me and them and then he had a panel of Eva
Teague, Tim Sullivan - Eva Teague was Dick Davis' Chief of Staff (he was
Lieutenant Governor), Tim Sullivan was working for Robb on leave from
William & Mary College - somebody else was in that group, I don't
remember. But the three of them then interviewed me, and then I left. Then,
Dave McCloud calls me at 3:00 or 4:00 in the afternoon, and says "we want
to know where you' re going to be, blah, blah, blah, later this afternoon" -
Still on the same Friday afternoon?
Yes. Yes. Then, the Governor called and said "would you take this
appointment?" I mean, literally, in 24 hours - and I had no - I mean it had
never, ever, ever crossed my mind. I knew about the Commission because of
the work of the Consumer Counsel. And I was like, "I guess - let me talk
to Pat." Well, I couldn't find Pat in California. Remember we didn't have
cell phones yet and he wasn't in his hotel room and I couldn't find him. So I
had to say, "yes" or "no." So, I said, "yes" and they called a press
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conference that night and we had the press conference and there I was. And
it was the Friday night before the Saturday morning that the conventions
were being held to pick the Democratic nominee for Governor. Jerry Baliles
was running against Dick Davis, who was the Lieutenant Governor. So, it
was a little touchy political issue. I remember after the conference, I went
back to the house - of course, the kids were there, but Pat wasn't - and
I'm sitting there thinking about what has happened. Jerry called and said,
"Take the Baliles bumper sticker off your car. You're going to be a judge.
You can't be involved in this." And, I was like - "Aah, okay, whatever." I
mean, I was just literally shell-shocked, because it was something that had
happened so fast. But once again, you know, Governor Robb had put a
number of women in positions of responsibility. And, in fact, I believe there
was some talk of my going on the Court of Appeals because it had just been
created. Barbara Keenan went on the Court of Appeals. And you know, it
was the time. They wanted to put a woman on the State Corporation
Commission. They were wanting to put women in places, and I had some
qualifications for that. By that time I had worked with the legislature, the
legal community was aware of me - although I do know that the CEOs and
others involved with the utilities were saying; "Who is she?" "My gosh,
she's going to set a rate of return on equity?" - you know, that type of
thing. So, that's how it happened. I mean literally-it was in April, and the
legislature was coming back for a veto session the next week, so, I had to get
sworn in that weekend, before the legislature came back on Monday. Some
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
of the legislators were kind of mad at Governor Robb because they wanted to
fill the vacancy.
Were there legal issues over whether he had the power to appoint you?
No, there is no question that he had the power to appoint, because when there
was a vacancy and the legislature isn't in session, the Governor appoints.
It's the question of whether he would leave it- and there even was some
question as to whether or not a judge could have been elected in a special
session if the Governor didn't open it up for that. But, as it turns out I was
appointed, and I was sworn in. I remember I had talked to then Speaker
Philpott and others. There was some real politics that had to be attended to.
And literally, over the weekend, I became a member of the State Corporation
Commission. Pat had to fly back from California and change clothes in the
bathroom in Jerry's office (in the Attorney General's office), to come to the
swearing-in ceremony. I mean it was that fast. It was that fast.
Well, so this was a big first.
Oh, yes. And I really felt that - really, really felt that. And, of course, I
was going into an agency where my other two judges were male,
considerably older than I was - Judges Preston Shannon and Tommy
Harwood - and that had a huge staff, the majority of whom were male.
Certainly, all of the division heads were male. So, that was the beginning of
a whole new life.
Did you consider saying no?
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Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
I don't think so. For one thing, it's hard to say "no" to Jerry, and it was hard
to say "no" to Robb.
Do you think that there was discussion ahead of time between Baliles and
Robb?
I don't know. I mean there are things to this day that -
Did you ask?
Oh, sure. Of course, I asked. And I got no answer -just a big smile and
that was about it. But, I would assume that there was some discussion.
The tip off to wear something nice to the office?
I don't know, but I think that Jerry may have planned to plant my name with
Robb, depending on how the Supreme Court came down. I don't know the
extent to which they really discussed this - before the Court decision came
down? On a what-if basis? But my sense is, knowing Jerry Baliles, that he,
in his own mind, had figured out a "what-if' plan - and when that came
true, he knew what he wanted to do or where he'd put things in place. I
don't know. I just know that I didn't know anything about it. And, in fact,
when Jerry said that to me, I didn't make the connection at all. It was just
another case. I didn't know if we were having office pictures taken, or
whether somebody was coming to visit or an AG from another country. I
didn't know what it was.
Was the Attorney General's Office involved in the litigation?
Yes.
Tell me about it.
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Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Yes. And someone from my division was representing the Secretary of
Elections.
So, you got to the State Corporation Commission - there was a lot of
publicity.
Yes
A lot in the newspapers.
Yes. Well, the combination of the Supreme Court decision - and of Jim
Thompson who once again remained as Insurance Commissioner, when I
went in there.
Who would be under you?
Under me. Yes. And, he was most gracious, we worked well together, and I
think that was fine.
Tell me about the difference between the Attorney General's Office and the
State Corporation Commission. For the benefit of people who are not
familiar with Virginia's political structure, what do State Corporation
Commissioners do?
There are three of them. The Commission is a tribunal that has the powers of
a judge of a court of record. We are judges. We're elected the same way, we
belong to the Judicial Retirement System, and so forth. We had six- or eight
year terms, I can't remember which. We hear cases - well, the Commission
is an administrative body as well as a quasi-judicial body. Administratively,
there were twelve or thirteen divisions that we oversaw, and they included
things like the public utility section, which sets rates, which was involved in
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
rate setting and so forth; the securities group, which licensed securities
dealers and dealt with all of that; the financial advisor group; the banking
group, which did all the certification or the licensing of state banks and
savings and loans. At that time, we had the railroad group, which did some
work on intrastate railroads. We had the division of motor vehicles that did
all the collection of taxes - use taxes for intrastate trucking. We had the
corporations section, which has all the annual reports, does all of that
corporate stuff we have done. What is the section where you file the liens
and-
The UCCs?
The UCC section, yes. We had that section. We had the gas section, which
dealt with all the natural gas regulation, and then of course the telephone
group and all -
Insurance.
- and insurance, yes. And so all of the people who did that kind of
administrative work, we were in charge of all of that.
So, the State Corporation Commission in Virginia is the state regulatory
authority over regulated entities?
Yes, I mean, it's not doctors and lawyers and all that, but it's that. And then
we also did things such as, with the transportation group, charter trucks and
charter tour buses and stuff like that, and pilots down in the Hampton Roads,
and also we heard the public utility cases and we heard the telephone cases
and we heard the charter cases.
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
So, that's all the judicial side?
That's the judicial side. Exactly. And we were a three-judge court. And we
did all of that. It's very powerful - it is its own little branch of government.
While our funds came through appropriation committees, we would set what
the annual fees would be for the different regulated agencies. So that's how
we were supported, through annual fees. I mean it was a flow-through thing.
Is it part of the Judicial Branch or part of the Executive Branch?
Neither. It literally is an independent state agency. We're not under the
Chief Justice and that group, nor are we under the Governor. It is really an
independent branch of government. It's rather unique and in most states you
have a Public Utility Commissioner, Insurance Commiss_ioner, blah, blah,
blah, and they tend to be more within the Executive Branch. This isn't. And
the independence worked well. Our cases are direct! y appealable to the
Supreme Court as a matter of right. So when the Commission would hear a
case on setting rates, for example, it would go by appeal to the Supreme
Court. You wouldn't retry it again as they would do in so many other states.
And we'd pass regulations for all of the various entities that I talked about, as
well as our own procedural regulations. It was quite an operation.
Among the three Commissioners, was each Commissioner responsible for
some of the departments? So, did you take these twelve agencies or groups
and you each supervised or had responsibility for some of them?
Yes. Well, we would have the first line connection with certain groups, and
we would rotate that each year. And they rotated the chairmanship each
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
year, I think. When I started, we began having weekly Friday meetings with
all of the Division Chiefs or- no - we had weekly meetings with the three
of us and we'd have weekly reports from all of the Division Chiefs that we'd
go over. And, if there was somebody we needed to talk to, we'd do that. So,
each Commissioner - while you had that certain responsibility for a certain
group - it was a three-headed governing body.
Did you develop a close working relationship with the other two
Commissioners?
Well, yes, you had to. And I had some different ideas than they did. Some
of them worked and some of them didn't. Again, this Friday meeting that I
talked about was something that we agreed together we would do, and then
we had a monthly luncheon with all of the directors and that was something
new.
Were those your suggestions and ideas?
Yes, pretty much.
Do you think your work at the Attorney General's Office prepared you for
going to the Commission?
A little bit. Now, the other two Commissioners were also lawyers, and being
a lawyer was very important. But, I had to do a lot of- I took a lot of field
trips and tried to figure out - there was a New York trip that was put on by
one of the big analyst companies (and they don't exist any more; I can't
remember the name of it), but it was like a whole week where you learned all
about setting rates of return and what Wall Street analysts look at in terms of
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Ms. Tucker:
Justice Lacy:
all these regulated companies.
Maybe somebody like Kidder Peabody?
Yes. Kidder Peabody. In fact, that's who it was. That's exactly who it was.
I remember we stayed in a downtown athletic club, which we could walk to
from Kidder Peabody's offices. We had classes at night, and they started at
7:00. It was Public Utility Commissioners from around the country, and they
wouldn't start until everybody was there. So, you didn't have a drink or
something at dinner and come in late because there were a lot of people who
would be mad at you. It was very intense. It was an exciting thing, too. We
went on the floor of the New York Stock Exchange and we went to some of
the various houses and those kinds of things. But it really was - there were
a number of things that I had to learn very quickly that I hadn't had the
background for. As an attorney, you don't necessarily have to read annual
reports and understand various ratemaking functions. So that, and, of course,
the telephones were breaking up right then and all the Baby Bells were
coming up, and you had to understand all of that intralata and interlata,
competition, non-competition. That was a real change. Of course, I always
felt maybe I had the benefit of not having been there under the old regime.
So I didn't have to unlearn anything; I just had to learn it. And, it was the
same way with the banking groups and the savings and loans and really
understanding reserves or the insurance companies, understanding what
we're talking about with reserves. There was also a big hoopla going on in
the securities industry because - was it Lehman Brothers, maybe it was
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Ms. Tucker:
Justice Lacy:
Merrill Lynch- one of the big houses had some internal insider trading and
Griffin Bell was investigating them. So, I mean there was just really a lot to
learn. A whole lot to learn. But, it was very exciting. It was very interesting
and challenging, and the impact that that agency had on people's daily lives
was so immense that you really wanted to get it right. In fact, at the time,
just before I went on the court, I really was beginning to look into executive
MBAs just to get that kind of business background that I didn't have in law
school and thinking I really need to do this, to do this job with the confidence
I'd like to have. And, we had a wonderful staff and the staff was very patient
and really helped work through a lot of that for you. But it was still pretty
intense.
When you went to learning conferences, did the other Commissioners go,
too, or were you doing this because you were the new person?
Some of it was because I was the new person. Depending on the subject
matter - Tom Harwood was pretty good and he was quite active in the
National Association of Public Utility Commissioners, and so was Preston
Shannon. It was a great resource for not only the substantive part, but also to
your counterparts around the country. Preston was the public utility group
and then you had the insurance group and all of that, and Tom did a lot with
the insurance people. And I was on the Gas Research Institute and, yes, I
think Preston was a little more focused on the telephone industry more than
anything else. But, neither of the other two sat in their offices and just stayed
in Virginia.
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Ms. Tucker:
Justice Lacy:
Did you have a lot of contact with the federal government?
An awful lot. I did a lot of testifying before, and worked with, the Federal
Energy Regulatory Commission. And there was quite a bit going on at that
point in terms of whether FERC should - they were renegotiating a number
of the utility regulations - allow utilities to renegotiate utility contracts,
because they had entered into long-term contracts and now the cost was so
much lower and Columbia Gas was going bankrupt, and we just had a lot of
things going on. PURPA, the Public Utility Regulatory Policies Act, was
just starting (which was the independent power producers) and we had to
address how companies were going to deal with that, and with their liability,
and what the federal government would regulate and what the state
government would regulate. And then you had, of course, the new telephone
companies coming in. I did not deal with the Federal Communications
Commission as much, although I did a little bit. But I did a lot of work with
FERC. And Virginia was very good, of course, because of our proximity to
Washington, very often Virginia gets involved in it. But both of the other
two Commissioners and our staff were very good and worked closely -
wanted to have an impact on a national scene and wanted to protect what we
should be doing. And, you have to be in the game if you want to play, you
know, if you want to have any choice in where you're going to come out.
So, yes, we did a lot of that - and in agreement with and in disagreement
with the utilities. I got to know a number of, and worked with and met with
or against, many of the CEOs that were the utility people at the time.
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Now, when Governor Robb appointed you, that was to fill a vacancy. Was
that a temporary appointment? Did you then have to be elected by the
General Assembly?
Yes, you always do when it's an appointment. When a position is filled -
any judge position is filled - that term only goes until the General
Assembly comes back into session. Now, I came in in April. I didn't have
to go before them until January because - well, they came into session in
April, but it was a veto session, it wasn't a regular session, so at that point
they couldn't consider it. So, then in the following January, I was elected for
a full term.
During that time, did you think about - do I really want to spend time
learning this because I may not be elected?
I really didn't. I felt comfortable enough that the brouhaha would have gone
by the time the General Assembly came back in January. I suspected, and
again I didn't know this, but I suspected that both Robb and Baliles had
talked to some people - and remember in January when the legislature came
in, Baliles was also coming in as Governor. So I figured that - without ever
saying it - well, maybe I did say it - but I think that there was certainly
discussion. Not that it couldn't have wound up the other way, but I'm not
sure they were going to buck the new Governor on me.
He enjoyed a honeymoon.
Yes. I thought so.
So, were you involved in the political process of the election by the General
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Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Assembly?
Well, I was to the extent that I talked to the leadership of the General
Assembly and I had to be interviewed by them. I did the things that I
personally should do. Now, did I strategize with the Governor or anybody
else? No. I just made the contacts, and I told the Governor who I had talked
with.
So, they would either elect you on the strength of what they learned about
you and knew about you or -
Well no, I'm saying that any other strategizing that was going on, I wasn't a
part of.
Not that it wasn't going on?
I don't know that it wasn't going on, but I think it was - my election to the
Commission was not a big deal when it came up in the General Assembly.
Was there a particular area of regulation that, or aspect of being a
Commissioner that, you liked better than others?
You know, I found it all - there was a lot of paperwork which just never
seemed to end. But no, I found all of the areas - oh, well I say all -
probably charter bus permits weren't all that exciting. But certainly, the
electricity, gas, telephone, banking and securities group - but even the
insurance and corporations - they all had their own interest level. I enjoyed
that job very much. Much more so than I realized I would - than I had
thought. I never thought I wouldn't enjoy it, but I really didn't understand all
that was involved until I got over there. And once I was there, I thoroughly
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enjoyed it.
This concludes the third interview.
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ORAL HISTORY OF ELIZABETH B. LACY
FOURTH INTERVIEW
October 6, 2009
This is the fourth interview of the oral history of Elizabeth B. Lacy, which is being taken on
behalf of the Women Trailblazers in the Law, a project of the American Bar Association Senior
Lawyers Division, on October 6, 2009.
Ms. Tucker:
Justice Lacy:
Justice Lacy, in our last interview session we discussed, among other things,
your work on the State Corporation Commission and I'd like to go back to
that time. Tell me about your relationship with the other Commissioners.
The two other Commissioners were Preston Shannon and Tommy Harwood,
who were approximately 20 years or so older than I was. I had just turned 40;
they were probably, I'd say, close to 60 at that stage. They both had been on
the Commission for quite a while. In fact, the person who I replaced came on
while Tommy and Preston were Commissioners. Generally, it was a good
relationship. It was a little - I wouldn't say strained - but I had a lot to
learn, and I see a lot more of that in retrospect than perhaps I saw at the time.
We got along fine, although we disagreed about some things. Remember the
Commission had - I don't know how many divisions, say 12 or 15 divisions,
and about 250 or 300 employees - and we were running that Commission as
an administrative three-headed decision maker. We had different ideas about
how things should go. But, generally speaking, they gave into me a lot and I
think Judge Harwood was instrumental in that. We did not do things socially
as such, but there was a professional relationship that seemed to work
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
relatively well. It was fine. It was not the easiest in the world, but then it
certainly wasn't the hardest either, and it improved over time.
Were there any other changes to the Commissioners while you were on the
Commission? Did they both stay the entire time you were there?
Yes, they did. There were a number of changes that we did on the
Commission, including procedural changes, in the sense of setting out
monthly divisional luncheons and weekly meetings among the three
Commissioners with the executive director. I worked very hard to get a little
more transparency in what was going on. The divisions were divided among
the three Commissioners, with each Commissioner being the primary
administrator for certain divisions. Those were supposed to change every few
years, although Preston Shannon preferred the telephone company regulatory
work and Tommy Harwood did a lot of the motor vehicle and insurance work.
They didn't really want to change too much, but we moved around and the
chairmanship moved every year. So, some of those kind of structural things
changed while I was there.
Did you feel as though you had some sort of freshman period or newcomer
period to get up to speed - a honeymoon so to speak?
Well, not really, because we were hearing rate cases and doing all the things
we always did. It wasn't that they gave it to me, we sat as a three-judge court.
They were very helpful and certainly their doors were open for me with any
questions that I had, but substantively I just had to get in there and learn it. If
you knew anything about utility regulation or telephones or securities or
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
banking or whatever, that was a strike against you for getting on the
Commission. And then, of course, if you didn't know anything about it - the
utilities, the telephone companies and the banks - oh, my gosh.
But you did know something about those areas having worked in the two
Attorney General's Offices?
Yes, a little bit, particularly the utility regulation. I was not familiar with the
motor carriers and securities and insurance, etc., but I had some knowledge
with some of the utility regulation.
When the Commission acted on cases, what was the process? Did two out of
the three Commissioners have to agree on the case or was it required to be
unanimous?
No, it didn't have to be unanimous. It was just like any other three-judge
court; two out of three, and one of us would write the opinion or the order,
although we had a legal staff that would assist us with that.
What did you do to prepare yourself for hearings on cases?
Well, in most of our cases - the big cases - most of the testimony was pre
filed. So really, all the live testimony you heard was cross-examination, and
you'd read the pre-filed testimony, which usually had executive summaries in
the front so you could read all these experts on rate of return and stuff like
that. Sometimes we'd have public hearings, such as for the location of sites
for transmission lines. In some cases, the hearing might actually have been
held by a hearing examiner, and we would then be more like an appellate
court. In that case, we'd get the hearing examiner's report and the various
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
parties would file briefs, taking issue with the hearing examiner supporting it,
and they'd do something like an oral argument. So, it all depended on the
kind of case.
What would be the process by which the three Commissioners would make
their decision about how the case would come out? Did you have
conferences?
We had conferences, very similar to what you would think of any appellate
court. The Commission acts like an appellate court when it was a trial issue,
although there were three deciders. It is like a three-judge court. You'd
conference and that was all done confidentially. The open meetings act did
not apply to these deliberations.
Who decided who was to write the opinion in the case? I assume there is an
opinion?
Yes, and it varied. Sometimes it was pretty obvious that one or the other of us
wanted to write it or could write it, and sometimes we might have our legal
staff do a draft of it and then we'd edit that. It would be like any three-judge
court where there really isn't an opinion assignment and most of our opinions
were unanimous. You just kind of decide, depending on work order and all
that, who should write it.
You said that you sometimes found yourself at odds with the other two
Commissioners. Were they substantive differences on the substance of
positions, or were they administrative matters?
Well, it could be all of the above, any or all of the above. Just as in any court
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Ms. Tucker:
Justice Lacy:
there might be disagreement on the particular way a case was handled. With
regard to administration, as I mentioned, we had three people running a large
organization, and we didn't always agree on things that should be or shouldn't
be done. You just work through those things. Sometimes, you pick your
battles and hope you win the ones you picked.
What sort of relationship did a Commissioner have with the companies that he
or she regulated?
Of course, that always depends on the Commissioner. I think I always had a
good relationship with them. In this type of regulation, I don't see any of the
companies we regulated as adversaries. I think we each had a role to play.
The utility companies had a role to provide reliable, dependable electric
energy to the citizens of the Commonwealth and they were entitled to a
reasonable rate of return, and it was our job to ensure that the supply was
reliable and that the rate of return was reasonable in light of the rates charged.
We came from different places, and our responsibility was different. We
didn't have responsibility to the stockholders, as such. In the banking
regulation, it was to ensure the solid reserves of those state-chartered
institutions, which we still had at the time. You know, it depended on where
you were. But having said that, it also was very important. And this was the
hard learning curve, to really learn about the industries that you were
regulating and how they operated- financially how they operated as well as
the practical aspect of it. You couldn't know everything, but you really did
need to know about the industries and the only way you could learn was being
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
with the industries. I took field trips to the Bath County pump storage plant,
to Lake Anna nuclear plant, some of Duke's nuclear plants down in North
Carolina, to the Hopewell American Water Company plant, to some of the
telephone people up in Princeton, New Jersey - things like that. It's like
being a lawyer when you're representing a certain client - you need to know
how it works.
Operationally how it works so that you can understand whether a particular
regulation is workable or not or fair enough?
Exactly. Or, to even understand what they are arguing about. For example,
when the Public Utility Regulatory Policies Act, I think it was PURPA, came
in, non-utility companies were selling energy to the utility companies because
it was a byproduct of their manufacturing process. You know, what does that
mean? How does that work? So, that was a whole new area of contracting.
That was the other thing I think I mentioned before - that when I was at the
Commission, it was the beginning of so much deregulation, particularly in
terms of electricity, of telephones, the breakup of the Bell system - so I
didn't have to unlearn some things. I had a lot to learn, but there was a lot of
new ground that was being plowed and you just had to pay a lot of attention
and listen. I think my colleagues - I think the three of us respected each
other. We were all very hard working. Nobody was a slacker. None of the
three, I think, ever felt that one or both of the others just weren't putting in the
time that needed to be taken. So, that was very helpful.
In February of 1987, I think, you had been at the Commission a little less than
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two years, you became the chairperson of the State Corporation Commission.
You said that the chair position rotated on an annual basis?
Every year it moved, yes.
But, they waited, naturally, until you had been there for a couple of years
before you took over.
Yes. And, really, what that means is that you just get most of the mail. For
our purposes, that meant you sat in the middle on the court, but it was a yearly
thing. It was a very good system, I think, because the fact of the matter is, it
ensured that the three of you were working together all the time regardless of
who was chief, because you knew the next year someone else would be or you
would be chief- kind of "do unto others" kind of thing.
Did it add to your duties and responsibilities, being the chair?
A little bit because you were, in a way, the spokesperson. And, yes, there
were some things, such as having to get a loan from the legislature because of
the way we were financed and some of the annual fees for annual registration
of corporations didn't come in. So your name is on the line when you take
that loan. That was probably the most significant legal difference.
Did whether you were chair or not have any effect on your relationship with
the other two Commissioners?
I don't think so. I never felt that way and I never felt my relationship with
them was any different if they were chair or not.
Did it make a difference with any of the staff?
I don't think so because the staff tended to work through the Commissioner
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that was assigned to their division.
I'm not sure we talked about this last time. What was your relationship as a
Commissioner with the General Assembly and with the Governor?
Well, the Governor at the time, the first year was Chuck Robb, then Gerald
Baliles went in, and, of course, I had known Governor Baliles so that didn't
change any. There was a little more, perhaps distance, in fact, in a way. Just
because I know as a judge - and, not that the Governor was involved in any
litigation, but I think he too was just - it was just a change in position like
with many other people. As far as the relationship with the legislature, it was
a little different in that the Commission is an agency of government and there
is always that fine line. There was a lot of legislation that we were interested
in or were involved in. We worked very hard to have programs to educate
legislators about what the Commission did. That was a big issue. We had a
person - a woman - who basically represented us in the legislature. She
was one of our employees. We didn't want to be over there. We really picked
and chose the times that one of the Commissioners would physically go over
to the legislature, which was not a lot. And, everybody knew that she was the
eyes and ears of the Commission. If you told her something, then she'd bring
it back to us or she could speak for us. So, we were very aware of the
legislature. On a personal basis, I was friends with a number of them, kept up
cordial relationships, but I certainly didn't go over there to any great extent.
Was your work on the Commission affected in any way by your political or
economic outlooks?
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I don't think my political outlook, particularly because this is not necessarily a
political job. There was a lot of economic regulation that goes on. Certainly
setting the rates for the utilities, particularly all of the utilities, is an important
job. But a lot of that is driven by the facts and the figures, and it wasn't a
matter of did I promote independent power producers or not. I did a lot of
work, actually, with going up to FERC and testifying up there and working
with the FERC staff. I believe very strongly in the need to allow states to
work through some of these changes as opposed to the dictates coming down
from FERC. And we testified on a lot of the major orders that were before
them at the time. If that's political philosophy, then yes, I was engaged to
quite a great degree in that area.
Was that a philosophy that was shared by the other Commissioners?
Oh yes, definitely, yes. Judge Shannon was not as active nationally as Judge
Harwood and I were, but he shared that viewpoint.
Did you have the same sort of federal rights versus state rights in matters such
as the banking system?
Well, we had a very outspoken and incredible banking commissioner at the
time. His name was Sid Bailey, and he is the one that interacted pretty much
with the FDIC and all of the federal regulatory groups. But we backed him,
we back him up, and he knocked heads with people.
I remember Sid Bailey.
Yes, then you know exactly what I'm talking about. In fact, Judge Harwood,
kind of an aside, died this last weekend, and I was at a memorial service for
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him here in Richmond. He had been in Florida for a while, and I was sitting
next to Stewart Ferrar and Stewart turned to me and said, "don't you wish you
knew what Sid would be saying about all of this banking stuff that's going on
now?" I said, "I think I know what he would be saying, but yes." The head of
our securities department was very well known nationally. He was on the
NASD board and all of that and the same thing with our insurance
Commissioner - he was pretty active. It had been Jim Thompson, and then
was - I can't remember the guy's name now. So, various people within their
own area on our staff were pretty active and we encouraged that.
Who were your closest professional associates during this time?
Well, of course, the three Commissioners. When you are in a position like
that, just as being on the Court, you don't have a plentiful number of people
you can be friends with within the Commission. I knew and worked with the
executive director, Chester Roberts, pretty closely on a number of things. I
truly enjoyed a lot of the division chiefs and some of the employees, for
example, in the general counsel's office. Tony Gambardella came over from
the Attorney General's Office and he had worked for me. And Jim Dimitri
came over at the very end of the time I was there. Well, no, Tony came over a
little earlier. I found a number of the people who headed up the divisions to
be just delightful, fun kinds of people, and very competent. I worked hard at
trying to get more women to be division heads. In fact, for the women who
headed up part of the corporation and securities filings sections, I finally got
their positions more on a level with the division chief rather than a manager or
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director. I worked real hard on that. But it was hard to find people, women,
to really assume some of those major roles. They just weren't there.
What were your work habits as a Commissioner?
All the time. It was a very, very demanding job and it required an awful lot of
time outside of 9 to 5. Not just because there was a lot to read and a lot to
absorb but because of all the industries that we dealt with. We also had the
issue of going to this conference for one or that meeting for another, and
meeting with other regulators around the country. The public utility,
insurance, banking, and securities regulators - usually the head of our
division, did most of the conferences. But, even then, they wanted us
periodically to come and show support for them and so there was a good deal
of that. And, needless to say, there were a lot of speech requests just because I
was a woman on the Commission. So, it was a very, very time consuming
job.
What was the effect on your family life?
Well, at that point the kids were all in school, although in elementary school,
and I still was there for games. I had a housekeeper and I was there, but then
I'd be gone for times too. It's hard for me to say what the effect was on my
family life because that was my life - my family and this. In the 70' s and
80's the words "life balance" were not in the lexicon yet and you didn't think
of the compartmentalizing. It was all together.
Do you think that your being the first woman Commissioner resulted in
changes on the Commission?
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I think it did. I think it really opened up people's thinking about that.
Admittedly, after I left, it was a number of years before we got the next one,
Judy Jagdmann. But I think that, in terms of staff and employees - and it
wasn't just me because this was going on around the state and around the
country, women in these kinds of positions - I do think it was just different.
All of a sudden there was a woman up there. It's almost a subconscious
change in your mental picture of something and now it includes another group
of people. And yes, I think it made a difference. I hope it did. I often say that
the symbolism of doing it is as important as doing it. That is the reality of
what you bring with it.
But how you do it can affect the symbolism as well.
Yes, I agree with that. In fact, I was introducing Sandra Day O'Connor on
Sunday and that was one of the points I was trying to make. It wasn't just her
being there, it was the way she did it. I think I said she "opened doors and
minds in a way that had not been there before."
Were you happy that you had been on the Commission?
I loved my job on the Commission. I was not looking to leave that job. I
thoroughly, thoroughly enjoyed the intellectual challenge and the feeling of
contribution that I got from being on the Commission was unrivaled. And, it
was such a time of change, of turbulence, in the regulated industries. No two
days were the same. It was just fascinating. I loved it.
But then suddenly, in December 1988, Governor Baliles named you to fill a
vacancy on the Virginia Supreme Court left by the retirement of Justice Poff.
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Tell me how that came about.
Well, kind of like getting on the Commission, it was that much of a
whirlwind. There had been a vacancy left by the departure of Carrington
Thompson and the legislature had elected two different people, once again,
and had not put anybody up. The Governor wanted to fill the vacancy and the
legislature did not want him to, needless to say. So, he agreed that if they
could agree on a candidate and tell him who it was going to be, he'd hold off
on an appointment. They did and that was Justice Whiting, Henry Whiting.
So Henry Whiting was appointed, I think maybe in 1987 or maybe '88.
Justice Poff's retirement was a real surprise - nobody expected it. And he
announced that was effective January 1st, I think. The Governor evidently
decided that this time he was going to make the appointment, he wasn't going
. to wait for the legislature.
Because the General Assembly was not in session at that time?
It was not in session and he could, but he had waited and they had done their
thing with Justice Whiting. At that time there wasn't a formal process for
vetting candidates, like we do now with the bar and all of that. And I believe
that the Governor asked the various statewide bars for the first time for their
recommendations and if they would interview candidates. He asked me if I
would please go through this process. And, like most Governors, he's very
hard to say no to. So I did it and that's what happened.
So, you met with the various bar associations?
Well, at the time I think you submitted a resume and they looked at it and met,
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but I don't remember any interviews or anything like that. That just hadn't
been inculcated in the culture yet. You just sent a resume in and their judicial
committee just talked about you.
Do you think that others were invited to submit their resumes?
Well, I don't know about that, but I do know that the other names were
Barbara Keenan and another woman - she took my job at the Attorney
General's Office and works at Rapidan now. I'm embarrassed that I can't
remember her name because you would know her in a heartbeat. She was one.
It seems to me there were a couple others that were in the mix too.
Were they all women?
Some were. I think the Governor made it clear that he would like to appoint a
woman. I think everybody kind of knew that. I don't remember, Mary Lynn
Tate may have well been in that group also.
So Governor Baliles selected you?
Yes.
What do you think were the most important factors in your appointment?
Well, of course Barbara Keenan was on the Court of Appeals, and she was the
first, and I believe at that point the only, woman on the Court of Appeals.
And she had, I believe you said in our last session, that she had gone on the
Court of Appeals, which was newly created, at the time you went to the
Commission, or about that same time.
In that same time period, yes. I believe she was on the Court of Appeals when
I went to the Commission, but it was very similar in time. I think - well, for
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one thing, I had known the Governor for a long time, and politics are politics.
I had worked for him. He knew me well; he knew my work habits; he knew
the way I operated; he knew my thought processes. Not that anybody else
would be less than capable or viable - Barbara Keenan is going to be
interviewed for the Fourth Circuit tomorrow. So, I don't think it was a matter
of qualifications above anybody else, but clearly he was much more familiar
with me than anybody else. And, I probably had as broad a background as
anyone. I had never been a judge other than on the Commission, but I
certainly had done a lot of different things and had exposure to different kinds
of litigation that perhaps he felt would be beneficial in that position. And I
brought a viewpoint that in a collegial body is important. For example, at that
time on the Court you had Justice Carrico, Justice Compton, Justice Whiting,
Justice Russell, Justice Stevenson - you had five of the seven people who all
had come through the Court system. Now, none of them had been on the
Court of Appeals because it hadn't existed very long, but they all were Circuit
Court Judges. John Charles Thomas came from private practice. I think the
Governor may have wanted to have someone that brought a different
perspective to the table. But I suspect that just having worked with him and
for him for as long as I had, he just knew how I worked.
Do you think there were political considerations?
Well, I'm not sure what you -
Did politics matter to the appointment?
Well, I would say I was a Democrat and I had worked for him. I knew him,
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and he knew that. At the time it still was a completely Democratic legislature,
but there were still members who were very angry either because they didn't
want me appointed or primarily because they wanted him to wait and let them
elect somebody. So the politics of it was to ensure that he picked someone
who he felt could get elected from the legislature.
But there weren't any litmus tests?
Oh no, there were no tests about your judicial philosophy. It just all had to do
with- I think, in the judicial groups, the bar groups and with the Governor,
- "Does she have good judgment? Does she, can she, listen? Can she get the
work done?" You know, all of those kinds of things that go more into who
you are and what you are, than what your answer is to a certain question.
And you didn't think about saying no?
Well, as I said, I loved my job on the Commission. I had not really thought
about going over there. But, actually, when the Henry Whiting stuff was
going on, I'd had some conversation with the Governor at some point saying
you should think about whether or not you ever want to go on the Court. He
wasn't saying "Do you want to go on the Court?" or anything like that. But he
kind of was planting a seed, I think, not knowing that Dick Poff, Justice Poff,
was ultimately going to resign. I thought about what he had said a long time
ago, saying; "Well, maybe this is an opportunity that just doesn't come around
many times in your life, and I really should seriously consider taking it."
Another reason that I took that job was my husband was in private practice
here, with a smaller firm. This was before he went with Hazel Thomas that
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then became Reed Smith. And I know for a fact that some companies, some
client-type people, corporations, explored the possibility of hiring Pat as an
attorney to represent them in something so that I could not sit on their case
before the State Corporation Commission. I found that to be very distasteful
and offensive and certainly not fair to my husband. Going on the Supreme
Court kind of eliminated that. Now, I couldn't sit on any cases that his firm
was in, but there was somebody else to sit for me because we have the senior
justice system and one of six in the decision making mode is much different
- I mean one of seven - is much different than one of three. So, I also felt
that making that move would be advantageous to that situation, which I just
found to be very distasteful.
When you were appointed to the State Corporation Commission, you had no
time to discuss the appointment with your husband - he was out of town, you
could not reach him and you had to give an immediate answer. Did you have
time to and did you discuss this opportunity with your husband?
Yes, he was here. Also, there was an awful lot leading up to the Governor
making his appointment because you were submitting resumes and going
through what that process was at the time. So yes, this was an agreed upon
good move for me, for the family, for him.
What did your sons think about it? Were they old enough to have many
thoughts about it?
Yes, I think they had some thoughts about it. I'm not sure they understood
everything. The boys, I think, were in high school at the time; that was 1988.
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So, yes, I think they were pleased. But you know, kids' lives revolve around
kids - they really don't revolve around their parents.
Tell me about the swearing in ceremony.
It was very special. The Governor was there, my parents were there.
The family was there?
Oh yes, my family, the kids all were there. Those things are very memorable
- and, yet, even with that, there's a lot of it that I can't remember because
there was so much going on. There was a reception by the Virginia Women
Attorneys Association that was held over at The Jefferson hotel. And that was
just unbelievable, it was just fabulous and there was a lot of excitement that
was going on at the time. I was excited not just because of me, but, I thought
it really was important to have a woman in that position; I was pleased that I
was the one. But I was just excited that it was happening, you know, and that
was an exciting time.
And all of these firsts, did you have any doubts about whether you could do
the work?
No, I never did. I mean, there were challenges and there were times I thought
"Oh, my gosh, I'm just going to have to really push through this." I mean,
issues that I had to become familiar with. But I never had a question. I
always felt that I had a good education and good experience and I never felt I
would have been selected- for the Attorney General's Office, for the
Commission, for the Court - by the people who were making those choices,
if in fact it was simply a symbolic thing and it didn't have anything to do with
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the ability. And part of it is, as I said, that the person making the choice, I had
worked with Jerry Baliles. Of course, I mean, Jerry was instrumental, there's
no question about it, in so much of my professional life. But, you know, Jerry
wasn't going to take a flyer on someone who could backfire on him because it
would have. He wasn't going to suggest to Governor Robb, at the time,
someone who he felt couldn't do the job - he wasn't going to run that risk
because any time you recommend somebody, it's your name on the line, too.
So I always felt that I had the wherewithal to do what needed to be done or I
could get it, and that I had the confidence of the people that were supporting
me in it. Were there times it seemed overwhelming? Yes. Were there were
times I thought I'd never see the light at the end of the tunnel? Yes. But was
it because I didn't think I had the ability to do it? No. It's just the time and
the getting the resources together that I needed.
What kind of publicity surrounded your appointment?
Oh my gosh - newspaper, television, radio interviews - everything. To me,
the one that I always tell and I remember so well was, this was the first
woman in Virginia and the headline, I think it was in the Richmond Times
Dispatch, said "South Carolinian appointed to Court" because I was born in
South Carolina and I was there for all of six weeks, maybe, six months and
grew up in Wisconsin. But it was "a South Carolinian appointed." My
parents just about died. So, I can never forget that, that was just unbelievable,
and that's what they put in the headline!
Well, you were appointed by Governor Baliles and you were sworn in, but
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then you had to be elected by the General Assembly. When did that take
place?
About a month later. It was a very short, interim term.
Were you involved in that process?
Oh yes. Now, obviously, I had discussed that issue with the Governor when
he offered me the position, because I said I don't want to take this if the
legislature won't confirm it- and there was some concern among some
legislators you see, I was appointed a month before they came back into
session. So, I'm sure, although we never talked about this, but I feel relatively
comfortable that the Governor had gotten assurances from the leadership that
it had the number of legislators that he needed, and that I would be confirmed.
And that was another thing: nominating me in that position put the legislature
in a little bit of a bind because they had just elected me to the State
Corporation Commission, so it isn't like I was a new kid on the block. I had
gone through the process with them and a number of them had known me
from the legislature when I did the redistricting with them and was over there
testifying before committees and so forth. And, they'd known my husband for
years because he was in the Attorney General's Office, and since then, he's
been a lobbyist for years and years. So you know, I did have to go through the
process. And of course, I went and talked to the people I needed to talk to and
anybody else that I thought I should. Senator Parkinson introduced me and
they voted me in, and that was it.
It only took one round of voting?
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Only one round of voting, yes. That was good.
Describe your earliest experience as a Justice on the Virginia Supreme Court.
Well, at that time the Court was going through a backlog reduction program
that had just started. Just before I went on the Court, it was taking five and six
years, or four and five years, to get the cases through. Chief Justice Carrico
had begun with the agreement of the rest of the Justices to try to reverse that.
One of the reasons that it had gotten the way it was that they just weren't
keeping track of the cases. As they went through the Court system they knew
how many they had, and how many they did, but they didn't see where the
bottlenecks were. So they had what they called "hell week" - this was just
before the week I went on the Court. They sat for a full week with the three
separate panels and heard petitions for appeal. We usually sit one day every
seven weeks, but they had five days with I'd say maybe 25 or 30 petitions a
day, on three panels. You can see how many cases they disposed of either by
granting or not granting appeals and then, of course, that big group of cases
went through the pipeline. So, when I went on the Court, I had one law clerk,
one secretary, and actually I kept on Justice Poff s law clerk. We were writing
five opinions a session - five opinions every seven weeks - and it was, the
volume was, tremendous. There were so many unwritten rules that I didn't
know. And while I had a broad experience, I hadn't done a personal injury
case for years, or issues of sovereign immunity. I mean, it's the last of the
general practices, and I had to really, really spend time catching up on where
the Court was on so many issues - such as worker's compensation. It was
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very, very challenging. I didn't know things. The first time I wrote an
opinion, I had been assigned to write the opinion, but I really was in the
minority. I didn't know you could trade off your opinions, so I wrote the
majority opinion, and then wrote my dissent. When we got back together for
conference, I said "somebody is going to have to sign this." And they all said,
"didn't you know, you just trade?" I'm like, nobody told me! And it wasn't
like they didn't want to tell me. It's that there were things they just didn't
think of, or would think I would know. I didn't know, for example, that it just
took one Justice to grant the petition for appeal and I'm chattering on about,
"Well, I think this sounds good," and they just kept going on. And finally I
asked them, "didn't they have any opinions?" and that's when I found out
what the rule was.
So, when you were saying you thought this case should be granted?
Or had some merit, they just went on.
That would go on the list of, well, we'll take this case?
Oh, yes. And the Chief Justice literally turned to me and said, "Don't you
know the rule?" and I said, "I guess not." The reason it only takes one Justice
is because, we've got a lot of cases to go through and unless there is really
some reason to debate it- you want to grant it- fine, who cares. Now,
admittedly, sometimes you look at somebody and say, "You've got to be
kidding." But generally, that's still the rule today. So, there were a lot of
those things that I just had to learn and it was pretty overwhelming. I mean,
you start off with 30 cases on the writ panels, and 45 cases on oral argument,
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and you have to write five of the opinions, and we have over 60 cases with
staff attorneys that we do just in a non-oral thing, and you do all that in seven
weeks. And, there was very little of the personal interaction that I was so used
to at the Commission. I didn't have committee meetings to go to, I didn't
have personnel issues to deal with, I didn't have - people weren't calling. It
was a very different lifestyle than what I was used to. So it was a big change.
Was there a freshman period for you to get accustomed to the work at the
Court?
It was there, but I didn't have any less work than anybody else. The Chief
Justice did allow me to have two law clerks. I took one from the Chief Staff
Attorney's Office because I was new, but also because we were in this
reduction mode. The Court now, I think, only does - well, when I left the
Court - they were only doing four opinions every seven weeks, whereas we,
at that point, were each doing five. Now, I think sometimes they are only
doing two - I mean three - and I do two now as a Senior Justice. There was
some of those kind of different combinations.
Were there things that as a Justice on this Court you must and must not do, if
you wanted the respect and cooperation of the other Justices?
Well, yes. And I think sometimes those things change. When you get new
people - even one new person - the Court dynamics change. When I went
on the Court, like any other court, there were internal, unwritten rules of
procedure. Some of those are things like: after the conference on a case and
you're writing your opinion, the environment was that you really didn't go
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and call or talk to other people about opinions that you were writing because
we all would get back together for conference, and that's when you'd discuss
it. The reason for that is, you don't want people to think that it's a collegial
opinion - you want everybody to hear everybody's position and you don't
want to talk about it beforehand because you don't want two people to kind of
decide before the conference that this is the way they want to go. It's just that
kind of respect for each other, but also the need to have everybody hear
everything or else you' re not making a decision out of the same deck of cards.
Now, over the years, it changed a little bit. What would happen, sometimes,
in an opinion conference - which is what I call it when you are going over
the opinions, not when you're making just the regular conference - is that
someone would come in and start saying, "I just can't go along with this part
of it because he said blank, blank, blank, blank." Well, you've got five
opinions that you've written, you've been reading everybody else's, and to go
back and out of the cold blue rethink why you put those three sentences in can
be really tough. So now, if you've really got a problem with somebody's
opinion - (if you say at conference, "I'm going to dissent," that's one thing,
but if you get an opinion and think, "Oh, I don't know, this really troubles
me") - the practice is to give the writer a call and at least let him know what
your concern is and you can share that with the rest of the Court if you want
to. But, some of that stuff changes over time. There was a lot of adhering to
those kinds of things because it is important - the Judges don't want to feel
like you' re a maverick off on your own some place. So yes, there were a
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
number of things like that that you had to pay attention to.
Give me a little bit of background on what the Court does - how the process
works.
The process? Well, a petition for appeal comes in. It is assigned to either a
staff attorney or - now these are not criminal appeals I'm talking about -
it's assigned to a staff attorney or one of the Justices. They have a writ memo,
which is about an eight or nine page summary of what the issues are and their
recommendation. That is then assigned to a petition panel and the three
Justices hear the ten-minute oral argument by the appellant. They decide
whether to grant or refuse the appeal.
The three judges?
Yes, one of those three. I mean, any one of the Justices can grant it. If it's not
granted, the order goes out and the person, the litigant, can file a motion for
rehearing for the grant. There is no oral argument on the rehearing and it's
reviewed by all of the Justices. If it is granted, it then goes up for briefing -
just a regular hearing- and it's put on the docket. I'd say, six months after
it's granted at the most, maybe a little less, it will be heard. Then we have the
oral argument. Well, the day we sit and hear the writs, we also, that morning,
get together and go over all of the opinions because everything that is decided
is heard during one argument week. The opinion is supposed to go out the
next argument week. So, you've got just seven weeks to get everything out.
And then, we've heard those and done that and then - that's usually in week
four, no that would be week five - and in week six you go back and do your
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Ms. Tucker:
Justice Lacy:
dissents and concurrences. You get ready again, because week seven is oral
arguments. So that's the cycle. Now, in the summer we do not have oral
arguments, but we do writ panels. We also have - we hear about- 60 of
what we call Chief Staff Attorneys' work, which is the "no orals," mainly
criminal appeals, that have all come from the Court of Appeals. It's like a
writ memo and we read those and we get together. Once again, a three-judge
panel gets together - basically what that is, is saying "I have questions about
nos. 5, 10 and 32," and the rest of them we just would refuse. So, then you sit
for a week with oral arguments. You hear the argument in the morning and
after that you conference on it. Now, also, usually within this period, there is
a business meeting because you've got all of this stuff about regulation of
lawyers and other things that come up with the administration of a branch of
government. That I don't have to do anymore - that's why I forgot about it.
I'm glad not to have to do it anymore.
Describe your work habits as a Justice.
For me, generally speaking, I would get in my car in the morning, I usually
got to the office right around 8, maybe a little earlier or maybe a little later, go
in the garage, go up the elevator, get in my office, turn on my computer, and at
the end of the day reverse. Most of the work that you do is with your law
clerk and secretary - a lot of reading, computer work, drafting and
researching opinions and sometimes talking to colleagues if you've got a
question. For example, if you are writing an opinion, you might say, "You
know what, at conference you made this point, my notes aren't real clear, will
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Ms. Tucker:
you tell me that again?" We used to record our opinion conferences and it
was wonderful, but then some of the Justices said they didn't think that was a
good idea, so we don't do that anymore. I miss that. I miss that very much.
But you know, there would be also - a lot of times I never went out for lunch
- but I had a lot of speeches in there, a lot of American Bar Association work
that I did, and taught classes at the University of Richmond. So that was all
breaking up the day, but you aren't getting a lot of calls. You don't have
many committee meetings. Most of the Justices are not in Richmond. When I
first went on the Court, Chief Justice Carrico and Justices Compton, Poff
(who still had an office), Russell, John Charles Thomas and I were all in
Richmond. So six of us were primarily based in Richmond, and we would
always go up to the Chief's office at noon - if we wanted to - and then
we'd go up to the SunTrust Building cafeteria for lunch. That was the source
of many jokes around town, but it was kind of nice. There were many people,
and you'd see people at lunch and they'd usually talk about sports a lot, but
sometimes we talked about something else. Then that kind of started petering
out when, well, when John Charles left. Hassell came in - he kind of didn't
like to go to lunch too much, and then Russell left and Keenan came, and then
we didn't have very many here in Richmond and people kind of started not
doing that anymore. That was okay, but in a way it was kind of isolating -
you really are pretty much by yourself now. Now, Justice Hassell is the only
active Justice stationed in Richmond.
And he doesn't like to go to lunch?
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Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
I don't know what he does. I think he does things, but not with me.
Did your workload increase or decrease from the State Corporation
Commission?
It was different. A lot of my work at the Commission had to do with other
people, but here I worked primarily by myself except when I was actually with
the Court, so it was very different. In both jobs there were always things to
do. You know, completely different work, none of them a piece of cake.
Neither of them were 9 to 5?
Exactly.
As a Justice, what is your perception of the Circuit Courts and the Court of
Appeals in Virginia?
I think we have some outstanding judges on both, on all levels. I think that
Virginia fortunately still maintains a certain level of civility and of moving the
cases along and much of that is due to the combination of lawyers and judges.
You know, people coming from out of state are often surprised, but more so
Virginia lawyers going into other states are even more surprised. I think the
quality is good, but everything can always be improved. I despair, in one
way: I think it is harder to get people on the Courts, particularly the Appellate
Courts, who have had a broad level of experience, particularly in private
practice, because of the way we elect judges. The concern that, now, a one
term judge still may not be the norm, but it used to be, once you were elected
you were generally re-elected. Well, now, you give up your clients, you give
up all that and then you may run the risk of not getting re-elected, through no
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
fault of your own. I'm not saying that it's a bad system, I'm just saying that I
think there are things about it that could be improved.
They are still elected by the General Assembly, correct?
Yes. I mean, for example, in this current go around of the Court, I think it
would be very hard for someone in private practice to put themselves through
the election process. It's one thing in the federal courts, where there is a
process and you say you want to do this, but once you are nominated it's a
little bit different. But here, if you go through that process, you're telling all
your clients that you may be moving on and you are telling your partners and
your associates, and I think it would be very hard to recover from if you don't
get it. It's not quite as bad on the trial level. I think there are some
challenges, but I think the general quality is as good as any, maybe better than
some. Certainly, it's preferable to popular election.
How does the Court reach agreement on cases?
Well, it's as you might suspect, we go around the table, pretty orderly, there is
not a lot of back and forth. You go in order and people express their positions
on cases and you discuss it and you reach a consensus. That's how the Court
does it. Although sometimes a case might come to you, as the opinion writer,
as a 3-3 case and you have to decide which way you are going to go.
Maybe this has changed since your first assignment, but are the cases assigned
to write the opinion to the person who's in the majority or is it just assigned
by seniority? How are the assignments done?
It's pre-assigned. It's pretty well known now - there is not any secret about
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
it. It is a random docket draw and, literally, there is a hat that has seven pieces
of paper in it and one has an "X" and you pull one out of the hat. If you are
not there, the Chief Justice pulls for you. The person who gets the "X" piece
of paper, that's where they start the docket. We have a sheet that has all the
cases listed and whoever starts then in seniority, then the next one gets the
next one, next one, etc., unless there is a conflict and they can't take it or
something like that. Also, it is all pre-assigned before oral argument and
that's been the way it's been all the time.
So, it doesn't really matter whether you are in the majority or the minority on
the case, you still write the opinion, unless you trade?
The assignments are done weeks before the oral arguments. At conference,
after the oral argument, if you see that you are in the minority, you will trade it
off with somebody else. Nobody told me that. When I did my first opinion I
didn't really know, and the person who is writing the opinion is always the
last one to speak about the case at conference. I didn't really say anything
because I'm the new kid on the block and I was in the minority. So I thought
"Well, I'll just go ahead and not say anything, I'll just write my opinion of
what I want to say." Now, I know that you say "No, I can't go on with that"
and trade it off for another opinion.
Do you think there is sufficient collegial discussion and deliberation about
cases?
Yes and no. I think it's a mixed bag. We do sit and talk about the case and
then we do meet back together, which is somewhat unusual. What's hard in
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Ms. Tucker:
Justice Lacy:
the discussion - I think at conference there's plenty- but what's hard about
the discussion is when you, as the opinion writer, write your opinion and you
circulate it. As you are doing this, you always find even the easiest case has
some small thing in it that makes it more difficult or changes your mind about
something. Maybe it's part of the record that you hadn't really noticed before.
What's hard is to get the rest of the Court back into thinking about the case the
way they did- being immersed in it the way they were at oral argument
week - as they have been doing their own opinions, everybody's trying to get
them out, and that is difficult. That's frustrating, and I think the Court
sometimes, in those circumstances, will put an opinion over for a term and
say; "Look, we don't have time to readdress everything right now and it's
something that really needs to be done, so we won't get the opinion out.
We'll wait and give it another week."
Does the opinion writer have the responsibility of bringing together a
consensus and making sure the opinion reflects the consensus?
Well, supposedly the opinion writer gets the opinion with the consensus
already there, but they say the devil is in the details - understanding how you
think the case should come out by virtue of the law, accepting the facts and
record and all that - it sometimes just doesn't write that way. When you
really get down to writing it, and you determine for any good reason that what
you thought you could do, you can't, that's when it has to be massaged and
you have to go back to your colleagues and so forth. Where there has been a
majority, the opinion might become unanimous. But, even if it isn't, the
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
opinion itself will go through this crucible of everybody sitting around looking
at it. You have to decide where you are going to really suggest changes and
where not. I mean some of it's editorial "dealer's choice" kind of thing - and
you're not going to impose your will on somebody else's or your editorial
thoughts on someone else. So that goes pretty quickly. Most of the opinions,
I'd say - if we're going to issue, say, 30 opinions - major changes would
occur in maybe five at the most. The rest of them might be just little minor
things and some might receive no comments at all.
Were there factions or blocks of Justices on the Virginia Supreme Court as
you hear happening with the U.S. Supreme Court?
Not that I could tell. I don't think so. The United States Supreme Court gets
so many cases that are so emotionally or politically charged where you have
philosophies and all that. We have some of those, but most of our cases are so
much more law-based precedent. Not that there aren't important cases that
have that aspect to it, but they are not cases that you are going to swallow your
sword on.
Does the Virginia Supreme Court have supervisory authority over the lower
courts in Virginia?
Well, yes, maybe. The Chief Justice and the Court each have some
supervisory authority. It kind of varies, and it varies from Chief to Chief.
Do the Virginia Supreme Court Justices advise lower court judges, outside of
opinions that might deal with reversing a judge or instructing what the proper
law is? Is there any sort of informal advice or relationships?
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Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
No, not that I know of, unless a judge happens to be talking to another judge.
As for the administration part, it's much more in terms of the institutional
stuff, judicial code of conduct, the Judicial Inquiry and Review Commission,
the salaries, leave, medical benefits. That's all part of the judicial branch and
the Chief is the head of that.
So, for the Justices who are not the Chief, you don't really get involved with
the administration of the Court?
Primarily, no.
What makes for a good appellate hearing?
Good briefing, good oral arguments and good lawyers. You know, seriously,
there are some outstanding appellate lawyers, or lawyers who do good
appellate work in this Commonwealth, and it is always a pleasure to hear them
because the issues are highly honed and well researched and you don't spend
part of your reading time or argument time trying to figure out what the
lawyer is trying to say in the first place. The issues are joined. Good lawyers
are good lawyers. That's really what it's all about, and I think the better the
lawyer, the better the opinion is going to be.
Do good facts make for a better appellate hearing?
Well, I don't know what do you mean by good facts. Clear facts are always
good to have, and, having a record that has the facts in them. But our
standards of review are such that, generally, I always take the facts in light
most favorable to the prevailing party and, for the litigants, the good facts
really help one side but not the other. You know, it just really depends on
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Ms. Tucker:
Justice Lacy:
your viewpoint. It's really more in the presentation of the case, the
preservation of the errors, being very clear about your legal theory and what
the case is all about and being able to present that both to the trial court and to
our Court. It doesn't happen all the time. A lot of times, it doesn't happen at
all. Lawyers just are not always clear. And sometimes I'm not sure if it's so
much that they're not clear, but they don't do a good job communicating that
to the judges on paper. A lot of times, for example, you get so wound up in
what you are doing and it's very clear to you, but someone else is thinking,
"What are you talking about?" So, keep working.
Describe your approach to hearing cases.
Hearing oral arguments? The full blown ones? Well, I've read the briefs, I've
read the relevant part of the appendix and the statutes involved. There are
some areas - the longer you are on the Court, in some ways, the more
familiar you are with some of the issues -that I don't need to go back now
and research what the standard of review is or how you view the facts
depending on whether it's a demurrer, a motion for summary judgment or
otherwise. That kind of stuff I've got down. And, depending on the case, it
may well be that it involves a fact, a legal issue that we've dealt with recently,
or a variation of it. So, the level of research that's necessary will often depend
on what we've done before and where this fits. I will then usually type out a
summary, usually not much more than a one-page, that very quickly describes
the case for me. I use the summary to remind me of what I think the issues
are, what my tentative conclusions are, and I have that with me on the bench.
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
Because when you've got five, six or eight cases a day, you have to remember
pretty quickly what it's all about. You don't have time to read the brief
behind the bench. I' 11 also highlight questions that I might have or areas I'd
like clarified. If I need to have more research done, I can often describe that
to my law clerks and tell them to do the research. It would be nice if the law
clerks could go through all of the stuff first. But, first of all, we don't have
that many law clerks. Second, they are doing writ memos as well as helping
us. And third, it's much more efficient use of my time to go through a brief
and say here's an area that I don't know rather than having them go through it,
because they usually are first-year lawyers and there is a whole lot they don't
know. A lot of working with the law clerks is figuring out what the best use
of their time is vis-a-vis my time. So, then I've got my little sheet, I've got
places marked in the appendix where I need it or in the brief, and I have my
preliminary ideas. Then I go listen to oral argument.
Do you like to ask questions?
If I need to, yes. Sometimes I'm bored and I'd like to ask questions, but I
don't always do that. But, usually there are one or two questions I will ask if
they aren't clarified just through the presentation or through another judge's
questions.
On this Court, is there a hierarchy of who can ask questions?
No. It's all for all and one for all, and it's a free for all. You talk about
getting the respect of your colleagues - you have to be careful on a seven
member bench not to hog the questions, not to go on with questions because
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
there are other people that may want to ask questions that may not give a hoot
about the questions you' re asking. So, you have got to be careful. And I think
you have to think very carefully about your colleagues and also even
formulating your questions - the question you ask isn't always the question
that's heard. If you really want to find out a point or get the lawyer's
viewpoint on a specific issue, you have to think about just how you are going
to ask that question. The question will always get an answer. But to get a
response to the actual question, you've got to be careful.
How do you make your decisions?
Well, there is a preliminary decision which I make based on all of the things
that I've talked about: what the record shows, is there a procedural bar, what
is the law, what's the precedent - you, know, all the ways you'd think about
it. And then I listen to my colleagues and listen to their perspectives. Often
they have a different perspective that's very valid that I hadn't thought about
or that, in fact, very persuasively rebuts a position that I might have taken. I
mean, you just listen. And then I read the opinion when it finally gets
circulated, and ask myself whether it makes sense? Not just, is the bottom line
- confirm, reverse, whatever - right, but is it rational? Does it hold
together? Do I think it's right? Those are the ways that I come to my final
signoff on the opinion.
How often do you find that you agree with the bottom line, but not necessarily
how the opinion drafter gets to the bottom line?
That happens. I can't say it happens frequently. I can say it is not unusual.
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
And sometimes, I might call somebody and just say, "I agree with everything,
but you've got these two sentences here; let me tell you, maybe I'm not
reading them right" or, "this is why I think they are inconsistent." It may not
be that you can't stomach the whole thing, it might just be a small part, and
that's not unusual at all.
And do you find the other Justices to be receptive, too?
In the main, yes.
And you equally respond to them?
You always want to defend what you did, but yes, you'd listen and you find
often that they do have a better mouse trap than you do.
This concludes the fourth interview.
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ORAL HISTORY OF ELIZABETH B. LACY
FIFTH INTERVIEW
January 11, 2010
This is the fifth interview of the oral history of Elizabeth B. Lacy, which is being taken on behalf
of the Women Trailblazers in the Law, a project of the American Bar Association Senior
Lawyers Division, on January 11, 2010.
Ms. Tucker:
Justice Lacy:
Justice Lacy, in our last interview session we discussed, among other things,
your time as a Justice on the Virginia Supreme Court. I have some
additional questions that I'd like to go over about the Court. Since that was
the longest period of time in your career, we want to be sure to give it
adequate coverage. Tell me about your judicial philosophy. Do you believe
judges should be legal innovators or do you think they merely should apply
the law and leave innovation to the legislature?
I think there are two answers to that question. The highest court in any
jurisdiction, be it the Commonwealth of Virginia or the United States
Supreme Court, has a certain role in interpreting the law and applying the
law that is set by the legislative and, sometimes, the executive branches of
government. Many times the statute, or perhaps even the common law itself,
is not clear in terms of how it will apply to a particular factual situation. In
applying the law, statutory or administrative or regulatory or common law,
the court often is making law. It certainly is making the law with regard to
that fact situation. I don't consider that being an activist. I don't consider
that being anything more than fulfilling the job that the courts are set out to
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Ms. Tucker:
Justice Lacy:
do. I think that judges on lower level courts often are faced with the same
dilemma because the law is not clear. But they are perhaps, more
circumscribed because of their inability to not apply laws to cases that have
come down from the higher level of courts. Having said that, my philosophy
would be that judges should apply the law as written regardless of their own
personal feelings as to whether or not they would have voted for that law.
When a judge is faced with the situation which I have just described,
however, it seems to me that judicial philosophy will apply to some extent,
or one's life experiences will come into play when the slate that you were
writing on has not been filled in by actions of other branches of government.
If one has had experience as being the target of discrimination or has certain
views on a number of issues, that life experience is going to play in resolving
issues that are not clearly established. I do not believe judges have, or should
have, the authority to ignore existing precedent or clear statutory application
simply because they think a different result is more equitable or perhaps even
more legal in their own right.
But there must be circumstances in which you think that the law, the existing
precedent, for example, Plessy v. Ferguson, is wrong or should be
overturned. That's precedent but would you not have to find a way-
There are certain legal principles which apply when one overturns precedent.
When we' re talking about precedent, of course, I'm not talking about
statutory law. I'm talking about this whole body of court-made law, which
people seem to forget about. The standards for overturning that often include
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Ms. Tucker:
Justice Lacy:
things such as: it was a very recent pronouncement and perhaps a record in
that particular case was not clear (or something like that); or it has come to a
point where there were unintended consequences that clearly were not seen
and you need to tweak that particular principle. Now, with Plessy v.
Ferguson - sometimes it is that society has just changed. That was an
interpretation of the United States Constitution which, of course, we on the
state court level deal with, but generally I would be looking at the Supreme
Court for pronouncements on that. In reversing Plessy v. Ferguson, the U.S.
Supreme Court certainly applied some of those precedents in their own way.
I've been involved in a number of cases in which our Court has, as you might
say, reversed precedent. Usually there is a dissent, and the dissenting
opinion always says "The Court is legislating, or the Court is ignoring
precedent." Cases can be distinguished, but I don't take lightly, and I don't
believe any of my colleagues at least ever blithely took a case and reversed it
where they knew it was reversing some pretty well-established precedent.
That isn't to say it can't and shouldn't happen, but it should be done only in
the rarest of circumstances.
Do you think that when Governors of Virginia appoint or the Virginia
General Assembly appoints people to the Virginia Supreme Court that they
think about how that person would apply the law?
I think they do. It's almost become kind of conventional wisdom or political
talk. Are you an activist judge? Or perhaps it's a litmus test on a particular
issue. I don't think you see that much in terms of interviewing judges.
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Ms. Tucker:
Justice Lacy:
Although you see some of it, and more of it than you used to, regarding "how
would you vote on such and such an issue?" - abortion being an good
example. Of course, most candidates would say; "I cannot tell you, I would
follow the law. It depends on the case. It depends on the record, the status
of the law at the time." So although there's a lot of talk about that, the best
way often to discern that is to see how people have acted in the past. This
means you are generally looking at judges, not lawyers because lawyers are
advocates for their clients, so you' re not sure where they are. I think what
that means is that in many respects, the appointing body or the Governor,
when appropriate, has to look at somebody's basic legal ability; what kind of
a record and the reputation the person has for good judgment, for good
temperament, for diligent and capable work. Perhaps if the selecting body
wants someone who's going to have a particular approach to the law, they'll
select him or her. But even there, the bottom line still tends to be, at least in
this Commonwealth, for our Court, innate legal ability and good judgment.
Describe some of the most interesting cases that you've handled on the
Virginia Supreme Court.
It's hard to say because I've had a lot of very interesting cases over the
course of my years on the Court. What is interesting to me isn't necessarily
the subject matter, it's the legal puzzle that the case provides. I wrote the
opinion in the case of Jaynes v. Commonwealth, which had to do with the
use of the internet for spam and a criminal statute that the majority held was
over-broad under the First Amendment. The major issue there was the
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ability of this defendant to raise the question of whether the statute was over
broad for non-commercial activity. The defendant was clearly commercial,
though the legislature had written the statute to cover commercial and non
commercial, which would mean you couldn't have any non-attributed
political speech on the internet. We struck the statute down as over-broad.
That was a very interesting case because it involved learning a lot about the
internet and the IP identifiers. Some of those things are extremely
interesting.
On one of the first death penalty cases I had, I was one of the dissent.
The question was whether or not the defendant had actually asked for an
attorney in a timely fashion and whether the police went on without giving
him that. That case went to the United States Supreme Court. The side I was
on did not prevail, needless to say. But there was a real question there as to
the extent to which the police should withhold giving someone an attorney
because of the use of words. Do they have to be magic words or would it be
clear from the context?
Perhaps one of the most interesting cases that I had early on was one
in which the question was whether or not the statute of limitations had run
for a woman who had undergone a medical procedure to tie her fallopian
tubes. The woman had subsequently become pregnant. The question was,
when did the injury happen? When she got pregnant or when she had the
surgery? My male counterparts held that the damage arose at the time of the
surgery because there was an infliction, an invasion of her body. I felt it was
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Ms. Tucker:
Justice Lacy:
Ms. Tucker:
Justice Lacy:
an invasion for which she had contracted, so it was not the injury. Very
interesting legal questions can arise in just about every case that we finally
do address, from the well-understood or well-publicized internet cases down
to some very simple but yet challenging malpractice cases, medical
malpractice, or even fender benders.
What you like best, perhaps, is the challenge of determining the complexities
of the case and how best to address those?
Exactly. I don't think you can say that one case is more important than
others. In fact, one case may affect more people than others. But in terms of
personally what's interesting? It's what's in the case and how well it's
presented. There are very few cases that we get that are clear. Even if the
decision is unanimous, even if it's affirming or reversing, there's always
some real question involved and that's the interesting, challenging,
intellectual part of the job.
Can you think about what your most difficult case was to decide?
In a different realm, I always found cases that involved injury to children the
most difficult ones personally to deal with. That isn't the complexity issue
that we just talked about, but in both death penalty cases or cases involving
the children, they're very personally difficult. There were a number of ones I
thought were very complex that I was responsible for. The hardest one to do
was a recent one that had to do with a contract. It was between a railroad and
the power company and what price should be paid and what the contract said
when they initially entered into it. Not only did you have contractual
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Ms. Tucker:
Justice Lacy:
interpretation, but at the trial level the case was denied based on principles of
judicial estoppel and waiver. So that was very interesting writing that
particular case. But there were also employment cases that dealt with
defamation and to what extent an annual personnel review or a quarterly one
could lead to, or support, a defamation claim. Those were very interesting
and difficult.
What about death penalty cases? I'm not sure at what point the defendant
goes beyond the Virginia Supreme Court to the federal court system, but I
assume that you have a fair number of those that come to the Virginia
Supreme Court.
Yes. Unless it's a federal crime, Virginia death penalty cases all start with us
and they will all be appealed to the U.S. Supreme Court. Then the habeas
corpus petition will come through us and then it will go to the federal court.
So yes, there's a lot of interplay. Death penalty cases in many ways are very
similar to any criminal case because the basic rules of evidence are there.
You have a lot of those issues, usually many more of them because they're
usually long and involved cases. You also have the overlay of the Virginia
Supreme Court being required to look at both the proportionality of the
sentence with the imposition of the death sentence with other crimes, as well
as whether or not the jury was in any way affected by passion or prejudice in
imposing the death sentence. So there's another layer. Much of the
difficulty to me, for death sentence cases, is just plain evidentiary rulings.
That may be the majority of it in any case, which is no different in terms of
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the principles that you apply. I suppose the psychologically troubling part
for me with death penalty cases is that whether or not a particular crime
receives the death penalty depends on whether the particular crime is charged
as a capital crime. That can vary so much around the state. Someone who
goes in and robs a pizza delivery guy and shoots him, qualifies as a death
penalty as a capital crime. In some parts of the state they will charge it as a
capital crime and in some parts of the state they won't. Even though the law
is consistent, the consistency of the death penalty for a given type of crime
bothers me on a personal level. I also have had to adhere to, as long as the
legislature has it, the "triggerman rule." The person who actually commits
the crime of murder is a different person than someone who had committed it
in the second degree. I have a problem with that. Whether or not I'd vote
for the death penalty if I were in the legislature isn't something I ever have to
answer and doesn't play into my decisions in deciding those cases.
How would you describe the most typical case, if there is a typical case?
A typical case probably is best described to terms of process, which is just a
matter of the petition for appeal has been granted by one of the Justices. The
case is briefed by both sides and you hear an oral argument. Then we go
into conference and discuss it. In the typical case you will have to look and
see if the record is complete, if it's an evidentiary question ( did they proffer
the evidence?) or if it's a question of admitting that or not. The record has a
lot to do with where we can go with our opinion. It will be gone over in
great detail by everybody on the court. In particular, of course, it will be
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gone over in great detail by the opinion writer. Then it's just a matter of
reading the briefs. Again, in a typical case, we probably do as much or more
research as the lawyers do when we get it to look at it, particularly if you're
the opinion writer. Some of it is going behind the research making sure it's
all there. But there's a good bit of research that goes into it.
Which of your opinions do you think will have the most lasting impact?
I need to go back and look at what I've written. It's interesting when you say
that because as an appellate judge, no opinion is really "mine." I have to
have three other people agree with me and as we go through our process,
there's a lot of revision and editing. Sometimes that results in making the
opinion better or clearer, sometimes it's done as a compromise. Maybe if we
have another session, I'll go back and look at my opinions because I can't
think of any one that I particularly wrote that I felt would have the biggest
impact other than what I mentioned on the internet that declared the statute
unconstitutional (they had to print the correction, which was easy). But
otherwise, I don't know.
Well, maybe we'll reserve that and then you can think about it and we can
cover it again next time. Is there any decision for which you regret taking
the position you took?
There are a couple that I wouldn't have done again. Decisions where the
more I thought about it in retrospect, I thought; "Maybe the majority was
right or maybe the dissent was right." But, there's nothing that stands out
where I would said, "Boy, did I mess up on that one!" I'm sure that people,
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at least half the people, think I messed up on half my opinions. Let's put it
this way; I feel comfortable looking in the mirror and going to bed at night.
There's no case that I can say; "I just really think I was completely wrong on
that one." I think the reason I can say that is because I really tried to work
hard on each case that I did so that I didn't rely on other people's work
necessarily. I feel like I did my best at the time. Now, there are a number of
opinions as we go back that start getting quoted back to you, and I wish mine
had been written a little bit more clearly or differently because of the way
they' re now being used. I cannot tell you which ones those are. I just see
them on occasion. Yes, I wish I could go back and rewrite some sentences
in some of my opinions.
Then perhaps that's the circumstance under which, in a later decision, you
will clarify or distinguish or perhaps overturn an earlier decision because it,
in hindsight or with the passage of time or new developments, clearly should
not be followed?
Yes, and those are two different things. What we see happening, and I think
this is true in any kind of writing, is that what is in that opinion is then taken
and applied to the next case and the next case and the next case. The
interpretation or the gloss that the advocate puts on a particular opinion gets
a life of its own. Then sometimes we have to go back, clean it up and say,
"That isn't what was meant even though that's the gloss that's been put on
it." That is a little bit different than a straight-out actual precedent
overturning.
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How do you think the Virginia Supreme Court compares with other states'
highest courts? Do you think there is anything unique about this Court or
markedly different?
I think some of its processes are markedly different. Maybe just like the
federal "rocket docket" in the Eastern District of Virginia. Not that other
state supreme courts are not efficient, they are. But we do operate very
differently in that we have the Justices sitting on the writ panels and it only
takes one Justice to grant it. Most courts that are certiorari courts require a
majority to have a case granted. In other states, many courts, such as circuit
courts or courts of appeal, have an appeal of right to the state supreme court.
We don't have that in Virginia.
I think our numbers were down a little bit in terms of opinions. But I
think we used to handle as many or more opinions than almost any circuit
court or state supreme court in the country. Getting back together and going
over the opinions the way we do it, that is quite different. Also, having the
process of issuing our opinions at the end of each term, which is every seven
weeks, and not letting dissents or concurrences hold us up, is a luxury which
many other state courts don't have. So I think, to that extent, we are very
different. In terms of how our decisions come down, I think people probably
would term us as a more conservative court than California and some other
courts. We have become perhaps more procedurally conscious in the last 10
years or so. By that I mean we have more procedural bars than we used to
have. I don't know if that's a function of the Court itself or the function of
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the way the cases are coming to us. But we find lots of things we can't get to
because it wasn't preserved, assignment of error doesn't cover it, it's not in
the record, or the argument wasn't made. Those types of things.
Does that suggest to you that lawyers may not be as well trained or as
attentive or as strong an advocate for their clients as they should be? In other
words, it's not a change in the statute or the rules, it's a change in factually
what you are seeing?
I think there are a couple of things. I don't think it is a matter of training so
much. I think lawyers, certainly in big firms and small firms, have to have
clients pay for a lot of this stuff. To the extent the client isn't going to pay
for some of the type of pruning and digging that might need to be done for an
appellate level case, it's not the lawyer's problem. It's part of the practice of
law at the times we are living in. I also think that much of an appeal can be
lost at the trial level, and I don't mean in terms of the verdict. I mean in
terms of things I mentioned earlier: preservation and proffers, making the
arguments and making the record sufficient to get your point up and
preserved for appeal. As a result, the trial lawyer may not be looking at the
appeal and for very legitimate reasons. I'm not being critical of us, I just
think, again, it's the way law is practiced and the time that's given to it.
Sometimes you will get the appellate level lawyer in there who's very good,
but you can see how he or she is trying to manipulate the record because it
wasn't preserved below. They can see points that they probably could or
should win on, but we can't get to it.
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Do you think it has anything to do with the volume of cases? Do you have a
sense of whether there are many more cases or that there are time pressures
simply because there are more cases coming through the system?
Well, the time pressure that I'm talking about really is more on the lawyer's
side than our side. But, yes, the caseload has doubled while I have been on
the Court.
Your caseload?
Our caseload. Having said that, it has kind of evened out in the last - I
can't tell you how many years. But it doubled within the first 10 to 15 years
I was on the Court and then I think it stayed kind of even. I suspect the
caseload for law firms has certainly grown. Law firms have grown, but the
number of cases that have been tried have not grown. I think that's reflected
in the fact that we get about 3,000 petitions a year for appeals. When I went
on the Court we were getting 1,500. Again, I think it's the business of law
that's changing things. A good lawyer will know to say in his or her brief or
petition, "Appellant should not be able to raise assignment of error number 3
because they didn't preserve it or because it's not timely." The lawyers
themselves are pushing some of that, too. You can't just wink at something
that somebody's made an issue. Sometimes we wonder, when we see a
possible procedural bar, whether we should raise it sua sponte. Sometimes
we do it if it's jurisdictional and we feel we have to. But sometimes we
won't if the issue is not real clear and no one has raised it. It's always a risk
that the litigants run.
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Would you be willing to describe some of the attorneys who have argued
cases in front of you?
Not by name, but they certainly do fit into different categories. Some of the
outstanding attorneys, or attorneys that really have done a good job in our
court, are not necessarily just ones from the large firms where they are
appellate specialists. Certainly, very often those attorneys are well prepared,
present their cases in very crisp, clearly written briefs and have clearly
articulated positions with a good response to the questions. All the things
you'd expect. But there often are attorneys who are appearing before us for
the first time. They' re not going to turn it over to an appellant specialist. I
think the appellate bar development is a very good thing, but it does not
mean that you can't have a good oral argument by someone who's not an
appellate specialist. Sometimes appellate practitioners are not the best
presenters of a given case. So the person for whom it's his or her first time, I
think they can be very good. But they sometimes are not very good, and
they could use some help, particularly those who do not understand the
transition between a trial and appeal in terms of how you present such a case.
Those who really don't understand feel like 15 minutes is just such a short
period of time that they can't do anything, and they don't even try to prepare.
They don't tape what they are going say to see how long it takes. My
goodness, if we don't ask questions, they might speak for 5 or 10 minutes
and they're done. They just haven't thought through their oral presentation,
and often their brief reflects it, too. They haven't thought through the theory
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of the case. I think we've seen the gamit of lawyers, or I've seen the gamit
of lawyers. The most fun is not only an interesting case, but an interesting
case that is well briefed, well preserved and well argued.
Describe your relationship with lawyers outside of court.
I hope good. I have a lot of respect for them. I realize, as they do, that there
is a certain propriety that is important. I have a great respect and confidence
in them. Of course, I have invested a lot in the legal profession, my own
profession. I have worked with lawyers and felt it has been very important
throughout the years to maintain a good personal relationship with various
lawyers and also to be involved in legal activities, not just teaching, but bar
organizations and things like that. I think it's extremely important and I
always have tried to maintain a good relationship with lawyers. It is also a
way for a judge to keep some sense of what's going on in the legal world,
which is important for all judges, but particularly important for judges who
sit on the body that regulates lawyers. You need to know what's going on
out there and that's hard. The longer you are a judge, the harder it is to know
exactly what's happening in the trenches. If there's one advantage to elected
judges, it is that they do tend to stay more in touch with the practicing bar
because they have to. But I hope that my relationship with lawyers has been
good because I have tried to maintain a good relationship with them and still
be part of their world.
Have you seen any trends in what is happening in the legal profession?
Well, certainly it is much more of a business now than it was. I really could
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sit here and talk about that with you for the next three days. I'm on ABA
President Carolyn Lamb's Presidential Commission on Ethics 20/20, which
is a three-year job. We are looking at how the practice of law has changed to
the extent of the ability or inability of ethical and other Code of Professional
Responsibility Rules to just keep up with, in no small measure, the multi
jurisdictional, international and transnational practice of law where the rules
are different and how do you deal with it.
All transactions and matters are local in nature?
Very few are, in fact. I think that there is a huge difference in the bar in that
regard. I also think the practice of law is changing because of the increased
use of alternative dispute resolution, certainly arbitration, and now
mediation, along with different kinds of settlement discus~ions. That, of
course, has led to fewer trials. Litigation is very expensive and so you don't
see much of it, if you consider the legal disputes that exist. But that's just a
small part of that. It's always been not as big as people thought it was, and
it's becoming smaller and smaller. I also think there is a huge change in the
practice of law in terms of the way lawyers view legal employment.
Large/small firms, loyalty to firms, lateral transfers, desire for partnership
track, glass ceilings - I can easily go on with the labels. I think it has
changed dramatically, much more so in my lifetime as a lawyer than it did,
say in my parents' lifetimes had they been in the legal profession. Much of
that is because law firms and the practice of law has become not as
geographically centered as it used to be.
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I think that's right.
Which one of those do you want me to go on about? It's fascinating, but the
decisions that I see my children, who are lawyers, making are very different
than the ones that I would have had to make when I was married. Although
some of them are the same.
To get back to your practice on the Court, describe some of your outstanding
law clerks.
I have had some great ones. I mean they've all been good ones. I
amalgamate them into what one would call most outstanding law clerks.
First of all, ones who were excited about the law in the sense of the appellate
standpoint - of really tracking down what the research said, what the
interest was, what the unintended consequences might be; of thinking
creatively as an overlay to the research that they were doing. Being excited
about it and then coming in and wanting to talk about an issue with me as we
would go through an opinion or a case and not be afraid to take it as far out
as it could go, or try and come around the other side. I've had two or three of
them, more than that, that were very, very good at doing that. Some of my
outstanding law clerks have also jumped into the breach when needed,
whether it was when my secretary was out or my other law clerk (when I had
two) was gone. They did whatever had to be done and just did it without
even being told, without rancor or anything like that. I can't say any of my
law clerks were 9 to 5'ers by any means. I think each one made their own
interesting contribution. I can say the hardest time I've had with law clerks,
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I'm certainly not going to name any of them, was when they couldn't get the
product to me. The clerks felt like it had to be so perfect and they had to
have a decision that they were so confident of, that they couldn't give me a
memo until it was finished. This, of course, put me way behind and was very
frustrating. I think that's a problem sometimes with young lawyers. They
want to make sure they followed every rabbit trail. But I don't have time and
clients don't have time to do that.
It may be the last opportunity they have as well.
That's right. That was very hard to break anybody of. They just "couldn't
get it out the door" is a phrase I would use. My law clerks have gone on -
some are in your firm, some are in big firms, some are in other states, one is
now a judge, some took time off, one left and is now a chef, one left and now
owns restaurants. They've done lots of wonderfully exciting, fun things
around the state and around the country. That's what I like. They've got a
start or at least some time with me that helped them do whatever it is they
wanted to do.
What sort of influence do you think you had on your law clerks?
I don't know. I think probably in some ways, I influenced each one a little
differently because most of them were at different stages of their lives. All
of them had just graduated from law school, not all, but most of them had
just graduated from law school. But they were different ages. I gave them a
view of what it was like to be on the appellate end of the legal process. I
suppose, like most things, you hope that the influence you had was through
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the modeling you gave them and the modeling I hope I gave them would be:
hard work; being respectful and considerate of others; trying to be sensitive
to others; being fair in the way you handle the work that you are doing - I
don't mean on a personal level, but I mean as you evaluate cases and that
type of thing; trying to have a lack of bias or preset ideas; and, as I said
earlier, respecting the legal profession and being involved in it. I hope that
through the things that I was involved in, my clerks saw that as something
they would want to continue to do on their own.
Did you have a formal mentoring relationship with any or most of your
clerks?
I don't know. The condition was one of mentoring and some of them I have
stayed in close contact with as they've gone on. Some I've talked to often,
and some I haven't.
Do you find that the ones that you stayed in contact with ask you for your
advice in terms of career decisions and moves?
Sometimes.
How do you select your law clerks? Do you still have a law clerk as a senior
judge?
Yes, as a senior judge I had a law clerk. At this very moment I do not have a
law clerk, but that's just another issue we'll have to deal with. I always took
resumes from everyone. Because I only had one law clerk for so many years,
it was important that they had some Virginia background of either going to
school here or took the bar here. They didn't have to be licensed, of course,
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to practice here, but the learning curve is pretty steep. It wasn't that I
wouldn't consider those without a Virginia background- I've had people
come from all over and go all over. But a Virginia background was always a
very helpful thing. I'd also look at what they had done, what the resume
was, and the recommendations that they got, what they said. And I'd do
some interviews. I'd look at grades; there was no question about it. I also
tried to look at Virginia graduates, Virginia state law school graduates. I
don't mean public, but those who went to law school in Virginia. I tried to
make sure that I got people from most of the law schools. I gave them a
writing test. I gave them a petition for appeal and response. They had to
write a writ memo for it and that had a lot to do with who I chose. That
wasn't everybody who applied, but I gave the writing test to everyone I
interviewed. Some people never came back when they found out they had to
do a writing test. That's so much of what they do and I find that for lawyers
or law students coming out of law school, the hardest thing to do is to take
what they've researched and put it into a piece of paper. They can sit and
talk to you about it, but putting it down on paper is not necessarily their
strongest attribute. So that had a lot to do with who I chose as a law clerk.
Also whether they play well with others. It's a very small office, so I'd
always have my existing clerks and my secretary talk with them and spend a
little time with them. Their opinion was very important because you have to
get along.
Can you name some of the judges whom you most admire and what qualities
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they have that make them admirable?
Let's see. I always admired Judge Butzner on the U.S. Court of Appeals for
the Fourth Circuit and Judge Merhige. They were two people that I truly
admired. There were some other judges that I have thought very highly of
over the years, having known them personally. One, of course, would be
Sandra Day O'Connor. I admire her for reasons that are obvious, but also, I
really think her judicial opinions and her judicial reasoning were right on.
Also, I particularly liked her background of being in the legislature, as well
as on the courts and I just liked being with her. I really admired her
approach. I have admired tremendously Rosemary Barkett, Sissy Daugherty,
Judith Kay in New York, Randy Shepherd, who is still Chief Justice in
Indiana- I have tremendous respect for him - and Jerry Vanderwall in
North Dakota. I admire them as jurists and as solid thinkers. There is a trial
judge in Houston named Lynn Hughes, a U.S. Federal District Court Judge,
who I think probably is one of the smartest people I've met and I admire his
judicial demeanor. All of these people, obviously, I have met, not because I
practiced before them, but through other activities. But the ones I
mentioned are also judges whose opinions I've read. Also there is Ruth
McGregor who is a recently retired Chief Justice in Arizona, Christine
Durham in Utah and I have a high regard for Shirley Abramson in
Wisconsin. I could go on, there are so many good jurists in this country. We
are very fortunate with that.
What do you think makes a good judge?
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Qualities like, as I had said earlier: demeanor; respect for colleagues; hard
working; a good mind, someone who really thinks and organizes one's
thoughts, they can analyze and critically analyze; someone who is willing to
work for their institution and for their profession.
Are there judges on your Court who are particularly effective in influencing
other judges?
I think everybody has been respectful of each other throughout the years. I
am not going to name names, of course, but I think that certainly there were
some people who perhaps you would feel their heart was there, in the right
place. You really wanted to listen to how they got to the result or the
rationale. There are others who have sliced up the record so carefully that
you would never, ever think twice about any statement they made about what
was in the record. You just knew that they were speaking correctly. They all
have strengths. I think that's it. Nobody was looked at as "Oh, we don't
care about that person." That would never happen.
Describe your relationship with the Court's administrative staff.
I think I had a very good relationship with them, and I hope they feel the
same way. I may have driven our key staff crazy at some points. For
example, there was acceptance of computers, internet, etc., at the Court, but
not everybody thought it was great all the time. I was one of those people
who couldn't wait to get the newest laptop, the newest whatever. So I was
put in with the IT people at times. I think they enjoyed that. I respected
what the rest of the staff did and I think I had a good relationship with them.
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I think we were quite supportive of each other. We couldn't exist without all
of the incredible staff. We're a business, an organization, and we have to
have all of the parts. They certainly are necessary parts.
Were you involved in designing and implementing any new procedures at the
Court?
Yes. We've changed over the years in the way we handle things, not our
basic structure but, for example, professionalizing the two Staff Attorneys'
Offices and becoming much more aware of the workflow and dealing with
the increased volume. We really handled almost the whole increase in
volume through the better use of technology and professionalism of the staff.
There are things the Court is dealing with, of course, that changed, but as far
as those procedures - we also worked as a body to make those changes. It's
like opinions: one person isn't going to change anything without the others.
You might have been working on it, like I was on the committee that passed
the changes in Appellate Rules (although they haven't adopted the changes
yet). We all worked through those kinds of things together.
What do you mean by professionalizing the Staff Attorneys?
The tradition has been that that office and staff had law clerks just like ours
- one- or two-year clerks. That office is now a "career" office with maybe
one or two clerks. They have really gone in that direction because they were
having to develop expertise every year with new clerks. So that's what I
meant by professionalizing it. Not that it was unprofessional, but it was a
different type of person who served in short-term clerkships.
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Your initial election by the General Assembly was for a 12-year term that
ended in 2001. What was your involvement in the reappointment process?
For reappointment, you apply, you fill out a form provided by the legislature.
By the time my reelection came up, I believe they had a joint house
committee interview panel (which they have now) and you filled out that
form. Then I talked to my local Senator and the Delegates. Then the
committee clerk tells you when you're up for your interview and you go to
the interview. I did that, and then they voted. They voted me out of
committee and then the legislature voted. I didn't do much. It's changed a
lot, even since 2001 when I did it. Although Justice Kinser just went up for
her interview last month, and I don't think they asked her any questions. Of
course, she is up for reelection and in my situation that was the third time I
had actually appeared before the legislature. You know, people change,
there are new members there, but that's all it was.
What do you consider to be the most important changes to the Court that
took place during your time on the Court?
The computerization, the technology, is huge - absolutely huge. It has
made it possible to work for the Court without having to be there, except on
the days we hold Court. That's made it so much better because now most of
the members of the Court do not office everyday in Richmond. When I
started on the Court, most of the members of the Court did office in
Richmond. The communication ability has been preserved through
technology, which just didn't exist back in 1989. I think that's the biggest
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change. That is probably true for most businesses. Going to two law clerks,
rather than one, changed our life dramatically in many, many good ways.
The synergy of having two law clerks has made such a difference and lets us
get more work, more research, done. Our schedule was, and is, very tight
and in those seven weeks you don't have the luxury that maybe we should
have. That's the way we operate. Also the professionalization of the staff
that I mentioned before. Those two Staff Attorneys made a very big
difference. For example, issues of habeas, capital habeas, the clerks do a lot
of criminal work and that's a very specialized kind of work. Without the
Staff Attorneys you have to have people learn what a reasonable search and
seizure is every year. I think the Staff Attorneys have greatly improved our
work.
Did the technological advances that allowed different Justices to have their
offices in different parts of the state change the dynamics of the court?
No. The Justices have always chosen where they wanted to establish their
offices. I don't know if they have ever always been in Richmond. The
legislature and the bar likes the idea of having Justices stay where they came
from, in their different regions. The technology has changed the dynamics of
the Court in some ways. The fact that you don't have a group of Justices that
are here in Richmond changes the dynamics some because you don't see
everybody. But technology has enhanced the ability for communication both
in terms of volume and feeling closeness and that type of thing. It's much
easier than it used to be. You could always pick up the phone and call
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somebody, but now you get a lot more done using different mechanisms. So
for the Justices who are out of town, and always were out of town, it has
made their lives tremendously easier in terms of communicating with other
Justices. You can find them on the phone, you can send them emails and that
kind of thing. We' re doing mark-ups and opinions and there are just so
many things that are so much easier now. I think that in the future there will
be much more use of video conferencing. The Court doesn't do much of that
yet. However, lawyers are more used to doing it, those lawyers will become
judges and then the Court will be doing it more often. The whole issue of
using video conferencing for petitions, for appeal hearings, is something that
would transform the Court. The fact that we aren't all here probably isn't the
best in terms of developing collegiality in communication, but it's what we
have. It's worked and it will stay that way. I'm sure of it.
Do all of the judges come back for the conferences?
Yes.
This concludes the fifth interview.
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ORAL HISTORY OF ELIZABETH B. LACY
SIXTH INTERVIEW
January 19, 2010
This is the sixth interview of the oral history of Elizabeth B. Lacy, which is being taken on
behalf of Women Trailblazers in the Law, a project of the American Bar Association Senior
Lawyers Division, on January 19, 2010.
Ms. Tucker
Justice Lacy
Justice Lacy, in our last interview we were discussing your time on the
Virginia Supreme Court and I have a few additional questions about the
Court that I would like to start with. Your initial election to the Court by
the General Assembly was for a twelve-year term that ended in 2001. What
was your involvement in the re-election process?
The re-election process basically consists of filling out an application form
and filing it with the Clerk of the Senate Judiciary Committee. The form
asks a number of questions and then there is an interview in front of what is
now, jointly, the House and Senate Judiciary Committees. There is no
electioneering. Obviously, I talked to my Delegates and my Senators and
anyone else that I knew well (and I knew a number of them well). And,
then the House and Senate Committees go back to their respective houses
and vote on whether or not they will recommend your nomination, which
then goes to the floor of the respective houses and is voted on. This, for me,
was very little campaigning, and traditionally in this State re-election is not
difficult. I did not have any opponents, although there could have been, and
there is no formal hearing. It's all done on your written questionnaire.
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Well, there is an interview and they do ask you questions, but it is now a
joint hearing by both members of the House Judiciary and Senate Judiciary
Committees rather than having to go individually before each committee.
And that was for a second twelve-year term?
Yes.
What do you consider to be the most important changes to the Court that
took place during your time on the Court?
Well, certainly the inclusion of both minorities on the Court - women and
African Americans - made a huge difference. I suppose some of the
biggest changes have occurred because of technology. The use of
technology: computers, internet for legal research, for opinion writing, for
exchanging opinions and drafts enhance and make more efficient the work
flows. It has made a huge change, I believe, in the Court. The age of the
Court members also has changed tremendous! y during my time. When I
went on the Court, I was a little over 40 years old and was one of the
youngest Justices. The remaining members were considerably older than I
was. Now, I think, we have generally a younger Court than we used to.
Does that change the dynamics of the Court?
Well, each new person on a collegial body will change the dynamics on the
Court. So, yes, it does change the dynamics, but only insofar as the
personalities blend and realign and get together. Perhaps you are
wondering if whether that changed the dynamics of the decision-making
process and the actual decisions? And I would refuse to answer that to
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some extent, because the life experiences changed, and life experiences do
have an impact on one's view of individual cases. So, I think that the
current Court is not more engaged than the prior Court that I entered.
However, there is not as much homogeneity and, therefore, there tend to be
more dissents and concurrences because you're drawing from a pool of
judges that come from much more diverse backgrounds than perhaps they
had in the past. Having said that, let me clarify just one thing. We have
seen a much more directed path to the appellate Court. And by that, I mean
members tend to be coming directly from the Court of Appeals or the circuit
courts. We used to have a number coming from the circuit courts before
there was a Court of Appeals in this Commonwealth. But Justice Hassell
and I were the last two people who went on the Court that didn't come from
a trial court bench or an appellate court bench. I came from the State
Corporation Commission. We haven't had any others. Justice Kinser, of
course, came from the magistrate - from the federal bench. In times past,
you had former Governors, former Attorneys General, people who had been
in the General Assembly, people who had been in private practice for a
longer period of time and came directly out of private practice. So, to the
extent there is a homogeneity of background, it does exist in terms of the
path to the Court.
Do you think that has been a positive change?
No, I don't think it's a positive change. I think it is very important to have
people on the Court that come from another court, whether it is the Court of
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Appeals or a trial court. But I think that the advantage, the value perhaps,
of a collegial body is the blending of minds and blending of perspectives,
and the broader your perspective the more information you'll have to draw
on. Whereas, when it is being funneled strictly through the court system, it
almost looks like the English or some other civil law countries where they
probably make you decide to be a judge when you graduate, and that's what
you are from law school. So, I don't think that would be my choice of a
way to continue. But you see that on the federal level, too, now.
How many Chief Justices did you serve under while you were on the Court?
Just two. Justice Carrico and Justice Hassell.
And, does who the Chief Justice is change the dynamics of the Court?
Yes. Well, certainly. It has to. People have different styles, different
agendas, different interests, different organizational skills and different
times in which they are a Chief Justice, whether it's a time of big budgets or
small budgets, good revenue or bad revenue. Both Justice Hassell and
Justice Carrico were the first Chief Justices to really face the financial and
practical aspects of bringing technology into the Court system. So, the
person does make the difference, yes.
Did the demands of sitting on the Court change for you over the time that
you were an active Justice?
Yes. The volume of cases which we had doubled within the first ten years.
That was handled primarily through technology. We also only had one law
clerk until the last two or three years I was on the Court. That was difficult
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in terms of, again, volume and complexity of the cases. Those two aspects
didn't change the work. It changed the way we had to work and the time in
which we have to work, because we have retained the internal operating
procedure of issuing our opinions seven weeks after we hear the oral
arguments. I think there also has been change in some perhaps more subtle
ways. The longer you have a job, the more comfortable you get in it, of
course, and so there were aspects of cases where the law or the process
became easier for me, just through experience and certain repetition in the
types of cases and knowing the law. I know much more about workers'
compensation than I ever thought I would. So, on the other hand, even
though the volume gets greater, some of the work aspect of it becomes
easier.
Was there a noticeable change in the complexity of the cases?
Yes, I think so, particularly in commercial cases. And, with the advent of
things like the internet and technology, the types of cases that would come
up did truly blaze some new areas in terms of developing the law.
Sometimes the statutory law may have been developed at a reasonable pace
to keep up with technology - sometimes not. There are a number of issues
that can be raised by virtue of trying to apply old common law or statutory
law to new factual situations. Because of the complexity of the legal
aspects of the modern commercial world, cases have gotten much more
complex.
Were other women appointed to the Virginia Supreme Court while you
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were on it?
Yes. Justice Barbara Keenan came on in 1991 or 1992. She had been on
the Court of Appeals. And, then, Justice Cynthia Kinser came on a little bit
later, in the mid- to late- l 990s. I know, she came on 12 years ago, because
she is up for re-election this year.
Was your relationship different with them than it was with the other
Justices?
Oh, I think so. I think there were certain obvious things we had in common
that I didn't have in common with the male Justices. Also, the age
difference - I was much closer in age to the women Justices than some of
the people whom they replaced. Justice Keenan replaced Justice Russell,
who was 65, I believe, when he retired. And, of course, at that time I was
46 or 4 7, and she was younger than me. That made a difference. And, I
think if you look at our opinions, you' 11 see us often together on the same
side, but not always. We were very- and the Court, I think, still is - very
independent in terms of what decision your own legal research brings you
to. But, it was great. I was very pleased to have more women on the Court.
Was there any particular Justice with whom you were most frequently on
the same side?
In case decisions?
Yes.
Not particularly. Our Court, I don't think, has ever been analyzed as this
block or that block or as always having a link together. I just don't think
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that happens. Let me add with regard to your last question: One of the nice
things about having another woman on the Court was the fact that the other
members of the Court at the time I was on there, with the exception of
Justice Whiting, all were married, and generally their spouses, if they were
from out of town, came with them from out of town. We would have
dinners together, on Sunday nights before Court would begin. My husband,
who was a practicing lawyer, would come sometimes, but wasn't quite as
comfortable at having dinner with all the Justices just because he was in
private practice. And, also, when I was the only woman on the Court, the
only other women in the room were not my professional colleagues but,
rather, were their wives. When attorneys have that same kind of social
situation, how does that work? When Justice Keenan came on, she was
married at the time. It was great to have another woman to talk to who also
was a professional colleague. The wives of the other Justices were
delightful women, and I enjoy them, but it was a different kind of situation.
As the years went on, the next Justice's wife did work, so she never came
from out of town. Justice Kinser's husband didn't come, because they lived
in Pennington Gap and he was teaching, so he couldn't come. So, those
kinds of "couple" events really no longer happened at the Court. They just
stopped.
Was that a good thing or a bad thing? Did that social interaction help you
work together?
I think, in a way, in the long run it probably was a bad thing. I don't know
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how to really get around it in today's society, because you have the reality
of two-career families. I think now on the Court just about everybody,
except perhaps the Chief, has a two-career family. But, we did lose that
social activity, and that's never really come back outside of the office itself.
As a full Court?
I'm not saying people don't socialize, but not at the Court. We also
dropped the annual dinner with the Fourth Circuit that we used to have, and
I think that's sad.
For the same reason?
I really wasn't part of that decision, so I don't know the reason. It
obviously was a mutual decision of the Chief Judge of the Fourth Circuit
and the Chief Justice of our Court.
Perhaps money was the reason?
No. We all paid for it ourselves. We would host them and they would host
us. Of course, it cost us more to host the Fourth Circuit than for them to
host us, because there were more of them. But we paid for that out of our
own pocket~ we didn't charge that to the state.
I think we talked about your judicial philosophy in our last interview. Did
that philosophy evolve and change over time, or did it stay the same?
I'm sure there were changes. If I had to put my finger on one thing, I think
I became much more process oriented, although I always did have a bend
towards that. I really began to appreciate how the consistent application of
rules is the only fair way to run our legal system. Our Justice system isn't
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particularly a system of justice, but it is a justice system because it's fair to
everybody. That's what makes it just. And, to do that, you can't apply the
rules sometimes to some people but not to others. Therefore, the procedural
rules become quite important - whether it's meeting deadlines or
preserving error or making arguments below or not. As time went on, I
think I became more sensitive to those rules and the application of them out
of a sense of fairness. Having said that, I also became more frustrated with
issues that I often thought everybody on the Court wanted to get to, but,
because of the posture of the case or the lawyering or whatever, we could
not under the rules. And, whether or not one should, I think it is a valid
endeavor to look at the rules and see if maybe the rules shouldn't be
changed to some extent to allow more of that. But, until those rules are
changed, you can't just reach down and pull up an issue that you think
should have been argued and set forth by an attorney and wasn't, even if
that would have resolved the case in a manner that in one's perception of
justice would have been more fair.
Did you find that there were disagreements within the Court about whether
the process should be ignored?
Oh, yes. And, when I say disagreements, a lot of times I'd say "Well, I
think this statement they made and that appears in the transcript was a
adequate to tell the trial judge what they were saying." And someone else
might say: "Are you kidding? ... This doesn't say anything about that due
process right, or that right to an easement." So, sometimes whether or not
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the rules have been violated or followed are in the eye of the beholder, and
we would have arguments about that. I should say "discussions."
Which of your opinions do you believe may have a lasting impact over the
years?
I should have gone back and looked at my opinions beforehand. And, when
we talk about "my opinions," it's difficult, because they truly are opinions
of the Court. How I feel about something doesn't make any difference
unless three other people agree with me. As a result, often opinions that I
think perhaps I contributed to or had an impact on that were important, were
not necessarily ones which I authored. I may have dealt with how
something was the rationale for something that improved the opinion or
made a difference, but my name might not be on it. And, that's how we talk
about collegial opinions. Often an opinion has a lasting effect because the
legislature then turns and enacts legislation to address an issue addressed in
the opinion. One of those, of course, was the internet opinion - the
opinion about whether or not making it a crime to attempt to mask one's
internet address was a violation of free speech when it applied to everyone,
not just commercial speech. I wrote the opinion that said it was, and the
legislature made the appropriate changes. Another example were cases
involving when discovery of an injury gives rise to the running of the
statute of limitations. It was a dissent, which then ultimately became, in a
subsequent case, a majority opinion, and it had to do with whether a woman
suffered an injury when she had a procedure that she had contracted for.
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Because it was an intentional invasion of the body, was that an injury? And
the answer changed down the road. So, there are a number of cases such as
that. I really should go back and look at all my cases, and I was going to do
that and I didn't.
Are there times when writing an opinion that the Court drafts it in such a
way as to give the legislature the information and key elements it would
need in order to change the law?
Oh, yes. It is not unusual. I mean, it's pretty well laid out. In fact, in this
case, we said that if this statute, like every statute in every other state in the
United States, was limited to commercial speech, which this man was
doing, then it would pass a constitutional test. So, yes, we're not very shy
about that.
About saying "We cannot legislate, but we can point out how you could
legislate?"
Certainly. And you'll find in a number of dissents that might disagree with
a majority that one of the first lines is often "The majority today in its
legislative acts .... " So, yes, we're aware of that.
One of the few firsts that you did not achieve was being the first woman
Chief Justice of the Virginia Supreme Court. Did you want to be the Chief
Justice?
Yes.
Tell me about the process and what happened.
Well, the process had been that the senior Justice on the Court would be the
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Chief Justice. The legislature changed it to an election of the Chief Justice
by the members of the Court for a four-year term. That was to take place
after the senior Justice, Justice Carrico, who had been on the Court about 40
years, retired. The Court voted, and I didn't win.
If the legislature had not changed the rule when Justice Carrico retired,
would you have become Chief Justice?
Yes, I would have.
So, did you run for Chief Justice?
Well, I did. It's a little hard to describe because the Court didn't exactly
know - we had never dealt with this before or know how it was going to
work. Nor did I, and I believe that I did not fully appreciate the
ramifications of what happened.
The change in law? In the procedure?
I did not fully appreciate what it meant to the Court to have a new
procedure and without really having any procedure and not being more
attentive to that. And, I lost. You have to have four votes, not just three.
Were you disappointed?
Yes. I was very disappointed, but not because I wanted to be the first
woman Chief Justice. There were things that I believed needed to be done
that I looked forward to addressing within the Judicial Branch. It was more
of - it really had nothing to do with being the first woman - that I didn't
care about.
What were some of the things that you wanted to address?
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Well, I really wanted at that point to pursue a commission on prose
representation to resolve the ethical and practical aspects of making prose
representation a more fair process, both for the litigant and for the attorneys
and the litigants on the other side and the judges. We had been working on
that. There were a number of other issues: the issue of the magistrates and
their education level, full-time magistrates and fuller development of
technology at all levels. But, that was ten or eleven years ago, and many of
those things that have been addressed.
What were the factors that led you to decide to retire from the Court?
It just seemed like it was time. I felt good about retiring. In our retirement
system, after you tum 60 if you're fully vested, the only real advantage to
working longer is if you would somehow get a big pay raise, and I knew
that wasn't coming. So, once I turned 60, I knew that I had the option to
retire. Financially, there was no downside. I had my house; I have
grandchildren; I was interested in doing some other things. Now, I didn't
have anything in particular I knew I was going to do. It was mostly a sense
of time, as opposed to planning. The thing I did plan was when I
announced it. I did it in the spring or the summer session, which was June,
when the Court wouldn't come back together as a full Court until
September. That would give somebody else a chance to come in and get
acclimated before the next session of the Court.
And what year was that?
2007. The actual time and date was August, 2007, but I announced it in
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June, 2007.
So, you had been on the Court 18 years?
Yes.
Was it a difficult decision to make?
No. It was very easy. I had thought about it. I've never, ever looked back.
Never for a moment have I even questioned it, much less thought it was the
wrong decision.
Now you are still with the Court as a Senior Justice. Would your decision
have been different if you didn't have the option to take Senior Justice
status?
I don't think it would have been. I think the only reason it would have been
different is if there was a real financial issue with retiring - I get one
fourth of my salary as an active Justice for being a Senior Justice. No, I
don't think it would have made any difference, although it's a wonderful
position to have both for the Court and for me. It helps process their cases,
if somebody's got a conflict. It's a better deal for them than it is for me in
terms of work and how much you get paid. But if there had been no Senior
Justice position, I would have made the same decision.
You started to talk a little bit about what you do as a Senior Justice. Can
you give us a little more information?
Well, in a nutshell, Senior Justice positions are created by statute. The
Court can have up to five. You are entitled to the same support that an
active Justice has, and you may write, by statute can write, an opinion. I
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write two opinions every session. A regular Justice writes three. My law
clerk works for me, but also does work for the Chief Staff Attorney's office.
I sit on every writ panel just like the other Justices do, and I do all the Chief
Staff Attorney's work in the same amount as every other Justice does. The
difference is, I do not have to prepare for all the cases that come up on the
argument docket. I only prepare for those at which I sit, and I sit on the two
cases for which I will write the opinion, as well as any others where there
might be conflict or some other reason that an active Justice cannot sit. I
also do not have to be in attendance for any of the business or
administrative meetings. And for that, I get one fourth of a sitting Justice's
pay.
But it sounds as though you might do at least half of the work that you had
been doing.
I think "half" is putting it mildly, yes. Lawyers were never known to be
good in finance.
How useful is the practice of retired Judges to a Court?
There is a difference between a retired Justice and a Senior Justice. A
retired Justice can sit on any case at the request of the Chief Justice, of
course, but will not write opinions, and there is no generalized workload. A
Senior Justice must be elected every year by the Court. You serve one-year
terms, and you can serve as many terms as you want. Justice Poff, who
took senior status when I went on the Court, was on the Court as a Senior
Justice almost as long as I was a Justice. You can be a Senior Justice as
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long as you want, so long as the Court keeps reelecting you. We currently
have three or four Senior Justices, which means we can process more
opinions for a full appeal because it allows the Court to have three panels.
We usually have at least one Senior Justice on each panel, and so the Court
can have three, three-judge panels. We wouldn't have a panel with just two
Justices; we just don't do that. Also, where there is a conflict, you can have
a seven-member panel, a seven-member Court, rather than a six- or five
member Court.
Does that mean that the Court is able to hear more cases?
Yes.
Can you negotiate what you do as a Senior Justice?
I don't know. To some extent, maybe yes. One of our Senior Justices right
now takes a sabbatical in the winter. He will write three opinions for the
rest of the time, so he makes it up, but he is not sitting on writ panels.
When I say you negotiate, well maybe you can, but you're just working
with the Court in the way that's most helpful to them and meets what you
want to do.
How long do you think you'll remain a Senior Justice?
I have no idea. In some ways it's easy for me because I live in Richmond.
It basically means, I may have to physically be around seven days every
seven weeks. The rest of the work that I do, I can do at home, as I could do
before. Technology allows a lot of flexibility.
How about some general questions about your perspective on the profession
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from the bench? What do you think the qualities of a good judge are?
I think a good judge requires a certain level of intelligence. You have to
kind of be smart. I think a good judge has to have good judgment. I don't
mean judicial, I don't mean just decisional judgment, I mean common sense
judgment and intelligence. Beyond that, I think a work ethic is extremely
important because a lot of it, particularly on the appellate level, is self
driven. It's not like a trial court bench, where you have cases set for you.
We have cases set for us, but only with respect to opinion writing. On a
trial or appellate level, of course, demeanor is important - the ability to
really listen and not have preconceived views of a case. That doesn't mean
that you don't have a preliminary read of the case, but it means you don't
have preconceived decision-making. And collegiality on an appellate bench
is, I think, extremely important - extremely important. So, respect for
those that come before you, intelligence, good work ethic, collegiality and
demeanor. Playing well with scissors. Playing well with friends and not
running with scissors is not a bad way to work.
What are the qualities of a good lawyer?
Obviously the same qualities in a different format, perhaps, would be good
for lawyers. Certainly a work ethic, respect for others (which includes your
colleagues, your opposing counsel, your clients, opposing clients and the
bench), as well as all the support services in your office and in the
courtroom. Beyond that, again, I would say good listening and good work
habits are really important. I think lawyers who are listening to what people
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are saying, regardless of whether it's the judge or the client or their mentor
or their junior associate, are extremely, extremely important, and then being
able to get the work done. And by a good work ethic, I do not mean
spending every waking hour at work. I mean being diligent about what's to
be done, and time management becomes a very important aspect of that.
And perhaps that's one of the things that is hardest for lawyers. It's perhaps
a little easier for judges, because we tend to be able to set other peoples'
time schedules as well as our own. I think those are very important. But
it's like anything else, the way you treat people has a lot to do with how
good or bad you' re going to be.
What is your opinion of the effectiveness and confidence of juries,
understanding complex law and understanding instructions from the Court?
Well, remember, I'm pretty much removed from the immediate presentation
before juries. I may see it in the transcripts, I'm a big proponent of the jury
system. I think often they get it right. Sometimes they get the result right.
Jury nullification is a reality in our legal system, but often I think a verdict
which someone might view as completely erroneous, results from the jury
getting the result right and not because of stupidity or because they don't
understand it. I think they understand a lot of what's going on and they are
in a better position to put that ')ustice" in our justice system than are the
judges, who are more constrained. I'm not saying that every jury is brilliant
or could handle a very complex anti-trust case, but I think on the whole, of
the cases that are tried in our justice system, I think they do a good job.
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Do you think more cases should go to juries than do?
That's a difficult question. There are many reasons cases don't go to the
jury, such as the expense of litigation - not really whether or not the jury
can do it. And that's not the jury's fault. That's the system in which we
find ourselves in the legal profession. Do I think litigation costs should be
minimized or cut? Yes, I agree. I don't know how we could do it - it's
like asking colleges to reduce their tuition or law schools to reduce their
tuition. I don't see that happening, but I do think that reason is why more
cases don't go to the jury more than anything else. Another reason is time.
In all litigation, but particularly in a commercial setting - perhaps in a
family setting - the alternative of not going to a jury trial or not going to
trial at all so you can get on with your life, becomes more and more
important, as the litigation process becomes more expensive and
cumbersome. And that's unfortunate.
How important are informal contacts - judicial counsels, bar meetings,
socializing - on the work at the Court?
I would have to divide that into two or three different areas. On a personal
level, in terms of judges knowing lawyers, contacting lawyers, being with
them either through social events or organized bar activities, it is important
because how else are judges going to really know what's going on? I don't
mean that in a gossipy sense. The longer you're on the bench, the further
away you are from the actual everyday practice of the law - what's going
on, what the issues are, what parts of the legal process are becoming
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outdated, or don't conform to the way law is actually being practiced today?
A lot of that you can only get through with contacts with the bar. And you
can get that in a non-organized way, but in the organized bar, whether it's a
regulatory bar like the Virginia State Bar, or the Virginia Bar Association,
or a specialty bar, or the American Bar Association, there are some very
real reasons I believe for judges to get involved. Organized bar groups are
the incubators of real structural institutional change. And it's really
substantive law changes, whether it be through cases that are argued or
actually promoting legislation. Now, judges generally don't get involved in
legislative promotional activities, but the exposure of judges and the ability
to work with the bar in working through some of these changes that affect
the practice of law and a lawyer's life is very important, both for the judge
to see their perspective but also for the bar to understand what the
limitations - what the perspectives - are of the judiciary and what we can
do. Beyond that, when one can get involved with things that go beyond
your state boundaries, like any other profession, you learn more about
what's going on in the world around you and what good things you can
bring back to your own jurisdiction, and, often, how your jurisdiction isn't
so bad compared to others. I believe that all lawyers - whether they are
practicing lawyers or whether they' re litigating lawyers, transactional
lawyers, judges, hearing examiners, whatever your brand of law is - have
an obligation to maintain the profession as a continually responsive branch
of government. We are a branch of the government, and I don't think you
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can do that in a vacuum whatever your practice of law is -judicial law or
otherwise - and I think judges have as much of a role to play in that as
anybody else does.
What impact do social, economic and political events have on the Court?
Well, we certainly are aware of things that are happening around us. For
example, if we have a case that involves perhaps a bond issue or a pending
election, something like that, we're very aware of it and try to respond to it
(if it's coming to us) in a timely manner. So, you know we don't put
something off, or we'll expedite hearings or hold some unusual hearing if
it's time sensitive. And I've mentioned a couple of things in my history,
although I wasn't a judge then, to which the Court was time sensitive.
Again, depending on where you are, your experience level may be affected
by current social, political, etc. Does it affect the way you vote as a judge?
I can't speak to all judges, but I think, generally, the Justices on our Court
try very hard to stick to the record and see what's before us, not trying to
decide by what the polls say. In fact, I just don't think we do that at all.
But our cases, I should say, are not necessarily of the same fiber of social
decision-making that the United States Supreme Court is called on to be.
Not so many Virginia constitutional questions?
No, we had constitutional questions in Virginia, but certainly not of the
widespread impact of United States Supreme Court cases. For example, we
didn't have the Bush v. Gore case - and we didn't have some of those
kinds of cases.
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Are you happy that you did not?
Yes. [laughter] And remember that Bush v. Gore started out in a state
court. It was a Florida state court decision that was on appeal. So, you
know we could have had some under that, but we didn't.
What is the hardest part of being a Justice?
Well, there's a lot of work. There really is. Continually trying to make sure
that, not just what the decision is, but that the rationale for the decision is
solid and understandable. People might disagree with it, obviously, but that
the decision is meaningful and not just conclusory. That it doesn't just say
"A said X and B said Y, and we agree with Band case affirmed." So, that
is the challenging part of being an appellate Justice. On a personal level,
which is what I think you might have been saying, in general terms there is
a real transition from being part of the world to being in the judicial world,
where you are restricted as to the things that you can do and say. You have
to be ready to have everything you do be posted on a flyer down on Main
Street or on somebody's camera. Now, that doesn't really happen, because
people don't really know who you are, but it could. And it would be
devastating, not only personally, if it was something bad to you personally,
but more than that - to the institution of the Court and the system. I felt a
real responsibility to the institution of the Court and that anything I did,
whether it was within my judicial role or not, would affect that, and so
you're pretty sensitive to that. And, I found that to be hard because I was
used to being in political activities. I was used to doing a lot of political
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work. I was used to, you know, pretty much doing lots of stuff and you
really have to be very careful about what you - that doesn't mean you
can't do things -just be careful about what you choose to do and not to do.
I found that to be hard. And, you get cut off from lawyers. You might have
one or two or three, you know, really good lawyers as friends, but, I don't
care what anybody says, lawyers all of a sudden just aren't really sure how
to talk to you and whether you really can have lunch together. Perhaps you
are going to have a case maybe six sessions down the road - "well, maybe
I shouldn't talk to her or him." The isolation that occurs between lawyer
and judge is almost inevitable even though you, as a judge might say, "let's
go to lunch. You're never going to be in my Court, what's the deal?" It's
very difficult.
What did you like best about being on the Court?
I didn't have to go to any fund raisers. Seriously, what did I like best? I
think being able to continue my professional career as one in which I've
been very fortunate to always be a public servant - and feel that what I
was doing was hopefully for the good of the people. That I was a steward
of that responsibility. Obviously, I felt that way before in the other jobs that
I had. You just feel very privileged to have that ability on a supreme court,
because not only are you involved in the decision-making process and the
development of the common law and interpretation of statutory law, but you
also are quite involved in the regulation of lawyers in the legal profession,
and at least symbolically deal with the continuation and the improvement of
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the judicial system and branch.
Turning away from your professional career or your professional work
Can I add something?
Sure.
I also thoroughly enjoyed my ability to - when I was on the Supreme
Court - to work with new lawyers who were my clerks or even with
somebody else's clerks. Watching and working with the clerks that would
go through the Court was a real joy of being a Supreme Court Justice.
To make an impact on someone's life?
Well, I don't know. I never thought about it as impacting their life.
They're just refreshing, intelligent, thoughtful, good people - to see that
continual renewal every year as I get new clerks, is good for me. It keeps
you from being real cynical. [laughter] And they were just delightful
people.
Did they help change your perspectives?
They often made me think twice or look at something differently than
perhaps I had been in previous cases. I think my clerks would agree with
me that we talked about all the cases and there was a lot of joint work on the
opinions. They went back and forth all the time. So, I hope they felt very
much a part of the process.
Did you have clerks who were able to persuade you to change your vote in a
case?
Yes. We would have some preliminary discussions. Often, part of it is that
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they sometimes were much more familiar, or familiar more in depth, in
certain parts of the record than I was, and they would bring that to my
attention. Sometimes I would not appreciate the position or the particular
issues they may have raised initially, but the more I went back and thought
about them, the more - it may not have changed my ultimate result, but it
did change some of the rationale that I would address. And sometimes it
didn't, of course. But, yes, they are a very important part of this process.
And do you continue to have a clerk as a Senior Justice or the right to a
clerk?
Yes.
Outside of your formal professional work, I understand that you teach now.
Tell me about the teaching.
I've done two kinds of teaching. I spent a number of years as an adjunct
professor at the University of Richmond Law School. They have a skills
program which every first year student attends for two semesters - they
learn legal research, writing memorandums and so forth. Their second year,
the first semester is a trial and the second semester is an appeal. I taught
that second semester to two sections in which we basically did an appeal
and brief writing. I should go back: I never mentioned how important good
writing for a lawyer is to the judge. To me, writing is so important - the
most important thing, anyway, because it's the communication - the
primary way of communicating the lawyer's position. So, that's what I did
at the University of Richmond. I got one of my former law clerks, in fact,
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to team teach it with me after about 3 years. Then ultimately he took it
over, and I just sometimes commentated it. This year is the second year
I've been teaching the John Marshall Scholars Class at the University of
Richmond, which is a class made up of the John Marshall Scholars (who are
the highest scholarship recipients at the University of Richmond Law
School) and who also are very smart. So, this class of first-, second- and
third-year law students - we meet every Tuesday and we have lunch. The
premise of the class is to expose the students to the legal profession and
being a lawyer that they wouldn't necessarily, or don't get, in the
classroom. In other words, I'm not teaching substantive law. Every year
what I teach has to be different because it's one, two and three Ls, so I can't
repeat. For example, this semester we're going to the United States
Supreme Court for an oral argument in March. We're reading the briefs for
that case. We will be discussing the briefs and I've got one of the lawyers
on one side of the case who argued it in the Fourth Circuit to come and talk
to them about her strategy and thoughts. In other words, what does she do,
not just how you prepare and the legal issues, but what is it like to be the
lawyer who's arguing in the Fourth Circuit and then goes up to the Supreme
Court? I've also brought in people from different parts of the legal
profession to expose these students to different places to work. I did a lot of
that the first semester of this year, particularly in these economic times. I
had a county attorney in, and one of his newer associates, to talk about that
office; the attorney general came; one of the Commissioners of the State
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Corporation Commission came and talked about what they do ( which very
few people know). I had E. M. Miller come, who is head of the Legislative
Services Department at the General Assembly. So, it's fun, but it's hard.
Did you teach before you were on the Court? Did you teach any classes?
In law school? No, I didn't, although I may have gone in for an occasional
lecture. I also taught a one-credit course, that was a compressed week-long
course, at Stetson University last February. That was fun. I really liked the
condensed teaching. I like that much better than spreading it out just
because I can get more done that way.
Do you like teaching?
I love the students. I like teaching, being in a quasi retired state. However,
between the Court, the John Marshall Scholars teaching, which is every
Tuesday, and doing the mediation that I'm doing now with the McCammon
Group, I don't have as much time as I thought I'd have. I have to work on
that. I'm more flexible than I was, of course.
Tell me what you're doing with the McCammon Group.
The McCammon Group is a mediation/arbitration group. I do not do
arbitration - only mediation. John McCammon approached me after I
announced my retirement. I had not talked to him at all, and the idea of
mediation was nothing that compelled or propelled me in any way to retire.
But he talked to me and after I thought about it, it sounded good. Every
judge that I know that's done mediation has loved it. So, I went to the
training and was very impressed. The McCammon Group has its own
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training. Mediation is not simply a settlement judge, and the techniques and
the ethics - there's so much to it which I just didn't know. So, I was very
intrigued and I do mediation. I don't do a lot of it. I don't do any family
law mediation. For one reason, we just didn't have family law cases and I
just don't feel comfortable dealing with equitable distribution. I don't know
what it is; I don't want to know what it is. So I do commercial, regulatory,
malpractice, personal injury, and some estate work -just basically the
general civil practice of mediation. And I do enjoy it a lot. I find it very
challenging. It's very nice to see both sides not real happy, but not as mad
as they are when one wins and one loses.
So, mediation is helping the two sides reach agreement in which there is
some give and take and each side has to give a little bit in order to get to
resolution, as opposed to arbitration, which is the arbitrator making the
decision?
Exactly. Mediation often isn't a matter of just numbers going back and
forth, it is what goes in those numbers and what the people really want,
what they're trying to do. Sometimes it involves changes of activities. The
reason I like mediation so much is that, you go into the room, and the
lawyers are there (and the lawyers are just crucial to this process, don't get
me wrong), but it's the first time, often, that the client on each side has
really sat there and looked at the other client since this whole mess started
and also to hear straight from each other's lawyer - for the client to hear
the other person's lawyer, not the other person's lawyer through their
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lawyer. And that's no disrespect to the lawyers, but it's a different
dynamic. It's a very different dynamic and I think it's a good process. I'm
glad to be part of it.
I know you were involved in bar activities during your career because
you've mentioned it from time to time. Tell me what organizations you
belong to and how you got started.
Well, I suppose I need to go back to when I was in Texas, I was very
involved in the Young Lawyer's Division and was an officer on their board.
Was this the Texas state bar?
The Young Lawyer's Division of the Texas State Bar. A lot of what bar
groups often do is suggest or comment on legislation, and, of course, you
remember I had worked with the Texas Legislative Counsel. So, there was
some natural affinity of being involved in that, particularly then. I also did
the ethics reform and the consumer protection and constitutional stuff and
all that stuff -
- while in Texas.
- so, it was kind of a natural. Because I was in the political arm of the
legal profession, if you will, it was very natural. When I was in Virginia, I
probably had that instinct and it kind of comes back, I think, to what we
talked about very early on: that my father particularly was always quite
involved in the community. He didn't run for office, but he was in Kiwanis
- you know, that type of community activity. So, anyway, I was on the
Attorney General's traveling team, I guess you could say. The Attorney
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General then, Gerald Baliles, was very involved in the National Association
of Attorneys General, and I did a lot of that work with him, briefing books,
for example, and was one of his, if not "the," point person for his activities
in that group. So, I got used to, through that aspect, being involved in it.
With regard to the state bar, I was the legal counsel to the state bar when I
was in the Attorney General's office. So, it was part of my job, but I still
was in that activity. Well, then when I went to the State Corporation
Commission, I continued that activity- I was very active in the National
Association of Public Utility Commissioners and in the regional groups of
that national association. And, ag~in, those kinds of meetings always were
opportunities to know what was going on in other states, which was terribly
important in the public utility arena or the telephone arena, and to be able to
exchange ideas, to work together, before the federal government. So, I
always considered those activities as much a part of my job as a
Commissioner. It wasn't involved too much with the judicial process, but
with what I was doing at the time. I also worked a lot with the Federal
Energy Regulatory Commission.
Were you a member of the American Bar Association?
I was a member of the ABA, and in fact, presided on panels for them and
things like that, in the Public Utilities Section and maybe in the Litigation
Section - I can't remember. While I was on panels for the bar groups,
more of the actual work dealing with substance was through the regulatory
groups. When I went on the Supreme Court, I belonged to the National
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Association of Women's Judges, which was very important to me. And, in
fact, at the time they had the Women Judges Fund for Justice, which did a
lot of educational programming. I was on that group, and we put together
judicial education programs around the country on a number of different
issues and did a lot of work with women in prison or women prisons' work.
Some of the educational programs I was involved with were putting
together bioethics programs for judges to say, "What law you decide applies
can have a lot to do with the result. Is it contracts, is it properties, is it
family law? You have all those different standards within each area of the
law, and it's going to make a difference." We put together that program and
did that around the country. I also was involved in a National Center for
State Courts Project, which put together a handbook on "End of Life
Decision Making" for the support staff within a hospital, nurses, doctors,
etc., and the legal implications of what they were doing and their need to
communicate with each other and with the family. I did that. In the
American Bar Association, there were a lot of other things I got involved in
and part of it is that they really want judges to be involved in their projects.
If you feel any willingness, it's like any other group: "he who sticks his
hand up once, will be called on forever." So, with that group, I started with
the Appellate Judges Conference and the Judicial Division of the ABA. I
was on their executive committee for a number of years and primarily
focused on judicial education. I did a lot of programs. Put them together
and put them on in a number of places, and through the Education
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Committee of the Judicial Appellate Committee, did programs in
Williamsburg - and we may have done one in Aspen. I've done them on
the East Coast, the West Coast, and we did four a year (the number has
gone down to two, I think, now), but a lot of that programming.
That was while you -
Yes, I was on the Supreme Court doing that. I didn't give many of the
programs, I just put them together. I would get people from around the
country to speak and choose topics. I also was part of what was called the
Appellate Justice Institute, which was an institute that's given every two
years in conjunction with both the Appellate Judges Conference and the
American Academy of Appellate Lawyers. The Institute is a three- or
four-day conference, where problems are given to the attorneys that are
going to attend. The attorneys do a brief. The judges have analyzed the
briefs, have gone over the briefs and they meet with the individual
attorneys. The attorneys also do two or three arguments before the judges.
Their arguments are critiqued by actual judges. There are also lectures in
between about brief writing and appellate advocacy, a model argument and
lots of discussion of the attorneys that are giving the argument. The
Institute has some top notch attorneys like Ted Olson, Barrett Prettyman
and Andy Fry, and a lot of people whose names you would know that
practiced before the United States Supreme Court, as well as judges. It's a
highly intensive program. So, I did that program for a number of years -
was on those panels, worked with the judges, or was part of the organizing
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group.
Then I became involved with the Council on Legal Education and
Admission to the Bar, which is one of the ABA sections. It's a section that
accredits law schools and also deals with issues on admission to the bar.
So, that became more of the things I did for probably for nine or ten years.
I was on the Council and was chair of that Council for a year. While on the
Council, I did site visits for law schools in Europe as well as in the states.
In fact, I've got one coming up. I'm doing Pepperdine in March this year.
That has been very interesting. The Council does a lot of different kinds of
work. We were involved in the multi-jurisdictional practice commission
that the ABA sponsored and coming out with some new model rules for
that. I did many site visits and, of course, the Council was the one that had
to review all the applications for both the sabbatical reviews for law schools
for re-accreditations and all of the new law schools. We also were getting
for-profit law schools, which was unheard of and brand new. Plus, we had
to deal with the re-recognition by the Department of Education, which
recognizes accreditation bodies for the various professions. The reason
that's important is because, if you're recognized by DOE, your students can
get federal loans. Now, many law schools are attached to a University that
gets accreditation through another group and that's okay. But there are over
25 law schools in this country that are stand-alone law schools where their
students need it. So, it was just a tremendous amount of things, including
the admissions to the bar aspects. We worked a lot on foreign admissions,
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foreign legal counsel, and consultants' rules.
In the foreign area, I served for many years on what was called the CEELI
Advisory Committee (the Central and Eastern European Law Initiative
under the auspices of the ABA) and back in the early '90s - that's when it
was formed - right after the Berlin Wall came down and the Iron Curtain
fell - I spent many months and trips to Moscow and Kiev, Kazakhstan,
Moldova. Where else did I go? I can't remember right now, but different
places where we would meet with judges and lawyers where they were
trying to build a rule of law format. We would do an analysis of their
constitutions or their corporate statutes or their criminal statutes. I have not
done the CEELI work probably for the last, oh, eight or nine years, but
through most of the nineties, I did quite a bit with CEELI in that arena.
How did you find time to do that? To do the work involved?
Well, you know, one of the advantages to being an appellate judge is that
you can do your work in a lot of different places, as long as you're there for
sittings. I can do my appellate work on an airplane or in an airport as long
as I have my computer. For a time I didn't really need the internet. Of
course, now it's very helpful, but I had CDs and things like that for
research. It gives you a lot of freedom in the sense of being able to get your
work done. And I did. I don't think anybody on my Court would ever say
that I wasn't available or around at the time that they needed me or didn't
get my work in on time or anything like that. I'm still in the Council and I
still do some accreditation visits. I'm now on a couple of committees for
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the ABA. The major one is the Presidential Commission on Ethics 20/20,
dealing with the impact of technology and internationalization of the
practice of law on both admissions to the bar, as well as the ethical rules
which govern where you can practice and what you can do, and how to
mesh or blend those among various countries and states. Of course, the
ABA can't impose anything, but it will try and come.out with some model
rules and suggestions for states to consider. I've always belonged to the
Virginia Women Attorney's Association. I was on the Executive
Committee of the Virginia Bar Association and still work with their various
committees, depending on the issue. I am on the Litigation Section board of
directors for the Virginia State Bar. Through the work of Bill Rakes, one of
the former Presidents of the State Bar, we have a Section on Legal
Education within the State Bar that represents academics, practicing
attorneys and judges, and I was an officer of that group for a while. I also
was on the Virginia Foundation for Humanities, and worked with them, and
the AJS.
What is that?
The Virginia Foundation for Humanities is the state arm of the National
Endowment Association. They funnel money, federal and grants, for
support of different humanities projects - such as world history and
teaching teachers about the communities. The Foundation will get
proposals and we review them and decide which proposals should receive
grants. They funded a women and violence project at one point, but it's all
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in the humanities area. And, I was on the board of the American Judicature
Society for a while, which is a lawyer organization that does a lot of work
in judicial independence and for judicial ethics. They keep a clearinghouse
on that. It may look like this is in-house work, but, again, I can't emphasize
enough how important I think it is because all of that goes in to maintaining
and improving our judicial system (which is a branch of government). And,
if our people aren't out there looking at how to address many of the things
that I'm talking about, who's going to do it? These are all things that
inter-play with the statutes that are passed, they way they're interpreted, the
rules that are written, and the way we govern our self as a society under the
rule of law. I think it's more than simply just extra- or co-curricular
activity. I think it's very important, and I truly admire in many ways the
lawyers that do it, more than judges, because our salary is fixed and the
lawyer's salary isn't, generally speaking. So, it's really perhaps more
difficult to get engagement from the lawyers - and I appreciate their time.
I was just going to say that I also served on, and I'm currently president of,
my alumnae association from college. I serve on their board of trustees, so
that's taking up some time now - St. Mary's College at Notre Dame, an
all-girls' school and a wonderful institution.
In addition to your bar activities, did you write articles or other work for
publication?
Not a lot. I've written some forwards for anniversary law reviews, things
like that. One thing I really did write was my master's thesis. I went to the
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University of Virginia Law School, which had a masters program for
appellate judges, called a Masters in Judicial Process. It was truly an LLM
program. You were on campus for two summers and then wrote a thesis,
and that's what I did. We went to classes and we wrote in blue books.
There were about 40 judges in my class, and it was the same 40 judges for
the whole time and then they would start a new class. We had some
wonderful professors. It was interesting, because we had some classes that
were updates from when you went to law school, even if you were
practicing law or a judge. We had gender bias; we had a law and feminism
class, which I've never even heard of (you know it was fascinating); law
and science and how the regulatory bodies affect what states can and cannot
do; law and sociology and the use of social science types of work, imperical
studies and how that's worked into the fabric of law and economics. All of
those classes were taught by the same professors that teach to the law
students today. It wasn't about how to write opinions or how to do things
like that. It was substantive - such as criminal law developments. And it
wasn't just bringing you up to date, it was also projecting where things
seemed to be going, trends and things like that. It was one of the best
experiences I ever had as a judge. To go back to school and be with
colleagues - these were judges from all over the country, federal and state,
and still some of my best friends.
When did you do that?
I did this in the summers of 1990 and '91, I believe. Shortly after I went on
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the bench. It was at UV A and they really were trying to get more Virginia
judges to do it. And I just said, "Sure, I'll do that." I didn't know what I
was getting into, but it was just wonderful and a wonderful experience. I
wrote the thesis, but never published it. I had a thesis advisor, Walter
Wadlington. We also took exams.
Do you think that made you a better Justice?
Yes, I do. This was very early in my judicial career, and I think it was kind
of my first exposure to the ABA as a judge, because the ABA was a co
sponsor of this project. It has gotten me to, perhaps, doing more with the
ABA as a result, because some of what we learned was computer law, civil
law and different ways that things were going on in the world. It was an
incredibly timely situation. The year before I did that, at that time NYU
had a course, and still does, for new appellate judges that I attended. We
were at NYU for one or two weeks in dorms. Now, that course taught about
how to be an appellate judge. About writing opinions: how do you do that?
How do you structure them? About internal rules. It wasn't that
substantive in terms of the newest in securities law, although I think they
did have some sessions on substance. I remember Judge Becker always
gave a lecture about retroactive application of new rules and things like that.
Very interesting. So, I did that and really thoroughly enjoyed that. In fact,
then I taught at the NYU course for three or four summers later in the 1990s
when they had an opening. I taught legal opinion writing, which was very
interesting.
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That course seems to be a more practice course. It was taught by judges
who had been appellate judges?
Yes, who were appellate judges. Although for the part I taught, I did the
opinion part, and I taught with a guy named Steve Armstrong, who was a
journalist but worked for a big law firm in New York at the time, and was in
charge of reviewing all of their writings and teaching their young
associates. So, it wasn't taught just by judges. There were other parts that
were taught by law academics or law types.
Do you think that all appellate judges ought to take one or both of these
courses?
Oh, I encouraged everybody I saw to take these courses. I thought they
were great. A lot of people said, "I'm not going to New York in the
summer. I don't like New York. I'm not going to live there." Different
people have different things going on. It just happened that, when I taught,
I had an apartment in the dorm there, so my kids and Pat would come up for
the weekend and they had a great time. It just worked for me. Judges can't
always decide, but I know others that have gone from our Court or other
courts of appeal have really enjoyed it. Now, Barbara Keenen and I were in
the same class at the UV A program and that was great. Yes, I always think
people should do that. Whether they can or not is going to be up to them
and also where they are in their life.
Tell me about your efforts to assist other women while you were in the
Attorney General's offices, at the State Corporation Commission and at the
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Court?
Well, I think, first of all, the symbolism of my being there is incredibly
important. And, it was important for any woman that was the first one
anywhere. Even though I didn't perhaps appreciate it to the extent I do
now, until times came when people would come up to me and say, "You
know, I saw you, and such and such," or "You know, when your
appointment was announced it just validated what I do or made me want me
to do it or gave me encouragement to do things." And that's another reason
that I always felt that I really needed to be visible. I talked about all these
things I did with the ABA and State Bar and all that. That doesn't even go
into the number of speeches I've given at women's bar associations or bar
associations and the law schools that I've gone and talked to. I think I have
that responsibility, and I wanted to do it. I'm not being pushed out there. I
wanted to do that. I enjoyed meeting the people and having the opportunity
to talk about whatever the issue happened to be. I have tried often to
recommend women for various positions. Some of it is not the type of thing
that people might even know about, you just keep certain people in mind
and you talk about them. You talk to them about doing certain things. You
make suggestions to them, whether it's a working relationship or a political
thing or running for judgeship or when you hear that someone might be
interested in them - encouraging women to do that. I hired a lot of women
law clerks, although all judges are hiring a lot women law clerks. But still,
I think it's important. Understanding their situation. Bringing them along.
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Showing not only the women lawyers but the women staff people the
respect that they deserve - not that the men don't do it, too, but making
sure that stuff doesn't slip through the cracks. I think that's really
important. Being genuinely interested in - I think you have to do it
through other than the symbolism - you do it one person at the time. And,
sometimes you can reach out and pick up somebody. I met a young woman
who was a very delightful woman. She was a junior in college at my
college, at St. Mary's, and she's Latino, and had a rough go of it in many
ways. I thought she would make a great lawyer. She came out and lived
with us for six weeks one summer, between her junior and senior year, and I
tried to expose her to various little things. She worked in my office. I don't
know if she' 11 ever go to law school, it's kind of late and you know a lot of
other things, but there's no one else I can say, "I've brought to my home" or
something like that. That was an opportunity that just happened to present
itself where the kids were gone and I had a bedroom. Just being open to
those kinds of opportunities - whether it's a cup of coffee, whether it's
working with one of my students at UofR, over the years, or one of my
classes now. Just being accessible, I think, is the most I can say that I try to
be to other people.
So perhaps not formal mentoring relationships, but just making yourself
available and taking opportunities where you see them?
Yes, clearly, my law clerks would be a formal mentoring relationship. I'm
doing some mentoring now with the Richmond Women's Bar Association.
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It's a little easier for me to do it now that I'm a retired judge, because as I
said, it's really hard for the lawyer to call the judge and say, "I've got a
problem." Some of those more formal mentoring relationships were
problematic, but the informal never were. I could always try to do that.
And you are always willing and happy to do that?
Yes, and part of it is showing an interest. It's letting someone know, "give
me a call, we'll have a cup of coffee." That kind of thing. I've done some
ofthat.
Do you find that people take you up on that?
Sometimes. It's hard for the lawyers to do it. It really is. But, you know,
the more you try and do that, the more sometimes they say, "Oh, I've talked
to her, you can do that." That kind of thing. I don't think I've done
anywhere near what I would have liked to or should have done, maybe, but
I always tried.
In any of the three places, were there opportunities to promote family
friendly workplaces and policies?
I've tried to do that. I do not have an administrative position within the
Court system, so that I couldn't do. But as we tried to look into it at the
State Corporation Commission, I really worked on a project at one point to
see whether or not we could provide a day care for our employees. That
didn't work, but we did find a means of providing information and
resources for child care, that type of thing. I've encouraged job sharing and
flex time at the Court, but I don't think it's gone very far. You know, that
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type of situation, yes. And, of course, a lot of women work for the
government because the hours are better in the sense that they' re more
consistent and trying to stay true to that.
In terms of law clerks, do you have any permanent law clerks?
Well, I never did. I had one once I retired, but right now all of that's kind
of up in the air. So, we'll see what happens. I never really had a permanent
law clerk because we only had one, and I always felt an obligation to make
my office a part of the learning experience for our young lawyers.
What sort of civic activities, in addition to the bar activities, were you able
to be involved in?
Well, I served for a while on what used to be called the Conference of
Christians and Jews, which then changed to be a more inclusive group here
that promoted interfaith activity. And, of course, the Virginia Foundation
for Humanities - that was more of a civic group. I can't say that I was
involved, it was very tricky to be really involved formally in civic groups.
You might contribute to Am Vets or to the Food Bank or something like
that. I know there's mixed feelings about that, but it's kind of difficult to be
actually - I mean, you can be a doobie and just go and do some things -
I'm not saying I wouldn't do that - but I couldn't really. I didn't think it
was very good to get involved in the organizational aspect because with a
lot of civic groups you run into fund raising problems and all of that. I
suppose the best I could say in terms of civic groups is, I tried very hard
when I could - when I was asked to speak to a Rotary or a women's club
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or Kiwanis to talk about the Court and the Court's systems - is to try to do
that as much as I could. I'd go read at the elementary schools and things
like that.
You've achieved a lot of firsts in your career, which we have talked about.
The first woman Deputy Attorney General in Texas and in Virginia. The
first woman Commissioner of the State Corporation Commission. The first
woman Chair of the State Corporation Commission and then the first
woman Justice on the Virginia Supreme Court. What is your proudest
accomplishment?
Having four healthy, happy children that have grandchildren. That's
probably not the answer that you wanted. You gave me an A, B, C, D and
E, and I chose the other.
I left it a little bit ambiguous.
I can't say that any one of those other things that you listed would be more
important than the other. The thing I'm most proud of is that I don't think I
let anybody down in any one of those firsts. I think I was able to perform
the responsibilities expected of me in a way that would not adversely
impact another woman doing it, or anybody else for that matter. Because
the job was a job well done that contributed to the fabric of the part of the
society in which I worked. So if I did that, that is what I would be proud of
- not being a Supreme Court Justice or being a Commissioner or some
thing like that.
What were your greatest challenges?
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Certainly, in my jobs there were substantive challenges to overcome in the
sense of the understanding the issues involved in each one of those
positions. I don't mean to minimize those at all. I felt up to the task, as I
think I said before; I felt I was capable of learning the substance. In each of
those jobs I did have the disability, or the challenge, of gaining the respect
of the group with which I worked immediately, as well as the larger group
within the legal profession, whether those were regulated entities or the
lawyers with whom I worked in the Attorney General's Office or the
lawyers that appeared before me in the Supreme Court and my colleagues
on the Court. There are always challenges.
Do you think that was a different challenge than a man would have had in
those roles?
Generally speaking, yes. But I think I had the added challenge of not
having had a history with basically any of the people that I worked with
once I moved to Virginia. I had not gone to a Virginia college or a Virginia
law school. I had not been in private practice in Virginia. I had no - with
some exceptions, obviously - but basically had not had the experience of
practicing or going to school with the lawyers in this state that were my
contemporaries or my superiors. I don't think there was a negative feeling,
but there certainly was a "show me" requirement. They just didn't know
who I was. I'm not saying anybody came in with a chip on their shoulder,
but it was up to me to make it a workable, good, productive situation.
And you feel that you did?
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I feel very good about it. Of course, the hardest one was in the Attorney
General's Office because that was my first step. With every passing job
more people knew me, of course. So that was very helpful. But had I not
done what I was supposed to do, it might have been very difficult.
What impact do you think woman lawyers and judges have on society in
general?
Well, I go back, initially, to the symbolic aspect of it and particularly
because as a branch of government and as the keepers of the flame, if you
will, for the concept of rule of law, people in our society must have respect
for those who are intimately involved in running that branch of government.
The more the population can identify with those who are making those
decisions as having something in common, the more respect I think they
have for the administration of the law. I really do think it's true that you
often feel comfortable with somebody with whom you feel you have
something in common. That can be age; it can be gender; it can be
ethnicity; it can be knowing you came from the same neighborhood. In a
situation where it's very generally removed and one could say impersonal,
when you walk into a courtroom and it's scary- to see someone sitting on
that bench that somehow you have something in common with and you can
respect, gives you a sense of fairness, and hopefully, makes the system
work better. That's on a very macro basis, but I don't think we can
underestimate the importance of that. Secondly, with women on the bench,
you've broadened the life experience which is brought to the bench, which
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is very important. And from that respect, again, the law should be reflective
of the people to whom it applies and who should be part of the group. It's
having a variety of women in the legislature that are making laws about
issues that affect women, and at all political levels, whether it's a school
board or a zoning commissioner or governor of a state. Women are part of
our population and that needs to be part of the discussion.
What changes have you observed in the role of woman in the profession
during your career?
Well, certainly, I think women are being hired in greater numbers,
obviously, by major law firms and in other places. I've seen more women
judges, of course, in the last 20 years, which is a good thing. I do see more
women taking leadership roles in the organized bar and on all levels, state,
local, etc., and I think that's very good. I think that's a huge change there.
I think women are bringing - we are not yet there -value to life balance,
bringing value to the work that can be done in ways that don't require the
kinds of physical presence, perhaps, that would otherwise be considered
important and is given value within an organization. Kind of that "out of
sight out of mind." That doesn't necessarily hold true, and there should be
more value given to work that can be done in other places at other times.
But there's a start. And, in fact, that issue is one that has to be, in my view,
approached by both men and women. The need for that is not limited to
women although it lays on women heavier than men because of the home
and child-bearing issues.
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Do you think it's harder or easier for women today to be successful in the
profession of law?
I'm going to have three answers to that. The first one is, I think, that the
practice of law is harder today generally for everybody. Not just women,
but for everybody. The Blackberry addiction and the demands and
expectation of firms and clients for instant response. It has, in my mind,
changed the nature of the practice of law, and not necessarily in a good way,
both from the lawyer's health but also in terms of the kind of work that can
be actually delivered to clients. That requirement makes it harder for
women, because you are now really demanded to be on a 24-7 basis and
that makes it even harder than it used to be in terms of life balance -
raising children, and so forth. And I think, yes, that makes it much more
difficult - again it falls on the women harder than on men. I also think that
even though most firms now talk about having flex time and all of those
kinds of things - I think they say 94% or 96% of the firms offer it - about
8% of the women take advantage' of it because it is still perceived as having
an adverse impact on your career path within your particular organization.
So what's the answer to that? I think it's very difficult. The question is:
has the firm really come around to say that you can do this? There are firms
that have somehow, at least with particular individuals, allowed that to
happen. But I'm not sure if it's because of the individual or because of the
firm environment. And I don't know the answer to that. So, to the extent
that it is harder, I think it still is. The third answer I want to talk about is
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how we rate success. I've been really talking about primarily partnership
tracks in larger law firms. You can't discount that. Large law firms have
huge impacts on the practice of law in this country - it trickles down. But,
you see a lot of women in their own firms who are very successful in terms
of having the kind of practice they want, financially doing fine, and doing
that in the type of life they want to lead. And to some extent that kind of
success has been easier - they've gone to big firms, perhaps, and gotten
some training and come out. Technology has helped them in ways that they
didn't have before. Client development, I think, also is becoming easier,
because there are more women entrepreneurs with their own businesses, not
to mention women in the higher management positions within larger
companies, although CE Os aren't there yet. So, I think that, if you define
success solely by the numbers of women that are partners in major law
firms, the answer has to be no, it's not easier, and may be harder. However,
if you define success in terms of women that can define their own success
(not by what other people believe), I think maybe it has gotten easier in the
sense that women are doing that. They' re taking those risks, yes, but you
have some incredibly happy, healthy, and successful women who have
defined what would be success for them. They've done it. And, I think
that's getting easier, actually. And part of it is, perhaps, that the concept
that success is going with a law firm, staying there eight years, making
partner, isn't where you want go. A lot of guys don't want that track
anymore. So, the idea of lateral moves and all of that have become much
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more valued, or in the matrix of a valuable way to go, than it was when I
started practicing law. For the guys, it's changed, too, but I think there are
more options out there now for women depending on how they want to
define success.
Are there changes in the profession that you believe are needed in order to
facilitate more participation by women?
I think my last question may have answered that. Yes, I think there are -
but, again, the changes in the profession are happening because women are
doing it differently.
What advice would you give to young women about entering the legal
profession?
Well, I would welcome them with open arms and highly encourage them to
do it because I certainly think it is a wonderful profession and there are
many different ways you can utilize your law degree. I think I would advise
them to think carefully as they seek jobs:. Don't compromise. Be creative
and look for opportunities. Be aggressive without being aggressive - if
that makes any sense. Have confidence in themselves and their own
instincts. In the practice of law, I think it's very important to maintain that
sense of core, sense of self. And just try to enjoy it as much as you can.
What do you mean by "don't compromise?"
I mean, if you believe - if you're in a situation where you think something
is not right for you - you need to be cognizant of that, not be conservative
necessarily, but be diligent in figuring out why it isn't good for you or not
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right for you, and try and devise a plan to move on. I do not encourage
people to stay in situations in which they are uncomfortable. But I'm not
saying you shift every month, or even every year. You have to really
analyze it well. But, you're not going to do your best work, and you're not
going to be very happy, if you just don't like where you are. I understand
financially sometimes you have no choice. Sometimes it's a personality
issue and not so much what you're doing, and working out of that is not
easy, but I don't think you can just ignore it.
That sounds like much of the advice that you would give a young woman
lawyer.
Yes.
What do you think about mentoring? There is a lot said about women
needing to find - every young lawyer, or maybe every lawyer - a mentor.
Well, we've talked about it on and off throughout these interviews. There
are clear formal mentoring programs, but I'm not sure how well those work.
A part of mentoring is also just working well with your colleagues,
whatever the situation - some of them are newer; some have been there for
a long time. We tend to think of a mentor as someone like that and that's
true. But, you know, you can learn an awful lot from people that are very
close in age to you or with a similar background. At least you can develop
your theories and have people to talk with. I am a great believer in
mentoring because I was mentored. But, I don't think any of my mentors
thought of themselves as mentors. People like to work with younger people
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and watch them come along, just like you like to raise your own children.
But I think that these younger women that we're talking about should,
again, be open to seeing who's vibes you get that looks like someone with
whom you'd like to talk or would be open to. Just develop that kind of
relationship. And I think it should go the other way, too. There's no
question that it is a two-way street. I think it's a good thing to have.
Have you always had a mentor?
I had a mentor, or more than one mentor, actually, both in my jobs in Texas,
and certain! y in the Attorney General's Office here. As I became more a
senior person, I did not have as many mentors, although I sought out people
that were other judges or other commissioners that had a longer experience
~ than I had that at that point. Perhaps it looked like more of a peer
relationship, but I still was trying to learn from them and understand their
perspective on things. They were usually out-of-state. They worked,
obviously, within my legal sphere. I think now I would just call them dear
friends.
Would you give any different advice to a young male lawyer?
No.
Is there anything you wish you had done differently in respect of your
career?
It's hard to say that I would have done something differently on any kind of
macro scale because I have been very fortunate. My jobs, my positions,
have been a privilege, an honor to have and to serve in these various
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positions. Are there certain things within each one of them? Yes, there are
some days, which, if I could take back [laughter], I would done things
differently. But nothing that I can say I wish I would have really, really,
done something differently. I don't know when I would have had time to
do that. My family hours, my extra-curricular hours, if you will, my
professional hours - I don't really regret doing any of that. There's
nothing I did where I said, "I wish I wouldn't have done that." I loved all
my jobs, whether they were paying or not.
Is there anything else that you would like to discuss or share about your life
or your career?
I suppose I should say, particularly as we're talking about mentors, that the
people I met through the National Association of Women Judges, through
the ABA, through the Virginia Bar Association, through the CEELI
programs, the State Bar programs, all of those things - not only the
women, but particularly the women - I've met through that work were
people and experiences that sustained me many times that I truly treasure
and appreciate, and that I think made me a better commissioner, attorney
general, and judge. So, I think having those kinds of people in your life,
wherever you find them, are incredibly important because you just can't
really do anything, I think, alone, whether you are a mother, or a wife, or a
lawyer or a judge. That you need - as they say, "it takes a village," and I
really believe that.
Thank you very much. This concludes the oral history of Justice Elizabeth
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B. Lacy.
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