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- I'm Steve Peck of Wyoming PBS.

Kate Fox says she has the best job in Wyoming.

She's the Chief Justice of the State Supreme Court, and she says that, when it comes to choosing members of the high court, the federal government could learn something from us.

Meet Kate Fox, starting now on "Wyoming Chronicle".

(inspiring music) - [Narrator] Funding for this program is made possible in part by the Wyoming Humanities Council, helping Wyoming take a closer look at life through the humanities, thinkwy.org, and by the members of the Wyoming PBS Foundation.

Thank you for your support.

- We're joined today by Wyoming Chief Justice Kate Fox.

Chief Justice, thanks for being with us today on "Wyoming Chronicle".

I would venture to say that many viewers have a better familiarity with the U.S. Supreme Court than they do with the Wyoming Supreme Court.

One thing that crossed my mind was the relatively famous starting date for the U.S. Supreme court term, the first Monday in October.

Does the State Supreme Court have a defined term, in that sense?

- Not really.

We hear oral arguments every month of the year, except for July.

And we just keep going, so there's not a term that has any practical significance to the work that we do.

And the U.S. Supreme Court is supposed to get its opinions out within the term.

We have some guidelines for issuing our opinions very timely.

Within 90 days, we circulate them internally and then publish them.

Sometimes they take a little longer, but we don't have the same kind of schedule as the United States Supreme Court does.

- So we happen to be here on a day in April, and we're sitting in your courtroom because there's nothing scheduled here today, but there might have been?

- Tuesday.

- [Steve] Tuesday, there was.

- Tuesday, we had four oral arguments here, yes.

- A judge has a career path.

You were an attorney, you went to law school, you clerked for a judge.

At what point in a person's career or in yours does the idea enter your mind, I think I could be a judge or I think I'd like to try that?

What was your experience?

- I, unlike a lot of people, never had much of a plan in my life.

I went to law school, liked it much more than I anticipated, and started practicing law, and didn't really think that I would stay in the same firm, in the same place for 23 years, which is what happened, all of a sudden.

I always thought it would be interesting to be a judge.

I clerked for Federal District Court Judge Brimmer, who was an incredible jurist and human being, and I thought it would be wonderful to do what he did.

But I thought that I, having no political connections, would probably not be in a position to have that job.

And then Justice Voigt retired kind of suddenly, and I applied, and now I am a judge.

- So your first judgeship, so to speak, was on the Supreme Court.

- Yes.

- Is it a fun job?

Do you enjoy it?

Is it more a case of satisfaction, or do you get up in the morning and think, I've got a good job, I'm looking forward to the day.

- I get up in the morning and think I have the best job in Wyoming, and I'm looking forward to the day.

- Why, what's great about it?

- There's so many things that are great about it.

I find the work always interesting.

And as I told you earlier, I have an undergrad degree in journalism.

I love the reading and writing and the research.

And I think that, at the court, in contrast to being a private attorney where you represent people and try to get the best outcome for them, in the judicial branch, we can get the best outcome for justice and for people, and for the system of justice in the state of Wyoming.

So there's so much more good that we can do for the state of Wyoming than we can, I think, just as attorneys.

- Your job is not nearly so political, but you do, each year, venture out into more of political arena by delivering the State of the Judiciary Address to the Wyoming legislature, which you did this year in February.

And you raise issues that you find to be important and have realized are important and want to stress with the lawmakers while you have their undivided attention.

What were some of the things you talked about this year that you wanted them to at least know about?

- You're right, it is an opportunity to speak to the legislature and to the people of Wyoming about the judicial branch and the important issues.

Probably number one this year was actually pay for our employees, because, like the rest of the state employees, the judicial branch employees are pretty dramatically underpaid, and it makes it hard to hire and retain good people in the judicial branch.

And it also is just unfair.

We have good people working really hard, and they deserve fair pay.

- When the owner of the local taco stand can't find a good employee, the effects are different from when the Wyoming judiciary system can't find good employees.

What are the ramifications of when better employees can't be attracted, can't be retained?

The effects of that reach throughout the Wyoming, I'm sure.

- Right, so the judicial branch is small.

Of the three branches, we only have, I think, 320 or so employees, and that's counting judges.

We weren't asking for pay for judges.

We were asking for pay for the non-judge employees.

Those people are the clerks of court.

The people, for example, our circuit court clerks, deal with lots of self-represented litigants, so they're at the counter, talking to people who are upset, who are maybe not really happy and not always polite, but who need guidance and help.

And then they have to file the documents and support the judges in their work and make sure that the orders are being drafted or prepared for the judge's signature.

They do a lot.

And so, what's important about our judicial branch employees is that they support the work of the judges so that they can do the things that the people need when they go to court.

If it's because it's a criminal matter and justice is needed to resolve, beyond a reasonable doubt, whether that person is guilty, or whether it's a civil matter, parties who want to be divorced, parties who want to recover damages for an injury, or a gigantic contract dispute between coal companies, everybody needs to be able to go to court to solve whatever that dispute is.

And so, all of those employees who support the judges who do that are doing critical work.

- [Steve] I recall that's one thing you said to the legislature, was the purpose of the court is to solve problems when they can't be solved in any other way.

By the time they get to you, that's the tip of the funnel, it's important work and it has to be done right.

- That's exactly right, and the courts don't decide what their workload is, right?

A complaint is filed and a judge's job is to get it resolved, and we don't get to say, no, we've had.

- [Steve] I'll do that later.

- Yeah, or there have been 10 divorces this week, so we're not taking anymore.

No, you take what needs to be done and you resolve it.

And the people of Wyoming need to be able to have faith that the judicial system can deliver justice in a timely way, 'cause that's one of the three legs of democracy.

- Speaking of one of the others, it's politically popular and economically sensible in many cases, of course, to keep the cost of government small.

But you told the legislators in your address something to the effect of, that's a good thing to be able to do until there's a problem.

And you're saying, I think, that cutting back too much in the name of cost cutting in the judiciary can be problematical for everybody else.

- That's right.

We're never just talking about the judicial branch.

We're talking about all the people of the state of Wyoming and all the branches, because they're interrelated, and it's true, lean is good.

We like lean in the judicial branch as well, but we don't like crippled.

We still need to be able to do our work.

- Are there things that you wish more people understood about your job or the courts or the judiciary system?

- Well, I think we do focus on doing the job as we see it, but certainly there are things that we wish people understood better about the judiciary, and that's why we have the judicial learning center in the basement of the Wyoming Supreme Court, because we encourage not just school kids, but everybody to come and understand better how we function and what the parameters are within which we function.

For example, I think a lot of people don't understand that all judges have to make a decision based on the facts and the law in front of them, and it isn't always the outcome that we might personally prefer.

But it's critical for us to follow the rule of law, because if we start thinking we're King Solomon, then there's pandemonium.

- And faith can be lost in the process.

During Justice Jackson's recent confirmation hearing, she was challenged for her experience as a public defender.

What is a public defender, and why is that important?

- There is a constitutional right to effective assistance of counsel for criminal defendants, and that's true in the federal system as well as the state system.

So we have a public defender's office in Wyoming, which is also underfunded.

Those attorneys represent criminal defendants, and they are regularly asked, how can you defend somebody who you think is probably guilty?

And the answer is not whether or not you think they're guilty.

It's whether you believe that they have a right to a fair trial and to have their guilt found beyond a reasonable doubt.

And so, it doesn't make a public defender a bad guy because they represent a bad guy.

They're representing the rule of law and our judicial system.

- You've talked as well about some early successes with some different kinds of courts in Wyoming, the drug courts, the chancery court.

Tell us a bit more about what those are and how they differ from the way a defendant might have appeared in court 25, 50 years ago.

- So the drug courts, and because those can also be DUI courts, juvenile courts, we have a broad umbrella term, which is treatment courts, those exist in a number of jurisdictions, not all.

And they are a way to allow someone who's been found guilty of a crime to, instead of going to jail or prison, to continue to try to function in society with the really close supervision of a judge.

So usually a treatment court will meet about every couple weeks at least, and there's a whole team, so it will be the probation officer and a counselor and the prosecutor and defense attorney, and I'm probably forgetting a couple other people.

But they check in very regularly with the person, but also help them and encourage them to get a job, get counseling, sometimes, depending on whatever their needs are, instead of locking them up to- - Taking up a bed in a jail cell somewhere.

- Exactly, let them, try to assist them to become functional in society.

And the benefit of that is it's a cost savings.

It's cheaper than incarceration.

- And we like lean.

- We like lean, and there are ripple effects, too, to incarceration.

For example, then we might end up seeing the same person in family court, because DFS may take custody of their children if they're incarcerated.

They may be evicted, they'll lose their job.

Lots of things happen, and if there's a way to rehabilitate that person, and they're not a threat to society, right, if the person is qualified and they participate in the program, it can be a benefit not just to them, but to a whole bunch of other people, including the state.

- And what's chancery court?

- So chancery court's another thing.

It has nothing to do with criminals.

That has to do with business.

The legislature in 2019 established chancery court, which is now open.

And the purpose of chancery court is to allow a whole variety of business type cases to be heard very quickly by a judge with no jury, in a kind of separate proceeding.

So this is a legislative initiative.

My understanding is that part of the impetus for it was that it went hand in hand with the development of blockchain issues in Wyoming.

- Which, in a similar way, I suppose, to the treatment courts, although we're talking about two widely differing platforms, so to speak, but that plays into the challenges of overloading the courts and the personnel and the judges and so forth.

- That's true.

And we are looking, even now, we're looking at other different approaches to take the pressure off and to consider whether the traditional style court cases really are the best way of resolving things.

- Not just for the defendants, not just for the businesses, but for the courts themselves.

- Right.

- What effect did the coronavirus pandemic have or is having on your court, on Wyoming courts in general?

- COVID's been hard, like it has been for everybody.

I think, at the Supreme Court, we made out better than in the other courts, because we don't have as much interaction with the public.

We have oral arguments.

Usually it's just the attorneys who argue.

- And they're a good distance away from... - They're a good distance away.

We didn't have to deal with jury trials.

Jury trials were a huge challenge for our trial courts, because, you know, if you want a jury of 12 people, you might bring in 60 people to do the voir dire and make the jury selection, and how you fit 60 people and have social distancing and masking and follow all the COVID precautions was a very big challenge.

It was also, you know, it just added a layer of work to everything, because filing papers involves human contact, and we had to think of other ways to accomplish that.

I think everyone in the country, or probably the world, understands and has been impacted by the way that COVID demanded extra work for everyone involved.

- How much of that comes back to the chief justice?

I mean, is part of your role sort of a matriarch, so to speak, for the entire system?

You are thinking about these issues all the time?

Are you advising on them or making recommendations or policy, even, in these cases?

- Yes.

Justice Davis, who is my predecessor as chief, really had the brunt of it.

But we do, as chief justices, try to guide the ship.

Our courts have a lot of independence, but at the same time, they rely on us for resources and guidance.

We issued a lot of orders saying we can do arraignments this way now, and we can have video conferencing for certain types of hearings that we didn't use to allow, so even though our courts are very independent, that kind of overarching guidance was necessary, and it was a lot of work for us.

- We spoke recently with Dr. Harris at the Department of Health on the occasion of the state of emergency in Wyoming related to COVID being lifted.

What's the situation with the judicial branch now in Wyoming courts related to COVID?

It's improved, I presume?

- So, here at the Supreme Court, it's pretty much business as usual, but as you've noticed, we have a lot of distance.

We don't have a lot of people coming into the court.

I would say probably most of our judicial districts are not showing a lot of signs of COVID precautions, but some still are.

It depends on the district.

but I would say for the most part, for now, COVID precautions are not predominant.

- A person gets to be a Supreme Court justice by, first of all, saying, I would like to be a Supreme Court justice.

You, for example, didn't have to sit and be interrogated, questioned by a legislative committee, did you?

- Lucky for me.

- Didn't have to do it.

- Right.

- But also different from the U.S. Supreme Court system, your name comes up on a ballot later as well, and theirs never do.

How do you feel about that?

Is that a fair balance, a procedure that you approve of?

I'm not asking you to disapprove of it, necessarily, but do you think that it's workable and effective?

- Yeah, so that's actually another thing that I would like people to and about the Wyoming judiciary, that I think is one of the great aspects of how we choose judges here.

It's called the merit selection system.

All judges, circuit court, district court, and Supreme Court are selected the same way.

There's a judicial nominating commission made up of three attorneys, three non-attorneys who are selected by the governor, and the chief chairs it.

So, yes, first the person has to express their interest and submit, it's called an expression of interest, but it's an application.

And along with that, a writing sample and three references from judges, three from attorneys, two personal references, so there's a lot of material.

The commission reviews it all, decides who to interview, conducts interviews, sends three names to the governor.

Then the governor has 30 days to choose.

This is another beautiful thing about our system, there's a really strict timeline in the constitution.

The commission has 60 days to get three names.

The governor has 30 days to pick, so it isn't like the federal system, where they have vacancies forever because they have whatever political wrangling going on.

I say, if your short stop is no longer available, you just don't wait to get another one, right?

- [Steve] Can't play with eight.

- You gotta get out there on the field and keep playing.

So we pick them fast, and there's no legislative involvement.

There's no public involvement, except, and now I am getting to answering your question, there is a retention election.

So we do appear on the ballot.

For Supreme Court justices, it's every eight years.

It's not a contested election, so you can't run against me, but what the voters can say is get her outta here, we don't like her.

And if that happens, then my position is vacant and the judicial nominating selection process will begin again.

- You've been on the ballot yourself.

- Once.

- Once.

Did it ever occur to you or was there any need to try to campaign for- - No, we're not allowed to.

- Not allowed to.

- No, we are not allowed to.

It's a little bit of a weird system, because we are not supposed to, you know, say, hey, vote for me, and there's a reason for that.

And there are limits, even in the states where they have an elected judiciary, there are limits to the things that that candidate can promise.

For example, I'm gonna be a harsh sentencing judge, or I'm gonna vote this way or that way.

We're not supposed to do that, because we're supposed to decide each case on its merits.

So I am very grateful that we don't campaign that way, because our allegiance is to the law, the constitution, the constitution of Wyoming, the laws of Wyoming.

We're not making decisions based on popularity.

- Sometimes, though, outsiders can attempt to influence the retention of a judge, I suppose.

Doesn't happen often, but when it does, you have to sit there and watch and not participate, correct?

- Generally, that's true, and outsiders do and are entitled, really, to have an opinion about retention of a judge.

Judges, for the most part, are not supposed to respond.

There is an exception, I think, in our rules that says if the attacks are particularly strong and perhaps some element of baseless, I don't remember exactly what the standards are, then you can ask for special permission to form a committee that can speak on your behalf.

To my knowledge, that's never happened here.

- [Steve] A provision is now being prepared, I think, for Wyoming voters on the ballot to raise the mandatory retirement age for the Supreme Court.

Is that other judges as well?

From 70 to 75.

- District court judges and Supreme Court judges, yeah.

There is no age limit, for reasons I don't completely understand, for circuit court judges, so they can stay indefinitely, but district court and Supreme Court judges have mandatory retirement at 70.

- And as we know, that's not the case in the federal court system.

- No, they can stay forever.

- What do you think about an age limit?

- I think there should be an age limit.

I think the federal system, we have seen, on some occasions, that judges stay too long, but I think 70, the closer I get, the younger that seems.

70 seems young.

And we have had a number of judges retire because they had to at 70, like Chief Justice Davis, who retired this year, who I think still had some good miles in them.

But as he said, it was constitutional senility, so it's time to go.

- I see.

The Wyoming Supreme Court now is majority women.

How significant is that?

- Oh, I think it's significant.

What it stands for is the fact that we now have a lot of really accomplished female attorneys in Wyoming, because that's where the judges come from.

You know, Marilyn Kite was the first woman on the Supreme Court, and then the first chief.

I was the second woman, and I thought that was a big deal when we had a pretty short period of time during which we were both on the court, that there were two women.

And then she retired and I thought, well, I'll be the only one for a while.

And then, blam.

- Two since then.

- Yeah, now we have three very accomplished jurists, and it's really impressive to have three women sitting at a bench with two other men.

And I think the significance, too, is that, when we talk to these students who come in, the young people and law students and young lawyers who say, wow, that's possible for us.

- Sure.

We've been speaking with Wyoming Chief Justice Kate Fox.

Thanks for being with us on "Wyoming Chronicle".

- Thank you.

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