Transcript of Justice Kogan Podcast

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>> Welcome to an episode of "Beyond the Bench", a podcast series produced by the Florida Supreme Court. These podcasts will give you a better understanding of how Florida's courts work and how they work for you.

>> We are very privileged today to have with us former Chief Justice Gerald Kogan. He was Chief Justice of the Florida Supreme Court between 1996 and 1998 and implemented programs that are still in effect in the state court system today and are still having an impact. Justice Kogan, one of the things I remember most that has become timely again about your appointment to the court. We've heard a lot lately about, you know, the governor making his three recent appointments, but as I recall, when Governor Bob Martinez appointed you, there was a lot of speculation about who you were and the philosophy you were bringing with you here to the court. Could you tell me a little bit about how Bob Martinez came to choose you and how is views about you evolved over time?

>> Well, first of all, Bob Martinez was very, very shocked when he saw the names of the people who were sent up, and he discovered that all six of us, because Judge Grimes also was appointed at the same time, all six of us were registered Democrats. And, he says, "I'm a Republican." So, he tried to get the judicial nominating commission to go ahead and send him a few Republicans, and they told him, "Governor, we can't do that because a law won't allow us. You have to take who we're sending to you." So, it was a quandary for him, but certainly, he was able to go ahead and stay along with what the law was at that time. And, he was very, very interesting person because he really had no government experience beforehand, and he certainly was not a lawyer. And, he didn't know what to expect. So, it, I would say not exactly a turbulent time. He more or less allowed Justice Grimes and myself, you know, to just blend in with the members of the court. And, that's what we did.

>> I know the court issued some opinions after your appointments that Governor Bob Martinez was disappointed in. how did you view that situation?

>> Well, to me, I had a job to do. It was my responsibility to do the best that I could and to rule the way I honestly felt would benefit, you know, the people of the state of Florida. And, if the governor disagreed with me, that's all right. I don't care. He'll just have to live with it.

>> What you're saying, then, is it wasn't so much an issue of partisan politics as it was one of separation of powers.

>> That, basically, is true.

>> It's an interesting time at the court because, you know, the fact that we have three new justices here now, there's been a lot of speculation as to what will happen with them in the future. Do you have any words of wisdom about how you see their roles and what they will be doing?

>> Well, I can't tell you exactly what they're going to do, but I will say this, that if you're going to hold a job as a Justice of the Supreme Court of the State of Florida, you have to do what is right. What you personally may feel doesn't count. You've got to do what is right for the people of the state of Florida. That's why you're here, so that the people of the state of Florida will get the benefit, hopefully, of your wisdom when you're ruling on a particular matter. That's the way it's got to be.

>> You were also here at a time when there were a lot of very hot button issues that came to the court. One in particular came in the court case [inaudible] which dealt with the issue of abortion. Do you have any reflections on that you'd like to share?

>> Oh, yes. I have some interesting reflections. The case was originally assigned to Justice Shaw. I went to him, and I said, "Lee, what do you feel about this?" And, he wasn't completely happy with my asking that question. I said, "You know, what you're talking about here is that one of the things that would allow women to have an abortion is if their parents gave their consent to this, and the parents wouldn't. They would have to go and talk to a judge. And, the judge would have to do it." Now, you know, you were born and you were raised in the south, and in my humble opinion that if African American girls came and asked some judges in this state for permission to have the abortion, they would look at them and say to them, "Well, you should have thought about that before you had this encounter with the father of the perspective child." You know who those girls are going to be? They're going to be African Americans, and like thousands of people in the state of Florida. I said, "I don't want to be responsible being part of a court that's going to do that, and our job here is to do what we think is right."

>> There was a rather strong reaction from the legislature when [inaudible] came out. There almost seemed to be an attitude that the court had overstepped its bounds, and certainly, there was a feeling that it had gone beyond what it previously would have done. And, I think a lot of that, sort of, brought to life the fact that there were some new justices who were viewing things differently, you and Rosemary Barkett and Shaw was. He was not that new at the time. How did you perceive that interaction with the legislative branch after TW came out?

>> Well, you know, when TW came out and there was a lot of people complained that that shouldn't be the law, you may remember, Craig, because you were here at the time, the march on Tallahassee. The streets were loaded with people, and they were all in favor of the opinion that the court wrote. And, to me, that spoke everything that was necessary about how we should have ruled. We could tell that this was a favorite ruling for the majority of people in the state of Florida.

>> You dealt with many justices over the years. They have gone on to become almost legendary figures in state legal history. We mentioned Justice Shaw, Leander Shaw. What remembrances do you have about him, anecdotes you can tell us about him, you know, this man who's become almost a symbol of the civil rights movement as it existed in Florida?

>> Well, actually, prior to his coming to the court and prior to his becoming a DCA judge, he, in fact, was very, very active on that. And, he could tell you stories about what I considered horrid situations, you know, trying to deal with the legal system and judges in Florida. So, during his younger years, before he got to the court, he was very, very active in that. He had a heart, and he was concerned with things that he knew were wrong. Let me give you an example if I can. We had a case, when he was on the court and I was on the court, involving Florida State Troopers stopping people coming down Interstate 10 and stopping African Americans in their cars in the middle of the night. And, the person who had stopped filed a lawsuit. It had gotten to us, and he said he was unfairly treated. And, most of the judges on the court wanted to say that the police have a right to make that decision. A couple of the members of the court actually didn't believe that people would, officers of the law, would react in that way. And, that's when Justice Shaw had his finest hour. And, what he said to us was this, this was in conference. As a matter of fact, I think right in this same room we're sitting in now. And, he said this, "You know, I live part time of the year in Jacksonville. Most of the year here in Tallahassee, and I have been stopped at night at least ten occasions and accused with violating traffic and all that sort of thing." And, he says, "I was stopped because they saw that I was driving an expensive car, that I was well dressed, and the officers thought, oh, this must be a drug dealer of some type." And so, when they pulled him over, he was able to show his identification as a justice of the Florida Supreme Court. And, he said that happened to him about ten times, and that taught me, once and for all, why you have to have, in your court, an assemblance of people that come from different backgrounds and have different experiences. And, it was that that changed the way the court felt about those particular matters from that time on. But, that was one of my most memorable things about Justice Shaw.

>> You came onto the court shortly after Rosemary Barkett was appointed as the first woman. Tell me any reflections you have on her and the impact she had.

>> I think she had a lot, a great impact because she was the first woman on the court, and Rosemary wouldn't take garbage from anybody. I mean, she, first of all, worked her assistants to the bone. I mean, I remember one night, my wife, Irene and I were over at the old capitol for a concert, and it was on Christmas Eve, I think. And, I looked out, and there was only one set of windows in the building that were actually on, and it was Rosemary's office. I said, "Oh, my god." And, we came on up, and I'm not sure whether you were still with her or not, but in any event, she used to work them all hours of the day and night, and I used to tell her, "Rosemary, you cant do that." Rosemary also, since when she was chief, felt that it was her obligation to make sure that everything in this building goes according to how people would expect it to be. I said, "Rosemary, that's true, but you have to remember one very important thing, and that is you can't do everything in this building. You have to have competent people that are given jobs that you know they can do. And, you don't stay on their backs. You call them in and say, 'You're going to run this thing, and from time to time, I will come along to see how it's going to come out.'" I said, "But, I'm not going to be on your back." And, I said, "Rosemary, you're going to find that you're going to rest better. They're going to rest better, and everybody's going to be happier." And very interesting thing, she never changed while she was chief, and when I was chief, she came to me one day and she said, and she had already been off the court, I think, at the time.

>> Yes, she had.

>> And, but she was in the building, and we talked. And, she came in, and she said, "You know, you were right. Had I listened to you, things would have been a lot better."

>> What about her impact on the law here, you know, from bringing a woman's perspective to the court for the first time?

>> I think that's very, very important. You know, I see that every day, now, and especially in this last election. I mean, some of these people, you know, have been in politics for so many years, and I'm not talking about women. But, I'm talking about men are in for a shock. And, I think the shock waves have already hit them because they have finally realized, I hope, that women are as smart as men, maybe even smarter in some fields. And, just as good as men are at operating court systems and taking care of a Supreme Court. That's the biggest thing that has happened in my lifetime because we have, for centuries, lost the ability of the women of our society to give us their feedback, their opinion of things, and, we have been a not as good society as we should be for that reason. So, I'm glad what's happened has happened.

>> Another justice you served with was Parker Lee McDonald, who himself was an interesting character. One of the things that Chief Justice Labarga eulogized him about was his decision in State versus Neil which, of course, dealt with peremptory challenges. As I recall, that issue kept coming up when you and Justice Barkett were here. I think there was a case called Slappy, and a few others dealing with the use of peremptory challenges in a way that might exclude minorities unfairly from a jury. What do you recall about those cases?

>> Well, you have to remember that Justice McDonald was a son of the old south, and he thought the way judges for generations in the south thought about different things. And, the one thing about him that I found very interesting, he was one of our soldiers who, during the Second World War, helped free some of the concentration camps. But, he never really lost that old south. One day, we had a, I'll never for it. We had a first degree murder case where he actually agreed with me. And, he and I were the only two people on the court at that time that wanted to not have the defendant suffer the penalty of death, which was a surprise. But, I don't know. Maybe I made a convert during the time.

>> The dealing with the death cases must have been hard. How did that impact the justices when they were, when they were dealing with the question of life and death?

>> It's always a problem is you remember I would say 3% of our caseload were capital cases. But, 50% of the time spent by the judges is what it costs to do that because we knew that essentially Supreme Court of the United States notwithstanding, we're the last barrier that these people had to get a fair treatment of their particular case. So, every case was important, and unfortunately, at times, it interfered with our ability to handle all the other cases.

>> Another justice that you worked with who also had a significant impact on the law was Ray Ehrlich. What are your reflections about him?

>> Ray Ehrlich, a very, very bright man, a good judge, and everything else. And, one time, we were tied on a very important case three to three. And, Ray did not vote, and, you know, weeks went by and I went to him. And, I don't even think I was the Chief Justice at that time. No, I wasn't. And, I went to him, and I said, "Ray, you know, we have to have a decision on this particular case," And, as you might imagine, it was myself, Barkett, and Lee Shaw that were the three, and the other members on the other side of that. And, I said, "You know how you should be ruling in this particular case." And, Ray said, "Yeah, you're right. I should be, but I don't want to rock the boat." And, I said, "Now, wait a minute. What are you talking about rock the boat?" "Well, you know, I don't want, you know, attorneys, you know, to question me about that." And, I say, "Now, wait a minute, Ray. From what I know about you is that you were an outstanding student at the University of Florida and at the law school there. That everybody admired your abilities and everything else. I know by your statement that you submit every year that you have a great deal of money, you know, that you've made over the years. Not from the court, but from when you were in the prior. And, you have everything that anybody could possibly admire. What are you afraid of in rocking the boat?" And, then I got up and I walked out, and a couple of days later, he voted with us. Again, a son of the old south. Born in Georgia, lived south of Jacksonville. He was a very, very intelligent man.

>> Another justice that you served with had a very long tenure here at the court, also had a major impact on the administrative side of things. And, that was Justice Ben Overton.

>> Yeah.

>> What are your reflections on him?

>> Very interesting. Ben and I, philosophically, were on different sides, and I could expect from him, you know, on particular cases which way he would be ruling. But, one thing about Ben Overton, to his credit, on administration of a court system, he and I were on the same page, remarkably. And, when I was chief, I would go to him, and I'd say, "Ben, what do you think of this idea?" And, I'd tell him some idea I had for the court, and he'd look at me and say, "That's a great idea. Let's put it into effect." I said, "Yeah, but you know, Grimes and Harding are opposed to that." And, he said to me, "They are? I'll take care of that." Sure enough, he brought them around. So, from that standpoint, you know, I loved Ben because anything we had to do that would be an improvement in the administration of the court or the court system, I knew he would be a big help to me.

>> Justice Overton also was a big fan of technology, and he was the technology liaison for a long time. What do you recall about that?

>> Oh, yes. There's no question about it. Anything that you had that would substantially improve the court system, he was in favor of. As a matter of fact, I think at one time, he was the only one who knew how to use the computer, and the rest of us dummies would just sit around there and say, "Why do you think we have, you know, aides and other people working with us." And, no, no. he really meant that.

>> And, one of my most vivid memories involving Justice Overton was the time when I had created my own web page, and Justice Overton came to me and asked if it would be possible for me to do that for the court as well. I think he came to you and asked to borrow me, and you agreed. Which was how the court ended up using the web so early, in 1994, and also, it was the origins of the creation of the Public Information Office. What do you recall about that particular episode?

>> Well, one of the greatest events that ever took place in this court system because we hit the right guy at the right time, and he took it over, knew what to do. And, you know, it was obvious that if you're going to have a successful court system, you have to be in tune with the rest of the world, so to speak. Craig, Craig was in tune with the rest of the world, and perfect man to do this. And, sure enough, it turned out he was the perfect man to do it. And, you know, I used to go to conferences of chief justices when I was chief justice, and I told them about the things we're doing here. And, they said, "A public relations man?" Not most of them, but some of them, you know, that's below the dignity of a Supreme Court. And, is said, "Let me tell you something. Watch your dignity because in a couple of years, it's not going to be anymore unless you have somebody out there who's not a member of the court doing your arguing for you with the public. And, we were right.

>> That led up and tied in what you decided to do when you were about to become Chief Justice. You started a program that was called the access initiative, and included a lot of communications elements.

>> That, take credit where credit is due. Most of that was your idea, and I said, "Great. Thank God for you."

>> But, what prompted you to think that access and reaching out to the public was so important at that particular time?

>> Well, simply because the public had no idea as to how a court system operated, and most especially they didn't know how this court operated. And, I felt, you know, we're the third branch of government, and people out there don't know what on earth we're doing. So, I said we got to start educating these people. You know, my philosophy is, you want to be successful, you get people who you know can do things that'll make you successful. Because you go ahead and you get successful people.

>> One of the programs that you set up during your tenure as Chief Justice was the teacher institute that still exists today. In fact, we're getting ready for the next one in just a few days. Why did you think that was an important program?

>> Well, because, you know, it's educational, and these teachers come from all over the state of Florida, and they're going to go back there. And, they're going to tell their students about the court system and tell other teachers about it and school principals and school superintendents who might get the idea, hey, maybe this is something we ought to have for all the schools in our jurisdiction. And, that turned out to be the way it is, and you needed that because we were sinking as the third branch of government. We needed something to pick us up.

>> The teacher institute, of course, is one of several things that is still continuing to this day that you started. The other are the broadcasts of oral arguments. How did that come about? What was the motivation behind that?

>> Well, again, you know, we came up with the idea that we need to show people what goes on in the courtroom, and I said the best way to do that is use television. So, if they want to find out about it, they can just tune into it. And then, when Sandy D'Alemberte came around and said, "Hey, I got $300,000 worth of equipment that you could use for that. Do you want it?" I said, "Send it over." And, sure enough. You know, the early days of cameras in the courtroom, there was one major problem and that is the cameras were visible. Today, you know how to hide them, and that was necessary because a lot of the arguments against having that was, well, you know, it's going to distract the judge, well, the judges. Or, the parties, attorneys are going to want to show business, you know, and play for the cameras. But, when you have them hidden and nobody even knows they're there anymore, it's going to work out for you. And, besides, it's an educational tool. Something they don't get in everyday school.

>> I often hear people talk about attorneys grandstanding for the cameras, but my experience, now, watching this for more than 20 years is, usually, if they're aware of the cameras, it makes them scared to death.

>> That's right.

>> As I recall, as a matter of fact, the very first day we went live on television, I think I slipped you a piece of paper and said, you know, that you could go ahead and announce that we were live on television. And, the very first attorney got up at the very first arguments and then fainted. I remember you actually calling out from the bench asking if there was a doctor in the house. So, that's one example, I think of, that disproves this contention so many people make about grandstanding for the cameras. You also were behind the court using the internet to distribute public documents. That was something that you and Justice Overton started when we created our first website, and it was during your tenure as Chief Justice, in response to requests from the news media, that we really began placing the documents online. Why did you think that was important?

>> Again, to say this court is not operating in mysterious ways. This is a public institution, and the public has a right to know what we are doing.

>> One of the outcomes of all of that happened two years after you left the court when the election of 2000 kind of went awry here in Florida. All of a sudden, the Florida Supreme Court was under international scrutiny. It must have been interesting for you to watch that because everyone was watching the Florida Supreme Court on the cameras that you had put in place here, and they were accessing the documents on the website that you had put in place here. What did you think about how the court operated during that period of time and under such intense scrutiny?

>> A lot better than the way the U.S. Supreme Court operated under the same thing. I thought the court here handled it the way it should have been handled.

>> What about the contrast between the Florida Supreme Court televising everything and the U.S. Supreme Court not televising anything? How did you feel about that?

>> U.S. Supreme Court should, for the nation, let all of their oral arguments be heard.

>> What have you been doing since you retired? I know you and Irene have continued to live in the Miami area. I see that you've kept busy with a variety of different organizations. Just tell us briefly what you have been doing.

>> Well, when I first left the court, I went down, and at the behest of Tad Foote, the president of the University of Miami at that time, they had formed a citizens organization called The Alliance for FL Government, and they wanted me to be president of it. So, I did for a period of three years, and we achieved, you know, some good things, but the problem is you're dealing with politicians. And, politicians are politicians, no matter which way you slice it. And, no matter how good a program you come up with, it goes against what the politicians would like to see happen. You know, politicians are guided by a three-pronged message. Number one, get yourself elected to office. Number two, get yourself reelected to office, and number three, do whatever is possible to achieve the first two. Now, when you've got that kind of a mindset, there's almost nothing that you can do. When their biggest concern is will I get reelected, and nothing else comes into view. People who are elected to public office should have a first thought in mind is for what is good for the people. Can we move on that? And, unfortunately, too many politicians don't do that, and that's why you get some of the crazy laws that we have today.

>> You've had a long and distinguished career. What are your reflections on, looking back at your life now on the entire scope of what you've done as a lawyer and a judge?

>> Well, I like the thing that I introduced some new things to the legal system. I think I've helped many, many people solve problems that they had. My philosophy is that if you're going to hold public office, you must say what is the first thing that I should be interested in. And, the first thing that I should be interested in is am I servicing the people. Do I take actions that I believe will help our society. And, if you can do that, nobody can say that you're doing something wrong. But, if you don't do it, you shouldn't be holding that office because you're now doing away with the confidence that people had when they voted for you. And, that's my solution about life. If you can do the job and do it correctly, good. If you can't do it, then go somewhere else and do something else.

>> To any lawyers who are just starting their careers today right out of law school, what advice would you give them?

>> The advice that I give them is that I know that most of you want to make a lot of money. Don't concentrate on just making a lot of money. Concentrate on what lawyers are there for. They're there to help people, and if you're doing that, then you can make a success out of the profession. You know, the money that you can live on will come if you follow that. It may not come as fast as you want it, but eventually, it will come.

>> And, thank you Judge. We really appreciate it.

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