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Reflections from the Bench, Episode 4: Former Justice Herb Brown

Justice Pat Fischer: Good afternoon. Joining me now is former Ohio Supreme Court Justice Herb Brown. How are you doing?

Former Justice Herb Brown: I'm doing fine.

Justice Pat Fischer: Great. You served basically from 1987-1993, one term. You went to school at Denison University and then the University of Michigan, the school up north for law school. You started your law career at Vorys law firm.  What was it like to be an associate?

Former Justice Herb Brown: It was really interesting there. I was the 14th person. And now they've got 205 associates. The one thing I remembered — no law firm in Columbus had a summer clerk program. Attorney John Elam was interviewing third year law students.  I was looking at a New York firm for a summer program and I saw this firm for Columbus. I asked to meet him. We hit it off. I came down for the summer and never interviewed again. John called me with the offer to be an associate. He offered me 250 dollars a month and I don’t think I jumped up and down from that. So he called back an hour later. He said the partners have met and we're going to make it $325. I thought that was terrific.

Justice Pat Fischer: A big pay raise.

Former Justice Herb Brown: A big pay raise before I started.

Justice Pat Fischer: Now after you'd been there a while, you went to (the army). Were you drafted or did you volunteer?

Former Justice Herb Brown:  I volunteered for JAG. (Judge Advocate General’s Corp). That was after the summer clerk program. Well, I did have six months as an associate. But I knew the Vietnam War was still on and I had to make a military commitment. I left for three years and came back.

Justice Pat Fischer: Did you enjoy it, JAG?

Former Justice Herb Brown:  I loved it. The cases I got into were in the defense appellate division. (The division) argued any case where you get a dishonorable discharge over a year's sentence. You go to the board of review and then to the court of military appeals, which is a pretty credible court. A former governor of Michigan and a former senator from Rhode Island were on it. (While) going down to one of the board of review hearings one day, one of the colonels followed me and said, Lt. Brown, you have something unique that most people your age don't have. I thought what is that? He said clients.

Justice Pat Fischer: That's true. The other side is the United States.

Former Justice Herb Brown: So you had a lot of cases.

Justice Pat Fischer: That’s good. Probably was enjoyable.

Former Justice Herb Brown:  And it was appellate work, which I liked.

Justice Pat Fischer:  You came back to Vorys (law firm). You spent a long time there. You made partner in 1965 and you stayed there until 1982. Right?

Former Justice Herb Brown:  Yes.

Justice Pat Fischer:  So you had basically 22 years there?

Former Justice Herb Brown:  Yes.

Justice Pat Fischer: During that time, you were involved with the bar exam. Tell us about that.

Former Justice Herb Brown: Well I was a bar examiner and then I was put on the multi-state evidence committee.

Justice Pat Fischer: Did you enjoy reading all those handwritten (trails off)?

Former Justice Herb Brown: That was a chore and that was in the day when you read them all. There was no free pass when you scored so well on some questions.

Justice Pat Fischer: Did you correct any of the writing?

Former Justice Herb Brown: No, I just gave it a number.

Justice Pat Fischer: I understand your first foray into public service was, like me, with a loss. It was for the House of Representatives?

Former Justice Herb Brown: Yes, and that's an interesting story. Well, I was up on a ski weekend at Mansfield and on Sunday morning, I see the Columbus Dispatch. I see my name listed as the candidate. I think it was a 58th district. This was the first year they had not run at-large in Franklin County and that turned out to be the most Republican district in the state. But I went into Art Vorys’ office on Monday and told him. He was pretty active in the Republican Party. He says absolutely do that (run). It'll be great for you as a young lawyer and he says go down and tell the Democratic chairman that you're not going to give him any money. They wanted money for ads and you're offended that they put your name in the paper without telling you. So that's how it happened.

Justice Pat Fischer: They knew you and they thought that you’d be ...?

Former Justice Herb Brown: They thought the name was good.

Justice Pat Fischer: OK, let's go back to the beginning because you have an interesting story to tell. I understand that you never really contemplated running for the (Ohio) Supreme Court until much later?

Former Justice Herb Brown: I didn’t and there's a story behind that too. When I ran for the legislature, C. William O'Neill, who was the chief justice, was a member of my church. After church, he said Herb, you are running for the wrong office. You should have run for Supreme Court because (of) the name factor. I was also involved in trying to get a novel published. I wrote 12 (books) before I got one published and I was struggling with that. George Jenkins called and said there's an open seat on the Supreme Court. I can get people to help you. I think you ought to run for it. And I decided I would do that.

Justice Pat Fischer:  That was a three person race?

Former Justice Herb Brown: It was a three person race.  I'd gotten a good agent for a novel. It didn't sell it but I had taken a leave from Vorys to pursue that.

Justice Pat Fischer: This was 1986, right?

Former Justice Herb Brown:  Yes.

Justice Pat Fischer: And you'd left in 1982?

Former Justice Herb Brown:  I was off three years on the calendar.

Justice Pat Fischer: But you weren't endorsed Democratic?

Former Justice Herb Brown:  No, I was not. I could have been endorsed had I ran against Bob Holmes. John Elam and other people that were helping me said, don't do that because your strength will be in Columbus where Bob is popular. So I decided to run against Don Ford who is also a Michigan graduate in my class.

Justice Pat Fischer: Really. How did you do that? Well, that was the only other open seat right?

Former Justice Herb Brown: That was the only open seat. And I had my manager John Kulewicz.  (He was a) real young lawyer and he had managed Gary Hart's presidential campaign. He knocked off (Walter) Mondale in Ohio. It was a really big upset. He had people all over the state. He agreed to manage my campaign and he brought all those people because, at that time, (Gary) Hart was viewed as viable.

Justice Pat Fischer: That was before the monkey business?

Former Justice Herb Brown: It was before monkey business. Yeah. So it wasn't like I was totally without some cards.

Justice Pat Fischer: Now it was Clifford Brown’s seat, right?

Former Justice Herb Brown: It was Clifford Brown’s seat.

Justice Pat Fischer: But he wasn't running, right?

Former Justice Herb Brown: He was not running, no.

Justice Pat Fischer: He was aged out or retiring?

Former Justice Herb Brown: Yes I think he was aged out because he would (have) very much liked to stay on. In fact, he didn't get out of his office until the first day I was up there and he kept coming back.

Justice Pat Fischer: He didn't have anything else to do.

Former Justice Herb Brown:  He didn’t have anything else to do.

Justice Pat Fischer:  You once described the Supreme Court of Ohio as one of most interesting, rewarding, and challenging jobs in your life?

Former Justice Herb Brown: That's true. That was true to a point. I think writing plays now would be up there. But certainly in the legal field, it was. The Ohio Supreme Court is underrated academically.

Justice Pat Fischer:  Because you work hard, don't you?

Former Justice Herb Brown: Well, you got to work hard and (there’s) the cases. Because of you're only taking one out of 12 (cases). I don’t know what it is now.

Justice Pat Fischer: One out of 20.

Former Justice Herb Brown: So, you're selecting interesting, close cases. And at the time, I had a good friend, Val Norris, who was on the 6th Circuit. He said, half our stuff is criminal appeals drug cases and stuff. The Ohio Supreme Court was a far more interesting thing than that. And if you think of the subjects taught in law school, 90 percent of them are resolved by state decisions.

Justice Pat Fischer: Did you ever, prior to the early 80s, did you ever think you wanted to be a judge?

Former Justice Herb Brown: Not really.

Justice Pat Fischer: I mean, I think it passes the mind of most lawyers, certainly litigators.

Former Justice Herb Brown: Actually, Justice O'Neill's comment put it in my mind.

Justice Pat Fischer:  That’s good. Some of your colleagues have called you “capable”, “with integrity”, and “with impartiality.”  Was that something you tried to?

Former Justice Herb Brown: I think I was helped by the demographics of the court. On the political controversial cases, there were three votes. Solid on one side and it wasn’t party. There were (Justices) Bob Holmes, Tom Moyer, and Craig Wright. On the other side were (Justices) Francis Sweeney, Alice Resnick, and Andy Douglas, a Republican. The Daily Reporter did a survey of cases. I got to decide 95 percent of everything. I was a swing vote.

Justice Pat Fischer:  You were the swing vote, we’ll talk about that in a minute. One of your opinions from 1992 was State vs. Wyatt.  It had to do with hate crimes. Can you tell us about that because that was pretty prominent? It went up to the (U.S.) Supreme Court.

Former Justice Herb Brown: It was a fascinating case and I wrestled it this way. I came down thinking that the law was unconstitutional because it seemed to me that hate is involved in a number of murders. It (the motive) can be because someone's fat.

Justice Pat Fischer: Angry at a spouse.

Former Justice Herb Brown:  Sleeping with your wife. To shorten it down, you're criminalizing motive. And I thought it was unconstitutional.

Justice Pat Fischer: You wrote the majority opinion in Ohio. And the (U.S) Supremes disagreed.

Former Justice Herb Brown: They disagreed. They reversed a case out of Wisconsin and then, just by a one-liner, took care of us.

Justice Pat Fischer: It happens. At the time you were on the court, there was a lot of controversy about the death penalty. Can you tell us your thoughts on the death penalty?

Former Justice Herb Brown: My thoughts were and are that the death penalty is costly, it’s burdensome to the courts. At that time, we had to review them all, they came through the court of appeals, and people were not being executed. There were people who had been in prison 20-30 years, and I was opposed to it because I felt it was discriminatory. But when I ran, my position on that was that's the law of the state. And it's not up to me to change it. So I voted for death penalty cases. Craig Wright was the most reluctant to vote for those but I did kind of make it a rule. If it was 3-3, I wasn’t going to be the fourth to put somebody away.

Justice Pat Fischer: It is, from my experience, it's the type of cases that make you think about it at night and you think about it quite intensely.

Former Justice Herb Brown: Quite intensely. There was one case I do remember, it was Aponovich. It was a defendant up in Cleveland. I wrote the dissent on it.  It was a close case and there was a question of DNA evidence. Just five years ago, he got freed.

Justice Pat Fischer: Oh wow.

Former Justice Herb Brown: I felt really good and justified there. The evidence was discovered that led to freedom.

Justice Pat Fischer: At the dedication of your portrait, down at first floor, I believe it was Tom Moyer.

Former Justice Herb Brown:  I had a great relationship with him. I really liked him. We were very good friends. He put it down there.

Justice Pat Fischer: But you asked Justice (Alice) Resnick to speak and she was touched by your request. She said “Herb’s sense of fairness was legendary. He never approached a case with a preconceived idea. I was impressed with that quality in (him) that (he) was remarkable to work with closely.”

Former Justice Herb Brown: I had forgotten that I asked her because I felt that maybe I had to honor the political party and I felt sympathy for her.

Justice Pat Fischer: Were you friends?

Former Justice Herb Brown: I wouldn't say really close. I actually was probably closer with Tom Moyer.

Justice Pat Fischer: I also understand you were friends with Craig Wright?

Former Justice Herb Brown: Very close.

Justice Pat Fischer: Your offices were right next door and your clerks hung out?

Former Justice Herb Brown: We would bet on ball games.

Justice Pat Fischer: Is that right?

Former Justice Herb Brown: Craig was a very smart guy.

Justice Pat Fischer: OK. Tell us how your friendship developed with Craig.

Former Justice Herb Brown: Well, it started out a little bit antagonistic. He was the judge in the Guccione libel case. I got irritated during that case. I was the local counsel and there was a New York lawyer. We had a witness on as the jury was parading out. Craig says, so a couple of them could hear, that's the biggest liar I ever saw. And at first, he denied saying it. Then he got very humble about it and tried to say something about it in (jury) instructions. But it left me with a bad feeling. But when we got on the Court, we became very good friends from discussions or common interest.

Justice Pat Fischer: From discussions?

Former Justice Herb Brown: Common subjects.  He liked sports and we were very much together on the criminal stuff.

Justice Pat Fischer: 1993, you decided to leave. You could have run again. In fact, you could have run twice more.

Former Justice Herb Brown: I could have.

Justice Pat Fischer: And you decided not to.

Former Justice Herb Brown: That was because I had sold a novel.

Justice Pat Fischer: Let me read you what you officially stated.

Former Justice Herb Brown: Ok, I may have to amend that.

Justice Pat Fischer:  Quote I've had a longstanding 17 year interest in writing fiction. I'm now in that game, having (been) published. I looked at a Supreme Court term which would end when I'm 67, and who knows how much energy I have at that point?

Former Justice Herb Brown: I'm still asking myself that question.

Justice Pat Fischer: Well, that's 25 years ago. You obviously had plenty of energy.

Former Justice Herb Brown: Well, the older you get, the more you question that.

Justice Pat Fischer: I agree with that. And you know what else I found out? It really saddened Chief Justice Moyer that you were not running. Did he say anything to you?

Former Justice Herb Brown: Yes. And he even spoke publicly about it.

Justice Pat Fischer: What did he say?

Former Justice Herb Brown: Things like, I’d like to persuade Herb to run again.

Justice Pat Fischer: He couldn't do it?

Former Justice Herb Brown: No. You would understand this. There's a passion about running for political office.

Justice Pat Fischer: You've got to have the energy.

Former Justice Herb Brown: You've got to have the energy and there's an energy in it. The same thing is true of writing.

Justice Pat Fischer: And you’re passionate about writing?

Former Justice Herb Brown: Once your passion gets hooked, it's hard to get away from it.

Justice Pat Fischer: So you're writing these days? In fact, we have two of his novels here. “Presumption of Guilt,” which was published in 1991.

Former Justice Herb Brown: Yes, not my title.

Justice Pat Fischer: “Shadows of Doubt,” published in 1994 and “Power of God.”

Former Justice Herb Brown: That was a play.

Justice Pat Fischer: Ok. Why did you like to write novels?

Former Justice Herb Brown: That’s something that I’d always thought of. At one point, I wanted to be a sports writer. I did a lot of journalism in high school and college.

Justice Pat Fischer: By the way, I did the same for the high school paper. At St. Xavier High School. I was the stringer for the high school paper.

Former Justice Herb Brown: I was a stringer for the old Columbus Citizen. I enjoyed it. I got a couple of bylines.

Justice Pat Fischer: When you're in high school, that’s a big deal.

Former Justice Herb Brown: They paid me fifty bucks for the season.

Justice Pat Fischer: So you moved to plays. “Power of God.”

Former Justice Herb Brown: That was a short.

Justice Pat Fischer: OK. It was a short, but then the one I knew first when I heard your name signed with was “You're my Boy.” Yes. Tell the citizens of Ohio about that.

Former Justice Herb Brown: Well, that play is still kicking around. There's a producer in New York, hasn't done anything for a while. He's trying to get something done on it. It's a play basically about the relationship between (President Richard) Nixon and (President Dwight) Eisenhower. They didn't know each other. The ticket was put together by Thomas Dewey who had been the standard bearer of the previous two times and was governor of New York. He thought Nixon was up and coming. Nixon was only six years out of the Navy and, in that time, he'd beaten a five term congressman. Then, when he ran for re-election as a congressman, he cross-filed. This is something hardly anyone knows and he won the Democratic primary.

Justice Pat Fischer: Is that right?

Former Justice Herb Brown: So, he was unopposed in the general election. And then two years after that, he defeated Helen Gahagan Douglas for the Senate. He (then) got involved in the Alger Hiss matter and got a lot of publicity. And six years out of the Navy, he's vice president of the United States.

Justice Pat Fischer:  Versus somebody who would run the war? The European war.

Former Justice Herb Brown: Well, he worked on the ticket with that person. But because Eisenhower didn't know him. Nixon had the perfect opportunity to move up to president if he wins Eisenhower's support. They were very different people. And Nixon is humiliated in one crisis after another.

Justice Pat Fischer: It obviously energizes you. Why?

Former Justice Herb Brown: Because the slights that Nixon feels.  Eisenhower wanted to move him into the cabinet when he ran for re-election. (Eisenhower’s Chief of Staff) Sherman Adams was very much in his ear trying to get him to do that. Nixon gives everything he can to win Eisenhower's approval and doesn't succeed in doing it. And Eisenhower said to Dewey at one point, all he thinks about is politics. Nixon was a master politician. Eisenhower was very naive and used Nixon for political stuff. So it's an interesting look at the presidency where political skills are sometimes undervalued. A president can't do anything unless he has political skills or political capital. If you're all politics, that's not good either. So it's interesting in that respect. Nixon comes in as an idealistic young politician. I'm not saying that there weren't latent tendencies there, but I think (there was this) crucible of being humiliated over and over by Eisenhower. In the campaign against Kennedy, Eisenhower said give me a week to think about. It turns him (Nixon) into the bitter paranoid Nixon of Watergate. And I think that transformation is interesting.

Justice Pat Fischer:  Very. Why did you decide to become a writer and give up a pretty good legal career?

Former Justice Herb Brown:  Yeah. That was not exactly rational. I say it went way back. I always kind of wanted to be a writer from high school.

Justice Pat Fischer: Your high school days? Now, I also understand that your favorite book was by A. A. Milne?

Former Justice Herb Brown:  Yeah, “Winnie the Pooh.”

Justice Pat Fischer: Tell the people why.

Former Justice Herb Brown: The characters are so human. My favorite character is Eeyore, the donkey.

Justice Pat Fischer:  I have a friend. We call him Eeyore. He’s always negative about everything.

Former Justice Herb Brown: You’re right. And Tigger. Very bouncy. How about Elizabeth Warren for Tigger jumping up and down?

Justice Pat Fischer: You say you like plays better than books. You've written both?

Former Justice Herb Brown: I liked writing dialogue in the novels.

Justice Pat Fischer: How do you come up with your ideas?

Former Justice Herb Brown: It has to grab hold of you.

Justice Pat Fischer: What do you mean?

Former Justice Herb Brown: It has to be something that you relate to emotionally. The last play I did, which is more was more serious, was the relationship between Henry and Edsel Ford. The father-son (relationship), he was very abusive, a tough guy, and he didn't really recognize the strengths that Edsel had. Edsel actually saved the company time after time.

Justice Pat Fischer: The company seems to be doing pretty good now. You ever miss being on the Supreme Court?

Former Justice Herb Brown: Oh yeah, I do.

Justice Pat Fischer: Why?

Former Justice Herb Brown: I miss the comradery, which was actually pretty good when I was there.

Justice Pat Fischer: Still is.

Former Justice Herb Brown: Is it? That’s good to hear. I miss the challenge of the decisions, but you can't do everything.

Justice Pat Fischer: No, you can’t. You said you become close with Tom Moyer. Were you?

Former Justice Herb Brown:  Yes.

Justice Pat Fischer: Why is that? How did that develop?

Former Justice Herb Brown:  We’d been pretty friendly before he was on the court. I don't know, I think we just sort of hit it off. Our personalities are somewhat similar, a little bit laid back. I don’t want to get too deep into this, but he was having trouble with Andy (Douglas). He was walking out of conference. We talked a lot about that and I think that I was a source of help to him.

Justice Pat Fischer: Good. Can you tell us some of your best memories of being on the Court?

Former Justice Herb Brown:  My favorite aspect of the job was oral arguments. I loved, while struggling with the same issues, you could go into another justice’s office, sit down, and shoot the breeze, talking about a case.

Justice Pat Fischer: That intellectual interplay?

Former Justice Herb Brown: Unlike in the (law) practice, when you get involved in a big case, you might be with it for two years. But on the court, you get 10 or 15 new ones every week. So you don't get bored with the cases and I actually enjoyed looking at the motions to certify.

Justice Pat Fischer: Motions for jurisdiction.

Former Justice Herb Brown: Most of them, I think maybe all (justices), had their clerks do that. I like to read those myself.

Justice Pat Fischer I do too.

Former Justice Herb Brown: You do? My reason was it was a much more efficient. You can tell in 30 seconds that most of them aren't worth your time. So why have somebody read all through the stuff and prepare a five-page brief?

Justice Pat Fischer: Why did you like oral arguments so much? I mean, a bunch of attorneys would say that it didn’t seem to matter.

Former Justice Herb Brown: Yeah, I think it did. You can't say all the time, but I think it did matter on the close cases. For example, the one you brought up, the Wyatt case. I'm sure I can't be specific, but in a case like that, probing the issues with counsel, because I know I was in doubt about that when we left the bench.

Justice Pat Fischer: Let me ask it this way. What I found is that oral arguments may or may not change the ultimate result, but it sure has an effect on whether it's a narrow or broad decision.

Former Justice Herb Brown: Absolutely. It has an effect on what you say. But I think even sometimes (it) changes the result. But it's not it's not an everyday thing.

Justice Pat Fischer: What about any kind of negative memories?

Former Justice Herb Brown: You know, not really.

Justice Pat Fischer: That’s a good thing. If you had to give your younger self, an 18 or 25-year-old Herb Brown, one piece of advice, what would that be?

Former Justice Herb Brown: I guess don't worry so much about what other people think.

Justice Pat Fischer:  Last but not least, if you had to describe your legacy what would you want it to be?

Former Justice Herb Brown: To be honest, I don’t think I have one. I'm not sure any justice has a legacy. Maybe Tom Moyer because of the building and he'd been there (for a long time). But in terms of the cases, I don't think they get associated with a particular justice.

Justice Pat Fischer: You know what’s interesting? In the U.S. Supreme Court, viewers don't know this, the majority, either the chief, he or she, or the senior justice assign (opinions for justices to write), can you tell the viewers how we assign?

Former Justice Herb Brown: Yes, and that's where I felt very strongly that the Ohio system is much better.

Justice Pat Fischer: I agree. For the citizens, (this is) what happens. If you are in the majority, there’s a pebble with a bunch of numbers on it. If you are in the majority, it goes into a kelly pool bottle and the first one out writes it. It’s strictly random.

Former Justice Herb Brown: Unless you’re the last person on the line, but you can dissent to avoid it. The (U.S.) Supreme Court is assigned by the senior justice in the majority. That involves people like (U.S. Supreme Court) Justice William O. Douglas, who was an expert in securities law. All the cases go to him. Interesting thing on the Ohio Supreme Court. First week we decided cases, Tom Moyer and I were new on the court.  I draw a bills and notes case. Tom draws a torts case. I say to him, do you want to switch? He said, I'd love to switch cases. I practiced in torts. And Tom knew something about commercial law and they stopped us. They said, no, you aren’t allowed to do that. They said you have to vote on everything. It makes sense to take cases and learn something about all the areas of the law.

Justice Pat Fischer: This is true. First day I was on the court, I pulled a death penalty case and a tax case. I had never done a death penalty case or a tax case in my career.

Former Justice Herb Brown: I got stuck with the bills and notes case. I hated that course in law school.

Justice Pat Fischer: What would you tell young writers today?

Former Justice Herb Brown: The best advice I got was from a writer who helped me. (He) told me you have got a little bit of ability here, but it is an extremely difficult field to penetrate. I had read there are more people making it on the professional golf tour than there are making a living as professional writers. Lots of them are professors or have other jobs. And his advice was, you've got to look at it as a wall. And you've got to keep butting your head into it. And if you keep butting your head long enough, it will yield.

Justice Pat Fischer: Thank you for taking the time to come in. I hope you enjoyed it. I think this is very important for the history of Ohio.

Former Justice Herb Brown: Well, thank you for getting behind this program and for the very careful preparation that you obviously did. I've enjoyed it. Thank you.