Lexington Herald-Leader Editorial

Retire Wintersheimer

He Has Dangerous Opinions; A Promising Challenger

Two terms on the Kentucky Supreme Court are enough for incumbent Justice Donald C. Wintersheimer. Voters in Northern Kentucky's 6th Supreme Court District need to replace him with Maysville lawyer Edwin F. Kagin.

Our reasons for suggesting a change at this time involve both Wintersheimer's record during 16 years on the state's highest court and the commendable attributes Kagin would bring to the job.

Wintersheimer's performance on the court deserves what drama critics might call a mixed review.

On the positive side, he's been a pretty consistent vote for openness in government -- a philosophy that's all too often missing among Kentucky public officials. He voted with the majority in a 4-3 decision upholding the broad-form deed amendment voters approved in the late 1980s. And a couple of his votes suggest he is a critic of the archaic legal concept of sovereign immunity (the king, or government, can do no wrong) Kentucky governments still use to avoid liability for the damages they might do.

But these positives don't outweigh Wintersheimer's negatives. A review of several important cases handled by the court during his tenure tells us Wintersheimer is too willing to ignore the clear language of the state constitution, too willing to overlook prosecutorial and judicial error in criminal cases, too willing to turn his back on religious freedom, too willing to deny individual rights to women and homosexuals.

Fortunately, many of Wintersheimer's most troubling votes were cast in dissent of majority decisions, including rulings that kept public money from being spent on private school transportation and textbooks; allowed the family of a woman who had been comatose for decades to remove her from life-support equipment; overturned Kentucky's sodomy law; and allowed couples desiring children to seek the help of surrogate mothers.

A couple of times, though, Wintersheimer wrote majority opinions that ignored clear constitutional prohibitions. One ruling approved a portion of the state incentive package for Toyota; another allowed governments to get around constitutional limits on public debt.

We'll be among the first to admit that our archaic state constitution is far too detailed and far too restrictive. We'll also acknowledge that each of these rulings ultimately had, or may have, considerable public benefit. But we still believe there is a right way and a wrong way to rewrite the constitution. Judicial fiat is the wrong way.

On balance, Wintersheimer's record does not justify re-election to the Supreme Court -- not when there's a candidate as appealing as Kagin.

Kagin decided on a legal career after a brief period of teaching English literature in college. He practiced in Cincinnati, Northern Kentucky and Louisville before moving to Maysville a few years ago.

Because ethics rules bar judicial candidates from addressing legal issues in their campaigns, we have no idea how Kagin would vote on the cases that might come before him. What we do know is that he has an extensive background in the practice of constitutional law, and a scholarly knowledge of and appreciation for legal history.

That combination gives Edwin F. Kagin the potential to be an intellectual force on the Supreme Court. We believe Northern Kentucky voters should give him the chance to fulfill that potential.