THE FEDERAL  COURTS OF THE TENTH CIRCUIT:  A HISTORY

Edited by Honorable James K. Logan

         With the Assistance of

                  J. Terry Hemming

                         Catharine McGuire Eason

                Ruthann Rohnborg

                       And the Tenth Circuit Library Staff

Published by the U.S. Court of Appeals

for the Tenth Circuit, 1992

 

            On November 7, 1955, Ewing T. Kerr, appointed by President Eisenhower, was sworn in as Wyoming's third federal judge since statehood.

            Ewing T. Kerr was born in Bowie, Texas, in 1900, the youngest of four children. His parents had come to Texas as children, his father’s family from Pennsylvania, and his mother's family from Tennessee. Kerr's father was a rancher and in the cattle-raising business with his brother. When Kerr was a year old, his father moved the family and the ranch business across the river to the Indian Territory (Oklahoma). Kerr's father was appointed local postmaster for the duration of President Theodore Roosevelt’s term. Kerr remarked, “It was said that the reason he got the job was that he was the only Republican in the county.” 

            Kerr's childhood was a rural one. He admits to indulging in the time honored Southern tradition of watermelon snitching in his youth. He was fond of animals and brought home many stray dogs and cats and, on one occasion, a possum. Kerr attended public schools in Loco, Oklahoma, and graduated from Loco High as valedictorian in 1918.

            In 1920 Kerr's father was appointed superintendent of the Platt National Park in Sulphur, Oklahoma, by the secretary of the interior.   Kerr's father held the position as superintendent until his death. 

            Kerr decided on teaching as a career with a college professorship as his ultimate goal. He attended Central State College in Oklahoma for three years and then transferred to the University of Oklahoma where he received an AB in 1923. That same year he returned to Central State College and completed the work required to be awarded a B.S. degree. While in college he was a member of the debating team and lettered in baseball and wrestling. After graduation Kerr was employed as principal of the junior high school at Hominy, Oklahoma, from 1923 to 1925. It was during that time that he changed directions and began the study of law. He boarded at the home of Kenneth Lott who had come to Oklahoma only a few years after graduating in law from the University of Kansas, where he had been a part-time instructor. Lott had retained the legal textbooks which he had used.   Kerr became interested in reading the books and Lott told him he showed a particular aptitude for legal studies. Lott began to tutor Kerr and over the next two years Kerr read all of Lott’s textbooks and pursued a course of study Lott set out. Lott administered legal exams and also had Kerr assist him in his law office work writing briefs and preparing pleadings. Kerr said he read every text from contracts to torts. 

            Kerr’s sister, who was teaching school in Cheyenne, Wyoming, suggested he join her there. He moved to Cheyenne in 1925, one year after the streets of the frontier town were paved. Kerr was employed as principal of Corlett Grade School named in honor of W.W. Corlett. pre-territorial lawyer. During this time he pursued a masters degree in political science and history at the University of Colorado while continuing his legal studies.   At the time, one could qualify to take the bar exam after two years of supervised study and one year of unsupervised study. Kerr was admitted to practice law in Wyoming on January 25, 1927.

          From the time he arrived in Cheyenne, he took part in community affairs. He was active in the Chamber of Commerce, Red Cross, Salvation Army, fraternal groups, his church, and Republican politics. He helped finance and construct the first concrete tennis court in Cheyenne, a sport he particularly liked.

          Kerr particularly enjoyed politics. He became active in the Republican party almost as soon as he arrived in Wyoming. He enjoyed campaigning, writing and giving speeches on behalf of various candidates. The first campaign he took part in was in 1926 and throughout the following years he traveled throughout  the state on behalf of the Republican Party.

          Judge Kerr points to one of his early speaking engagements as the beginning that led him to the federal bench.   In 1928,  Kerr was asked to introduce several county and state candidates in Pine Bluffs, a small ranching community east of Cheyenne.  Senator Francis E. Warren was in attendance and was to be introduced to the crowd by a “big shot” politician who failed to appear. The sponsors asked Kerr to take over the introduction of Warren. Warren was by this time a legend in Wyoming and Kerr was nervous at the unexpected honor of introducing the senator.

          Shortly after this incident, a vacancy came up in the U.S. attorney's office for an assistant U.S. attorney.  Warren called A.D. Walton, the U.S. Attorney, to discuss the appointment and suggested that he consider that “young fellow, who introduced me out in Pine Bluffs.” Wa1ton wasn't sure who had introduced senator and checked with Kerr to see if he had been the one. Upon confirming that fact, Kerr was asked to become the assistant U.S. attorney.

          Kerr held the position until 1933 when the Democrats came into office. During the last part of his time as assistant U.S. attorney, he handled the infamous "Casper conspiracy” case. This was another in the series of city-wide violations of the prohibition act in the state.  The mayor, chief of police, sheriff, and 34 other Casper citizens were indicted and tried on conspiracy charges. The officials were charged with conspiring to give a monopoly to two large illegal distilleries, for which they were paid over $360,000. The officials had even gone to the extent of setting up a bootleggers' warning system. They equipped the courthouse roof with two lights: a red light was used when the “feds” were in Casper and a green light was flashed when deliveries could be made.

            A case of this nature had its unsavory moments. One of the government's witnesses was released from jail at four a.m. in an effort to keep him from testifying. Several hours later he was found dead with his liver lying beside the body.  The government's star witness, the bookkeeper,  was also slated for execution. An “underworld character from Chicago” was sent to Cheyenne to accomplish the job. He was discovered and left town without completing his contract.

             In his remarks to the jury, Kerr asserted, “that something more than the prohibition law is involved.  The issue of men in public office who betrayed every trust the citizens of Casper imposed in them is involved in this case.”  The jury was sequestered for a week, the first ballot was 11-1 for conviction but by the end the week the jury had reversed itself and acquitted the accused. The officials were nevertheless disgraced and never again held office in Wyoming.

            In 1933,  Kerr was married to Irene Peterson, a licensed pharmacist who had owned and operated a drugstore in Glendo. For the next five years, Kerr engaged in the private practice as a sole practitioner. He had a general practice and handled a variety of cases. Kerr also kept up his Republican activities during  the “long, lean years of the 1930s.”

             In 1938,  the Republican party returned to power in Wyoming. Nels H. Smith was elected governor and he appointed Kerr his attorney general. At that time, Kerr was the youngest man ever appointed to that office. Kerr wrote most of Smith's speeches and it was widely reported that the governor didn’t make a move without consulting his attorney general. A Wyoming newspaper reported,  “Kerr is recognized as an able lawyer and a keen student of the law. His work ‘behind the scenes’ for the administration has been outstanding . . . and he admittedly is the ‘key man’ of the new regime.”

            Upon accepting the appointment as attorney general, Kerr was immediately thrown into one of the most complex cases handled by that office, the North Platte River suit. The case involved a dispute over water rights between the states of Colorado, Wyoming and Nebraska. Eventually, the federal government asserted its own claim. The case had begun in 1935 and, by the time Kerr became involved in 1938, only Nebraska had presented its evidence.

            Kerr reduced Wyoming's special counsel from two to one and appointed W.J. Wehrli, a prominent Casper lawyer, as special counsel. Kerr gave what time he could afford to this litigation, but delegated most of the responsibility to Wehrli. A final decision was rendered by the Supreme Court of the United States in 1944, changing the ownership of one small ditch in Wyoming. In Kerr's words, the decision had very little effect. “We were right back where we started from.” 

            In August 1939,  Attorney General Kerr fulfilled Governor Smith's pledge by declaring that a gasoline trust existed in the state. He sent a telegram to Roosevelt's “trustbuster,” Thurman W. Arnold, asking his help in breaking the trust. Kerr noted that gas stations in every town in Wyoming charged exactly the very same price.   Gas refined in Wyoming was selling at a higher price in the state than in some neighboring states.  Kerr said, “Gasoline companies  have been guilty of unfair discrimination in prices charged the motoring public” and “the major oil companies have not only set the price but have contacted independent dealers with a view to getting them to raise prices on all occasions when the major companies advance their retail prices.” Arnold sent the FBI to investigate these charges and Kerr summoned representatives of four major oil companies to appear and answer accusations of price fixing and violation of Wyoming unfair competition laws. The company representatives denied these charges and told Kerr that enforcement of these acts would force “the companies to the wall.”  In the end,  gasoline prices were reduced an average of three cents a gallon.  With the arrival of World War II, the argument over the price of gas became moot when rationing went into effect.

            As early as 1940 and 1942 there was talk of a Kerr candidacy for the United States Senate.  His work as attorney general had brought approval from even a Democratic paper whose editor wrote: “In the Smith administration, Kerr) is the only one who seems disposed to ‘get’ out  and get things done. . . .   Kerr is one of the hardest working Attorney Generals (sic) Wyoming has ever had.” Judge Kerr said that thought he thoroughly enjoyed his political work, he never had a desire to serve as an elected leader.

            Kerr continued to serve as Wyoming's attorney general until 1943 when he entered the United States Army. He was assigned to a position in the Allied military government and served in North Africa some three months .  He established and supervised the civil courts for southern Italy and served as president of the Allied General Court. In addition, he was the reviewing officer of superior court cases tried in liberated Italy. In 1945,  he was promoted to the rank of major and assigned to Austria to re-establish the courts in Innsbruck, Salzburg, and Linz. Kerr has remarked that the judicial systems in both Italy and Austria excelled the American system, in that they “expedite justice and yet reach just conclusions.” 

            He returned to Wyoming in 1946 and to the private practice of law.  The same year he was selected to serve as chairman of the Republican State committee, a position he held until 1954, which is still the record length of service for that position.  He continued running campaigns, making speeches and bringing national figures to Wyoming, including Senator Robert Taft, Senator Everett Dirksen, Admiral Byrd, Governor and later Chief Justice Warren, Admiral Nimitz and Presidential candidates Dewey and Eisenhower.

            In 1954, the party urged Kerr to run to the Senate.  Kerr did not really want elective office and felt that U.S. Representative William Henry Harrison would be the better vote-getter in a race against the incumbent Democrat.  Representative Harrison assured Kerr on several occasions that he would not run for the Senate.  Kerr was convinced that it was the desire of the Republican party that he should announce his candidacy for the Senate seat, which he did.  Representative Harrison later changed his mind, entered the raced and defeated Kerr in the primary only to be defeated in the general election by Senator Joseph C. O’Mahoney.

            In 1955, Judge T. Blake Kennedy said he wanted to retire.  With the encouragement of Judge Kennedy and the sponsorship of Senator Frank A. Barrett, Ewing T. Kerr became Wyoming’s third federal judge.   The Wyoming Supreme Court, composed of William A. Riner (nephew of the first federal judge in Wyoming, Judge J.A. Riner), Fred Blume and Harry Harnsburger sent a letter to Senator Barrett commending Kerr as a “good qualified lawyer, with unquestionable integrity.. . . His appointment to this position would be very gratifying to each of us.” Many other letters were sent to Senator Barrett mentioning Kerr’s experience and the self-sacrifice he had displayed in his years of service to the Republican party.  One writer noted that he had “carried the torch of Republicanism through the years when such action, if not subversive, was rank heresy in the opinion of so many.”

            Kerr was sworn in as the third Federal Judge for the District of Wyoming on November 7, 1955, before an audience of 500 state and federal officials, family and friends.  Judge Kennedy presided over the ceremonies with the assistance of United States Circuit Judge John C. Pickett. Once again J.A. Riner’s Bible was used in the administration of  the oath of office.

            Judge Kerr's first official act was to announce that Judge Kennedy would continue to serve the federal judiciary, which he did for two years. Judge Kerr was the beneficiary of Judge Kennedy's experienced advice. One piece of advice the senior judge gave him was to remain active in community affairs as it would make him a better judge. Judge Kerr followed Judge Kennedy's advice rather than modeling himself on the conduct of Wyoming's first federal judge. He said he has never regretted that decision.

            Having sat on the bench for 25 years, Judge Kerr has tried a variety of cases. The number and types of cases have changed with the climate of the country and Wyoming in particular. When Judge Kerr began his tenure as federal district judge, Wyoming was in an economic depression and the country had yet to experience the explosion of litigation that began in the late 1960s. Presently, Wyoming is riding an economic boom as a result of the energy crisis and the state's vast reserves of coal and other minerals. Wyoming shares in the increased amount of litigation found in the nation as a whole, as well as litigation directly attributable to the energy growth in the state. The cases handled by the court in the 1950s were traditional legal disputes that had been handled by courts in the past. In the 1960s was the advent of civil rights cases and increased review of administrative agencies. Civil rights cases, administrative law questions, mineral and environmental cases, comprise the bulk of the cases for the 1970s and the beginning of the 1980s.

            One case handled by Judge Kerr in the 1950s concerned a trial of a swindler, Silas M. Newton, who claimed to have invented a "doodlebug" that could find oil. The gadget turned out to be a $2 war surplus electronic device. Mr. Newton had once lectured a University of Denver class on his "discovery" of a wrecked space ship complete with the bodies of “little old men” and had tried to pass off a piece of an aluminum pot as part of the spaceship.

            The Cold War made appearance in Judge Kerr's court when the judge administered the oath of citizenship to a Polish Air Force pilot who had flown his plane to safety in the mid-50s. The judge also heard many eminent domain cases in the early 1960s as the government acquired land around Cheyenne, Wyoming, for installation of part of the nation's Minuteman missile system.

            After the Chessman decision on the rights of prisoners, a surge of cases began in the 1960s. Also in the 1960s, Wyoming courts experienced a 60 percent increase in civil case filings. The Baker v. Carr decision of 1962 requirements and the dictates of the Wyoming Constitution required reapportionment every ten years and in 1963 Judge Kerr sat on the three-judge court which drew up the plan for Wyoming.

            Like his predecessors, Judge Kerr has continued the Wyoming practice of assisting other districts in handling their case loads. In 1962,  the judge heard the securities violation case in Denver of the fallen financial wizard Allen Lefferdink. During the lengthy trial, Judge Kerr, as was his practice, ordered the court to put in an extra half-hour each day in an effort to move the case along. Throughout his years on the bench he has continued to travel, holding court in all the states of the Tenth Circuit and in places as distant as Louisiana, California, New York and Puerto Rico. In 1961 he addressed the Federal Judge Seminar held for the benefit of newly appointed federal judges, giving a series of talks on typical situations the new judges would face.

            In 1967 Judge Kerr handled one of the longest and more complicated cases of his tenure. The lawsuit involved a corporate merger of Utah Construction and Mining Corporation and Lucky Mc Uranium. The controversy centered around the world's largest open pit uranium mine complex and a stock transaction of over $14 million.

            Aspects of Wyoming's frontier past persist. The federal court continues to have jurisdiction over the Indians in the Wind River Reservation in Wyoming and Yellowstone National Park. In 1968 Judge Kerr awarded a woman $35,000 for the death of her husband in Yellowstone National Park.   The man was killed when a 300-year-old tree fell on him as he was setting up his tent in the park Another suit in the 1970s concerned a young boy who had fallen into an area of thermal activity in the Park when he strayed from the walkway. Indian law cases have remained basically the same since statehood. They frequently involve assaults resulting from drinking or unlawful businesses or transactions by outsiders on the reservation. Land disputes between Indians and their White neighbors have also provided litigation over the years.

            Probably the most widely publicized case of his tenure was the "Black Fourteen" case in 1970. Fourteen black football players on University of Wyoming team sought to protest the Mormon church's policy of denying priesthood to blacks. When they followed the practice of black players on other teams by announcing that they would wear black bands in the game against Brigham Young University, they were dismissed from the team. The university administration and trustees sustained the coach's action.  The players filed suit seeking $1.1 million in damages. Judge Kerr dismissed the suit and the Tenth Circuit affirmed his ruling. 

            In general, the 1970s and the present decade are characterized by the increased amount of environmental litigation that comes before the federal court. Wyoming is a largely untouched area of wide open space, much of it owned by the federal government as national parks, recreation areas, national forests, wilderness areas, animal refuge areas and Bureau of Land Management land. The state also sustains significant agricultural and stock raising enterprises. Inevitably, conflicts between the federal government, environmental groups, ranchers and energy companies have arisen and ended up in the federal court.

            In 1971 Judge Kerr heard the famous eagle slaying case. Prosecution witnesses related that helicopter pilots would take “sportsmen” up to shoot at eagles in flight above the range. Over 700 eagles were killed as a result of this activity.  Eight hunters and one pilot were assessed fines by the courts.

            The passage of the National Environmental Policy Act (NEPA) resulted in suits over the necessity of filing environmental impact statements. The use of predator and weed control chemicals also brought litigation to the Wyoming federal court. Government changes in the status of federal land and the use of the power of eminent domain to acquire more government land remain a continuing source of litigation in Wyoming.

            Questions over the interpretation of mineral acts and deeds appear with frequency in Wyoming federal court. In two recent decisions, Judge Kerr has ruled on questions of mineral law.  Both cases necessitated a look at Wyoming history and consideration of what qualifies as a mineral under certain acts. One of the cases involved the question of whether a pre-statehood mineral definition of “all coal and other minerals” included oil and gas. Interestingly, the mineral reservation was connected with the Union Railroad land grants and the subsequent land sales by the railroad that began the State of Wyoming. Early newspapers and scientific journals were cited for the proposition that even in the 1800s, oil and gas were considered minerals. The second decision ruled on whether gravel was considered a mineral under the Taylor Grazing Act, another act that was crucial to the development of the state. 

            The growth of prisoner rights cases continued in the 1970’s.  In  1977, Judge Kerr was asked to rule on the right of prisoners to practice Satanism. The prisoners had been denied  certain articles including a baphomet, bells, candles, pointing sticks, incense and black robes. After the judge dismissed the case as frivolous, the Tenth Circuit remanded it to the district court to determine whether Satanism was a religion protected under the First Amendment.  In the meantime, the prisoner converted  to Christianity.

            The inflation and growth of government in the 1970’s and 1980’s have brought a new litigant before the federal courts - the tax protesters. For the most part these are citizens who have been convinced by one of several groups or by reading on the subject that they should not have to pay federal income tax. Usually they appear without counsel and offer emotional and imaginative arguments based on the Declaration of Independence and the Constitution. In 1975 while Judge Kerr was hearing the case of one man, he and the jury were warned that, “you had better believe that God is sitting in judgment on every person in this courtroom and his judgment can be swift.” The man had filed a complaint alleging $550 million in damages and had named the President of the United States, the United States Supreme Court, the Wyoming Supreme Court, all federal judges, the governor of Wyoming, the American Bar Association and the Wyoming State Bar as defendants. He charged that the defendants had conspired to enact the income tax laws and that the bar associations were altruistic societies, socialists, collectivists and communists.   The suit was dismissed by Judge Kerr as harassment.

            In January 1975 Judge Kerr took senior status in an effort to get a second federal judge for Wyoming and to be relieved of certain of the administrative duties federal judges must handle. At that time, Wyoming was the only federal judicial district with only one judge.  In taking senior status, Judge Kerr has not retired. He continues to put in a full day, handling approximately 50 percent of all cases on the Wyoming federal docket, and maintaining a current docket. He also continues his work in other districts.

            The judge maintains his many outside interests, including participation in several community and fraternal groups where, upon occasion, he delivers speeches.   Other interests include reading history, keeping abreast of current affairs, college football (especially Oklahoma and the University of Wyoming), professional baseball (in particular the Chicago Cubs), walking, and gardening. Judge Kerr's continued good health and active mind can in part be attributed to the fact that he and his wife have for the last ten years been responsible for rearing their two young granddaughters. A visit to the Kerr household necessitates watching out for assorted bikes, skateboards, roller skates, tennis racquets, and other youthful equipment.

          Judge Kerr enjoys continued mental and physical health and has no immediate plans for full retirement. His enjoyment of hard work and his love of the law indicate that he may yet reach the length of service put in by his two immediate predecessors.

            (Ewing T. Kerr died on July 1, 1992.  He was preceded in death by his wife Irene.)