In Memoriam: Judge Donald P. Lay

Pages1551-1595

Page 1551

The editors of the Iowa Law Review respectfully dedicate this issue to the Honorable Donald P. Lay.

Justice John Paul Stevens 1

The University of Iowa College of Law has played a more important role in the development of our jurisprudence than many members of our profession realize. Two of its graduates, Don Lay and his good friend Phil Tone, were among the best judges ever to serve on the federal bench. Iowa's one-time Dean, Wiley Rutledge, taught both Phil and me more about law- indeed, more about justice-than I can possibly describe. When judges of that caliber leave us, it is difficult to say whether the loss of a friend, or the loss of a distinguished colleague, is the more painful.

As a judge, Don Lay was once one of the youngest, once one of the most-senior, and always one of the most respected by his colleagues in the federal judiciary. As a friend, he was always excellent company and tolerant of less skilled golfers. I am sure his beloved Miriam is entitled to much of the credit for both his personal and professional virtues and his accomplishments. They were indeed significant, not just to his friends and family, but to the Nation. I shall miss him.

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Honorable Gerald W. Heaney 2

Chief Judge Donald P. Lay was my friend and colleague on the Eighth Circuit Court of Appeals for nearly forty years. He joined the court in June of 1966, and I joined in December of that same year. Judge Lay was thirty-nine years old at the time of his appointment, making him the second youngest judge ever to be appointed to the United States Court of Appeals.

Judge Lay became Chief Judge of the Court in 1980 and held that position until he took senior status in 1992. This twelve-year period was one of unparalleled growth in the caseload of the Eighth Circuit. It is a tribute to Judge Lay's management skills and his ability to work cooperatively with the court, the staff, and the bar that enabled the court to hear and decide cases promptly.

Notwithstanding the time-consuming effort required to manage the court and the caseload, Judge Lay always did his full share of the case work. He authored more than two-thousand opinions and concurrences in every aspect of the law, as well as many dissenting opinions. Moreover, as Chief Judge of the court and a member of the Judicial Conference of the United States, he played an important role in the administration of justice, serving on several advisory committees of the Conference.

Judge Lay was a passionate defender of individual rights and liberties under the United States Constitution. In his dissent in Chambers v. Omaha Girls Club, Inc., 840 F.2d 583 (8th Cir. 1988) (Lay, J., dissenting), he wrote that the Omaha Girls Club did not have the right to terminate an unmarried pregnant woman on the grounds that she did not meet the club's role-model requirement. In U.S. Jaycees v. McClure, 709 F.2d 1560 (8th Cir. 1983), he held that the organization did not have the right to bar females from membership. In Morrissey v. Brewer, 443 F.2d 942, 952 (8th Cir. 1971) (Lay, J., dissenting), he stated that prisoners have a right to due process in a parole revocation proceeding; and in his historic opinion in Jenson v. Eveleth Taconite Co., 130 F.3d 1287, 1304 (8th Cir. 1997), he made it absolutely clear that sexual harassment of female employees of a taconite mining company would not be tolerated. He wrote in words that could not be misunderstood: "It should be obvious that the callous pattern and practice of sexual harassment by the Eveleth Mines inevitably destroyed the self-esteem of the working women exposed to it. . . . The humiliation and degradation suffered by these women is irreputable." The women were ultimately awarded substantial damages for enduring such conduct.

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Judge Lay was a champion of creating drug courts that would address nonviolent drug offenders, rationalize our sentencing in drug cases, and seek to cut down on repeat offenders through a mixture of treatment and sanctions. Although many states now have these courts, Judge Lay's recommendations have not yet been adopted by the federal courts, and too little progress has been made in eliminating drug use, particularly by young persons and minorities.

Chief Judge James B. Loken recently said of Judge Lay:

He spent forty years of service to our Court, 40-plus years, dedicated to equal justice and the independence of the judiciary, the wisdom of the jury trial system, which he defended at every opportunity. He had endless energy for the law. When most of us would feel tired, he'd be there with some new idea or some new organizational or institutional thing that needed to be done, or another course to be taught at one of the local law schools or an article to be written in a legal journal.3

From 1992 through 1996, Judge Lay served as a Professor of Criminal Law at the University of Minnesota, and he then served as a Distinguished Professor of Law at William Mitchell College of Law in St. Paul, Minnesota, teaching both civil and criminal procedure.

Judge Lay was a man of the outdoors, an accomplished golfer, and an avid fisherman. Many was the day that I spent with him in a boat or sitting in the cabin overlooking Kawawia Lake in Canada while playing cribbage or eating freshly caught walleye or a trout from the same lake.

Justice John Paul Stevens, writing of Judge Lay, stated:

Don Lay's career as an effective and successful trial advocate predetermined his distinguished career on the bench, first as a remarkably young circuit judge on the United States Court of Appeals for the Eighth Circuit and later a strong and influential chief judge of that circuit. His scholarship and industry are evidenced not only by the quality and quantity of his judicial opinions but also by his numerous contributions to legal periodicals and by his testimony before congressional committees on issues of importance to the profession and the public.4

I did not know Don Lay before he was appointed to the Eighth Circuit; upon my appointment, however, we became close friends and retained that friendship for the next forty years. For whatever reason, we rarely sat together on the cases decided by the customary three-judge panels but did on the many en banc cases heard by the court in the forty years we servedPage 1554 together. It was in these cases that I came to value his views and his total commitment to the rule of law.

Judge Lay is survived by his wife, Miriam; his five daughters, Catherine, Betsy, Susan, Cindy, and Debbie; and ten grandchildren. I will miss Don- our frequent telephone conversations, our lunches, dinners, and our annual fishing trips. The court, the bar, and the public will miss his strong leadership and his total commitment to Justice.

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Honorable Myron H. Bright 5

When I first joined the Eighth Circuit, I received a warm letter of welcome from Judge Lay. He remarked that he looked forward to our association. Indeed, during the thirty-nine years we were together on the United States Court of Appeals for the Eighth Circuit, Judge Donald P. Lay and I became the closest of colleagues and friends. Our kinship developed in large part from our shared devotion to eradicating unlawful discrimination, promoting civil rights for minorities and the disabled-as required by law-and, in more recent years, condemning unjust sentences under the regime of the Federal Sentencing Guidelines, which were adopted in 1984.

By the time Judge Lay and I first sat on a panel together, Judge Lay was already a leader in the area of civil rights. One of the most important cases we heard together in our early years on the court was Green v. McDonnell Douglas Corp., 463 F.2d 337 (8th Cir. 1972). The facts of that case are now well known, but in short, an African American man, Percy Green, sought reemployment at the McDonnell Douglas aircraft plant in St. Louis, Missouri. He was well qualified for the job, but the corporation denied Green employment, hiring others less qualified than him. Green contended the corporation's discriminatory racial policies served as the reason for denial. The employer claimed it denied Green employment because Green was a troublemaker.

The crucial question before us in this Title VII case related to the analysis to be applied in determining whether an employer had offered proper reasons or pretextual ones for its decision not to hire a minority person, such as Green. Although I authored the opinion in that case, giving Green a new trial, Judge Lay and I conferred frequently over the telephone during that time to discuss how to handle the issue of pretext. Judge Lay ultimately concurred in my opinion for the court and also wrote a separate concurrence. Senior Judge Harvey Johnsen authored a vigorous dissent.

Once we published the initial opinion, Judge Lay's advice, conviction, and leadership proved indispensable to its survival. As a result of the dissent and a vigorous petition for rehearing, the opinion appeared to be headed for en banc review, which would have meant vacating the panel opinion. Judge Lay wisely drew his Omaha colleague, Judge Ross, into discussions about the case. Judge Ross offered important suggestions that were included in modifications of the opinion. With those modifications, the vote on the en banc petition failed by an evenly divided vote, with Judges Lay, Heaney,Page 1556 Ross, and me voting against en banc consideration. I give Judge Lay and Judge Ross great credit for their advice, counsel, and suggestions, which were included in the opinion and served as a basis for establishing the law in detecting covert discrimination.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the U.S. Supreme Court reviewed the Eighth Circuit case and unanimously enunciated standards for determining covert employment discrimination substantially similar to the previously stated...

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