Standing on the Corner When the Streetcar Came by: An Interview With the Honorable Joseph P. Kinneary (1905-2003)

Author:Dr. Roberta S. Alexander
Position:Distinguished Service Professor of History and Director, Pre-law Program, University of Dayton
Pages:451-478
SUMMARY

I. Forward. II. Interview. III. Follow-up Interview.

 
INDEX
FREE EXCERPT

Page 451

I Forward

Appointed by President Lyndon Johnson on June 28, 1966,1 Judge Joseph P. Kinneary served on the bench of the District Court for the Southern District of Ohio for thirty-five years, making him second in longevity in his district; only Judge Humphrey Leavitt served longer by two years.2 Kinneary retired in September of 2001 only because a stroke made it impossible for him to serve any longer. He died two years later, on February 14, 2003.3 Judge Kinneary believed that being a district court judge was the pinnacle of the career ladder for an attorney-and he was devoted to his work. Indeed, on one occasion he told a fellow judge: "If I had the money, I would do [the job] for free."4

Born in Cincinnati on September 19, 1905, the son of Joseph and Anne Mulvihill Kinneary, the future judge developed a strong work ethic early in life.5 Because his father, a salesman, died when he was eight, the young Kinneary spent most of his time outside of school working.6 While attending Cincinnati's catholic schools, Kinneary caddied at the Cincinnati Country Club; he then sold shoes to help pay for college.7 After receiving his B.A. in 1928 from the University of Notre Dame, Kinneary returned to Cincinnati and earned his LL.B. degree from the University of CincinnatiPage 452 College of Law in 1935.8 Unable to get a job with any law firm in the midst of the Depression, Kinneary rented a small room in the office of an insurance agent and tried to find clients. He eked by until, in 1936, he became a speaker on the campaign trail for Franklin Roosevelt, who was seeking reelection as President. Then, in 1937, Kinneary was appointed Assistant Attorney General of Ohio.9 He remained in that post until 1939.10 During World War II, he served as chief counsel in the Food Procurement Division of the Army's Quartermaster Corps.11 After being discharged in 1946 at the rank of Captain, Kinneary again went back to being a solo practitioner.12 In 1950, he married Byrnece Camille Rogers.13

Kinneary regularly went in and out of public and private practice during the 1950s, serving from 1949 to 1951 as First Assistant Attorney General of Ohio and special counsel to the Attorney General from 1959 to 1961.14 He was also a delegate to the 1952 Democratic National Convention. Because of his extensive political activities, Kinneary became friends with both of Ohio's Democratic Senators, Frank Lausche and Stephen Young. These connections most probably won him his appointment, in June, 1961, as United States Attorney for the Southern District of Ohio. Kinneary served in that position until President Johnson appointed him to the federal bench.15

The district court is the trial court of the federal system. Today, the Southern District of Ohio has eight authorized judgeships, but when Kinneary took his seat on the bench there were only four-two in Cincinnati, one in Dayton, and only Kinneary in Columbus. The job kept him busy. In the 1980s, for example, Kinneary handled over 600 cases a year, "two and a half times the number recommended as manageable by the Judicial Conference of the United States."16 To deal with such aPage 453 tremendous workload, Kinneary instituted the pretrial system in Columbus.17

In addition to many thousands of fairly routine cases, Kinneary presided over several trials which would have a lasting impact on Ohio's political and economic life. Only a year after his appointment, Kinneary issued a decision in one of the nation's seminal civil rights cases, "[e]njoining Ohio from entering into contracts for the construction of the . . . Medical Basic Sciences Building" at the Ohio State University unless contracting firms employed laborers and craftsmen without regard to race, color, or membership in labor unions.18 After that, he continued to handle cases that would expand opportunities for minorities, women, and others who society discriminated against. In Dozier v. Chupka,19 Kinneary ordered the Columbus Fire Department to change some of its hiring practices which had no relationship to a candidate's ability to perform his or her job but which had the effect of discriminating against African Americans.20 In addition, Kinneary ordered the department to adopt a goal which would eventually lead to the employment of African Americans "in the approximate percentage" to their percentage in the general Columbus population.21 Later, he would issue similar orders to end sexual discrimination in the department.22

Wade v. Bethesda Hospital,23 another highly-publicized case, illustrates the role federal courts play in protecting the powerless. Carolyn Wade sued seven defendants for violating her civil rights by ordering and then performing a forced sterilization on her because they deemed her to be "feeble minded."24 In resolving the issue of immunity, which was a necessary prerequisite for the suit to proceed, Kinneary held that the Ohio probate judge who ordered the girl to submit to sterilization was not entitled to judicial immunity because he acted beyond the scope of his authority; the doctor who performed the operation and the hospital where the surgery was performed were not public officials or institutions and therefore not immune to liability; and the officials of the Muskingum County Children Services Board were individually responsible for theirPage 454 actions.25 Only the Children's Services Board itself, as an agency of the state, had Eleventh Amendment immunity from litigation.26 By making individual officials responsible for their actions, Kinneary ensured that judges and government officials could not hide behind the argument that they were just following orders.

Barbara C. v. Moritz27 involved residents of the Orient State Institute who alleged that they had been "warehoused" at the institute and that as a result of their institutionalization at Orient, they had been denied the opportunity to take advantage of the public school system, vocational rehabilitation services, recreational services, and social contacts with the general population.28 Kinneary held that the federal court had jurisdiction because there were no unsettled questions of state law, no interference with state judicial proceedings, and plaintiffs' claims raised federal law violations which the federal courts were created to adjudicate.29 A month later, the parties, before trial commenced, entered into a joint stipulation and an agreed plan to redress these deprivations.30 Three years later, in April, 1984, the last residents of Orient left to live in more appropriate settings.31 Expressing empathy for these mentally retarded plaintiffs, Kinneary told the Columbus Dispatch: "If even one of those mentally retarded residents transferred got into the proper facility with the proper services, my job was done."32 He said that in his years on the bench, this case gave him the greatest personal satisfaction.33

During the Vietnam War, Judge Kinneary showed sympathy and understanding for those opposed to the war but denied conscientious objector status. Most times, after he convicted the defendants for violation of federal draft laws, he granted probation, as did many of the other federal judges, as long as the men agreed to do the same type of service required of conscientious objectors.34 Probably the most publicized of the VietnamPage 455 war-related cases in the Southern District of Ohio, however, was United States v. Green,35 involving an Ohio State University professor who reportedly burned his draft card in class as an anti-war protest. After a jury convicted Green for failing to have his Notice of Classification in his possession, Kinneary suspended his three-year sentence, placed him on probation, and ordered him to pay a $1,500 fine.36

In a series of cases beginning with Socialist Labor Party v. Rhodes,37Kinneary held that Ohio's election laws, which since 1948 had worked to eliminate independent and third-party candidates, unconstitutionally burdened an individual's Fourteenth Amendment right to equal protection of the laws and First Amendment right to free political association.38 As a result of these cases, the Ohio Legislature rewrote Ohio election laws to ensure more equal access of minority views to the public and the ballot.39In a different type of case, Kinneary dismissed a criminal indictment against a bank for making loans, which had not been fully repaid, to John Gilligan's 1968 United States Senate campaign. He held that 18 U.S.C. 610, which prohibited any national bank from making a contribution or expenditure in connection with any campaign for political office, was an unconstitutional taking of property when it prohibited fully-secured loans made at ordinary interest rates following standard business practices. For Kinneary, campaign financing regulations, to be constitutional, should "promote an informed electorate," not thwart debate; election laws, "as far as possible," must "prevent elective office from becoming the exclusive prize of the influential or rich."40 According to one of Kinneary's law clerks, this "precise language found its way into the legislative history ofPage 456 the Federal Election Campaign Act of 1984-though it was not attributed to Judge Kinneary."41

Private individuals also benefited from Kinneary's determination to enforce the First Amendment's safeguards of free speech and political association. In Joyce v. Garnes,42 Kinneary, writing for a three-judge court, permanently enjoined Ohio from enforcing a loyalty oath.43 The oath required people to swear that they did not advocate the overthrow of the government and that they were not members of a party who so advocated.44 The Ohio Bureau of Employment Services required those seeking unemployment compensation benefits to make this oath before they could receive benefits.45

Judge Kinneary presided over several highly-charged criminal cases. Perhaps the most publicized was...

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