Bar Journal - Fall 2005
CHIEF JUSTICE FRANK ROWE KENISON: A PERSONAL NOTE
By: Attorney Charles G. Douglas, III
On conference day at the Supreme Court Building in Concord, New Hampshire, five justices are seated around a large oval conference table. Briefs and draft opinions are stacked before each man as the day’s work begins. At the head of the table sits the Chief Justice of some twenty-five years, Frank Rowe Kenison.
After selecting the first case, he officially opens the day’s business. Readers of this court’s opinions see only one side of Chief Justice Kenison: that of the legal craftsman par excellence. However, the job of chief justice requires many skills, not the least of which are demonstrated by the manner in which Chief Justice Kenison presides over the conference. The job calls for a sense of pace and an ability to curtail drifting discussions. Unlimited patience and genuine courtesy are essential. Frank Kenison’s operating premise is to prevent deep-seated philosophical disagreements from erupting into personal animosities. His tact and guidance, as well as his unerring sense of when to agree and when to insist, have won him the respect and admiration of his fellow justices. As the junior justice on this court, both in age and tenure, I can attest to his talent for persuading and correcting without offense. Utilizing his keen ability to coordinate and reconcile five separate egos, Chief Justice Kenison successfully effectuates his own description of the court: “The Supreme Court is more than its five members; it is an institution, and it must project a direction and a course.”1
Frank Kenison was born in Conway, part of New Hampshire’s “North Country,” in 1907. His father was a practicing attorney and Clerk of Court for Carroll County. Throughout his years at Brewster Academy, Dartmouth College and Boston University School of Law, Frank Kenison maintained his strong desire to practice law. He later returned to Carroll County to practice and eventually serve as county attorney. In 1937 he came to Concord as the state’s sole Assistant Attorney General and in 1940 became the Attorney General. Frank Kenison served in this capacity until his appointment to the Supreme Court in 1946. Six years later, he became the chief justice.
During his tenure, Chief Justice Kenison has written hundreds of opinions that have helped to ensure that the law in New Hampshire remains a vital force, sensitive to the changing needs of the people of the state, unshackled by outmoded precedent. His many contributions to the common law have been recognized and praised, not only by legal commentators,2 but, more significantly, by his peers on other state supreme courts.3 Under Chief Justice Kenison, opinions have been short and incisive, not rambling discourses on the law in question. Justice Kenison accurately maintains that “legalistic prose, if pursued to its logical extreme, is an invention of the devil.”4 This strong preference for simplicity and directness over obfuscation and overly narrow reasoning also characterizes his view of the current American tendency to pass laws to “solve” problems. Says Chief Justice Kenison: “It seems to me that most everything we do today is controlled, regulated, or in some way influenced by some legal command, order or directive. There is a great myth that a lot of people believe that you can control everything if you pass a law.”5
Apart from his direct contributions as a jurist, Frank Kenison has never hesitated to testify in favor of legislation that would improve the judicial machinery. John W. King, former Governor of New Hampshire, now a Superior Court Justice, ably summarized Chief Justice Kenison’s approach to improving the administration of justice through use of the legislative process:
The tone of the judicial-legislative-executive relations in New Hampshire has in great part been molded by Judge Kenison. The result has been a respectful isolation of the judiciary from partisan politics and bipartisan support for matters advocated by the Chief Justice. His role as a judiciary advocate without compromise or lack of dignity has been accomplished with unostentatious success and conclusion.6
The many institutional changes accomplished under his administration include reorganization of the lower courts; provision for a retirement plan for all full-time judges; complete revision of the criminal code; creation of a sentence review division in the superior court; and establishment of a Court Accreditation Commission. Moreover, the heightened respect and independence accorded to New Hampshire courts under Chief Justice Kenison’s leadership is, in large part, responsible for the 1966 amendments7 to the New Hampshire Constitution; these amendments ensure that supreme and superior court judges are immune from arbitrary removal by the nineteenth century partisan “addresses” of the New Hampshire legislature.
Promotion of judicial efficiency and the highest standards of judicial conduct have always been of prime concern to Chief Justice Kenison. Court administration has, in recent years, assumed an increasing importance in the face of dramatically rising caseloads. In this past year alone, the Chief Justice has obtained an annual budget of $50,000 for court planning and, to make court processes less of a mystery to the public, has issued several thousand copies of an information booklet on the court system written for laymen. Under him, the court established a Committee on Judicial Conduct to hear complaints from citizens and lawyers arising out of alleged transgressions of the Code of Judicial Conduct. Furthermore, he has accepted, on behalf of the judiciary, court performance standards promulgated by the National Center for State Courts; these standards should serve as a valuable blueprint for judicial reform in the years to come. Justice Kenison’s view of his court’s role is well represented in his 1975 address to the joint session of the New Hampshire legislature:
The institution of the Supreme Court and the Judiciary of this State, although it takes pride in its work and is seldom ashamed of it, is never satisfied with the present because it believes that with constant effort it can be improved and become a better institution than it was or is. This constant self-examination and re-examination is the prime factor which holds high hope that the Judiciary of this State continues to be a part of the twentieth century in a manner that enables us to meet the problems of change, progress and new developments.8
Chief Justice Kenison is a man with unlimited energy and remarkable commitment to the law. Even while performing all of the activities and duties associated with his position as Chief Justice, Frank Kenison has devoted much of his time to legal education and judicial administration, beyond the confines of his native state. He has served on the Board of the New England Law Institute, on the Executive Committee of this law school’s Alumni Society, and as a faculty member of the Appellate Judge’s Seminar at New York University School of Law from 1957 to 1970. His active participation as a member and Chairman of the Chief Justices of the Fifty States, as a Director of the American Judicature Society and as a participant in the American Law Institute further highlight his career. Honors have rightly flowed to Chief Justice Kenison in the form of six honorary doctoral degrees, Plymouth State College’s Robert Frost Contemporary American Award, a citation for distinction from the American Trial Lawyer’s Association, the dedication by the Annual Survey of American Law,9 and Boston University School of Law's Silver Shingle Award. The Annual Survey’s dedication lent national recognition to his renown “equal to that of such earlier giants of New Hampshire’s jurisprudence as Chief Justice Jeremiah Smith, Professor Joel Parker and the great common law reformer, Chief Justice Charles Doe.10
Upon his mandatory retirement at age seventy this November, Chief Justice Kenison’s place in history is assured. Those who know Frank Kenison know him as a man of humility, good humor and basic common sense. In 1975, he addressed the New Hampshire legislature with words that are not only a statement of fact, but an enduring challenge to all lawyers and judges in the decades ahead:
The Supreme Court and the Judiciary of this State will continue to maintain and guard its house of justice for the humble as well as the powerful, for the poor as well as the rich, for the minority as well as the majority and for the unpopular as well as the popular.11
Chief Justice Kenison’s words are at once sobering and inspirational. They demonstrate a man of remarkable sensitivity, humility and strength. Uttered at a time when selfishness, intolerance, apathy and despair threaten the very foundations upon which our society is predicated, Justice Kenison’s words should serve to remind some members of the legal profession that they have allowed it to be used and abused to the detriment of many and, so, to the detriment of all. Yet such abuses need not continue. We, as a profession, need only share in Chief Justice Kenison’s commitment to promoting equal justice and expanding the availability of the institutional powers of the judiciary.
I know that your Bench and Bar salute you, Chief Justice Kenison. I only hope that we retain the strength, foresight and ability to make your words forever true.
1. Kenison, quoted in Nichols, Behind the Bench, N.H. Times, June 22, 1977, at 13, col. 3.
2. See e.g., W.B. Leach, Property Law Indicted! 11 (1967); Macleod, Chief Justice Kenison and the Law of Torts: A comment on Process, 48 B.U.L. Rev. 175 (1968); Leach, Perpetuities: New Hampshire Defertilizes the Octogenarians, 77 Harv. L. Rev. 279, 283 (19630 (“Chief Justice Kenison and his colleagues on the bench have taken a giant step in the direction of realism in [the] solution [of Rule of Perpetuities problems],” commenting on In re Bassett’s Estate, 104 N.H. 504, 190 A. 2d 415 (1963)).
3. See, e.g., Schneider v. Nichols, 280 Minn. 139, 158 N.W.2d 254 (1968), and Conklin v. Horner, 38 Wis. 2d 468, 157 N.W.2d 579 (1968), citing with approval Clark v. Clark, 107 N.H. 351, 222 A. 2d 205 (1966)
4. Kenison, quoted in Ross, Frank Rowe Kenison: Profile of a Distinguished Jurist, N.H. Profiles Magazine, Oct. 1973, at 46.
5. Id. At 48.
6. King, Chief Justice Kenison, 48 B.U.L. Rev. 160 (1968).
7. N.H. Const. pt. 2, art. 72-a; id., art. 73 (1784, amended 1966).
8. N.H. House J., Feb. 18, 1975, at 253.
9. 1970/71 Ann. Survey Am. L. xiii.
11. N.H. House J., Feb. 18. 1975, at 256-57.
The article is published here with the permission of the Boston University Law Review (57 B.U.L. Rev. 797 (1977), and also was published in Vol. 117 of the N.H. Reports.
Charles G. Douglas, III, at age 34, was appointed to the New Hampshire Supreme Court in 1977, where he briefly served under Chief Justice Kenison. Justice Douglas served on the court until 1985 when he resigned to return to private practice. He practices today with the law firm of Douglas, Leonard & Garvey in Concord.