Tales from the 10th
Tales from the 10th
Judge Matsch Podcast Part 1: Cases involving constitutional issues
Judge Richard P. Matsch (1930-2019) served as a United States District Judge for the District of Colorado from 1974 to 2019. He is best known for his service as the trial judge in charge of the criminal trials of Timothy McVeigh and Terry Nichols, who were convicted in 1997 for their roles in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City.
Before Matsch’s service as a federal judge, he worked as a lawyer in private practice in Denver, a federal prosecutor, and a bankruptcy referee and bankruptcy judge in Colorado. Matsch grew up in Burlington, Iowa, worked in his father’s grocery store there, and attended a junior college and then the University of Michigan for college and law school. After law school, he served in the U.S. Army from 1953-55 around the end of the Korean War doing counterintelligence work in South Korea.
In describing his career as a public servant, Judge Matsch quoted George Bernard Shaw:
I’m of the opinion that my life belongs to the community. And as long as I live, it is my privilege to do for it whatever I can. I want to be thoroughly used up when I die. For the harder I work, the more I live. Life is no brief candle for me; it is a sort of splendid torch which I’ve got hold of for a moment and want to make it burn as brightly as possible before handing it on to future generations.
The full oral history interview of Judge Matsch in 2018 by U.S. Bankruptcy Judge Bruce Campbell (retired), from which these podcasts are excerpted, is available at the Historical Society’s website at: https://www.10thcircuithistory.org/oral-histories
First podcast episode:
In the first podcast episode, Judge Matsch discussed his work on the Keyes v. School District No. 1 case from 1973 to 1995, implementing the U.S. Supreme Court’s direction in 1973 to have a federal judge oversee desegregation “root and branch” of the Denver Public Schools through busing of students. Ultimately in 1995, Judge Matsch held that the vestiges of past discrimination by the school district had been eliminated to the extent practicable, and ended the mandatory busing of students in Denver Public Schools.
Matsch also discussed in this episode several other cases that involved constitutional issues including free speech and the free exercise of religion under the First Amendment, and equal protection under the Fourteenth Amendment.
In Judge Matsch’s 1977 ruling that called for girls to be able participate in a Colorado high school soccer program comparable to boys soccer, he noted:
Any notion that young women are so inherently weak, delicate or physically inadequate that the State must protect them from the folly of participation in vigorous athletics is a cultural anachronism unrelated to reality. The Constitution does not permit the use of governmental power to control or limit cultural changes or to prescribe masculine and feminine roles.
Hoover v. Meiklejohn, 430 F.Supp. 164 (D. Colo. 1977).
Tales from the 10th:
Judge Matsch Podcast Part 1: Cases involving constitutional issues
Music 00:00
Leah C. Schwartz 00:14
Hello and welcome to Tales from the 10th a podcast about the rich history culture and contributions of the 10th Circuit brought to you by the U.S. Court of Appeals for the 10th Circuit and the 10th Circuit Historical Society. I'm your host, Leah Schwartz, and I'm producer, Tina Howell.
Leah C. Schwartz 00:32
This episode continues our series of oral histories. As you may know, the 10th Circuit Historical Society creates and archives oral histories from some of the circuit's most prominent figures. They are available in full at 10thCircuithistory.org. Today, we have the privilege of making available for the first time an excerpt from the audio recording of the oral history of the late U.S. District Court of Colorado Judge, Richard P. Matsch. This was published after his death in 2019 but until today, was only available as a transcript. Judge Matsch is best known as the trial judge who presided over the Oklahoma City bombing trial, which we will address in future episodes. He was also a counterintelligence agent in South Korea, a bankruptcy referee and a bankruptcy judge. He was influential in distinguishing the administrative versus adjudicative role of judges in bankruptcy proceedings. He also served, of course, as a longtime federal district court judge. In that capacity, he presided over several seminal constitutional and civil rights cases on which this episode focuses. We released this episode today in conjunction with the reopening of the courtroom in the Byron White Courthouse where Judge Matsch presided for decades. In this recording, Judge Matsch is interviewed by Bruce Campbell, who, like Judge Matsch himself, is a former bankruptcy judge.
Bruce Campbell 01:59
in the year before you became a bankruptcy judge following the assassination of John Kennedy, November of 63 your political activity included some effort in support of the 1964 Civil Rights Act.
Richard P. Matsch 02:14
This is like in '63 when this was bubbling up, and so I was, at this time, you know, free politically. So. . .
Bruce Campbell 02:25
You'd returned to private practice, to Holme Roberts.
Richard P. Matsch 02:28
Yeah, I had to. So I was out, there was a speech committee to make speeches in favor of the Civil Rights Act. And I did that and representing Congressman Brotzman. And on one occasion, there was a meeting in Littleton, Colorado by a church group. Their effort was to subsidize African Americans to move into Littleton, because it was such an all white community, and they wanted to diversify. So I attended a meeting of a group doing that, and that, it was at that time that I met Martin Luther King.
Bruce Campbell 03:05
Was this a church group?
Richard P. Matsch 03:07
Yes, that was promoting this. There were others too. You know, I had nothing to do with the church, but it was very memorable meeting in a Sunday school room in this church in Littleton, and Martin Luther King was there. He had given a speech somewhere in Denver, but I got to shake his hand and talk with him briefly and saying that Congressman Brotzman, I'm sending good wishes and so forth.
Bruce Campbell 03:32
Was King a contemporary of yours, age wise, was he?
Richard P. Matsch 03:37
Well, yeah, he was in his 30s, yeah. Sure,
Bruce Campbell 03:41
Share a little of that meeting. Were you impressed with him?
Richard P. Matsch 03:45
Yeah, it's hard to describe the energy and the electricity that he generated. He was somebody uniquely different, I think, and I could feel the power in him, and he wasn't giving a speech as such, he stood there in this room with maybe 15 people, and he stood behind a metal chair with his hand on the chair, and talked to us, and he talked about the experience of his going from the airport in Atlanta to their home. The highway goes by an amusement park which was closed to colored, and how he had to explain to his two children why it is that they couldn't go to the amusement park. I remember him talking about that.
Bruce Campbell 04:32
Did any of these work experiences prior to your judicial career influence, particularly your development as a lawyer, and ultimately as a U.S. District Judge?
Richard P. Matsch 04:45
For sure. These experiences, I think added up to swimming in the sea of the people. And it is because in my life, I have encountered very close encounters with people from all different classes of social economic classes, variances, and I think I learned what it is to be a human being.
Bruce Campbell 05:05
I want to talk to you about some important cases you heard as a trial judge, and in doing so, I appreciate that we move to what may be the most delicate part of this interview. You told me from the start that you would not provide the back story, your words, about cases you have handled as a trial judge. And that is appropriate, and I understand the court record speaks for itself. However, in almost 45 years as an Article III trial judge, you have overseen a number of cases at the confluence of the judicial process and pressing contemporary challenges in our society. Without commenting on facts adjudicated or law applied in any particular case, can you offer observations about the interplay between the judiciary and areas where highly charged, sometimes political issues have found their way to the non political branch of the federal government in your courtroom? Several examples come to mind. In the Keyes case involving involuntary busing desegregation of the Denver Public Schools, which you did not try the case, while you did not try the case and inherited it from Judge Doyle, you for some 20 years oversaw the school board supervision of a large urban public school district. That certainly wasn't part of the job description when you took the job of federal district judge. In retrospect, do you have thoughts about the role you stepped into in the Keyes case?
Richard P. Matsch 06:52
I do. It should be recognized that Judge Doyle's decision was reversed because he had found that segregation in one area of the city, which was when they determined to build a new school on the west side of Colorado Boulevard, the Keyes case was actually a reversal. And it read the Keyes case very closely and Denver is described as a tri-ethnic community, which included the, I'm not sure if they referred to Spanish American but at any rate, it was looked at as a tri-ethnic community and then came the, if it's segregated in one area, it must be segregated in all. So the order is to, not to desegregate, but to eliminate racial segregation, root and branch. So the call from the court was somewhat different from how things turned out.
Richard P. Matsch 08:07
So the initial busing plan that Judge Doyle put in at great personal risk was as a result of also a community committee. When I first got the case, after some judges recused themselves, and Judge Arraj asked me to take it, and I did. I went out with Judge Doyle to the Episcopal Church-- the big one up here, St John's Cathedral. And that was to meet the people who were trying to work with the community to accept the busing decree. So at that time, I thought, well, this is a very active community group, and I'm not going to have to do too much. But of course, the issue of, I can't send my child across the street to the school here. They have to be transported all the way over to the north side of town. And of course, the opposition in the southeast corner of Denver was strong. That didn't go away as things played out. The issue went from plus and minus 15% and so forth. But the Supreme Court in other cases began to change the definition of what was required so that we go from desegregate root and branch to integrate. And that changed the picture. That was done gradually. So we were looking to what is a unitary system, and that became something hard to define. And of course, in addition to dealing with the Keyes original case, the Congress and Hispanic educators came into the picture to raise the additional issue of bilingual education. And of course, Congress also passed a statute requiring equal opportunity. As I said, the goalpost kept changing, and there was, fortunately, there were good lawyers on each side of this and of course, this also was more than one time an issue in the election of Board of Education members.
Bruce Campbell 10:36
Not only was the legal goalpost dynamic, so were the demographics of the district.
Richard P. Matsch 10:44
Exactly. Sudden influence of Vietnamese refugees being part of that. One of the things that came up during this time, English as a second language, was that some of the people from Vietnam were tribes members of the Hmong tribe, Hmong, up in the hills where there was no written language, only oral. Trying to work them into. But I also appointed a committee on compliance to be a somewhat buffer between what was going on in court and the community acceptance. And I made the chairman of that a teacher at it wasn't the University of Denver, at that time, Metropolitan State College. Rios, Dr Rios, R, i, o, s. He did a great job and working with the community, along with Fay Hill, who was a friend of mine and Minister of the Presbyterian Church in East Denver, the carriage trade part of Denver houses. And the people who worked on that did, I think, an excellent job of trying to explain that.
Richard P. Matsch 11:58
But there came a time I even held Saturday hearings on what needed to be done on new busing assignments. And I wondered sometimes on the morning, Saturday morning of that hearing, I went to the courtroom early, and somebody had polished, there was a court floor at that time, somebody had polished that, and it was slick.
Richard P. Matsch 12:23
At any rate, I ended up, over a weekend in the jury room with a map of Denver, and I myself decided on busing assignments and developed this map.
Bruce Campbell 12:41
Was this in the 80s?
Richard P. Matsch 12:43
Yeah, it was in the 80s. It was when there was great hostility. The Rocky Mountain News columnist-- you would recognize immediately-- who was a very good journalist-- would at least once a month write a column condemning me for destroying the school system and generating white flight, a lot of which did occur.
Richard P. Matsch 13:07
And at any rate, there was continuing hostility and school board members being elected opposing this. When people-- they put up this map down in the administrative building on 14th street, I think, well anyway, administrative building, and when people objected to, I'm just close to this school, we bought this house because of the school being nearby, they would take them to show this map, and had my name at the bottom. Write to him. A lot of people did.
Richard P. Matsch 13:45
But this is a role that's not for a judge, because I am implementing, I'm directing, how the Denver school system will function, including, of course, as limited English language. That became, that's still as a matter of fact in front of me. There's a consent decree out there now.
Bruce Campbell 14:11
A number of studies indicate that court ordered busing in Denver and other cities may well have resulted in more, rather than less, segregation of children by race in public schools. For example, in Denver, before Keyes, the Denver Public School was something like 70% Anglo students. At the end of forced busing in 1996, and now, DPS Anglo student population is closer to 25 to 35%. In your view, was this judicial foray into public education simply a failure, or was there value other than or beyond increased racial integration that flowed from the court ordered end to de jure segregation by race of students in the public schools?
Richard P. Matsch 15:04
Are you asking me if it was a failure?
Bruce Campbell 15:07
In raw numbers, perhaps because of the demographics, you have fewer Anglos by many fold than preceded forced busing. You have greater minority populations in the district and in some areas, and this may be the difference between de jure and de facto segregation, but integration wasn't necessarily the end result. In spite of that, my question is, was there value to the insistence by the courts, through busing or otherwise, to end de jure segregation?
Richard P. Matsch 15:54
Well, it's difficult. Of course the changes in the city and county of Denver are stark.
Bruce Campbell 16:03
Massive white flight.
Richard P. Matsch 16:05
I'm not sure it's white flight, as it is, in flux. A lot of people from cultures, very different. We have, I can't remember. There's something like 60 languages in the Denver schools. And it's not just, we're not just talking about people from Mexico or South America. We're talking about a lot of groups who come here as refugees. We're talking about people from the Middle East,
Bruce Campbell 16:33
Eastern Europeans, Asians
Richard P. Matsch 16:36
Many Asians. So it is hard to evaluate the effect of court ordered busing on what has happened to the demographics and the cultural climate in Denver. I think it was wrong for the Supreme Court to be so direct in saying, your job as a judge is to eliminate segregation root and branch. Well, that's hardly the role for a court.
Richard P. Matsch 17:10
So you know, if you don't have the people on your side, it's pretty difficult to tell them what to do. I think that that was a mistake, but it's at the highest level. And then to work through this change from desegregation, eliminating de jure segregation, into integrate, changed and that, that was a big mistake. You know, it's questionable whether the Constitution of the United States requires integration and cultural assimilation.
Richard P. Matsch 17:49
We're talking about trying to change from what somebody years ago said was a country that's like an Irish stew with ethnic groups maintaining their identity and all that, but working together into some kind of a soup where everybody has to be integrated into the same culture, effectively. Because education is in large part the transmission into another generation of a certain culture, and it is not that any more. In fact, we are now more identified by some group status than we are as an American. So we're hyphenated Americans, and we're also urging victimization based on some history that is not entirely accurate.
Richard P. Matsch 18:46
So I think that it was, it had its effect of raising up the issue of equality of opportunity, which is something that you know equal opportunity is something that is a core value, and has been a core value in this country. Even though the Constitution was written by a bunch of elitists. It brought the issue front and center, and we've struggled with different ways to address the issue. But it's much broader than racial.
Bruce Campbell 19:21
You were confronted with upholding the rights of the Ku Klux Klan to express publicly its very distasteful views in conjunction with the Martin Luther King Day celebrations in Denver. In ruling in favor of the Klan, you wrote, "All ideas are equal before the First Amendment." That strikes me as a pretty unremarkable statement in a democracy. And I suspect you would find it, in a very real sense, unremarkable, but I don't think that.
Richard P. Matsch 19:57
I'm not so sure it's unremarkable today.
Bruce Campbell 20:01
Well, my next question to you is, Do you think that it is perceived as unremarkable by today's general public? And does that give you pause about the state of American civic education?
Richard P. Matsch 20:14
Yes, it gives me pause. This wasn't just recognition of the right of these extremists who appear on the Capitol steps and express their views. This was also very much directed at the Martin Luther King march. And of course, at the hearing, it was emphasized that there could be reaction violently, and there was. And I accepted that reality in making my ruling. But this raises is the issue of the heckler's veto. If you're going to suppress a speaker by threatening violence, that destroys the whole fabric of the First Amendment, and I strongly support the First Amendment still. But we are now at a time when the First Amendment is being shredded, because we have not only hate speech, but we have political speech. When you have a student body protesting the invitation of a speaker by surrounding the forum or by other means that are coercive, you eliminated the very foundation of the public forum and the clash of ideas which are restricted. What will we be saying today of the revolution and the author of Common Sense?
Bruce Campbell 21:46
Thomas Paine,
Richard P. Matsch 21:47
Yeah. Thomas Paine, Thomas Paine was certainly preaching hate speech to the well-established colonists who were threatened by the possibility of a civil war.
Bruce Campbell 21:59
Right.
Richard P. Matsch 22:00
Yeah, they were protecting their economic interests. So would we-- if Thomas Paine were talking extreme right views, would he be prohibited from going to a university campus and speaking out? This is dangerous. This is dangerous to our principle of a democracy, and it is, in my view, one of the greatest dangers we face for the future.
Bruce Campbell 22:27
And how ironic that the free expression is what's under fire from this.
Richard P. Matsch 22:34
Yeah, you know, we have more freedom for entertainers to come on with the most vulgar and despicable expressions which generate a laugh or I don't understand how audiences laugh about these things. Maybe they're laughing to show that conceal their embarrassment. I don't know. But there's greater freedom of profanity and obscenity than there is political expression.
Bruce Campbell 23:04
In preparing for this interview, I asked you about other cases you recall that you found were particularly significant or interesting. The first case you pointed me to was Hoover versus Meiklejohn in 1977, early in your tenure on the Article III bench, a 14th Amendment, equal protection, gender equality case concerning a constitutional challenge to the Colorado High School Athletic Association's rule limiting participation in high school soccer and I quote from the rule, "To members of the male sex." In a nuanced equal protection argument, you ruled that Golden High School, which was, I think the class representative's school of attendance, had three choices: to let girls compete in the boys varsity soccer program, to add girls' soccer as a separate sport, or to shut down soccer as part of the athletic program.
Bruce Campbell 24:12
Do you recall what Golden High School ultimately did?
Richard P. Matsch 24:16
Well, you left out something about the separate, which had to be separate but equal, equally funded.
Bruce Campbell 24:23
Add girls soccer at the same level as the boys.
Richard P. Matsch 24:26
Exactly. Well, the initial reaction is to, was to prohibit soccer. And it wasn't just Golden High School. It was the Colorado High School Athletic Association. They prohibited it. And then there was an outrage-- a public outrage at that because so many young people were playing soccer by that time, including my own daughters, on girl's teams. But the public pressure changed their minds and they went to separate but equal.
Bruce Campbell 24:56
A few years later, that same pressure skipped over Boulder. When it was dealing not with equal protection and the 14th Amendment, but with Title IX. And they went with one of the other alternatives that you offered. They shut down great, great sports programs.
Richard P. Matsch 25:18
At the University of Colorado.
Bruce Campbell 25:19
At the University of Colorado.
Richard P. Matsch 25:23
People who remember this case assumed that it was under Title IX.
Bruce Campbell 25:29
This was before Title IX got legs.
Richard P. Matsch 25:31
This was flat out equal protection. And this was also the result of trial.
Bruce Campbell 25:36
Let me-- to that end, let me read a lovely quote from your opinion, "Any notion that young women are so inherently weak, delicate or physically inadequate that the State must protect them from the folly of participation in vigorous athletics is a cultural anachronism unrelated to reality. The Constitution does not permit the use of governmental power to control or limit cultural changes or to prescribe masculine and feminine roles." Now this is spoken like a man with daughters. I have a daughter.
Bruce Campbell 26:22
Let me as you point out, this case was 40 years ago, and considerably ahead of. Title IX was enacted before it really got legs.
Bruce Campbell 26:33
The next case, second case you directed me to, was Alpine Christian Fellowship versus Pitkin County, which was a 1994 case that held that conduct of a religious school in a church, physically within the church, amounted to religious activity of the church protected by the Free Exercise Clause that can be restricted by zoning ordinance only on a showing of compelling state interest, which the county failed to show by its evidence, again driven by the trial record finding that there was no evidence of a compelling state interest. Why? Why did you select this as an exceptional case?
Richard P. Matsch 27:20
Well, because I think this was an effort to again apply the First Amendment to freedom of religious exercise. This was a problem near Carbondale, and it involved an established church there, but a non-traditional church, and they wanted to have their religious school there during weekdays, which was very unpopular with residents of the area because of the increased traffic. And it was not a opposition to religious exercise; it just was that this is a school, and it changes the dynamic --well, it changes the neighborhood considerably. And so the effort was to call this simply a zoning problem and the adverse effects of traffic coming in and out of this area during work, days, school, weekdays. But the educational aspect of this was not neutral; it was religious. And my view of it was and is that a indoctrination, education, whatever you call it, of a certain religious belief should be protected. And you cannot look at it as simply a school. You have to look at it as a religious school.
Bruce Campbell 28:48
And as you point out, in the absence of, if it were creating a public health or safety issue with something else, but the record didn't support that.
Richard P. Matsch 28:58
That's right.
Bruce Campbell 28:59
The next case you pointed me to was your decision in American Constitutional Law Foundation versus Meyer, another 1994 case involving political speech under the First Amendment. And you found unconstitutional restrictions on petition gatherers. Why did you select that among the cases?
Richard P. Matsch 29:24
Well, this too goes to what is protected political speech and the justification required registration and identification, badges and restrictions that I think the people who are doing street work here had to be residents or citizens of Colorado and voters. This was a problem of hiring people to come in and do polling. I thought these restrictions were eliminating the opportunity for candidates to get their message out, and that these people were not just taking names and addresses. They were politicizing--they were publicly, publicly supporting a candidate. Now, actually, my ruling got reversed, in part because the 10th Circuit went even broader. I don't remember now, I allowed some part of this, oh, I think the badges so that people would know that this is a pollster. But they the 10th Circuit went farther than I did. But this amounts to, you know, how do you define political speech and is asking somebody to sign a petition, political speech? Well, of course, it is.
Bruce Campbell 30:47
These cases obviously say something about the importance of not the unlimited, unrestrained importance, but the importance to you as a Judge of the First Amendment, and of free expression, and of political speech.
Richard P. Matsch 31:02
You know the First Amendment is first, and that's because--by design, because all the rest of it depends upon the recognition of the freedoms expressed in that amendment.
Bruce Campbell 31:16
When you say all the rest of it, I assume you're referring to democracy.
Richard P. Matsch 31:20
Yeah, and the other amendments.
Bruce Campbell 31:22
Right. We've been running now for a couple of hours. How do you feel about continuing? And
Richard P. Matsch 31:30
I think you know I can in this means, express myself in ways that I can't do in any other way.
Bruce Campbell 31:39
Well, but you're expressing yourself in a way people that you and I have to realize we're not going to live forever.
Richard P. Matsch 31:44
I hope not.
Bruce Campbell 31:45
But you're expressing, you're expressing yourself in ways that are valuable for those of us who think history has something to teach us.
Richard P. Matsch 31:56
I consider this a matter of importance, as I said, whoever may encounter these words later, it may be of help.
Leah C. Schwartz 32:09
This episode was produced and edited by Tina Howell. Subscribe and download at the Historical Society's website, 10th Circuit history.org or at Apple podcast, Spotify, or Stitcher. Special thanks to Greg Kerwin, Brent Cohen, Stacy Guillon and Diane Bauersfeld. Thanks so much for listening.