Public Hearing - February 9, 2014
1 BEFORE THE NEW YORK STATE SENATE
STANDING COMMITTEE ON THE JUDICIARY
2 ------------------------------------------------------
3 PUBLIC HEARING
4 HEARING FOR COURT OF APPEALS NOMINEES
JUDGE LESLIE STEIN AND JUDGE EUGENE FAHEY
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6
New York State Capitol Building
7 172 State Street, Room 124 CAP
Albany, New York 12247
8
February 9, 2014
9 11:30 p.m. to 2:00 p.m.
10
11 PRESIDING:
12 Senator John J. Bonacic
Chairman
13
14 PRESENT:
15 Senator George A. Amedore, Jr.
16 Senator Neil D. Breslin
17 Senator John A. DeFrancisco
18 Senator Ruben Diaz, Sr.
19 Senator Martin Malavé Dilan
20 Senator Flanagan
21 Senator Ruth Hassell-Thompson (RM)
22 Senator Michael F. Nozzolio
23 Senator Thomas F. O'Mara
24 Senator Bill Perkins
25 Senator Michael H. Ranzenhofer
2
1
PRESENT (continued):
2
3 Senator Sue Serino
4 Senator Michael Venditto
5
6 ---oOo---
7
8
9 SPEAKERS: PAGE QUESTIONS
10 Vincent Doyle 7 12
Chair, Committee to
11 Review Judicial Nominations 26 29
New York State Bar Association
12
13 Evan Goldberg 21
President-elect
14 NYS Trial Lawyers Association 32
15
16
17 ---oOo---
18
19
20
21
22
23
24
25
3
1 SENATOR BONACIC: First of all, good morning.
2 My name is Senator Bonacic, and I chair the
3 Judiciary Committee.
4 I'm joined by Senator Nozzolio at this time,
5 Senator Amedore, Senator Breslin, Senator Diaz.
6 We have 23 members on the Judiciary, and
7 because of this terrible weather, some may be a
8 little late getting here.
9 So -- but we do have enough proxies to not
10 only conduct the public hearing, but we don't need
11 proxies. But when we commerce the
12 Judiciary Committee hearing, we will have sufficient
13 votes to move our business.
14 So let me start by saying that, in accordance
15 with Section 104 of the Public Offices Law, on
16 February 2, 2015, we issued a public notice for this
17 public hearing.
18 Senator Ranzenhofer is with us.
19 Senator, good morning.
20 SENATOR RANZENHOFER: Good morning.
21 SENATOR BONACIC: I have behind me
22 Jessica Cherry, who is our counsel to the Judiciary.
23 And, the public hearing will be for
24 Governor Cuomo's Court of Appeals nominee,
25 Judge Leslie Stein, and Judge Eugene Fahey.
4
1 The purpose of the hearing is to fill the
2 vacancies of Judge Victoria Graffeo and
3 Judge Robert Smith.
4 I don't have Senator Ruth Hassell-Thompson
5 here yet, but she is our Ranker on Judiciary.
6 Before we start the public hearing, I just
7 would like to say a couple of words about
8 Judge Graffeo and Judge Smith.
9 As you know, Judge Victoria Graffeo served on
10 the Court of Appeals honorably for the past
11 14 years.
12 She has an exemplary reputation, and service
13 to the bench is undeniable.
14 Her experience as a jurist and temperament
15 were an asset to our state's highest court, and her
16 contribution to the law in New York State will
17 undoubtedly have a lasting effect.
18 Many were very disappointed to see her go.
19 And we would like to acknowledge her, and
20 thank her for her unwavering dedication to the
21 bench, and we wish her success in all of her future
22 endeavors.
23 With respect to Judge Smith, he filled the
24 vacancy. Judge Smith had served on the Court of
25 Appeals since his appointment in 2003.
5
1 He was widely respected for his thorough and
2 diplomatic legal analysis, in addition to his lively
3 participation during oral arguments.
4 His temperament and vast legal experience
5 have been an asset to the bench, and we thank him
6 for his many years of service to the state, and we
7 wish him well in all of his endeavors.
8 And, Judge Fahey has been put forth by
9 Governor Cuomo to fill the vacancy of Judge Smith.
10 For this public hearing we have
11 two witnesses, and they're going to provide oral
12 testimony regarding both Judge Stein and
13 Judge Fahey's qualifications.
14 The witnesses appearing before the Committee
15 will be: Vincent Doyle, who is the past president,
16 Chair of Committee to Review Judicial Nominations.
17 for New York State Bar Association, and,
18 Evan Goldberg, who is president-elect, co-chair of
19 the Judicial Screening Committee, New York State
20 Trial Lawyers.
21 Each witness will be limited to 10 minutes of
22 oral testimony for each nominee, followed by
23 questions from members of the Committee.
24 We have also had written testimony submitted
25 to the Judiciary Committee, regarding both judges,
6
1 and they have -- and they will be included in the
2 record.
3 I've circulated the resume -- resumes of both
4 judges to the Judiciary Committee on Wednesday,
5 February 4th, to provide an overview of the
6 nominees.
7 Based on my review of both candidates, prior
8 to the Committee, starting in the hearing, I think
9 Governor Cuomo has nominated two very well-rounded
10 judicial nominees with decades of experience in the
11 courtroom, combined, for our highest bench.
12 As you will hear today, let me talk a little
13 bit about Judge Leslie Stein.
14 She has nineteen years of judicial
15 experience: six on the Supreme Court, last
16 seven years on the Appellate Division,
17 Third Department, in Albany.
18 Judge Fahey also has nineteen years' judicial
19 experience: Supreme Court, 6 years; Appellate
20 Division -- excuse me, Supreme Court, nine years,
21 Appellate Division, Fourth Department, eight years,
22 Buffalo.
23 Okay, I've been joined by
24 Senator DeFrancisco.
25
7
1 And, now, our first witness, please tell us
2 who you are and what you have to say.
3 VINCENT DOYLE: Thank you, Senator Bonacic,
4 members of the Senate Judiciary Committee, ladies
5 and gentlemen.
6 My name is Vincent Doyle. I'm a past
7 president of the New York State Bar Association, and
8 the current Chair of the association's Committee to
9 Review Judicial Nominations.
10 It is my privilege to appear before you today
11 in support of the appointment of the
12 Honorable Leslie Stein as associate judge of the
13 New York State Court of Appeals.
14 On behalf of the association, I thank you for
15 the opportunity to testify concerning
16 Justice Stein's qualifications for the Court of
17 Appeals.
18 The New York State Bar Association is
19 comprised of over 74,000 attorneys,
20 including attorneys in every part of New York State,
21 in every other state in the country, and from over
22 100 countries around the world.
23 Since 1967, our association has evaluated
24 candidates for the Court of Appeals.
25 Since New York amended its Constitution in
8
1 1973 to provide for the appointment of Court of
2 Appeals judges, we have provided the governor with
3 our ratings of the candidates whose names have been
4 submitted to the governor by the State Commission on
5 Judicial Nomination.
6 Following the governor's selection of one of
7 the candidates for appointment, we have also
8 communicated our rating of that nominee to this
9 Committee to assist in the confirmation process.
10 With respect to the present nomination, we
11 have found Justice Stein to be well qualified to
12 serve as an associate judge of the Court of Appeals.
13 "Well qualified" is our highest rating.
14 I would like to outline for you the process
15 by which our association evaluates the Court of
16 Appeals candidates so you can understand the meaning
17 of our rating.
18 Our Committee to Review Judicial Nominations
19 is appointed by the association's president and made
20 up of 17 members from across New York State.
21 Every judicial district is represented on the
22 committee.
23 Consistent with the overall policies of our
24 association, the committee appointments reflect the
25 diversity of our membership and society as a whole.
9
1 Members are also selected so that a wide
2 variety of practice areas are represented, with a
3 particular emphasis on appellate practice.
4 Upon the announcement by the Commission on
5 Judicial Nomination of its list of candidates for
6 appointment to the Court of Appeals, our committee
7 chair appoints subcommittees to investigate the
8 qualifications of each candidate.
9 The subcommittee reviews -- the subcommittees
10 review biographical material provided by the
11 candidates, read sample of the candidate's writings,
12 including written decisions if the candidate is a
13 sitting judge, and interview persons familiar with
14 the candidate's work, background, and character.
15 In the case of judges who have been
16 nominated, the subcommittee includes in their
17 interviews lawyers who have appeared before the
18 judge.
19 Finally, the subcommittees meet with the
20 candidates.
21 Based on the information gathered during the
22 investigation process, the subcommittee prepares a
23 report, and recommendations regarding the candidates
24 to present to the full committee.
25 After the completion of the investigations,
10
1 the committee meets as a whole to review the
2 subcommittee reports concerning the qualifications
3 of each candidate, and to personally interview the
4 candidates.
5 The committee then votes to determine whether
6 the candidates will be rated "not qualified,"
7 "qualified," "or well qualified."
8 For appointment to the Court of Appeals --
9 pardon me, in making their evaluation for
10 appointment to the Court of Appeals, the committee
11 members are asked to consider the candidate's
12 professional ability and experience, character,
13 temperament, and the possession of the special
14 qualities necessary or desirable for the judicial
15 office sought.
16 Under the committee's guidelines, a
17 "qualified" candidate is one who affirmatively
18 demonstrates qualifications the committee regards as
19 necessary for that office.
20 A "well-qualified" candidate is one who, in
21 addition, possesses preeminent qualifications for
22 judicial office.
23 After being selected as a candidate by the
24 commission, Justice Stein's qualifications were
25 evaluated by our committee in accordance with these
11
1 procedures. She met with our full committee on
2 September 15, 2014.
3 As a result of this investigation and
4 interview, it was the opinion of our committee that
5 Justice Stein is well qualified for the Court of
6 Appeals.
7 Justice Stein has served with distinction as
8 a member of the Appellate Division,
9 Third Department, since 2008.
10 Prior to serving on the Appellate Division,
11 Justice Stein served six years as a justice of the
12 Supreme Court, and four years as a judge of the
13 Albany City Court.
14 Active in the community, Justice Stein is a
15 founding member of the New York State Institute for
16 Professionalism in the Law, a permanent commission
17 which promotes professionalism among members of the
18 legal profession.
19 Very recently, our association co-sponsored a
20 convocation with the institute, at which I was
21 privileged to moderate a panel concerning changes in
22 legal education.
23 Justice Stein also serves on the
24 Unified Court System's Advisory Committee, on bar
25 admissions, and the family-violence task force.
12
1 Her overall breadth of experience, which
2 includes 13 years of private practice, and 18 years
3 on the bench, including time as a trial judge and an
4 appellate judge, leads us to conclude that
5 Justice Stein will serve the state of New York well
6 as an associate judge of the Court of Appeals.
7 Accordingly, on behalf of the New York State
8 Bar Association, I am pleased to endorse
9 Justice Stein's appointment to the Court of Appeals,
10 and urge the confirmation of this appointment.
11 Thank you for your attention, and for
12 inviting participation by the New York State Bar
13 Association in this important process.
14 SENATOR BONACIC: Thank you, Mr. Doyle.
15 Any members of the Committee have any
16 questions for Mr. Doyle?
17 SENATOR NOZZOLIO: I do.
18 SENATOR BONACIC: Senator Nozzolio.
19 SENATOR NOZZOLIO: Thank you, Mr. Chairman.
20 Good morning, Mr. Doyle.
21 VINCENT DOYLE: Good morning.
22 SENATOR NOZZOLIO: I'm very interested in the
23 process that you had to engage in. It sounds as
24 though a recruitment process to find members of the
25 panel appears very extensive.
13
1 You indicated members from each judicial
2 district, and the focus, as appropriately it should
3 be here, are practitioners in appellate practice.
4 Tell me how many candidates you had to review
5 in terms of their qualifications, and give your
6 analysis.
7 VINCENT DOYLE: We review each of the
8 candidates that are on the list.
9 So there were seven candidates on the list,
10 we review each.
11 Our policy, and we'll hear this when we give
12 testimony about Justice Fahey, is if we have
13 previously reviewed a candidate within the last
14 year, or two years, roughly, we may carry over their
15 qualification -- their rating, but only if we do a
16 due-diligence investigation to make sure nothing has
17 changed.
18 But we review the qualifications of each of
19 the candidates. We do a full, what I would call,
20 written on the papers, and, oral, contacting
21 lawyers, contacting other judges, contacting
22 colleagues. We do that for every candidate.
23 In person, we meet with each candidate,
24 unless we have previously met with them in relation
25 to the same office, nomination for the same office,
14
1 within the last year or so, and they have received a
2 "well-qualified" rating.
3 SENATOR NOZZOLIO: Well, it's difficult to
4 quantify, put a number to, but, give us an estimate,
5 how many meetings?
6 And including in those meetings, and
7 conference calls, and the like, did the committee
8 have to engage in in this seven-candidate analysis?
9 VINCENT DOYLE: It's an extensive amount of
10 work, I'll be honest with you, and this is all
11 volunteer work, for members of the committee that
12 are asked to serve by the president.
13 The majority of the work is done by the
14 subcommittees. They actually do the investigations.
15 So, we estimated, at one point, that each
16 subcommittee member can expect to spend anywhere
17 between 20 to 40 hours doing the background
18 investigation, including reading decisions of those
19 who are sitting judges, reading briefs, reading
20 public statements; reviewing the written application
21 materials, background; making phone calls, again, to
22 colleagues, lawyers, who have practiced with or
23 practiced in front of, lawyers with the cases
24 against when they were practicing.
25 The in-person meetings, the subcommittee has
15
1 one with each candidate; so those would be one of
2 those for each of the candidates.
3 And then we have a general committee meeting,
4 which, again, as I said, we meet with each
5 candidate, unless they have previously received a
6 "well qualified."
7 So, overall, you know, it's -- I would
8 estimate somewhere between 40 to 50 hours of work on
9 each candidate are spent, either by the subcommittee
10 or the full committee.
11 SENATOR NOZZOLIO: Well, thank you for the
12 obvious thoroughness of this work, and we appreciate
13 your recommendations.
14 VINCENT DOYLE: The thanks go to committee
15 members and the staff of State Bar Association,
16 which does terrific work.
17 But thank you for the question, Senator.
18 SENATOR BONACIC: Okay, before we get to the
19 next question, let me acknowledge some of the
20 Senators that have come here.
21 Senator Ruth Hassell-Thompson, who is the
22 Ranker on Judiciary, is present; Senator Serino,
23 Senator Venditto, Senator Dilan, Senator Flanagan,
24 Senator O'Mara.
25 Thank you all for making the efforts in this
16
1 terrible weather to be here for this meeting.
2 Next question, Senator Ranzenhofer.
3 SENATOR RANZENHOFER: Thank you, Chairman.
4 Vince, welcome --
5 VINCENT DOYLE: Thank you, Senator.
6 SENATOR RANZENHOFER: -- back to Albany.
7 And I want to, first, thank you for not only
8 chairing this very important Committee, but also for
9 all of the work that you did for the State Bar
10 Association.
11 I think with all the work you've done, you've
12 exceeded the chief judge's recommendations for
13 pro bono work that have been coming down the pike.
14 I appreciate all of the hard work that is
15 done.
16 Obviously, as members of the Committee, we
17 don't have the time to do the investigation that you
18 have done, and your committee has done.
19 I don't have a question, because you've
20 already done, you know, so much of the work here.
21 I appreciate the work that you've done for
22 us. I think the recommendations from the committees
23 are s.
24 I just want to welcome you to Albany, and the
25 beautiful weather that we're having here.
17
1 And, thank you for your service.
2 VINCENT DOYLE: Well, I was waiting for a
3 chance to say that we're both from Western New York,
4 Senator.
5 And, Senator Bonacic keeps saying it's
6 horrible weather here.
7 It's pretty nice here.
8 [Laughter.]
9 VINCENT DOYLE: So, thank you.
10 SENATOR RANZENHOFER: Just another balmy day
11 in Albany.
12 SENATOR BONACIC: Senator Diaz.
13 Thank you, Mr. Chairman.
14 Good morning, Mr. Doyle.
15 VINCENT DOYLE: Good morning, Senator.
16 SENATOR DIAZ: I'm going to [inaudible].
17 I would like to ask you a question.
18 When there was two lawyers [unintelligible],
19 when you do the interviews and [unintelligible], the
20 judges are aware, already on the bench. They're
21 also aware in the interview.
22 VINCENT DOYLE: Yes.
23 SENATOR DIAZ: Here in the South Bronx where
24 I am, we have a saying that says, "If it's not
25 broken, don't fix it."
18
1 And I hear the Chairman talking, so I hear
2 only two judges are aware who are already seated.
3 So when you interview candidates
4 [unintelligible] two seated judges, what was so
5 broken [unintelligible]?
6 VINCENT DOYLE: Well, Senator, as to the
7 first vacancy, which is a vacancy created by
8 Judge Graffeo, who had reached the end of the term,
9 she was eligible for reappointment.
10 So she was one of the seven candidates that
11 the commission put forth, along with Justice Stein
12 and five others.
13 Judge Graffeo did apply, she was on the list
14 of seven, and she was rated by our committee. She
15 was also rated "well qualified."
16 But the decision of those seven candidates is
17 up to the Governor. Under the law, he is -- he
18 receives a list of seven, and he makes the
19 appointment.
20 The State Bar Association's role, the role of
21 the committee that I serve on, is simply to rate the
22 candidates. We don't rank them, we don't endorse
23 one.
24 We found Justice Graffeo to be well qualified
25 as well, but --
19
1 SENATOR DIAZ: You, of course, recommend
2 [unintelligible].
3 VINCENT DOYLE: We have never done that.
4 That's not part of what we view our role is.
5 We view our role as taking each candidate --
6 SENATOR DIAZ: Do you think that the Governor
7 made the right decision by not appointing two good
8 judges [unintelligible] looking and committing,
9 support the Governor, in viewing, and saying, Hey,
10 [unintelligible]?
11 VINCENT DOYLE: We view our role as being, to
12 take each candidate, in and of themselves, and make
13 a recommendation whether they should be rated
14 "well qualified," "qualified," or "not qualified."
15 And we stop there.
16 We view, if we went any further, that we
17 would be engaging in the political discussion, which
18 really is for this Committee and for the Senate.
19 SENATOR DIAZ: [Unintelligible] I believe
20 that, when a group is appointed to recommend
21 [unintelligible]. I mean, I think [unintelligible].
22 Do you feel that the person that is
23 succeeding the person that is being already doing a
24 good, if you are going to recommend, you should
25 recommend also [unintelligible].
20
1 VINCENT DOYLE: Well, under the Constitution,
2 the commission, and we're not the commission, we're
3 a state bar committee --
4 SENATOR DIAZ: [Unintelligible].
5 VINCENT DOYLE: -- we simply rate.
6 SENATOR DIAZ: [Unintelligible] recommend.
7 VINCENT DOYLE: We simply rate.
8 We rate. We say whether each candidate is
9 "qualified" or "well qualified" or "high" --
10 "well qualified" in this situation.
11 And the other thing, the second appointment,
12 Judge Smith, who is the second judge, Judge Smith is
13 ineligible to continue because he's aged out. He
14 has reached the age of 70, so he's not eligible for
15 reappointment.
16 SENATOR DIAZ: I just want to be clear on
17 what it is you recommend, and what is your view,
18 keep to yourself.
19 VINCENT DOYLE: We rated each of the
20 candidates. The Governor chose one of the
21 candidates we rated "well qualified."
22 SENATOR DIAZ: I just want to be clear: Are
23 you saying, if I'm doing a good job, and I'm holding
24 my duty, and I'm there, why you recommending to kick
25 me out?
21
1 Why not say, Hey, that's a good person
2 [unintelligible]?
3 VINCENT DOYLE: The Constitution gives the
4 Governor that right.
5 SENATOR BONACIC: Does anyone else have any
6 other questions of Mr. Doyle?
7 Mr. Doyle, thank you, but don't go too far,
8 because after we do the public hearing for Judge
9 Fahey, we're going to have you back.
10 VINCENT DOYLE: I'll definitely be back for
11 that.
12 Thank you, Senator.
13 SENATOR BONACIC: Our next witness is
14 Evan Goldberg. He's here on behalf of the
15 New York State Trial Lawyer Association.
16 Evan, good morning.
17 It's still morning.
18 You're on.
19 EVAN GOLDBERG: Good morning.
20 My name is Evan Goldberg. I am the
21 president-elect of the New York State Trial Lawyers
22 Association, and I appear here today on behalf of
23 the NYSTLA board of directors and our 3500 attorney
24 members who practice in trial and appellate courts
25 throughout the state.
22
1 Thank you, Chairman Bonacic, for inviting
2 NYSTLA to participate today, and for this
3 opportunity to speak in support of Governor Cuomo's
4 nomination of Justice Leslie E. Stein for associate
5 judge of New York State Court of Appeals.
6 For 60 year, NYSTLA has fought to protect
7 equal access to the civil justice system for all
8 New Yorkers.
9 The constitutional right to a trial by jury
10 is the foundation of equal access, and NYSTLA
11 vigorously opposes any compromise of this critical
12 right, whether by legislation, or through the
13 overly-aggressive application of judicial doctrines
14 and procedures that can deny a worthy litigant their
15 day in court.
16 The appointment of a new judge to the Court
17 of Appeals is, therefore, always of great
18 significance to NYSTLA.
19 The legal rights of the hundreds of thousands
20 of ordinary New Yorkers NYSTLA members represent
21 depends upon judicial restraints and careful
22 application of the law by each member of the court.
23 We applaud judges who demonstrate a
24 preference for allowing cases to be presented to the
25 jury, and who apply great caution in the use of
23
1 summary judgment, and, doctrines, such as collateral
2 estoppel, that can sometimes prevent jury decisions
3 from being made on the merits.
4 NYSTLA's Judiciary Committee had the honor of
5 interviewing all the candidates recommended by the
6 New York State Commission on Judicial Nomination to
7 fill the vacancy created at the conclusion of
8 Judge Victoria Graffeo's term.
9 The committee rated Justice Stein as
10 "highly qualified and highly recommended."
11 Her exceptional capabilities, dedication to
12 equality before the law, and the results that she
13 has achieved for New Yorkers more than warrants the
14 highest rating the committee could award, and marked
15 her out among an exceptionally qualified slate of
16 candidates.
17 Justice Stein has a long history of service
18 not only to the legal system, but to the cause of
19 gender equality and protecting the victims of
20 domestic violence.
21 Prior to joining the bench, Justice Stein was
22 well-respected for her 15 years of experience in
23 private practice where she focused on family law.
24 She went on to be elected to the Albany City
25 Court, then to the Supreme Court in 2001.
24
1 At the Supreme Court, Justice Stein was
2 proactive not only in the way she administered
3 justice in individual cases, but also with regard to
4 the system.
5 She served as the administrative judge for
6 the Rensselaer County Integrated Domestic Violence
7 part, that allowed families to resolve their
8 criminal, family, and matrimonial matters before a
9 single judge.
10 In this role, Justice Stein demonstrated her
11 commitment not just to the rule of law, but to the
12 fair, reasonable, and humane application of the law.
13 Upon her nomination to the appellate division
14 in 2008, Justice Stein continued to tackle the
15 difficult issue of domestic violence, co-chairing
16 the court system's family-violence task force.
17 Her commitment to this cause is demonstrative
18 of her finely-tuned judicial philosophy that
19 balances the need of the individual with those of
20 society as a whole.
21 Her steadfast dedication to improving the
22 lives of others will no doubt be a positive
23 influence on the work of the Court of Appeals.
24 Justice Stein is also dedicated to improving
25 the legal profession, and ensuring that New Yorkers
25
1 are represented by ethical, well-trained lawyers.
2 She was a founding member of the New York
3 State Judicial Institute on Professionalism, and
4 lectures for a number of state and local bar
5 associations.
6 On a personal note, just over a week ago,
7 I had the honor of presenting Justice Stein with an
8 award at a bar association event.
9 Everyone in attendance was impressed by her
10 remarks, and assured that she would uphold the high
11 standard of the nationally-esteemed Court of
12 Appeals.
13 In conclusion, NYSTLA commends Governor Cuomo
14 for his nomination of Justice Stein.
15 We welcome her balanced approach to the law,
16 and look forward to Justice Stein applying her
17 well-deserved reputation for balance and
18 reasonableness to the critically important matters
19 before the court.
20 Thank you for the opportunity to testify
21 today.
22 SENATOR BONACIC: Thank you very much,
23 Mr. Goldberg.
24 Does anyone have any questions of
25 Mr. Goldberg?
26
1 Thank you very much.
2 EVAN GOLDBERG: My pleasure.
3 SENATOR BONACIC: I would like to just note
4 that Judge Stein has received the highest ratings of
5 "well qualified" or "highly qualified" from several
6 bar organizations throughout the state of New York.
7 Now we're going to start the second phase of
8 the public hearing, and that deals with
9 Judge Eugene Fahey.
10 So, we're going to call back -- this is like
11 "Groundhog Day" in a way --
12 [Laughter.]
13 SENATOR BONACIC: -- we're going to call back
14 Vincent Doyle, to come up, to give testimony on
15 behalf of Judge Fahey.
16 VINCENT DOYLE: Thank you Senator Bonacic,
17 and the members of the Committee, and, ladies and
18 gentlemen.
19 You know who I am.
20 Again, I'm here on behalf of New the York
21 State Bar Association, and as Chair of the
22 association's Committee to Review Judicial
23 Nominations.
24 It is my privilege to appear before you today
25 in support of the appointment of the
27
1 Honorable Eugene Fahey as associate judge of the
2 New York Court of Appeals.
3 I reviewed the process by which our
4 evaluation evaluates candidates for the Court of
5 Appeals in connection with Justice Stein's hearing;
6 therefore, I will not repeat those procedures at
7 this time.
8 With respect to the present nomination, we
9 have found Justice Fahey to be "well qualified" to
10 serve as an associate judge of the Court of Appeals.
11 Again, "well qualified" is our highest
12 rating, and a "well-qualified" candidate is one who,
13 in addition to possessing the qualities necessary
14 for service as an associate judge, possesses
15 preeminent qualifications for that office.
16 After being selected as a candidate by the
17 Commission on Judicial Nomination, Justice Fahey's
18 qualifications were evaluated by our committee in
19 accordance with our procedures.
20 Justice Fahey had been a previous candidate
21 on two prior lists released by the commission. Each
22 of those prior times our committee had also found
23 him to be "well qualified."
24 Our procedure under those circumstances is to
25 do a full investigation in writing, and orally by
28
1 phone, but to waive the in-person interview if the
2 candidate had been previously found to be
3 "well qualified."
4 As a result of this full investigation and
5 consideration, it was the opinion of our committee
6 that Justice Fahey is "well qualified" for the Court
7 of Appeals.
8 Justice Fahey has served admirably for
9 eight years as a member of the Appellate Division,
10 Fourth Department.
11 Prior to serving on the appellate division,
12 Justice Fahey served nine years as a justice of the
13 Supreme Court, and nine years as a judge of the
14 Buffalo City Court.
15 He also served 16 years as a member of the
16 Buffalo Common Council.
17 His overall breadth of experience leads us to
18 conclude that Justice Fahey will serve the state of
19 New York well as an associate judge of the Court of
20 Appeals.
21 On a personal note, I have appeared numerous
22 times before -- over the years before Justice Fahey
23 while he was in the City Court, Supreme Court, the
24 commercial division of the Supreme Court, and the
25 Appellate Division, Fourth Department.
29
1 Each and every time I appeared before
2 Justice Fahey, I was impressed by his intelligence,
3 diligence, and judicial temperament.
4 I know that my opinion is shared by others
5 who encountered Justice Fahey.
6 He is an outstanding jurist, held in the
7 highest regard by the practicing bar.
8 On behalf of the New York State Bar
9 Association, I am pleased to endorse Justice Fahey's
10 appointment to the Court of Appeals, and urge
11 confirmation of this appointment.
12 Thank you for your attention, and for
13 inviting participation by the New York State Bar
14 Association in this important process, Senator.
15 SENATOR BONACIC: Any questions for
16 Mr. Doyle with respect to Judge Fahey?
17 Senator Diaz.
18 SENATOR DIAZ: Thank you, Mr. Chairman.
19 Again, Mr. Doyle --
20 VINCENT DOYLE: Yes, sir.
21 SENATOR DIAZ: -- I have to [unintelligible].
22 VINCENT DOYLE: Sure.
23 SENATOR DIAZ: The two [unintelligible], how
24 were they rated?
25 [Unintelligible], how were they rated?
30
1 VINCENT DOYLE: The vacancy that Justice --
2 SENATOR DIAZ: [Unintelligible], that were
3 there, [unintelligible], how were they rated by your
4 committee?
5 VINCENT DOYLE: We interviewed and rated one,
6 Justice Graffeo -- or, Judge Graffeo, pardon me, was
7 a candidate for the vacancy that Justice Stein has
8 been nominated for. We rated her "well qualified."
9 Governor Cuomo did not choose to select her
10 for an additional term.
11 Judge Smith is the second judge who is there
12 now.
13 He has aged out.
14 And, pardon me, he won't like me using that
15 term.
16 He has reached the age of 70, and under the
17 Constitution, he cannot continue to serve. So, he
18 was not a candidate, he was not on the commission's
19 list. We did not interview him, we did not rate
20 him.
21 SENATOR DIAZ: [Unintelligible].
22 VINCENT DOYLE: One of the two --
23 SENATOR DIAZ: [Unintelligible.]
24 VINCENT DOYLE: -- "well qualified."
25 SENATOR DIAZ: [Unintelligible.]
31
1 VINCENT DOYLE: With the same process that
2 all of the other candidates went through, yes.
3 SENATOR DIAZ: [Unintelligible.]
4 VINCENT DOYLE: The intention?
5 SENATOR DIAZ: The, uhm --
6 VINCENT DOYLE: Oh, intensity?
7 Yes.
8 "Well qualified" is "well qualified."
9 We meant it as much for Judge Graffeo as we
10 did for everyone else.
11 SENATOR DIAZ: [unintelligible], there was
12 nothing broken?
13 VINCENT DOYLE: Again, that's -- that's not
14 our role.
15 The Constitution gives the Governor that --
16 SENATOR DIAZ: I will tell you what I'm
17 saying: [unintelligible] saying that if something
18 isn't broken, it doesn't need fixing.
19 VINCENT DOYLE: I don't think in this setting
20 you can say that.
21 That as a certain import, the Governor has
22 that choice under the Constitution, Senator.
23 SENATOR BONACIC: Any other questions of
24 Mr. Doyle?
25 Okay, Mr. Doyle, thank you very much for
32
1 your appearance today.
2 VINCENT DOYLE: Thank you, Senator.
3 SENATOR BONACIC: Okay, Mr. Evan Goldberg,
4 welcome back.
5 EVAN GOLDBERG: Thank you.
6 It's been too long.
7 Again, for the record, my name is
8 Evan Goldberg, and I am the president-elect of the
9 New York State Trial Lawyers Association.
10 I'm appearing here today on behalf of our
11 board of directors, and our 3500 attorney members
12 who participate in trial and appellate courts
13 throughout the state.
14 Thank you once again, Chairman Bonacic, for
15 inviting NYSTLA to participate, and for this
16 opportunity to speak in support of Governor Cuomo's
17 nomination of Justice Eugene Fahey for associate
18 judge of the New York State Court of Appeals.
19 We respectfully ask that the history of our
20 organization and its mission of ensuring continued
21 access to the civil justice system, as stated during
22 the testimony in support of Justice Stein's
23 confirmation, be incorporated by reference.
24 NYSTLA's Judiciary Committee had the honor of
25 interviewing all the candidates recommended by the
33
1 New York State Commission on Judicial Nomination to
2 fill the vacancy created by the retirement of
3 Judge Robert Smith.
4 Among such an impressively credentialed panel
5 of candidates, Justice Fahey stood out for his
6 judicial experience, as well as for his reputation
7 for fairness on the bench.
8 The committee rated Justice Fahey as
9 "highly qualified and highly recommended."
10 Justice Fahey is widely respected for his
11 almost two decades of judicial experience.
12 Serving first as a Buffalo City Court judge,
13 he quickly advanced to the Supreme Court, before
14 being appointed to the Appellate Division,
15 Fourth Department.
16 Many NYSTLA members have had the honor of
17 appearing before Justice Fahey, whether at trial or
18 on appeal.
19 Members of the plaintiffs' bar, indeed, all
20 who appear before Justice Fahey, recognize that they
21 are given an unbiased and objective hearing, and
22 that their legal arguments receive close attention
23 by one of our state's most learned judges.
24 The breadth and depth of legal knowledge
25 Justice Fahey has attained over the course of his
34
1 career is readily apparent upon even a cursory
2 examination of his record.
3 Before serving on the bench, Justice Fahey
4 represented clients as a practicing attorney,
5 earning a reputation for collegiality and fairness
6 that followed him to the bench.
7 As a judge of the Buffalo City Court, and,
8 later, as a justice of the Supreme Court,
9 Justice Fahey handled thousands of criminal, civil,
10 and commercial cases.
11 The experience clearly served him well on his
12 nomination to the Appellate Division, and his
13 well-stated and thoughtful decisions provide a clear
14 guide for both attorneys and judges at the trial
15 level.
16 Equally, Justice Fahey's dissenting opinions
17 have been taken up by the Court of Appeals as the
18 appropriate outcome, demonstrating characteristic
19 resolve in addition to legal scholarship.
20 In conclusion, Governor Cuomo has made
21 another excellent choice in his nomination of
22 Justice Fahey.
23 We welcome his thorough and open-minded
24 approach to the law, and look forward to
25 Justice Fahey applying his well-deserved reputation
35
1 for fairness to the court and the manner in which
2 they address the most important legal issues of the
3 day.
4 Thank you again, Chairman Bonacic, for the
5 opportunity to testify.
6 SENATOR BONACIC: Thank you, Mr. Goldberg.
7 Any questions of Mr. Goldberg?
8 I see that Senator Perkins has joined us.
9 Good afternoon, Senator.
10 SENATOR PERKINS: Good afternoon.
11 SENATOR BONACIC: At this point, let me just
12 make a note:
13 Similar to Judge Stein, Judge Fahey also
14 received the highest ratings of "well qualified" and
15 "highly qualified" from all bar groups across the
16 state.
17 In addition to the testimony that we've
18 heard, we have had written testimony from bar
19 organizations that will be incorporated into the
20 public record of this public hearing.
21 At this time, I would like to recognize
22 Senator Hassell-Thompson, our Ranker on Judiciary.
23 SENATOR HASSELL-THOMPSON: Thank you,
24 Mr. Chairman.
25 I will reserve whatever time I have for the
36
1 questioning period.
2 I don't really have a statement, except to
3 just thank the Governor for sending us extraordinary
4 candidates for us to interview and to review today.
5 SENATOR BONACIC: That will conclude the
6 public hearing.
7 We'll take a brief recess for about
8 five minutes, and then convene a meeting of the
9 Judiciary Committee, when Judge Stein and
10 Judge Fahey will appear and address the Committee,
11 and any questions that members will have for those
12 nominees will take place at that time.
13 So, the public hearing is deemed adjourned at
14 ten after twelve this afternoon.
15 Thank you.
16
17 (Whereupon, at approximately 12:10 p.m.,
18 the public hearing held before the New York State
19 Senate Standing Committee on the Judiciary
20 concluded, and adjourned.)
21
22 ---oOo---
23
24
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