The Albany nine: recognizing Albany Law School's Alumni Justices of the Third Department.

• Author: Gillerman, Jonathan D.
• Position: A SPECIAL TRIBUTE TO THE THIRD DEPARTMENT

1. INTRODUCTION

   In 1894, New York's Constitutional Convention set out to correct the inefficiencies of the state's intermediate appellate courts when it supplanted the general terms with the appellate division and its four judicial departments. (1) When the first cases were heard by the appellate division in January of 1896, (2) one of Albany Law School's own was a member of the Third Department's five justice panel. (3) D. Cady Herrick (pronounced D-Cady), (4) an Albany native and a former Albany County District Attorney and justice of the General Term, served as a Justice of the Appellate Division of the New York State Supreme Court, Third Judicial Department from 1896 to 1900. (5)

   At a time when law was learned primarily through apprenticeship and independent study, Justice Herrick bucked the trend--at least in part--by enrolling in a course at the law school before graduating in 1868. (6) One of his classmates there would become a prominent alumnus in his own right. This man was William McKinley, who would become the 25th President of the United States. (7) Interestingly enough, President McKinley was elected President in the same year that Justice Herrick was appointed to the Third Department bench. (8) Not a bad year for the class of 1868.

   By this measure, then, Justice Herrick was the first Albany Law School alumnus to serve as a justice of the Third Judicial Department. History would find him to be in good company. In its 104 year history, 36 of the Third Department's 88 justices have graduated from Albany Law School. (9)

   This number, as astonishing as it is in its own right, becomes even more impressive when you consider that the next most represented law school on the court has been Cornell Law School, which has graduated eight justices of the Third Department. (10) Moreover, when you take into account that twenty-three of the eighty-eight justices never attended law school to begin with, this means that Albany Law School graduates have comprised a majority among all law school alumni of the Third Department, with 36 out of 65 Justices, or, just over 55 percent of the Third Department's law school educated judiciary having matriculated from Albany Law. (11)

   The significance of this achievement is more than merely numerical. While the high correlation may be in part attributable to certain geographical factors, (12) the sheer quantity of Albany Law alums has not been achieved for want of jurists of exceptional quality. Over the years, the justices who have traversed the Third Department by way of Albany Law School have arguably been among the finest in the court's history. From Presiding Justices A. Franklin Mahoney and Leonard A. Weiss--two men whose undergraduate studies were interrupted by service in the Marines and Army (respectively) during WWII, and both of whom would return and attend Albany Law School and thereafter enjoy long and distinguished careers in the judiciary (13)--to Judge Domenick L. Gabrielli (14) and Chief Judge Lawrence H. Cooke (15)--who both went on to serve as judges on the Court of Appeals, with Judge Cooke serving as the chief judge of New York's highest court from 1979-1984 (16)--there is a tradition of excellence here that dates back to Justice Herrick's service on the very first court.

   The respective career paths these justices have taken en route to the Third Department bench have been varied. These men and women have served as district attorneys, members of state and local government, FBI Special Agents, (17) newspapermen, (18) and law school professors (19) before making their way to the appellate bench. They have fought in the wars that defined their generations. (20) Some have even gone on to serve on the Court of Appeals. (21) Yet, in reviewing the careers of these thirty-six women and men, the common thread that seems to connect them all, from 1896 to the present day, is that they have each demonstrated dedication to their country, state, and communities, and of course, to the judiciary as well.

   There are currently twelve justices on the Third Department. Of the twelve, nine are Albany Law alumni. Today's alumni justices follow in the esteemed footsteps of their predecessors by exemplifying service in its finest form.

   The purpose of this article is to recognize the nine Albany Law alumni justices who currently serve on the Third Department. Part II provides a short biography of each justice and details his or her path to the court.

   Part III provides a sampling of the jurisprudence of the justices by broadly examining some of the decisions they have taken part in since being appointed to the Third Department. This analysis is particularly fitting, considering that the appellate divisions undertake the overwhelming majority of appellate review in the state.

   Recent decisions were given preference to include opinions with as many of the nine as possible. Decisions from a wide spectrum of legal subjects are discussed and examined, focusing on cases under the disciplines of criminal procedure, New York Practice, commercial law, same-sex legal issues, and employment law. Some cases discussed are timely departmental splits and involve currently debated topics in the law, while others involve more general questions of statutory interpretation. All, though, are emblematic of the decisions the court renders on a routine basis.

   Part IV of this article is entitled "Vindicated Dissenters." This section features three recent cases where one of the alumni justices dissented from his or her colleagues, and was later vindicated when the Court of Appeals reversed the majority's decision. Statistics detailing the frequency of this occurrence--or even the occurrence itself--are maintained or discussed by legal commentators infrequently. Yet, it is easy to see how interesting and telling such records could be when performing in-depth legal analysis of appellate division justices and cases.

   Part V presents this author's hope that the legal analysis contained in this article, and in the New York Appeals edition of the Albany Law Review, will be a springboard for more in-depth analysis focusing on appellate division justices and the cases they decide.

2. THE JUSTICES

   1. Presiding Justice Anthony V. Cardona

      As currently the longest tenured member of the court, Presiding Justice Anthony V. Cardona has been a mainstay on the Third Department since his appointment to the bench September 8, 1993. Several months after his selection, and by virtue of the retirement of longtime Presiding Justice Leonard A. Weiss--himself an Albany law grad--Presiding Justice Cardona was appointed presiding justice of the Appellate Division, Third Department January 1, 1994. (22) He is the seventh consecutive presiding justice of the Third Department to also be an Albany Law alumnus, a successive string that dates back to Justice Bergan's designation to the post in 1960. (23)

      Now in his seventeenth year at the helm of the court, Presiding Justice Cardona is the longest-serving presiding justice in the history of the Third Department, having eclipsed the tenure of former Presiding Justice James P. Hill, who served in this capacity from January 1, 1933 until December 31, 1948. (24) Only former Presiding Justice J. Clarence Herlihy has served on the Third Department longer than Presiding Justice Cardona. Justice Herlihy served on the Third Department bench for more than twenty-four years. (25)

      Presiding Justice Cardona graduated from Manhattan College in 1962. (26) From 1963-1967, he served as a Naval Officer in the United States Navy during the Vietnam War. Following his honorable discharge, he attended Albany Law School, where he graduated in 1970. After graduation, Presiding Justice Cardona practiced law for fourteen years, during which time he served for two years as a part-time attorney with the Albany County Public Defender's office, and also as a Law Guardian in Albany County Family Court. (27)

      His judicial career began when he was elected an Albany County Family Court judge in 1985. He would serve as a family court judge until 1991, when he was elected a supreme court justice for the Third Judicial District. In 1992, he was appointed an administrative judge for the Third Judicial District, where he served until his appointment to the Third Department in 1993. He was reelected as a supreme court justice in 2004. (28)

      In addition to his prolific resume as a jurist, Presiding Justice Cardona has actively served on several committees throughout his career. From 1994-2005, he was a co-chair of the Family Violence Task Force established by former chief judge of the New York State Court of Appeals, Judith S. Kaye. Additionally, he has been a longtime member of the Council of Chief Judges of the American Bar Association, serving as the organization's president from 2002-2003. (29)

      For all of his successes, Presiding Justice Cardona has remained a steadfast friend of his alma mater. He is a member of the Albany Law School Board of Trustees, and is a frequent guest at many of the law school's functions. Thanks to his efforts, the Third Department hears oral arguments once a year from the law school's Dean Alexander Moot Courtroom, providing students with an unparalleled opportunity to witness oral advocacy firsthand.

   2. Justice Edward O. Spain

      Justice Spain is a graduate of LaSalle Institute in Troy, New York, Boston College University in 1963, and Albany Law School in 1966, where he was a recipient of the Trustee's First Prize. (30) After graduation, he began his career practicing law alongside his father, John H. Spain, in Troy. (31) Thereafter, Justice Spain worked as an assistant district attorney for Rensselaer County, where he served until he was called into duty by the United States Navy, Judge Advocate General Corps., in 1967. (32) He was honorably discharged from the JAGC in 1972, having earned himself the rank of lieutenant. Following his military service, Justice Spain returned to his roots...