Hugh Jones and modern courts: the pursuit of justice then and now.

• Author: Wesley, Richard C.
• Position: New York Court of Appeals judge

HUGH R. JONES MEMORIAL LECTURE

Albany Law School--March 11, 2002

I begin my talk this afternoon with an expression of gratitude. I am deeply honored that the Fund for Modern Courts and Albany Law School would look to me to deliver the first Hugh R. Jones Memorial Lecture. Judge Jones played a significant role in my career as an appellate judge. He chaired Governor Cuomo's Fourth Department Screening Committee when I was appointed to the Appellate Division and the Judicial Nominating Commission that submitted my name (along with six others) to Governor Pataki for the Court of Appeals.

All told, I believe I was interviewed by Judge Jones on four occasions. (It took three times for the Appellate Division!) In each interview, he was gracious, yet probing; respectful, but direct. Ultimately, we got to know each other outside of the confines of an interview room. I recall one night when former Justice G. Robert Witmer, Sr. assigned my wife and me to attend to the Judge and Jean at the Witmers' 60th anniversary in October 1996. That was Kathy Wesley's first introduction to Judge Jones; by the end of the night, she was in love! Judge Jones had charmed her with his wit, his grace, and his gentle good nature.

Hugh Jones was born in New Hartford, the grandson of Welsh immigrants. He lived most of his life in the house in which he was born. Educated at Hamilton College and Harvard Law School, he first practiced law in New York until called to naval service in the Pacific Theater during World War II. Following the war, Jones returned to the Utica area to practice law. He became active in local and State bar matters, culminating in his election to the presidency of the State Bar Association in 1971. That same year he was called upon by Governor Rockefeller to serve on the commission that reviewed the events that led to the deadly riot at Attica. In 1972 Judge Jones was elected to the Court of Appeals with Sol Wachtler and Dominic Gabrielli. Throughout his life Jones dedicated himself to serving others--as counsel, bar president, college trustee, Chancellor to three Presiding Bishops of the Episcopal church, and Court of Appeals Judge. Part of that commitment to the common good found clear expression in his work at Court of Appeals Hall on Eagle Street.

In light of Judge Jones's dedication to his work as a judge, and fully cognizant that this is the first Jones lecture, I think it appropriate to focus on the Judge in his pursuit of justice. In reviewing his work, the Judge's commitment to the Court and the law is unavoidable. It strikes me that Jones had a keen appreciation of the significance of the Court, how it did its work, and its effect on all New Yorkers. What he said (and wrote) about the Court still resonates within our grand courthouse. But there is more. The way the Court works as an institution and as a laboratory for the continued development of the common law has relevance to a more modern theme. The pursuit of justice in the 21st Century has undergone a dramatic and revolutionary shift at the trial court level. Problem-solving courts, or outcome-related justice, has recast the equation, but the underlying process that gave birth to this model has its roots in the values that Hugh R. Jones articulated so well.

On November 28, 1979, Judge Jones delivered the Thirty-Fifth Annual Benjamin N. Cardozo lecture before the Association of the Bar of the City of New York. (1) Jones's Cogitations on Appellate Decision-Making remains a mainstay for appellate judges--I received my first copy from my former colleague Justice Sam Green on my first day at the Fourth Department.

In his Cardozo lecture Jones set out a number of observations about appellate judging. The judge's task is to follow the law and the persuasion of reason to wherever they may lead. Judges are free to continually explore their view of a case through preparation, oral argument, and the opinion-writing process without the pressure of gain or fear of losing status with one's colleagues. For Jones, the appellate process was a pursuit not of individual achievement, but of institutional responsibility--to articulate the law. He noted: "The status of the individual cannot be advanced at the expense of the Court or to the detriment of the sound development of the law." (2) For Jones, one role of an effective appellate judge was "the submergence of individual image and status to the good of the Court." (3) For him, legal principles would remain long after the identity of their author had faded in the mists of time.

Jones understood that individual pride could be a dangerous commodity. No one ever comes to Eagle Street without acquiring a strong sense of self-assurance. However, the necessity of expressing a view contrary to that of the majority of one's colleagues must be kept in check and reserved for limited applications.

Differences of opinion are common in the conference room. They are the stuff of which a majority is made. The dynamic of disagreement is how our Court (and those that preceded us) ultimately articulates the law. Jones recognized this wonderfully human process and, I am told, was the master of the internal dissent. The Chief Judge has recounted that early on in her work at Albany she came home from a term only to find a dissent from Judge Jones on her desk before she had even begun to assemble the proposed opinion. (4) Judge Jones had penned it to give her a chance to rebut his position and thereby draw him into the majority. For Jones, a potential dissent was not a matter of personal pique--it was an opportunity for clarity and unanimity in expressing the law. (5)

This process continues to thrive today. The dialogue of the conference tests the strengths and weaknesses of a proposed resolution. It challenges the continued application of well-defined legal principles and calls into question the need to articulate new views of the problem at hand. At the same time, differences of opinion have a significant moderating effect in the sweep of a decision--they ensure that the Court goes no further than it needs in resolving the matter.

Of course, there will be times when matters of high principle are at stake and deeply held differences need to be aired--to fail to do so diminishes the competing views. (6) Litigants, and those who share their views, sometimes need to know that the Court has considered their position and that it was persuasive to some.

However, one should not accept the premise that the absence of a dissent "risks impairment of public confidence in the character and independence of the judges." (7) There will always be dissents--their frequency may vary over time but no human institution will ever achieve universal unanimity. The absence of a dissent, however, does not imply the absence of careful, honest analysis. The quality of the Court's work can be judged only by the clarity and persuasiveness of its opinions. For Judge Jones, if the Court did its work and did it well, public confidence would follow. The same is true today.

Some insist on evaluating the Court's work by focusing only on cases in which there is a dissent. This approach, in my opinion, suffers from a serious diagnostic flaw. It presupposes that unanimous opinions have some monolithic quality to them--that the Court was of one mind throughout the deliberative process without the judges ever seriously...