JUDGE FAHEY: A JUDGE'S JUDGE USING HIS POSITION TO PROTECT THE VULNERABLE.

• Author: Siegel, Daniel
• Position: New York Court of Appeals Judge Eugene M. Fahey

INTRODUCTION

Judge Eugene M. Fahey, during the hearing on his nomination to the New York Court of Appeals, was referred to as a "judge's judge," and has so far lived up to his reputation. (1)

Judge Fahey, born in September 1951 in Buffalo, New York, spent much of his life in Buffalo before his appointment to the Court of Appeals. (2) Attending the State University of New York at Buffalo, Judge Fahey received "a B.A. in political science in 1974 (cum laude), a law degree in 1984 and an M.A. in European History in 1998." (3) Prior to graduating law school, between 1978 and 1983, Judge Fahey was a member on the Buffalo Common Council. (4) Following his law school graduation, Judge Fahey clerked for Judge Edgar C. NeMoyer in the New York Court of Claims in Buffalo. (5) After his clerkship, Judge Fahey served as house counsel for Kemper Insurance Company from 1985 to 1993, as well as rejoining the Buffalo Common Council between 1988 and 1994. (6)

In 1993, Judge Fahey ran in the Democratic Mayoral primary, but lost to Anthony Masiello. (7) However, he won election to the Buffalo City Court the following year. (8) Two years later, in 1996, Judge Fahey was elected to become a New York State Supreme Court Justice. (9) Following ten years of service on the Supreme Court, Judge Fahey was appointed to the Supreme Court, Appellate Division, Fourth Department by former Governor George Pataki in 2006; his appointment was later re-designated by both former Governor David Paterson and current Governor Andrew Cuomo. (10)

On January 15, 2015, Governor Cuomo nominated Judge Fahey to fill the retiring Judge Robert S. Smith's seat on the Court of Appeals. (11) On February 9, 2015, Judge Fahey was unanimously approved, alongside Judge Leslie Stein, by the State Senate to join the Court of Appeals. (12) The addition of Judges Fahey and Stein to the Court of Appeals shifted the balance of the court, "with five of the seven judges now having been appointed by Democratic governors," the first Democratic majority in many years. (13)

IMPORTANCE OF DISSENTS

While many might believe that analyzing a judge's majority opinions is the best way to get an understanding of the judge, it is actually the dissenting opinions that a judge authors that are most telling. When writing a majority opinion, a judge must consider the points of view of the other judges so that the opinion is joined by a majority; thus, a majority opinion is not a judge's full take on the matter, but a compromise. (14) On the other hand, a dissenting opinion allows a judge to express his or her personal opinion without being burdened by what the other judges believe. (15) Further, when a judge writes a dissenting opinion, they are doing so out of a need to share their personal conviction, so those dissents are the best reflection of the judge's "attitudes, views, and beliefs." (16) Thus, with dissents being "the strongest indication... of the authors' strongest feelings, views, philosophies, tendencies, and ideological leanings," analyzing a judge's dissents is key towards understanding the judge and how they may vote in the future. (17)

JUDGE FAHEY'S HISTORY OF DISSENTS PRIOR TO JOINING THE COURT OF APPEALS

During his time serving as an appellate judge for the Fourth Department, Judge Fahey developed a history of being an avid dissenter; in the seven-year period between the beginning of 2008 and Judge Fahey's nomination to the Court of Appeals in February 2015, Judge Fahey wrote over fifty dissenting opinions. (18) By analyzing and identifying patterns in Judge Fahey's dissents in the appellate division, it is possible to determine what his tendencies were in the appellate division and assess whether he brought those tendencies with him to the Court of Appeals. (19)

One area where a clear pattern emerged from Judge Fahey's dissent was criminal cases, where he tended to favor the defendant and sought to protect defendants' rights. (20) One right he attempted to protect was the right to effective counsel. (21) Another defendants' right that Judge Fahey would argue in favor of in his dissents is the need for sufficient evidence required to prove every element of the crime in order to uphold a conviction. (22) Additionally, Judge Fahey also wrote several dissents at the appellate division to argue against harsh sentencing of convicted criminals. (23)

Despite Judge Fahey's tendency to author dissents arguing to protect the rights of defendants, however, he tended to make an exception to his pro-defendant views and issue dissents that were pro-prosecution when "a child or other vulnerable person [had] been victimized." (24) Further, Judge Fahey's tendency to side against those who victimize children has also extended to civil cases. (25)

Thus, Judge Fahey's tendency at the Fourth Department was to protect the rights of defendants in criminal cases, with the exception that he would side with the victims in any case where those victims were children or other vulnerable people. (26)

STATISTICS OF JUDGE FAHEY'S DISSENTS

Between when he joined the Court of Appeals in 2015 and the end of 2017, Judge Fahey wrote dissenting opinions for fourteen cases. (27) Of those fourteen dissenting opinions, five of them were written in criminal cases, (28) and nine were written in civil cases. (29) Contrary to the tendency he demonstrated with the Fourth Department, (30) Judge Fahey has written in favor of the prosecution in three of the five criminal cases for which he has written dissents. (31) Additionally, Judge Fahey has demonstrated that he is not afraid to stand against his fellow judges and share his opinion, even when he is the lone voice of his opinion: four of the judge's fourteen dissents were sole dissents, meaning that Judge Fahey was the lone holdout voting against the majority in those cases. (32)

Despite his vigorous record of writing dissents at the Fourth Department (33) and despite a record of continuing to cast the second-most dissenting votes behind Judge Jenny Rivera, (34) Judge Fahey's fourteen dissenting opinions during his first three years constitutes an average of less than five dissents per year. (35) During his first year on the Court of Appeals in 2015, Judge Fahey issued five dissenting opinions. (36) However, the overall Court issued sixty-eight dissenting opinions in 2015, so Judge Fahey's five dissenting opinions are much less than the average amount of dissents issued by the seven judges, which would be around ten dissents. (37) Then in 2016, Judge Fahey increased his number of dissents issued to seven (38) while the overall court decreased in dissenting opinions to fifty-three, so he issued the average amount of dissents that would be expected from each judge that year. (39) But then in 2017, Judge Fahey's number of authored dissents plummeted to only two dissenting opinions. (40) One possible reason for Judge Fahey's decrease in dissenting opinions from his time at the Fourth Department and his decrease in dissents from 2016 to 2017 is the makeup of the members of the court: Judge Fahey's appointment to the court had already shifted the balance to five of the seven judges being appointed by Democratic governors (41) and with Judge Rowan D. Wilson being confirmed for the court in February 2017, every member of the court has been appointed by Governor Cuomo. (42)

ANALYSIS OF JUDGE FAHEY'S DISSENTS

Criminal

While it may have been surprising that Judge Fahey, a notoriously pro-accused judge, would write his first three criminal case dissents in favor of the prosecution, a closer look at the facts of those three cases reveals that he was not...