The pert perpender: associate Judge Eugene F. Pigott, Jr.'s journey from Buffalo to Rochester and Albany.

• Jurisdiction: United States
• Date: 22 March 2010
• Author: Loefke, Benjamin L.

When we study law we are not studying a mystery but a well known profession. We are studying what we shall want in order to appear before judges.... People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts. (1)

1. INTRODUCTION

   At the outset, it is important to note that the title of this article is somewhat of a misnomer. While Eugene Pigott is largely known as western New York's--really Buffalo's--voice on New York's highest Court, his story actually begins in Rush, New York, a suburb of Rochester. (2) Setting aside the title and its explanation for a moment, the purpose of this article is to offer the reader insight to Court of Appeals of New York Associate Judge Eugene F. Pigott--not only as a judge, but also as a lawyer and person.

   The story begins in Buffalo, the city where Pigott attended law school and began his legal and judicial careers, (3) continues through Rochester, where he spent eight years as a justice with the Appellate Division, Fourth Department (six of them as presiding justice) (4), and ends in Albany, where he currently sits as an associate judge at the Court of Appeals. A portion of the information contained in this article is personal background (5)--the who, what, where, why, and how--but later sections focus on quantifying Judge Pigott's voting behavior, identifying trends, and examining vindication rates of his dissents. (6)

2. BIOGRAPHICAL BACKGROUND

   As explained above, contrary to the title of this work, Pigott's journey to the Court of Appeals bench really began in Rochester, not Buffalo. He was born in September of 1946 (7) and grew up in Rush, where he attended Rush-Henrietta schools and graduated from McQuaid Jesuit High School. (8) He went on to attend LeMoyne College in Syracuse (which, like his high school, is also a Jesuit institution) (9) where he graduated with a B.A. in 1968. (10) Soon after commencement, Pigott was drafted into the U.S. Army where he served as an interpreter in Vietnam. (11) After his service overseas, Pigott returned to New York to attend law school at the State University of New York at Buffalo. He graduated from western New York's only law school in 1973. (12)

   1. Buffalo Lawyer

      Eugene Pigott took his first legal job with the law offices of Offermann, Fallon, Mahoney & Adner, a small yet elite (13) Buffalo law firm. (14) He worked there as a clerk throughout law school. (15) Judge Pigott has recounted his first day on the job as a somewhat uncomfortable experience. He explained:

      I showed up for my first day and nobody knew who I was. The secretary informed one of the partners, Leo Fallon, that I was waiting to meet with him, but he didn't remember me--he had forgotten that months earlier he had hired me to clerk for the summer. Leo Fallon threw me a Sports Illustrated magazine and told me to read it until he could find some work for me. Not because the judge's story needed to be "fact-checked," but out of curiosity, I later had the opportunity to question Leo Fallon (who went on to a successful career on the bench himself) (16) about the incident. His response, after I implied that he "might have forgotten" in the most tactful way I could, was a short chuckle. "It wasn't that I may have forgotten, I certainly forgot," he said.

      After graduating from the University at Buffalo Law School, Pigott began his career as an associate with the same firm he had clerked for during law school. (17) In 1978 he became a partner, but left in 1982 for government work after being appointed as Erie County Attorney. (18) During that same time, Pigott joined the Board of Directors of the Legal Aid Society of Buffalo, and became president of the organization in 1986--a position he held until 1988. (19)

      Fulfilling his lifelong dream of becoming a trial lawyer, in 1986, Pigott returned to Offermann, Cassano, Pigott & Greco as chief trial counsel after gaining substantial experience as the County Attorney. (20) During his career, Pigott tried hundreds of civil cases. Aside from a handful of juvenile delinquency matters (21) and one habeas corpus proceeding (22) as county attorney (at least from those that made the official New York Reports), Eugene Pigott's career focused almost exclusively on civil matters.

      As for Judge Pigott's family life, he has been married to his wife Peggy for thirty-four years. (23) His son David, a twenty-eight-year-old graduate of West Point, has served multiple tours of duty in Iraq with the 101st Airborne Division. (24) Martha, the Pigott's daughter, is a Phi Beta Kappa graduate of Hobart and William Smith Colleges, where she majored in public policy. (25) After graduating in 2006, Martha joined the Peace Corps, and currently works in a health clinic in Dzoole, Malawi. (26) Judge Pigott certainly instilled in his family the principle "that you owe your country something ... [and that] you really should do something to pay back everything you get." (27)

   2. Rochester Appellate Court Justice

      On February 4, 1997, Eugene Pigott was appointed by Republican Governor George E. Pataki--for the first time--to fill a vacancy at the Erie County Supreme Court. (28) Judge Pigott successfully ran for a full fourteen-year term as a supreme court justice in the Eighth Judicial District in November of 1997. (29) But Pigott's days as a trial court justice were short-lived. In 1998, Pataki--for the second time--showed his approval of Pigott by designating him to the Supreme Court, Appellate Division, Fourth Department in Rochester--a natural fit for the Rochester native. (30)

      Pigott served the Appellate Division, Fourth Department for the next two years as an associate justice, but got the nod from the governor again in 2000 to replace the late M. Delores Denman--who resigned three days before she lost her battle with cancer--as the seventeenth presiding justice. (31) Judge Pigott served the Fourth Department as presiding justice for six years until late 2006. (32)

      Judge Pigott's career at the Fourth Department was marked by his centrist temperament. In reviewing the data (33) from the time Judge Pigott was at the Fourth Department, he was fairly balanced in civil and criminal cases, showing no real favor to plaintiffs or defendants; and in criminal matters, no clear bias toward either the prosecution or accused. Commentators have explained Pigott's demeanor while he served in Rochester as "not rigidly law and order ... [and that i]n criminal cases he certainly doesn't have the record that some of Pataki's other choices for the court have. Nor does he seem to be rigidly conservative in the civil realm." (34) The judge has been described on other occasions as "evenly balanced" and "not always predictable." (35) Later in this article, Pigott's judicial philosophy and voting patterns while serving as an associate and presiding justice of the Fourth Department will be discussed more fully.

      As a final background note on his time in Rochester with the Fourth Department, Pigott was the recipient of both the Howard A. Levine Award for Excellence in Juvenile Justice and Child Welfare, an honor bestowed by the New York State Bar Association for "commitment to protecting and promoting the rights of children in New York," (36) and the Champion of Diversity Award, given to Pigott by the Rochester Black Bar Association for "his work to recruit minority law clerks to the Appellate Division." (37)

   3. The Governor Calls--Once More

      In 2006, Associate Judge George Bundy Smith's fourteen-year term at the Court of Appeals was set to expire. (38) Smith's unfortunate problem was that he was sixty-nine years old--merely one year away from mandatory retirement (39)--and that Governor Pataki, because he had decided he would not run again, would be making his final appointment to the Court of Appeals at the expiration of Smith's term. (40) This combination of events, along with the fact that Smith was typically a liberal voter who had been appointed by Governor Cuomo in 1992, did not bode well for a pat-on-the-back appointment for a judge who could serve only one more year anyway. (41)

      1. The Short List

         Deciding who to fill Smith's former post, Pataki's short list of candidates included four appellate division justices: Associate Justice Richard T. Andrias, First Department; Associate Justice James M. Catterson, First Department; Associate Justice Steven W. Fisher, Second Department; Associate Justice Thomas E. Mercure, Third Department; and two appellate division presiding justices: Presiding Justice Eugene F. Pigott Jr. of the Fourth Department; and Presiding Justice A. Gail Prudenti of the Second Department. (42) The New York State Bar Association rated every candidate "well qualified" with the exception of Justice Catterson, who was rated only as "qualified." (43)

         Despite concerns regarding a lack of diversity on the bench (all of the above mentioned candidates where white), Pataki appointed Eugene Pigott--in what amounted to be the fourth and final time Pataki would show Pigott his favor--to fill the opening created by Smith's departure. (44) In defense of his pick the governor said:

         Presiding Justice Pigott is an outstanding jurist who has consistently distinguished himself throughout his career, most recently as the Presiding Justice of the Appellate Division, Fourth Department.... I am confident that his breadth of knowledge and experience, unwavering commitment to the rule of law and keen intellect will enable him to make an enduring contribution to the Court of Appeals and the people of New York. (45) The governor's sentiments were exactly what one would expect from the man who had just selected a new judge for the state's highest court, but there was also a great deal of truth to...