Stewart F. Hancock, Jr., 1923-2014; in this issue: truth v. justice.

• Author: Bonventre, Vincent Martin
• Position: FOREWORD

"Stew Hancock is a perfect gentleman. The finest gentleman I know" is how his colleague and pal on the Court of Appeals, Judge Vito Titone, would describe him to me.

Yes, Judge Hancock was brilliant. Anyone who worked with him or heard him speak, or discussed any serious subject with him would know that.

Yes, he was an extraordinary judge. Anyone who argued before him, was subject to his rulings, or read his judicial opinions would know that.

Yes, he was a first rate scholar. Anyone who collaborated with him on a writing--judicial or academic--or who was enlightened by one of them would know that. (1)

But even more than that was the personal character of the man. "A perfect gentleman." Yes, and in the sense that Judge Titone meant and I understood. Judge Hancock was simply unsurpassed as a man who was gracious, principled, broadminded, and utterly committed to decency and fairness in the treatment of others.

He was likewise unsurpassed as a judge who brought those personal qualities to his judicial work. Indeed, if there is an essence that can be distilled from his body of judicial work, it is that commitment to decency in the law, to promoting fundamental fairness. (2)

Judge Hancock certainly authored his share of landmark decisions. Indeed, his share was a disproportionate one, especially considering that his tenure on the court--cut short by New York's unfortunate mandatory retirement age--was little more than half of a full term. (3) Indeed a couple of them served as the basis for two of the most significant decisions by the Court of Appeals this past year. (4)

But it was Judge Hancock's overriding dedication to the promotion of fundamental fairness that is the hallmark of his opinions on the court. The primacy of decent treatment of individuals, of basic fair play. This was the dominant force guiding his interpretation of legal provisions and application of case law. If a text or precedent were feasibly amenable to reaching a fair result--even if some creative effort were required--then that was the interpretation or application that Judge Hancock would adopt and urge on his colleagues.

Whether the issue involved a wrongful firing of an employee that the "employment-at-will" doctrine typically permits; (5) or an illegal search or seizure typically overlooked if a defendant didn't satisfy a separate requirement of demonstrating standing; (6) or a prosecution that would be permitted under a rigid application of "mistake of law is no excuse," despite an extremely misleading penal statue; (7) or an injury from governmental negligence or indifference that typically receives no redress because of immunity under the "special duty" rule; (8) or a host of other inequities that would flow from an inflexible application of legal doctrine--Judge Hancock's approach was a jurisprudence grounded in reaching a result that made sense, to him, because it was fair. Common sense and decent treatment were simply far more important to him than any interpretive methodology or allegiance to any other theory of jurisprudence. No, his judicial philosophy was fairness.

This devotion to fundamental fairness did not go unnoticed. This is no mere line for an obituary or remembrance of a departed judge. It was written and spoken about on many occasions by many others. (9) In fact, he himself often acknowledged this unassuming, unpretentious, straightforward jurisprudence of his. Among other times, he did so when delivering the 2004 Hugh Jones Memorial Lecture at Albany Law School. (10) Discussing notions of justice evolved over time in common law decisions and the working principle that would operate in his chambers when he served on the court, he told the audience:

For me, and perhaps for most other judges, the process of arriving at a decision in a difficult case remains a mystery. It is something that you do, but you do not quite know how.... ... I used to say to my law clerks when they were analyzing a problem, particularly...