Public Hearing Hearing for Court of Appeals Nominees Judge Leslie Stein and Judge Eugene Fahey

1 BEFORE THE NEW YORK STATE SENATE

STANDING COMMITTEE ON THE JUDICIARY 2 ------------------------------------------------------ 3 PUBLIC HEARING 4 HEARING FOR COURT OF APPEALS NOMINEES

JUDGE LESLIE STEIN AND JUDGE EUGENE FAHEY 5

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New York State Capitol Building 7 172 State Street, Room 124 CAP

Albany, New York 12247 8

February 9, 2014 9 11:30 p.m. to 2:00 p.m. 10 11 PRESIDING: 12 Senator John J. Bonacic

Chairman 13 14 PRESENT: 15 Senator George A. Amedore, Jr. 16 Senator Neil D. Breslin 17 Senator John A. DeFrancisco 18 Senator Ruben Diaz, Sr. 19 Senator Martin Malavé Dilan 20 Senator Flanagan 21 Senator Ruth Hassell-Thompson (RM) 22 Senator Michael F. Nozzolio 23 Senator Thomas F. O'Mara 24 Senator Bill Perkins 25 Senator Michael H. Ranzenhofer 1

PRESENT (continued): 2 3 Senator Sue Serino 4 Senator Michael Venditto 5 6 ---oOo--- 7 8 9 SPEAKERS: PAGE QUESTIONS 10 Vincent Doyle 7 12

Chair, Committee to 11 Review Judicial Nominations 26 29

New York State Bar Association 12 13 Evan Goldberg 21

President-elect 14 NYS Trial Lawyers Association 32 15 16 17 ---oOo--- 18 19 20 21 22 23 24 25 1 SENATOR BONACIC: First of all, good morning. 2 My name is Senator Bonacic, and I chair the 3 Judiciary Committee. 4 I'm joined by Senator Nozzolio at this time, 5 Senator Amedore, Senator Breslin, Senator Diaz. 6 We have 23 members on the Judiciary, and 7 because of this terrible weather, some may be a 8 little late getting here. 9 So -- but we do have enough proxies to not 10 only conduct the public hearing, but we don't need 11 proxies. But when we commerce the 12 Judiciary Committee hearing, we will have sufficient 13 votes to move our business. 14 So let me start by saying that, in accordance 15 with Section 104 of the Public Offices Law, on 16 February 2, 2015, we issued a public notice for this 17 public hearing. 18 Senator Ranzenhofer is with us. 19 Senator, good morning. 20 SENATOR RANZENHOFER: Good morning. 21 SENATOR BONACIC: I have behind me 22 Jessica Cherry, who is our counsel to the Judiciary. 23 And, the public hearing will be for 24 Governor Cuomo's Court of Appeals nominee, 25 Judge Leslie Stein, and Judge Eugene Fahey. 1 The purpose of the hearing is to fill the 2 vacancies of Judge Victoria Graffeo and 3 Judge Robert Smith. 4 I don't have Senator Ruth Hassell-Thompson 5 here yet, but she is our Ranker on Judiciary. 6 Before we start the public hearing, I just 7 would like to say a couple of words about 8 Judge Graffeo and Judge Smith. 9 As you know, Judge Victoria Graffeo served on 10 the Court of Appeals honorably for the past 11 14 years. 12 She has an exemplary reputation, and service 13 to the bench is undeniable. 14 Her experience as a jurist and temperament 15 were an asset to our state's highest court, and her 16 contribution to the law in New York State will 17 undoubtedly have a lasting effect. 18 Many were very disappointed to see her go. 19 And we would like to acknowledge her, and 20 thank her for her unwavering dedication to the 21 bench, and we wish her success in all of her future 22 endeavors. 23 With respect to Judge Smith, he filled the 24 vacancy. Judge Smith had served on the Court of 25 Appeals since his appointment in 2003. 1 He was widely respected for his thorough and 2 diplomatic legal analysis, in addition to his lively 3 participation during oral arguments. 4 His temperament and vast legal experience 5 have been an asset to the bench, and we thank him 6 for his many years of service to the state, and we 7 wish him well in all of his endeavors. 8 And, Judge Fahey has been put forth by 9 Governor Cuomo to fill the vacancy of Judge Smith. 10 For this public hearing we have 11 two witnesses, and they're going to provide oral 12 testimony regarding both Judge Stein and 13 Judge Fahey's qualifications. 14 The witnesses appearing before the Committee 15 will be: Vincent Doyle, who is the past president, 16 Chair of Committee to Review Judicial Nominations. 17 for New York State Bar Association, and, 18 Evan Goldberg, who is president-elect, co-chair of 19 the Judicial Screening Committee, New York State 20 Trial Lawyers. 21 Each witness will be limited to 10 minutes of 22 oral testimony for each nominee, followed by 23 questions from members of the Committee. 24 We have also had written testimony submitted 25 to the Judiciary Committee, regarding both judges, 1 and they have -- and they will be included in the 2 record. 3 I've circulated the resume -- resumes of both 4 judges to the Judiciary Committee on Wednesday, 5 February 4th, to provide an overview of the 6 nominees. 7 Based on my review of both candidates, prior 8 to the Committee, starting in the hearing, I think 9 Governor Cuomo has nominated two very well-rounded 10 judicial nominees with decades of experience in the 11 courtroom, combined, for our highest bench. 12 As you will hear today, let me talk a little 13 bit about Judge Leslie Stein. 14 She has nineteen years of judicial 15 experience: six on the Supreme Court, last 16 seven years on the Appellate Division, 17 Third Department, in Albany. 18 Judge Fahey also has nineteen years' judicial 19 experience: Supreme Court, 6 years; Appellate 20 Division -- excuse me, Supreme Court, nine years, 21 Appellate Division, Fourth Department, eight years, 22 Buffalo. 23 Okay, I've been joined by 24 Senator DeFrancisco. 25 1 And, now, our first witness, please tell us 2 who you are and what you have to say. 3 VINCENT DOYLE: Thank you, Senator Bonacic, 4 members of the Senate Judiciary Committee, ladies 5 and gentlemen. 6 My name is Vincent Doyle. I'm a past 7 president of the New York State Bar Association, and 8 the current Chair of the association's Committee to 9 Review Judicial Nominations. 10 It is my privilege to appear before you today 11 in support of the appointment of the 12 Honorable Leslie Stein as associate judge of the 13 New York State Court of Appeals. 14 On behalf of the association, I thank you for 15 the opportunity to testify concerning 16 Justice Stein's qualifications for the Court of 17 Appeals. 18 The New York State Bar Association is 19 comprised of over 74,000 attorneys, 20 including attorneys in every part of New York State, 21 in every other state in the country, and from over 22 100 countries around the world. 23 Since 1967, our association has evaluated 24 candidates for the Court of Appeals. 25 Since New York amended its Constitution in 1 1973 to provide for the appointment of Court of 2 Appeals judges, we have provided the governor with 3 our ratings of the candidates whose names have been 4 submitted to the governor by the State Commission on 5 Judicial Nomination. 6 Following the governor's selection of one of 7 the candidates for appointment, we have also 8 communicated our rating of that nominee to this 9 Committee to assist in the confirmation process. 10 With respect to the present nomination, we 11 have found Justice Stein to be well qualified to 12 serve as an associate judge of the Court of Appeals. 13 "Well qualified" is our highest rating. 14 I would like to outline for you the process 15 by which our association evaluates the Court of 16 Appeals candidates so you can understand the meaning 17 of our rating. 18 Our Committee to Review Judicial Nominations 19 is appointed by the association's president and made 20 up of 17 members from across New York State. 21 Every judicial district is represented on the 22 committee. 23 Consistent with the overall policies of our 24 association, the committee appointments reflect the 25 diversity of our membership and society as a whole. 1 Members are also selected so that a wide 2 variety of practice areas are represented, with a 3 particular emphasis on appellate practice. 4 Upon the announcement by the Commission on 5 Judicial Nomination of its list of candidates for 6 appointment to the Court of Appeals, our committee 7 chair appoints subcommittees to investigate the 8 qualifications of each candidate. 9 The subcommittee reviews -- the subcommittees 10 review biographical material provided by the 11 candidates, read sample of the candidate's writings, 12 including written decisions if the candidate is a 13 sitting judge, and interview persons familiar with 14 the candidate's work, background, and character. 15 In the case of judges who have been 16 nominated, the subcommittee includes in their 17 interviews lawyers who have appeared before the 18 judge. 19 Finally, the subcommittees meet with the 20 candidates. 21 Based on the information gathered during the 22 investigation process, the subcommittee prepares a 23 report, and recommendations regarding the candidates 24 to present to the full committee. 25 After the completion of the investigations, 1 the committee meets as a whole to review the 2 subcommittee reports concerning the qualifications 3 of each candidate, and to personally interview the 4 candidates. 5 The committee then votes to determine whether 6 the candidates will be rated "not qualified," 7 "qualified," "or well qualified." 8 For appointment to the Court of Appeals -- 9 pardon me, in making their evaluation for 10 appointment to the Court of Appeals, the committee 11 members are asked to consider the candidate's 12 professional ability and experience, character, 13 temperament, and the possession of the special 14 qualities necessary or desirable for the judicial 15 office sought. 16 Under the committee's guidelines, a 17 "qualified" candidate is one who affirmatively 18 demonstrates qualifications the committee regards as 19 necessary for that office. 20 A "well-qualified" candidate is one who, in 21 addition, possesses preeminent qualifications for 22 judicial office. 23 After being selected as a candidate by the 24 commission, Justice Stein's qualifications were 25 evaluated by our committee in accordance with these 1 procedures. She met with our full committee on 2 September 15, 2014. 3 As a result of this investigation and 4 interview, it was the opinion of our committee that 5 Justice Stein is well qualified for the Court of 6 Appeals. 7 Justice Stein has served with distinction as 8 a member of the Appellate Division, 9 Third Department, since 2008. 10 Prior to serving on the Appellate Division, 11 Justice Stein served six years as a justice of the 12 Supreme Court, and four years as a judge of the 13 Albany City Court. 14 Active in the community, Justice Stein is a 15 founding member of the New York State Institute for 16 Professionalism in the Law, a permanent commission 17 which promotes professionalism among members of the 18 legal profession. 19 Very recently, our association co-sponsored a 20 convocation with the institute, at which I was 21 privileged to moderate a panel concerning changes in 22 legal education. 23 Justice Stein also serves on the 24 Unified Court System's Advisory Committee, on bar 25 admissions, and the family-violence task force. 1 Her overall breadth of experience, which 2 includes 13 years of private practice, and 18 years 3 on the bench, including time as a trial judge and an 4 appellate judge, leads us to conclude that 5 Justice Stein will serve the state of New York well 6 as an associate judge of the Court of Appeals. 7 Accordingly, on behalf of the New York State 8 Bar Association, I am pleased to endorse 9 Justice Stein's appointment to the Court of Appeals, 10 and urge the confirmation of this appointment. 11 Thank you for your attention, and for 12 inviting participation by the New York State Bar 13 Association in this important process. 14 SENATOR BONACIC: Thank you, Mr. Doyle. 15 Any members of the Committee have any 16 questions for Mr. Doyle? 17 SENATOR NOZZOLIO: I do. 18 SENATOR BONACIC: Senator Nozzolio. 19 SENATOR NOZZOLIO: Thank you, Mr. Chairman. 20 Good morning, Mr. Doyle. 21 VINCENT DOYLE: Good morning. 22 SENATOR NOZZOLIO: I'm very interested in the 23 process that you had to engage in. It sounds as 24 though a recruitment process to find members of the 25 panel appears very extensive. 1 You indicated members from each judicial 2 district, and the focus, as appropriately it should 3 be here, are practitioners in appellate practice. 4 Tell me how many candidates you had to review 5 in terms of their qualifications, and give your 6 analysis. 7 VINCENT DOYLE: We review each of the 8 candidates that are on the list. 9 So there were seven candidates on the list, 10 we review each. 11 Our policy, and we'll hear this when we give 12 testimony about Justice Fahey, is if we have 13 previously reviewed a candidate within the last 14 year, or two years, roughly, we may carry over their 15 qualification -- their rating, but only if we do a 16 due-diligence investigation to make sure nothing has 17 changed. 18 But we review the qualifications of each of 19 the candidates. We do a full, what I would call, 20 written on the papers, and, oral, contacting 21 lawyers, contacting other judges, contacting 22 colleagues. We do that for every candidate. 23 In person, we meet with each candidate, 24 unless we have previously met with them in relation 25 to the same office, nomination for the same office, 1 within the last year or so, and they have received a 2 "well-qualified" rating. 3 SENATOR NOZZOLIO: Well, it's difficult to 4 quantify, put a number to, but, give us an estimate, 5 how many meetings? 6 And including in those meetings, and 7 conference calls, and the like, did the committee 8 have to engage in in this seven-candidate analysis? 9 VINCENT DOYLE: It's an extensive amount of 10 work, I'll be honest with you, and this is all 11 volunteer work, for members of the committee that 12 are asked to serve by the president. 13 The majority of the work is done by the 14 subcommittees. They actually do the investigations. 15 So, we estimated, at one point, that each 16 subcommittee member can expect to spend anywhere 17 between 20 to 40 hours doing the background 18 investigation, including reading decisions of those 19 who are sitting judges, reading briefs, reading 20 public statements; reviewing the written application 21 materials, background; making phone calls, again, to 22 colleagues, lawyers, who have practiced with or 23 practiced in front of, lawyers with the cases 24 against when they were practicing. 25 The in-person meetings, the subcommittee has 1 one with each candidate; so those would be one of 2 those for each of the candidates. 3 And then we have a general committee meeting, 4 which, again, as I said, we meet with each 5 candidate, unless they have previously received a 6 "well qualified." 7 So, overall, you know, it's -- I would 8 estimate somewhere between 40 to 50 hours of work on 9 each candidate are spent, either by the subcommittee 10 or the full committee. 11 SENATOR NOZZOLIO: Well, thank you for the 12 obvious thoroughness of this work, and we appreciate 13 your recommendations. 14 VINCENT DOYLE: The thanks go to committee 15 members and the staff of State Bar Association, 16 which does terrific work. 17 But thank you for the question, Senator. 18 SENATOR BONACIC: Okay, before we get to the 19 next question, let me acknowledge some of the 20 Senators that have come here. 21 Senator Ruth Hassell-Thompson, who is the 22 Ranker on Judiciary, is present; Senator Serino, 23 Senator Venditto, Senator Dilan, Senator Flanagan, 24 Senator O'Mara. 25 Thank you all for making the efforts in this 1 terrible weather to be here for this meeting. 2 Next question, Senator Ranzenhofer. 3 SENATOR RANZENHOFER: Thank you, Chairman. 4 Vince, welcome -- 5 VINCENT DOYLE: Thank you, Senator. 6 SENATOR RANZENHOFER: -- back to Albany. 7 And I want to, first, thank you for not only 8 chairing this very important Committee, but also for 9 all of the work that you did for the State Bar 10 Association. 11 I think with all the work you've done, you've 12 exceeded the chief judge's recommendations for 13 pro bono work that have been coming down the pike. 14 I appreciate all of the hard work that is 15 done. 16 Obviously, as members of the Committee, we 17 don't have the time to do the investigation that you 18 have done, and your committee has done. 19 I don't have a question, because you've 20 already done, you know, so much of the work here. 21 I appreciate the work that you've done for 22 us. I think the recommendations from the committees 23 are s. 24 I just want to welcome you to Albany, and the 25 beautiful weather that we're having here. 1 And, thank you for your service. 2 VINCENT DOYLE: Well, I was waiting for a 3 chance to say that we're both from Western New York, 4 Senator. 5 And, Senator Bonacic keeps saying it's 6 horrible weather here. 7 It's pretty nice here. 8 [Laughter.] 9 VINCENT DOYLE: So, thank you. 10 SENATOR RANZENHOFER: Just another balmy day 11 in Albany. 12 SENATOR BONACIC: Senator Diaz. 13 Thank you, Mr. Chairman. 14 Good morning, Mr. Doyle. 15 VINCENT DOYLE: Good morning, Senator. 16 SENATOR DIAZ: I'm going to [inaudible]. 17 I would like to ask you a question. 18 When there was two lawyers [unintelligible], 19 when you do the interviews and [unintelligible], the 20 judges are aware, already on the bench. They're 21 also aware in the interview. 22 VINCENT DOYLE: Yes. 23 SENATOR DIAZ: Here in the South Bronx where 24 I am, we have a saying that says, "If it's not 25 broken, don't fix it." 1 And I hear the Chairman talking, so I hear 2 only two judges are aware who are already seated. 3 So when you interview candidates 4 [unintelligible] two seated judges, what was so 5 broken [unintelligible]? 6 VINCENT DOYLE: Well, Senator, as to the 7 first vacancy, which is a vacancy created by 8 Judge Graffeo, who had reached the end of the term, 9 she was eligible for reappointment. 10 So she was one of the seven candidates that 11 the commission put forth, along with Justice Stein 12 and five others. 13 Judge Graffeo did apply, she was on the list 14 of seven, and she was rated by our committee. She 15 was also rated "well qualified." 16 But the decision of those seven candidates is 17 up to the Governor. Under the law, he is -- he 18 receives a list of seven, and he makes the 19 appointment. 20 The State Bar Association's role, the role of 21 the committee that I serve on, is simply to rate the 22 candidates. We don't rank them, we don't endorse 23 one. 24 We found Justice Graffeo to be well qualified 25 as well, but -- 1 SENATOR DIAZ: You, of course, recommend 2 [unintelligible]. 3 VINCENT DOYLE: We have never done that. 4 That's not part of what we view our role is. 5 We view our role as taking each candidate -- 6 SENATOR DIAZ: Do you think that the Governor 7 made the right decision by not appointing two good 8 judges [unintelligible] looking and committing, 9 support the Governor, in viewing, and saying, Hey, 10 [unintelligible]? 11 VINCENT DOYLE: We view our role as being, to 12 take each candidate, in and of themselves, and make 13 a recommendation whether they should be rated 14 "well qualified," "qualified," or "not qualified." 15 And we stop there. 16 We view, if we went any further, that we 17 would be engaging in the political discussion, which 18 really is for this Committee and for the Senate. 19 SENATOR DIAZ: [Unintelligible] I believe 20 that, when a group is appointed to recommend 21 [unintelligible]. I mean, I think [unintelligible]. 22 Do you feel that the person that is 23 succeeding the person that is being already doing a 24 good, if you are going to recommend, you should 25 recommend also [unintelligible]. 1 VINCENT DOYLE: Well, under the Constitution, 2 the commission, and we're not the commission, we're 3 a state bar committee -- 4 SENATOR DIAZ: [Unintelligible]. 5 VINCENT DOYLE: -- we simply rate. 6 SENATOR DIAZ: [Unintelligible] recommend. 7 VINCENT DOYLE: We simply rate. 8 We rate. We say whether each candidate is 9 "qualified" or "well qualified" or "high" -- 10 "well qualified" in this situation. 11 And the other thing, the second appointment, 12 Judge Smith, who is the second judge, Judge Smith is 13 ineligible to continue because he's aged out. He 14 has reached the age of 70, so he's not eligible for 15 reappointment. 16 SENATOR DIAZ: I just want to be clear on 17 what it is you recommend, and what is your view, 18 keep to yourself. 19 VINCENT DOYLE: We rated each of the 20 candidates. The Governor chose one of the 21 candidates we rated "well qualified." 22 SENATOR DIAZ: I just want to be clear: Are 23 you saying, if I'm doing a good job, and I'm holding 24 my duty, and I'm there, why you recommending to kick 25 me out? 1 Why not say, Hey, that's a good person 2 [unintelligible]? 3 VINCENT DOYLE: The Constitution gives the 4 Governor that right. 5 SENATOR BONACIC: Does anyone else have any 6 other questions of Mr. Doyle? 7 Mr. Doyle, thank you, but don't go too far, 8 because after we do the public hearing for Judge 9 Fahey, we're going to have you back. 10 VINCENT DOYLE: I'll definitely be back for 11 that. 12 Thank you, Senator. 13 SENATOR BONACIC: Our next witness is 14 Evan Goldberg. He's here on behalf of the 15 New York State Trial Lawyer Association. 16 Evan, good morning. 17 It's still morning. 18 You're on. 19 EVAN GOLDBERG: Good morning. 20 My name is Evan Goldberg. I am the 21 president-elect of the New York State Trial Lawyers 22 Association, and I appear here today on behalf of 23 the NYSTLA board of directors and our 3500 attorney 24 members who practice in trial and appellate courts 25 throughout the state. 1 Thank you, Chairman Bonacic, for inviting 2 NYSTLA to participate today, and for this 3 opportunity to speak in support of Governor Cuomo's 4 nomination of Justice Leslie E. Stein for associate 5 judge of New York State Court of Appeals. 6 For 60 year, NYSTLA has fought to protect 7 equal access to the civil justice system for all 8 New Yorkers. 9 The constitutional right to a trial by jury 10 is the foundation of equal access, and NYSTLA 11 vigorously opposes any compromise of this critical 12 right, whether by legislation, or through the 13 overly-aggressive application of judicial doctrines 14 and procedures that can deny a worthy litigant their 15 day in court. 16 The appointment of a new judge to the Court 17 of Appeals is, therefore, always of great 18 significance to NYSTLA. 19 The legal rights of the hundreds of thousands 20 of ordinary New Yorkers NYSTLA members represent 21 depends upon judicial restraints and careful 22 application of the law by each member of the court. 23 We applaud judges who demonstrate a 24 preference for allowing cases to be presented to the 25 jury, and who apply great caution in the use of 1 summary judgment, and, doctrines, such as collateral 2 estoppel, that can sometimes prevent jury decisions 3 from being made on the merits. 4 NYSTLA's Judiciary Committee had the honor of 5 interviewing all the candidates recommended by the 6 New York State Commission on Judicial Nomination to 7 fill the vacancy created at the conclusion of 8 Judge Victoria Graffeo's term. 9 The committee rated Justice Stein as 10 "highly qualified and highly recommended." 11 Her exceptional capabilities, dedication to 12 equality before the law, and the results that she 13 has achieved for New Yorkers more than warrants the 14 highest rating the committee could award, and marked 15 her out among an exceptionally qualified slate of 16 candidates. 17 Justice Stein has a long history of service 18 not only to the legal system, but to the cause of 19 gender equality and protecting the victims of 20 domestic violence. 21 Prior to joining the bench, Justice Stein was 22 well-respected for her 15 years of experience in 23 private practice where she focused on family law. 24 She went on to be elected to the Albany City 25 Court, then to the Supreme Court in 2001. 1 At the Supreme Court, Justice Stein was 2 proactive not only in the way she administered 3 justice in individual cases, but also with regard to 4 the system. 5 She served as the administrative judge for 6 the Rensselaer County Integrated Domestic Violence 7 part, that allowed families to resolve their 8 criminal, family, and matrimonial matters before a 9 single judge. 10 In this role, Justice Stein demonstrated her 11 commitment not just to the rule of law, but to the 12 fair, reasonable, and humane application of the law. 13 Upon her nomination to the appellate division 14 in 2008, Justice Stein continued to tackle the 15 difficult issue of domestic violence, co-chairing 16 the court system's family-violence task force. 17 Her commitment to this cause is demonstrative 18 of her finely-tuned judicial philosophy that 19 balances the need of the individual with those of 20 society as a whole. 21 Her steadfast dedication to improving the 22 lives of others will no doubt be a positive 23 influence on the work of the Court of Appeals. 24 Justice Stein is also dedicated to improving 25 the legal profession, and ensuring that New Yorkers 1 are represented by ethical, well-trained lawyers. 2 She was a founding member of the New York 3 State Judicial Institute on Professionalism, and 4 lectures for a number of state and local bar 5 associations. 6 On a personal note, just over a week ago, 7 I had the honor of presenting Justice Stein with an 8 award at a bar association event. 9 Everyone in attendance was impressed by her 10 remarks, and assured that she would uphold the high 11 standard of the nationally-esteemed Court of 12 Appeals. 13 In conclusion, NYSTLA commends Governor Cuomo 14 for his nomination of Justice Stein. 15 We welcome her balanced approach to the law, 16 and look forward to Justice Stein applying her 17 well-deserved reputation for balance and 18 reasonableness to the critically important matters 19 before the court. 20 Thank you for the opportunity to testify 21 today. 22 SENATOR BONACIC: Thank you very much, 23 Mr. Goldberg. 24 Does anyone have any questions of 25 Mr. Goldberg? 1 Thank you very much. 2 EVAN GOLDBERG: My pleasure. 3 SENATOR BONACIC: I would like to just note 4 that Judge Stein has received the highest ratings of 5 "well qualified" or "highly qualified" from several 6 bar organizations throughout the state of New York. 7 Now we're going to start the second phase of 8 the public hearing, and that deals with 9 Judge Eugene Fahey. 10 So, we're going to call back -- this is like 11 "Groundhog Day" in a way -- 12 [Laughter.] 13 SENATOR BONACIC: -- we're going to call back 14 Vincent Doyle, to come up, to give testimony on 15 behalf of Judge Fahey. 16 VINCENT DOYLE: Thank you Senator Bonacic, 17 and the members of the Committee, and, ladies and 18 gentlemen. 19 You know who I am. 20 Again, I'm here on behalf of New the York 21 State Bar Association, and as Chair of the 22 association's Committee to Review Judicial 23 Nominations. 24 It is my privilege to appear before you today 25 in support of the appointment of the 1 Honorable Eugene Fahey as associate judge of the 2 New York Court of Appeals. 3 I reviewed the process by which our 4 evaluation evaluates candidates for the Court of 5 Appeals in connection with Justice Stein's hearing; 6 therefore, I will not repeat those procedures at 7 this time. 8 With respect to the present nomination, we 9 have found Justice Fahey to be "well qualified" to 10 serve as an associate judge of the Court of Appeals. 11 Again, "well qualified" is our highest 12 rating, and a "well-qualified" candidate is one who, 13 in addition to possessing the qualities necessary 14 for service as an associate judge, possesses 15 preeminent qualifications for that office. 16 After being selected as a candidate by the 17 Commission on Judicial Nomination, Justice Fahey's 18 qualifications were evaluated by our committee in 19 accordance with our procedures. 20 Justice Fahey had been a previous candidate 21 on two prior lists released by the commission. Each 22 of those prior times our committee had also found 23 him to be "well qualified." 24 Our procedure under those circumstances is to 25 do a full investigation in writing, and orally by 1 phone, but to waive the in-person interview if the 2 candidate had been previously found to be 3 "well qualified." 4 As a result of this full investigation and 5 consideration, it was the opinion of our committee 6 that Justice Fahey is "well qualified" for the Court 7 of Appeals. 8 Justice Fahey has served admirably for 9 eight years as a member of the Appellate Division, 10 Fourth Department. 11 Prior to serving on the appellate division, 12 Justice Fahey served nine years as a justice of the 13 Supreme Court, and nine years as a judge of the 14 Buffalo City Court. 15 He also served 16 years as a member of the 16 Buffalo Common Council. 17 His overall breadth of experience leads us to 18 conclude that Justice Fahey will serve the state of 19 New York well as an associate judge of the Court of 20 Appeals. 21 On a personal note, I have appeared numerous 22 times before -- over the years before Justice Fahey 23 while he was in the City Court, Supreme Court, the 24 commercial division of the Supreme Court, and the 25 Appellate Division, Fourth Department. 1 Each and every time I appeared before 2 Justice Fahey, I was impressed by his intelligence, 3 diligence, and judicial temperament. 4 I know that my opinion is shared by others 5 who encountered Justice Fahey. 6 He is an outstanding jurist, held in the 7 highest regard by the practicing bar. 8 On behalf of the New York State Bar 9 Association, I am pleased to endorse Justice Fahey's 10 appointment to the Court of Appeals, and urge 11 confirmation of this appointment. 12 Thank you for your attention, and for 13 inviting participation by the New York State Bar 14 Association in this important process, Senator. 15 SENATOR BONACIC: Any questions for 16 Mr. Doyle with respect to Judge Fahey? 17 Senator Diaz. 18 SENATOR DIAZ: Thank you, Mr. Chairman. 19 Again, Mr. Doyle -- 20 VINCENT DOYLE: Yes, sir. 21 SENATOR DIAZ: -- I have to [unintelligible]. 22 VINCENT DOYLE: Sure. 23 SENATOR DIAZ: The two [unintelligible], how 24 were they rated? 25 [Unintelligible], how were they rated? 1 VINCENT DOYLE: The vacancy that Justice -- 2 SENATOR DIAZ: [Unintelligible], that were 3 there, [unintelligible], how were they rated by your 4 committee? 5 VINCENT DOYLE: We interviewed and rated one, 6 Justice Graffeo -- or, Judge Graffeo, pardon me, was 7 a candidate for the vacancy that Justice Stein has 8 been nominated for. We rated her "well qualified." 9 Governor Cuomo did not choose to select her 10 for an additional term. 11 Judge Smith is the second judge who is there 12 now. 13 He has aged out. 14 And, pardon me, he won't like me using that 15 term. 16 He has reached the age of 70, and under the 17 Constitution, he cannot continue to serve. So, he 18 was not a candidate, he was not on the commission's 19 list. We did not interview him, we did not rate 20 him. 21 SENATOR DIAZ: [Unintelligible]. 22 VINCENT DOYLE: One of the two -- 23 SENATOR DIAZ: [Unintelligible.] 24 VINCENT DOYLE: -- "well qualified." 25 SENATOR DIAZ: [Unintelligible.] 1 VINCENT DOYLE: With the same process that 2 all of the other candidates went through, yes. 3 SENATOR DIAZ: [Unintelligible.] 4 VINCENT DOYLE: The intention? 5 SENATOR DIAZ: The, uhm -- 6 VINCENT DOYLE: Oh, intensity? 7 Yes. 8 "Well qualified" is "well qualified." 9 We meant it as much for Judge Graffeo as we 10 did for everyone else. 11 SENATOR DIAZ: [unintelligible], there was 12 nothing broken? 13 VINCENT DOYLE: Again, that's -- that's not 14 our role. 15 The Constitution gives the Governor that -- 16 SENATOR DIAZ: I will tell you what I'm 17 saying: [unintelligible] saying that if something 18 isn't broken, it doesn't need fixing. 19 VINCENT DOYLE: I don't think in this setting 20 you can say that. 21 That as a certain import, the Governor has 22 that choice under the Constitution, Senator. 23 SENATOR BONACIC: Any other questions of 24 Mr. Doyle? 25 Okay, Mr. Doyle, thank you very much for 1 your appearance today. 2 VINCENT DOYLE: Thank you, Senator. 3 SENATOR BONACIC: Okay, Mr. Evan Goldberg, 4 welcome back. 5 EVAN GOLDBERG: Thank you. 6 It's been too long. 7 Again, for the record, my name is 8 Evan Goldberg, and I am the president-elect of the 9 New York State Trial Lawyers Association. 10 I'm appearing here today on behalf of our 11 board of directors, and our 3500 attorney members 12 who participate in trial and appellate courts 13 throughout the state. 14 Thank you once again, Chairman Bonacic, for 15 inviting NYSTLA to participate, and for this 16 opportunity to speak in support of Governor Cuomo's 17 nomination of Justice Eugene Fahey for associate 18 judge of the New York State Court of Appeals. 19 We respectfully ask that the history of our 20 organization and its mission of ensuring continued 21 access to the civil justice system, as stated during 22 the testimony in support of Justice Stein's 23 confirmation, be incorporated by reference. 24 NYSTLA's Judiciary Committee had the honor of 25 interviewing all the candidates recommended by the 1 New York State Commission on Judicial Nomination to 2 fill the vacancy created by the retirement of 3 Judge Robert Smith. 4 Among such an impressively credentialed panel 5 of candidates, Justice Fahey stood out for his 6 judicial experience, as well as for his reputation 7 for fairness on the bench. 8 The committee rated Justice Fahey as 9 "highly qualified and highly recommended." 10 Justice Fahey is widely respected for his 11 almost two decades of judicial experience. 12 Serving first as a Buffalo City Court judge, 13 he quickly advanced to the Supreme Court, before 14 being appointed to the Appellate Division, 15 Fourth Department. 16 Many NYSTLA members have had the honor of 17 appearing before Justice Fahey, whether at trial or 18 on appeal. 19 Members of the plaintiffs' bar, indeed, all 20 who appear before Justice Fahey, recognize that they 21 are given an unbiased and objective hearing, and 22 that their legal arguments receive close attention 23 by one of our state's most learned judges. 24 The breadth and depth of legal knowledge 25 Justice Fahey has attained over the course of his 1 career is readily apparent upon even a cursory 2 examination of his record. 3 Before serving on the bench, Justice Fahey 4 represented clients as a practicing attorney, 5 earning a reputation for collegiality and fairness 6 that followed him to the bench. 7 As a judge of the Buffalo City Court, and, 8 later, as a justice of the Supreme Court, 9 Justice Fahey handled thousands of criminal, civil, 10 and commercial cases. 11 The experience clearly served him well on his 12 nomination to the Appellate Division, and his 13 well-stated and thoughtful decisions provide a clear 14 guide for both attorneys and judges at the trial 15 level. 16 Equally, Justice Fahey's dissenting opinions 17 have been taken up by the Court of Appeals as the 18 appropriate outcome, demonstrating characteristic 19 resolve in addition to legal scholarship. 20 In conclusion, Governor Cuomo has made 21 another excellent choice in his nomination of 22 Justice Fahey. 23 We welcome his thorough and open-minded 24 approach to the law, and look forward to 25 Justice Fahey applying his well-deserved reputation 1 for fairness to the court and the manner in which 2 they address the most important legal issues of the 3 day. 4 Thank you again, Chairman Bonacic, for the 5 opportunity to testify. 6 SENATOR BONACIC: Thank you, Mr. Goldberg. 7 Any questions of Mr. Goldberg? 8 I see that Senator Perkins has joined us. 9 Good afternoon, Senator. 10 SENATOR PERKINS: Good afternoon. 11 SENATOR BONACIC: At this point, let me just 12 make a note: 13 Similar to Judge Stein, Judge Fahey also 14 received the highest ratings of "well qualified" and 15 "highly qualified" from all bar groups across the 16 state. 17 In addition to the testimony that we've 18 heard, we have had written testimony from bar 19 organizations that will be incorporated into the 20 public record of this public hearing. 21 At this time, I would like to recognize 22 Senator Hassell-Thompson, our Ranker on Judiciary. 23 SENATOR HASSELL-THOMPSON: Thank you, 24 Mr. Chairman. 25 I will reserve whatever time I have for the 1 questioning period. 2 I don't really have a statement, except to 3 just thank the Governor for sending us extraordinary 4 candidates for us to interview and to review today. 5 SENATOR BONACIC: That will conclude the 6 public hearing. 7 We'll take a brief recess for about 8 five minutes, and then convene a meeting of the 9 Judiciary Committee, when Judge Stein and 10 Judge Fahey will appear and address the Committee, 11 and any questions that members will have for those 12 nominees will take place at that time. 13 So, the public hearing is deemed adjourned at 14 ten after twelve this afternoon. 15 Thank you. 16 17 (Whereupon, at approximately 12:10 p.m., 18 the public hearing held before the New York State 19 Senate Standing Committee on the Judiciary 20 concluded, and adjourned.) 21 22 ---oOo--- 23 24 25