A Candid Interview With Court of Appeals Associate Judge Eugene M. Fahey

By Michael Miller

A Candid Interview With Court of Appeals Associate Judge Eugene M. Fahey

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On December 31, 2021, Associate Judge of the Court of Appeals Eugene M. Fahey’s 27-year career on the bench will end due to his attaining mandatory retirement age. His will be the third vacancy to occur on the seven-judge bench of New York’s highest court since Judge Paul Feinman’s untimely death on March 31, 2021 and Judge Leslie Stein’s retirement on June 4, 2021.

The following are excerpts from a wide-ranging interview with Judge Fahey at the beginning of the summer. We discussed some of the decisions he authored that he felt were particularly important, his background, reflections on his extensive political and judicial careers and his future. It was interesting to learn that, before going on the bench, Judge Fahey was very active in local politics, having first become interested in politics when he was 14 years old after meeting Robert Kennedy and then a few years later working on George McGovern’s presidential campaign. Over the course of his political and judicial careers, Judge Fahey won 14 of 16 elections.

We discussed a few of the consequential decisions and dissents Judge Fahey has authored, including on same-sex marriage, the nuances concerning certain types of DNA evidence, the care required in cross-racial identification and the standard for cross-examination of police officers. Judge Fahey discussed the role of his occasional dissents in sometimes preparing the groundwork for the future – a future in which he hopes the minority position and his dissent will become the court’s prevailing position. For example, in his passionate and extensive dissent in Williams v. Beemiller,[1] discussed below, Judge Fahey argued that the case was an important opportunity to apply New York’s long-arm statute to hold out-of-state gun dealers liable where the facts would lead any reasonable gun dealer to assume that guns they sold were likely to be sold illegally and land on the street in New York. In another example, Judge Fahey was ahead of his time when it came to holding police accountable, which is notable given that he comes from a family with a long history of members serving in law enforcement. But in People v. Rouse, decided in 2019, a year before the national protests demanding police reforms in the wake of the George Floyd murder, Judge Fahey wrote that police officers should be held to the same cross-examination standard as everyone else.

Judge Fahey also discussed the benefits as an appellate judge of having spent time on the trial bench and how the experience of coming through the court system as a trial and intermediate appellate judge prepared him to be a judge on the Court of Appeals. His comments were thoughtful, sensitive and genuinely self-effacing. And sometimes, they were surprising, as when Judge Fahey referenced “Rumpole of the Bailey” and Dante’s “Inferno” as sources of inspiration, and the joy he gets from occasionally playing in bands with friends.


MILLER: Judge Fahey, thanks for agreeing to this interview. My hope is that we will get a personalized portrait of you. So, let’s talk a little bit about your background and experience. What led you to a career on the bench?

FAHEY: I was always interested in government, and even as a young kid I thought I might become a lawyer. First, what really drew me into public life, into politics, was involvement in the campaign of George McGovern for president. I held elective offices for about 13 years before I ran for judge, and I’ve been a judge for almost 30 years. The initial excitement was ignited when I was 14 years old. Robert Kennedy came to the University of Buffalo to speak during his campaign for senator. As he was leaving after speaking, one of the guards, a police officer who was a good friend of my dad’s, stopped Robert Kennedy and said, “Here, shake this kid’s hand.” I was standing on a bike. There weren’t a lot of people there, maybe around 70 people, and he reached over and shook my hand and said, “Hi there.” I was hooked from then on.

The anti-war protests drew me into politics and public life, and then an older friend of mine, Bill Price, was running locally for the Buffalo Common Council and drew me in to work on his campaign after the McGovern campaign. Then when Bill moved on, Bill supported me, and I was elected to the Common Council at 25 years of age. I turned 26 right before I took office. Because of George McGovern, Robert Kennedy and Bill Price more than anyone, I was drawn into politics.

My legal career began as a law clerk to Court of Claims Judge Edgar NeMoyer. He was a fine lawyer who taught me a great deal.

So, I was involved in politics for about 13 years. When I count my judgeships, primaries and general elections, I ran for office 16 times. I lost two elections and won 14. The last one that I lost was in a Democratic primary for mayor of Buffalo in 1993 against Tony Masiello, who had been a state senator. The year after that primary loss, I was elected to Buffalo City Court. Tony is very decent guy and was a good mayor. He has helped me throughout my judicial career.

Early in my judicial career, my wife Colleen and I adopted our daughter Ann. Life was good. In 1996, I was elected to the state Supreme Court and served there for 10 years, after which I was appointed to the Appellate Division by Governor Pataki. I was there for eight years and then I was nominated by Governor Andrew Cuomo for this job.

MILLER: So, you started out having political ambitions that led you to the court. It’s interesting that you worked in the campaigns for McGovern and Kennedy, and then Governor Pataki, a Republican, appointed you to the Appellate Division.

FAHEY: Well, I had supporters and some experience. I put my application in, and I was surprised but very gratified. It was right at the end [of Governor Pataki’s last term as governor in 2006]. I respect former Governor Pataki and will always appreciate him giving me the opportunity.

MILLER: You mentioned that your father was a police officer.

FAHEY: Yes, he was a captain in the Buffalo police department. My mom was an account clerk in the Board of Education. I’m the oldest of six kids. My family is originally from the old First Ward in South Buffalo, and we moved to the northern part of the city near the University of Buffalo when I was about 11 or 12 years old. My first elected job was as a councilman in that area. If you look at a map of Buffalo from the sky, you will see grain mills. The old First Ward is the area around the grain mills. When the Irish laborers came over, they came right to that spot. That’s where they first lived in the city.

My paternal grandmother’s family name was Donohue. Her grandfather, John Donohue, actually fought in the Union Army during the Civil War and was wounded at the Battle of Cold Harbor [Va.]. I have his picture in my office in Albany.

MILLER: Let’s talk a little bit about your work as a trial judge versus intermediate appellate versus the High Court. What’s the common thread and what were the differences that surprised you?

FAHEY: Take a step back. I think the best preparation I had for the work as a judge on this level was probably Buffalo City Court. Things are fast there. You must make decisions based on your instincts, you have to know the law and you have to have a good feel for the people that are appearing in front of you, specifically what they need for a just resolution. I learned the most about how to be a judge when I was in city court. I was only there a couple of years, but it prepared me for the human part of the law.

MILLER: What do you mean the human part?

FAHEY: Well, you can never forget as a judge that the decisions you make aren’t simply about abstract legal theories, but they’re fundamentally about the people in front of you – the litigants. But also, those decisions will affect everyone else who is touched by this particular part of the law. That human element is essential if you’re going to be a decent judge. And in a place like city court, you learn that. You learn to be patient, to listen to the people in front of you, not to jump to a conclusion based on two or three words. And if you don’t know the answer, don’t guess – go back and look it up, don’t make a mistake.

I went from there (city court) to become a trial judge in state Supreme Court. State Supreme Court is a great job for a judge. Usually after a while you tend to hone in on a particular area. I did a lot of negligence. I had been house counsel to Kemper Insurance Company for about eight years, and so I was comfortable with that. I also spent a few years as a commercial judge in Western New York. That part was particularly good preparation for an appellate court. The quality of the advocates is high. The issues are more complex than purely fact-based cases. It was challenging, and I learned a lot.

The biggest leap, and the most difficult transition, was from the trial bench to the Appellate Division. It took a while before I really felt comfortable. The volume of work in the Appellate Divisions is high. You have to move along and make a decision. It’s a whole new way of working from what you’re used to. As a trial judge, you make your decision. You write your decision, or you make a decision from the bench and you move on. In the Appellate Division, it’s a negotiation. It was a big transition from a court where you had people in front of you, made a record and could sometimes deliver decisions orally, to a court where everything is in writing and everything is a result of joint decision-making, rather than decisions made solely by yourself. And, of course, you’re working with different personalities with different life experiences.

Going from the Appellate Division to the Court of Appeals is a big jump, but the work is similar. You’re working in a group; it’s primarily about your writings, your interactions within the group and your preparation. The biggest difference, of course, is the stage that you’re on and the respect that the history of the court demands, not just in our state but throughout the country. You have to be aware of that and tread lightly.

In my time at the Appellate Division, probably the most significant writing I did in the eight years I was there was on the appeal of the same-sex marriage case, New Yorkers for Constitutional Freedoms v. The New York State Senate.[2] Basically, we upheld the law that established same-sex marriage in New York that had been passed by the Senate and challenged in the Fourth Department. I think the Court of Appeals didn’t even take the case; they just denied leave on it. So, that decision ended up being the law of the state.

MILLER: Several people have commented that you take your position on the court and the matters before you very seriously, but that you don’t take yourself too seriously, and you’re known to be rather self-effacing. How do you keep that balance?

FAHEY: Did you ever watch the television show or read “Rumpole of the Bailey”? They used to refer to pompous judges as suffering from “judge-itis.” They’d say, “Oh, he’s got it bad. Another case of judge-itis.” I talk with friends who are judges about how people laugh much more at our jokes and that we never hear the negatives about ourselves, only the positives. My family and friends are not hesitant to let me know of any of my failings. What’s serious is our job and what we do. I have no illusions about this job; I’m very lucky to have it, and it’s a privilege and a great responsibility, and I take it seriously, but I think it would undermine my effectiveness if I took myself too seriously.

MILLER: Having read a number of your decisions, it’s clear that you take your job very seriously.

FAHEY: There are some decisions that are more noteworthy than others. I look at the decisions I wrote when I first came on the Court [of Appeals] in 2015. It’s not that long ago. I’ve worked at becoming a better writer. I get to the point more quickly with less judicial verbiage. I aim to grab the reader’s attention and then build on that. At the Court of Appeals we have a larger audience than just the litigants; although they may be the most important part of the audience, they are not the only part of the audience. I’m sometimes a little jealous of the Appellate Division. Primarily I wish we had “interest of justice” jurisdiction, as they do.

MILLER: Let’s talk a little bit about some of the decisions you’ve written. Gun regulation is a hot button issue. Your dissent in Williams v. Beemiller, Inc.[3] was compelling. In a case of mistaken identity in a gang dispute, a young man was critically shot and severely wounded while he played basketball in front of a neighbor’s house in Buffalo in August 2003, and those injuries sidelined a basketball career that included the young man’s consideration as an NCAA Division I prospect. By 4 to 3, the majority found that an Ohio gun dealer couldn’t be held liable in New York for the shooting of the innocent young man with one of the thousands of guns that had been purchased from the defendant and illegally sold on the street in Buffalo. You passionately dissented from the majority’s position that New York cannot exercise long-arm jurisdiction over out-of-state gun merchants who place firearms in the stream of commerce knowing that such weapons are likely to be resold for illegal purposes in New York.

FAHEY: It was estimated that this dealer sold over 10,000 guns, which the ATF said were moved out of state. They call the movement of guns the “iron pipeline,” where illegal guns come from Ohio to New York. Usually, in a dissent I just say my piece and move on. I went into greater detail because I wanted to establish the groundwork for someone who addresses the issue in the future. I felt emotionally about Williams v. Beemiller. It was a heartbreaking case, and I think the court made a great mistake there. While I am not shy about dissenting, I have a great deal of respect for my colleagues, both for their motives and for their abilities. I try to avoid any rhetoric that is personal.

MILLER: Despite having an insurance background as house counsel at a major insurance carrier, you nevertheless expanded the “zone of danger” for purposes of liability in Green v. Esplanade Venture Partnership.[4]

FAHEY: As you know, the issue in Green was who is part of the “immediate family.” We held that “immediate family” included the grandmother of a deceased child. My experience with Kemper [Insurance Company] was that they were not unreasonable; they were not out to get anyone. They’d fight their cases like everyone else, but if I came in and told them that they had to cover the grandmother because she was in the zone of danger, as I wrote in Green, they would just say, “Okay, that’s what we will do if that’s what the law is.”

MILLER: I found it interesting, since your father was a police captain, that you didn’t hesitate to suppress evidence in People v. Holz.[5] I wouldn’t expect that from a police captain’s kid.

FAHEY: You don’t know enough cops. My dad was a police officer and so were two of my uncles, and my brother-in-law was a homicide detective. I have a lot of family still in the Buffalo Police Department, and I think that the cops right now are getting a bad rap because they’re bearing the burden for malfeasance that cuts across many institutions, not just the police department. A good police department is essential to the effective operation of justice. The court’s job is to say, “Do it right.” I had a case earlier, People v. Boone,[6] that was about cross-racial identification. It was the first time we said that a trial court must caution a jury about the potential fallibility of an identification of a defendant by a person of a different race when the defendant asks for such an instruction. That requirement does not undermine the police department. It just helps to ensure that the result is a fair result.

MILLER: I’m not so sure that law enforcement officers uniformly would be comfortable with your decision in People v. Rouse,[7] where you reverse on the basis that cops may be cross-examined like everybody else.

FAHEY: Well, I’m sorry if they feel that way, but that’s what I think the law is in New York. Equality before the law applies to everyone.

MILLER: In People v. Williams,[8] while affirming a murder conviction, you were nevertheless critical of the court below. You held that while the court below had abused its discretion by failing to hold a Frye hearing before admitting microscopic amounts of DNA, known as Low Copy Number DNA, it was harmless error because the other evidence was overwhelming.

FAHEY: In that case, the evidence was so overwhelming that the error of failing to have a Frye hearing on LCN DNA didn’t require us to throw out the verdict. What we are saying is that Low Copy Number DNA is, in and of itself, not reliable in the absence of a Frye hearing that verifies the methods relied on. It is a very nuanced and important decision. DNA is considered the gold standard of evidence. Generally, a trier of fact will place complete confidence in it. That requires us to look hard at how that evidence is obtained because it appears to be dispositive in and of itself. The Frye hearing must act as our truth certification test. I think we need to do more of them, not less, with this kind of evidence.

MILLER: I suspect that the court below wasn’t terribly happy with that.

FAHEY: I always feel bad about that, to be honest.

MILLER: That’s very thoughtful of you to consider the perspective and sensitivities of the trial court.

FAHEY: There’s an advantage of coming up through the system the way I did. I know how hard they work on these cases, and I know how personally the judges take reversals or criticism. It’s a normal human reaction.

MILLER: Let’s talk a little bit about the impact your career has had on your personal life. Your background is especially interesting because you really came from the political universe, which includes a good deal of back slapping and social relationships. When you go to the bench, you have to be more reserved, more circumspect. How did that play out for you?

FAHEY: If I hadn’t been involved in politics, I think I might have been either a history teacher[9] or, at one point in my early 30s, I thought of the FBI. Each of those jobs demands a different kind of personality. I think that becoming a judge at the point in my life when I went on the bench, in my mid-40s, was the right time of life for me. After that I was able to have the time to be with Colleen and Ann that I wouldn’t have in a political life. My life didn’t really become calmer or less busy after I left politics and moved to the judiciary, it just became different. It was just as full, but it was different. I enjoy the intellectual side of public life. In many ways the law personifies that. In our society the common arbiter of all our decisions ultimately is the courts. I don’t know if that’s good or bad, but in point of fact, it is. That being the case, the people that are making those decisions better be humans who’ve had a broad range of experience.

MILLER: What non-legal works do you read?

FAHEY: My reading habits have changed. Right now, I’m caught up in Dante’s “The Divine Comedy,” specifically a translation of “The Inferno” by Robert Hollander. I’ve read other translations. My favorite was John Ciardi. I found it the most accessible. Anyway, it’s all there, Michael, every variety of human nature is in it. W.S. Merwin, the poet, did a translation just of “Purgatory” but not of “The Inferno.” My plan is to read Hollander and then read Merwin’s “Purgatory” this summer. I described my plan to my wife and she rolled her eyes and said, “I liked it better when you were reading mysteries and science fiction.”

MILLER: Tell me a little about your wife and your outside interests.

FAHEY:  My wife is Colleen Maroney. She and I were in the same kindergarten class at St. Thomas Aquinas Grammar School in South Buffalo. We met again years later at a bar near Lake Erie when we were about 19 years old. For many years she was the managing director of Theater of Youth, a children’s theatrical company in Buffalo.  While there, she spearheaded the creation of a permanent facility for children’s theater in the Allentown neighborhood. It involved the rehabilitation of the 100-year-old Allendale Theater. In 2001, The Buffalo News named Colleen “Citizen of the Year” for her work on the project. Obviously, I love her very much and am proud of her accomplishments.

I’m sort of a half-baked musician; I thought about studying music at one point, and I love music. Occasionally I will play in bands with my friends. I play guitar, mandolin and a little violin and piano.

MILLER: Aside from catching up on your Dante, do you have any plans for life after the bench?

FAHEY: Well, I may teach in an amicus brief clinic at the University of Buffalo Law School. I’ve discussed that with them. We haven’t finalized it, but I’ve been preparing the syllabus. Beyond that, do you remember what Leslie [Stein] said, which I thought was very good. She said, “I want to get up in the morning and not worry about what I have to do each day.” To some degree I want to feel that way too. I thought that Leslie said that very well.

MILLER: How do you feel about your approaching retirement?

FAHEY: It’s like I’m falling down a hill and I keep on accelerating. I haven’t thought about what I’m going to do when I fall off the cliff. I don’t think I’m fully prepared for it. However, I do like the idea of helping law students get started. The University of Buffalo gave me my start, so, if I can do that for someone else, I’d like to.

MILLER: Thanks again, Judge Fahey, for agreeing to this interview. I’ve enjoyed our conversation very much. And thank you for your service to the profession and our legal system.

FAHEY: Thanks, Mike, thanks for taking the time.

 

Michael Miller is a former president of both the New York State Bar Association and the New York County Lawyers Association.

 

[1] 33 N.Y.3d 24 (2019, dissent).

[2] 98 A.D.3d 285 (4th Dep’t 2012).

[3] 33 N.Y.3d 24 (2019, dissent).

[4] 36 N.Y.3d 513 (2021).

[5] 35 N.Y.3d 55 (2020).

[6] 30 N.Y.3d 521 (2017).

[7] 34 N.Y.3d 269 (2019).

[8] 35 N.Y.3d 24 (2020).

[9] Judge Fahey obtained a master’s degree in European history in 1998 while a justice of the Supreme Court.

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