Why Judge Leslie E. Stein Is Leaving the Court of Appeals
2.1.2021
Michael Miller is a former president of both the New York State Bar Association and the New York County Lawyers Association. The following are excerpts of a lengthy, wide-ranging and candid interview with Judge Stein; a version of this will appear in Leaveworthy, the newsletter of the Committee on Courts of Appellate Jurisdiction.
Shock waves ran through the New York legal community on November 3, 2020, at the announcement that Associate Judge of the New York State Court of Appeals Leslie E. Stein will retire from the bench on June 4, 2021, five and a half years before the end of her term. During a wide-ranging recent interview, Judge Stein candidly discussed her path to the judiciary, life before the bench, roads not taken, the profound influences of her parents and paternal grandfather, the impact of her career on her personal life, and her decision to resign from the high court.
MICHAEL MILLER: Judge Stein, thanks so much for agreeing to this interview. I‘ve told a number of people that I was going to conduct this interview with you and consistently there have been comments wondering what prompted you to decide to resign with more than five years left on your term as an associate judge of the Court of Appeals. What were the motivating factors that brought you to your decision?
LESLIE STEIN: It was a very difficult decision and one that I thought long and hard about. I think it was a combination of a number of things. I got married later in life to my current husband and he’s a bit older than I am. His upcoming 75th birthday was on my mind because there are a lot of things that we want to do together, as well as some things I want to do for myself. I have suffered some significant losses in my life, and I know that each day we have is a gift. And then along comes COVID and that shook my foundation a bit. So, I started looking ahead and thinking about what was most important to me.
I care deeply about the Court of Appeals. Judge Fahey is up against that [mandatory] retirement age next year, so he will be leaving in December [2021]. I didn’t want to leave at the same time because that could potentially leave the court short two judges for a time. It would also mean that two new judges would join the court simultaneously, which would be quite challenging. So, I thought, “I can either retire before he goes, or I can wait until after he goes.” But then, I cannot predict what other changes may occur. So, it just felt like the right time for me to do it. I suppose there really is no right time, but I hope that my timing will allow the culmination of the process of filling my seat to coincide with the time when I leave so there will be little, if any, gap for the court.
What do you think has been the hardest part of the job of being a judge?
In some ways the hardest part is the isolation. People look at you differently. I remember when I first went on the City Court bench, I had a tiny office in the back of the courtroom. I would spend the morning hearing cases and then I would return to my desk to find there wasn’t a single telephone message. It was a strange experience and a difficult adjustment after private practice, because I didn’t have clients or lawyers calling me almost constantly.
It is also difficult knowing that your decisions may have a profound impact on people’s lives. That is what makes it great, but it also makes it a little scary at times. When I was on the trial bench, at least I knew that if I really got it wrong, the litigants could appeal to the Appellate Division. As a judge on the Appellate Division, I was able to share the responsibility with other judges on the panel; I did not have to make every decision alone. However, this also presents a different challenge because you have to negotiate how the decision is written. At the Court of Appeals, there’s almost no chance that the litigants will be able to obtain any further review. Also, the cases are more complex, more significant, and have a broader impact.
As a Court of Appeals judge, both the challenge and the benefit are that you’re working with other judges who are very smart and hardworking. I listen carefully, because there is something to be learned from every one of them; sometimes they may even listen to me. We work very hard to get it right and the writings are very particular with the edits and the revisions to each decision in order to accommodate how each judge wants to articulate the rule being made and the reasoning therefor. There always is a considerable amount of compromise before a final decision is rendered and published. To me, it has been fun, but it’s also a tremendous challenge and it can be difficult at times. The sheer volume of work is daunting. People frequently say, “Oh, the Court of Appeals, you only hear a couple hundred cases a year.” However, each of those cases takes an enormous amount of time and, understandably, few people realize what is behind them – particularly, how much time is devoted to reviewing and deciding the applications for leave to appeal to the court. There’s also a tremendous amount of work involved in that.
I understand that you began your legal career in 1981 as the law clerk to the Schenectady Family Court judges. How long did you work as a law clerk?
For about two years. Then, in 1983, I went into private practice, concentrating on matrimonial and family law with the Albany law firm McNamee, Lochner, Titus & Williams, P.C., where I eventually became a partner.
And when did you begin your judicial career?
I was appointed to fill a vacancy on the Albany City Court in January 1997 and then was elected to a full 10-year term in November of 1997. I also served as an Acting Albany County Family Court Judge. I was elected to the Supreme Court in the Third Judicial District in November 2001 for a term commencing in January 2002.
I heard that attending law school wasn’t your first choice, that you thought about pursuing a career in social work but ultimately went to law school.
Yes, that’s true. In college, I was a double major in psychology and Spanish. As I was nearing graduation, my first desire was to further my education in psychology or social work. However, I also became interested in the law – no big surprise, I suppose – so I applied to the University of Minnesota’s master’s degree in social work program and to a couple of local law schools. Believe it or not, I was rejected by the School of Social Work and accepted by the law schools. I enrolled in the University of Minnesota School of Law and the rest, as they say, is history.
Is there anything in particular about any part of your career that you found most satisfying?
I suppose I ultimately was able to apply my social work and psychology background in my matrimonial practice. When I first started practicing matrimonial law in 1983, I was hired by Stanley Rosen, a partner at McNamee, Lochner, Titus & Williams, P.C., an established Albany law firm. Stan was a superb matrimonial lawyer and he became my mentor from that point forward. I learned a lot from him. I might add that some lawyers look down on matrimonial attorneys, viewing the area of practice as just a lot of handholding. To the contrary, there is a lot of law involved. As in any field of law, it is complex, you have to be knowledgeable, you have to study, and you have to stay current.
When I joined the firm, Stan sat me down and said, “Leslie, I’m going teach you everything I know about practicing matrimonial law, but I don’t want you to be my clone. I would like you to develop an expertise in areas in which I don’t have an expertise, like taxes and pensions.” I thought, “What did I get into?” But that is exactly what I did and, as a result, I became one of the first lawyers in the area to prepare a qualified domestic relations order. I also learned all about taxation of property distribution, maintenance, child support, and real estate transactions. I enjoyed that practice and I enjoyed the satisfaction of being able to make a difference in people’s lives.
Let me tell you a story. Obviously, not too many people are happy going through a divorce; it is often a very difficult time. There is a lot of stress and usually when the case was done, my clients did not want to have anything to do with me; they just wanted to put it behind them. But I recall one particular client who came to me for a consultation. I explained the process, her rights, and her obligations. She was very ambivalent about whether she wanted to get divorced or not. I told her that she didn’t have to do anything and that she should just give me a call if she decided that she wanted to proceed. Shortly after that, she called to tell me that she and her husband had decided that they didn’t want to go forward right then but asked if I could recommend a marital therapist. That is not something I would usually do but I knew of a few people and I provided a couple of names. About six months later, she called me again and said, “We went to the therapist and we’ve worked everything out and we’re so happy.” So, sometimes you don’t know what it is you’re going to do that’s going to change people’s lives. That really felt good.
I’m sure it did.
And then City Court. . . . I learned so much there. On some days, I would have 25 or 50, or even 100 cases in my courtroom. Clearly, they couldn’t all be tried and most of the litigants didn’t have lawyers. So, I mediated a lot of disputes. Sometimes I conducted a trial. Sometimes there were lawyers involved and it was more than just a small claim or an eviction. While evictions are certainly very significant matters, I learned that people were often in court because of poor communication between the tenant and the landlord; the tenant wasn’t getting what they needed, and the landlord wasn’t getting paid. So, in these cases, a resolution could be reached by simply letting them air their differences, listen to each other and figure out a way through it.. I also loved small claims because I never knew what was going to come before me, and I had the chance to facilitate personal, but real, justice.
When you were at the trial level, what was the most difficult kind of case for you? I would imagine the matters in Family Court with children had to be pretty compelling stuff.
Well, they are very compelling matters because unlike so many other kinds of situations where you can actually say, “this is the way it’s going to be,” in cases involving children there are always adults involved who are not so easily changed. The saddest part of that was that the children who were getting into trouble weren’t necessarily bad kids; it’s just that they weren’t well-parented and were acting out. So, there was some frustration in being unable to make the kinds of changes that were necessary, but it was also rewarding at times, challenging, but rewarding. Because I was an Acting Family Court Judge while I had a full calendar as an Albany City Court Judge, I sat in Albany County Family Court only once a week; for me, that was perfect. I give a tremendous amount of credit to those Family Court judges who do it five days a week for a 10-year term or more than one 10-year term.
I read a 2018 Albany Law Review article about you entitled “Judge Stein: Neither Left nor Right,” by Charlotte Rehfuss.[1] Based upon your practice area and activities, Ms. Rehfuss wrote:
Not surprisingly, Judge Stein had a strong record of siding with aggrieved women and their children while on the Appellate Division. She also had a very strong record of deferring to administrative decisions when challenged. Both of these tendencies can likely be attributed to Judge Stein’s extensive experience in Family Court, matrimonial law, and serving as an Administrative Judge on the Domestic Violence Part of Rensselaer County. Interestingly, she does not appear to have an “overwhelmingly clear pattern” in criminal cases; however, some of her dissenting opinions showed her to lean towards the sensitive side when dealing with intrusions on a criminal defendant’s rights.
What do you think about all that?
There is probably some truth to that, but I don’t think I can be that easily pigeonholed. However, I have enough of a record that someone could go back and possibly extrapolate some trends like that.
I’ll start with the administrative law comment: I sat on the Third Department, where we decided a tremendous number of administrative law cases. One of the hardest things for me as an appellate judge was that I was often constrained to defer to administrative decisions, where the standard of review makes it very difficult to reverse them, irrespective of whether I agreed with them. That can be very frustrating but there is a reason for that deferential standard of review. That is, the purpose of this standard is to allow the government agencies with the expertise in a relevant field to determine outcomes and refrain from substituting our judgment for theirs. Therefore, unless they really go off the rails, we leave it to the agencies to administer within their province. So, I learned to respect that and to resist the temptation to be a result-oriented judge.
I think it is generally accurate to say that I look at each case and I ask myself, “What is the right answer here, whether I like it or not?” At the Court of Appeals there are many close cases where there is no bright line differentiating the right answer from the wrong one. Of course, we are all influenced by our experiences and predilections. One of the ways I try to moderate that is to listen to my brilliant law clerks, who do not always share my political or social beliefs. I try to keep an open mind and the proper balance because what is most important to me is the certainty and predictability of the law and the institution that we represent. So, it is critical to be able to put aside my personal beliefs to achieve the correct legal outcome. That is why I hope that if I am predictable at all, it is in my respect for the law and my deference to the principle of stare decisis, recognizing that my position on the outcome of any given case may be unpredictable.
Let’s talk a little bit about your life before the law. I understand you grew up in Westchester County and have lived in the Capital District a long time. How did you make your way to Albany?
I started college at Union College in Schenectady where I met a guy who I eventually married. He started law school in Minnesota when I was still in college and I moved there as well. So, I finished college in Minnesota and then also started law school there. After he graduated, he wanted to come back to the Capital District, so I transferred to Albany Law School. I put down my roots here and I never looked back. I love the Capital District.
During my preparation for this interview, I learned that you have been incredibly active in law–related extracurricular activities and held many important leadership roles in the court system.
Well, I take after my parents in a lot of ways and one of them is that they were always doing something in the community.
I understand that both your parents were lawyers, as well as a grandparent.
Yes, my paternal grandfather, Ignatz Russell Stein, graduated from Albany Law School in 1921 and my mother, Barbara Stein, graduated from Columbia Law in 1954, a few years ahead of Ruth Bader Ginsburg. My father graduated from New York Law School and studied for the bar after I was born.
Your mother graduated from Columbia a few years ahead of Judge Ginsburg? That’s impressive, a true trailblazer. Did your mother practice?
My mother did a variety of things. She worked for two members of Congress, first for Congressman Ogden Reid, and then later for Congresswoman Nita Lowey. She also worked in the Attorney General’s Office in the co-op and condo conversion unit, she spent a few years in private practice at a White Plains law firm, and at the very end of her career she was an Attorney for the Child in Family Court. In addition, she worked for the City of Yonkers for a time, where I believe her work involved public housing.
Your father was also a lawyer. Did he practice?
Yes, my father worked at a firm in New York City, Bondy and Schloss, and that was the firm in which his father, my grandfather, worked. My father worked there for about 25 years and then he left the city and became part of a small practice in Westchester.
What kind of practice did your grandfather have?
I don’t know too many details, but I think he did mostly commercial litigation. My grandfather continued to go to the office almost until he died at the age of 90.
And what kind of work did your father do at Bondy?
He didn’t talk much about his work there. What I remember most is when he left the firm, he joined another lawyer in Larchmont, which is where we lived. His partner held a political position; I believe she was the Town of Mamaroneck Supervisor, and they had a general practice. My father did a combination of trusts and estates, matrimonial law, contract law for small businesses and the like. His sister, my aunt, who just celebrated her 97th birthday, always says that my father never joined an organization that he didn’t eventually become president of. He was a real people person.
Well, the apple seems not to have fallen too far from the tree.
People tell me that I got some of the good stuff from both of my parents.
Obviously, your parents had to have been great influences on you as you pursued your legal career. Did you have any idea where you wanted your career to take you?
Talk about focus on the one hand and lack of focus on the other, I really didn’t. I frequently tell young law students and young lawyers who worry that they don’t know what the future will bring. I lead them through my whole career path, which basically consisted of one thing fortuitously leading to another.
I genuinely loved everything that I did throughout my career. I loved practicing matrimonial law, and I was blessed with a fabulous mentor. I loved City Court and I loved Supreme Court. I never started one position thinking about what I wanted to do next. I just immersed myself in what I was doing; each experience was different. When an opportunity arose, I followed it to the next step. No plan, that’s basically the way it was, one opportunity led to another.
I was wondering about any political involvement before the bench.
Well, my mother was very politically active, so as a fairly young child I would be drafted to stuff envelopes and go door to door for various candidates. So, I guess it was kind of in my blood from early on.
Was that in Albany?
No, that was in Westchester County, where I grew up.
I have a number of friends who are judges who once they went on the bench became much more reserved than they were beforehand. Do you think that your career impacted your personal life in any way?
Absolutely! Some of my friends and acquaintances see my judicial license plates and say, “Oh you’re so lucky, you can get away with anything,” and I tell them, “No, no, you don’t understand – if you get stopped for something, you might get a ticket or you might not. But if I get stopped, it may land on the front page of the newspaper, so no, it’s not necessarily what you think.”
Being a judge has always made me think twice about everything I do and say, because I have a responsibility to the institution to be my best self and to be a good example to other people. It does make me more cautious, and of course it affects my life. But in some ways, I think it affects my life just as any career to which a person is devoted would affect their life. I have always felt that being a judge also involves a responsibility to give back to others less fortunate or who are simply less advanced in their careers. Part of that is why I have always been involved in Bar Association work and that kind of thing. I also get something back from those activities, so it’s a two-way street. Of course, all those activities precluded my doing other things that I might otherwise like to do, which is one reason why I am retiring.
I’ve often thought that there is a creative aspect to what members of the judiciary do, particularly the writing. Research is one thing, that’s academic, but then applying what you’ve read and heard, especially in the appellate courts, it’s about writing a good deal. Have you thought about memoirs or any kind of writing after leaving the bench?
I love to write. It is truly one of my favorite parts of being a judge, particularly an appellate judge. I like the process of how our writings come together. I refer to it as decision-making by committee. It can be fun and it can be challenging. There is a lot of negotiation involved. From time to time, I have thought, “I ought to write a book about this.” But I really doubt that I will ever do it. I think more likely than that, I may consider teaching.
I love writing too. I especially enjoy writing personal notes.
Yes, you and I share that; I agree with you. I recently wrote a note to someone, who called me to express their appreciation. It is unusual these days and I take great care with every written word. As we talk about this, I am reminded of former Chief Judge Judith Kaye, who wrote more notes than anybody could probably ever count.
As someone who enjoys writing, and from my modest experience participating in drafting committee reports, I can imagine how difficult drafting as a group can be sometimes. A comma or other punctuation mark like a semi-colon can dramatically impact the meaning of a phrase.
I’ll tell you a short story about that. When I started in Supreme Court, my administrative assistant (who worked with me in the court system for 17 years) would say, referring to me, “She edits everything; she once red-lined a pink slip.” That was in the days when you had pink slips on which you would get your phone messages. I just couldn’t help myself!
That’s hilarious, but I hope you won’t find anything to redline when you read this interview. In preparing for this interview, I learned that you studied the piano pretty seriously. Do you still play the piano?
My piano is in a prominent place in my house but, unfortunately, it hasn’t been played in many years. However, it is one of the things on my to-do list for after next June. I played pretty seriously throughout high school and I studied with a very accomplished teacher. I considered going to Oberlin College to study music, but ultimately, I decided that I wasn’t that good, so I stopped playing while I was in college and in law school. After law school, I learned that the wife of a fellow law clerk in Schenectady was a piano teacher and I took some lessons with her for a while. I was her only adult student, so it was pretty humorous when they had recitals. It was fun, but I really haven’t played in a long time.
Musicians have a heightened commitment to certain discipline. . . . you know, rehearsal, practice, practice, and more practice. Do you think that some of that sensibility carried over into your life in the law?
I guess so. It’s hard to say… I do tend to dive into things, and I like to finish what I start. I also strive to become as proficient at what I’m doing as possible. My husband tells me that he has never seen anyone who is so focused. I can sit at a table for hours and hours and hours working on my cases or whatever I’m doing, rarely look up and have very little awareness of what’s going on around me. So yes, I think that’s probably part of it.
You said that you never really had any plans, that you just followed the path of life and when opportunities arose you made the most of them. Do you have any plans or hopes for life after the bench or is that, too, going to be just finding where the path leads?
I think the latter. I’m pretty committed to not making any commitments until at least the end of 2021 – and I think a good long nap is in order.
I doubt you’ll be able to do that.
[Laughing] You’re probably right but it’s nice to think about anyway. Hopefully we will be able to travel some, if not by next summer certainly by next fall or winter. There are so many places that I want to go, and I want to do other things. Playing the piano is one of them and I have developed an interest in photography. My husband got me a nifty little digital camera a couple of years ago that I have barely figured out how to use. In a nutshell, I would like to get back in touch with who I am and what makes me happy aside from my work.
Judge Stein, thank you so much for this interview, but most especially, thank you for your extraordinary public service for nearly a quarter century, for your dedication to the justice system and the institution in which you have served with such great distinction. You have made real and significant contributions.
Thank you. I hope that I will continue to make contributions.
I’m certain that you will!
Court of Appeals Associate Judge Leslie E. Stein
A 1981 Albany Law School graduate, magna cum laude, after nearly 18 years on the bench in various judicial and administrative positions, Judge Stein was nominated by Governor Andrew M. Cuomo to serve as an associate judge of the Court of Appeals in October 2014, and her nomination was confirmed by the New York State Senate on February 9, 2015.
Active in local politics from a young age, Judge Stein began her judicial career in January 1997 when she was appointed as an Albany City Court Judge. She was elected to that position in November of that same year. While in that position, she also served as an acting Albany County Family Court Judge. In 2001, Judge Stein was elected to the New York State Supreme Court, Third Judicial District, for a term commencing January 2002.
Previously, among her many activities and accomplishments during her time as a practicing attorney for more than 13 years, Judge Stein was elected a Fellow of the American Academy of Matrimonial Lawyers. While on the bench, Judge Stein served as co-chair of the New York State Unified Court System Family Violence Task Force, Chair of the Third Judicial District Gender Fairness Committee, and was a founding member of the New York State Judicial Institute on Professionalism in the Law. Additionally, she served on the Executive Committee of the Association of Justices of the Supreme Court of the State of New York, as an officer of the New York State Association of City Court Judges, and as a member of the Board of the New York Association of Women Judges.
Judge Stein also has a long commitment to the organized bar. She is a past president of the Capital District Women’s Bar Association and was a vice-president of the Women’s Bar Association of the State of New York, where she held various important leadership positions. At NYSBA, Judge Stein has been a member of the Task Force on Increasing Diversity in the Judiciary, the Committee on Women in the Law, the Family Law Section Executive Committee, and has been a frequent lecturer at CLE programs. Judge Stein has also been active in the Albany County Bar Association for many years.
[1] 81 Albany Law Review 1185 (2018), Charlotte Rehfuss.
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