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On Fahey’s path to the Court of Appeals, ‘he got better and better as he went along’

Justice Eugene M. Fahey, whose work as a trial judge ranged from issuing a pivotal Peace Bridge ruling to arraigning a fugitive sniper murderer, is on the verge of becoming a judge on the state’s highest court.

Gov. Andrew M. Cuomo on Thursday nominated Fahey for the State Court of Appeals.

If confirmed, Fahey would join the Court of Appeals 20 years after he began his judicial career as a Buffalo City Court judge. Fahey, whose early political career included terms on the Buffalo Common Council before and after his law school years, later won two elections to the State Supreme Court in Western New York.

“The New York State Court of Appeals is the pre-eminent state court in the nation,” said Fahey, 63, in a written statement. “To be even considered for this position is humbling, and to be nominated is a great honor.”

A Republican governor, George E. Pataki, put Fahey on the mid-level appellate court in Rochester in 2006.

Now a Democratic governor wants him on the state’s highest appeals court.

“I think that speaks to Gene’s character and qualities that transcend partisan politics,” said Rep. Brian Higgins, D-Buffalo, who lobbied for Fahey’s nomination.

“Gene and I are very close politically and personally,” Higgins said. “When Gene applied, I spoke to the governor in Buffalo, and the governor said he’d take a good hard look at Gene.”

Cuomo liked what he saw.

“Justice Fahey’s distinguished career, background and years of service on the bench will make him a formidable member of the Court of Appeals,” Cuomo said in nominating the Buffalo resident.

The seven-member Court of Appeals is the state’s highest court and considers everything from murder cases and prison inmate appeals to complex Wall Street and insurance rulings.

The state Commission on Judicial Nomination last month recommended Fahey and six other candidates to fill the Court of Appeals vacancy created by Judge Robert Smith’s retirement at the end of the year.

Fahey, considered one of the area’s most distinguished judges, had been recommended three previous times by the commission without then being nominated by a governor.

Fahey received the highest rating for the post from seven bar and legal associations, including the New York State Bar Association and the New York State Trial Lawyers Association.

The judicial screening panel last fall received 53 applications for the seat. The other judge on the panel’s recommended list for Cuomo to select from, besides Fahey, was Justice Erin Peradotto, also a Buffalo resident.

The State Senate must confirm or reject Fahey’s nomination within 30 days.

Before his judicial career, Fahey served on the Common Council from 1978 to 1983 and from 1988 to 1994, including serving as majority leader. Fahey lost the 1993 Buffalo Democratic mayoral primary to Anthony M. Masiello.

So he was knee-deep in politics when he began his judicial career, recalled attorney Terrence M. Connors.

“He was an exceptional elected official and politician, but many of the lawyers (wondered) what exactly are we getting,” Connors said. “We knew he was smart, but he didn’t have the breadth of experience as a practicing lawyer.”

In State Supreme Court, Fahey proved to be an able trial judge, Connors said.

But it was after his appointment to the appellate court in Rochester that Fahey impressed Connors and other lawyers even more.

An appellate judge has to read voluminous case files and court documents to understand the questions and appeals that come before the appellate court and then make good decisions.

“I noticed when appearing in front of him how he took to the task, was always well prepared, and asked good questions,” Connors said. “More than anything else, he was open to suggestions, looked for what could make him a better judge, and he was active in teaching. I thought it was a wonderful extension of his personality, knowledge and intelligence.”

Connors said Fahey showed scholarly grounding in his legal opinions in cases before the appellate court in Rochester – all while being “approachable and engaging,” he said.

“That’s the evolution I saw,” Connors said. “You saw an elected official turn into an excellent judge, and then take it up another notch when he went to the appellate court. He got better and better as he went along.”

The state bar association commended Cuomo for selecting Fahey.

“Fahey has distinguished himself as an appellate jurist,” said Glenn Lau-Kee, president of the association. “The New York State Bar Association in 2012, 2013 and twice in 2014 found him to be well qualified to serve on the Court of Appeals. We commend Gov. Cuomo for nominating him.”

Michael Levine, president of the state Trial Lawyers Association, said Fahey has a reputation as “a fair and just trial judge and as an appellate judge he is known for his thoughtful and considered rulings and decisions.”

A lifelong Buffalonian, Fahey graduated from St. Joseph’s Collegiate Institute.

He has three degrees from the University at Buffalo. He earned a bachelor’s degree in political science in 1974, a law degree in 1984 and a master’s degree in European history in 1998.

He served as a law clerk to Judge Edgar C. NeMoyer before entering private practice in 1985, where he worked as house counsel for Kemper Insurance Co. until 1993.

Fahey served as a Buffalo City Court judge in 1995 and 1996. In 1996, he was elected to serve as a State Supreme Court justice in the Eighth Judicial District, which covers Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Niagara, Orleans and Wyoming counties. He won re-election in 2010.

On that bench, Fahey handled both civil and criminal matters.

In 2000, Fahey ruled the Peace Bridge Authority’s environmental study for a twin Peace Bridge was flawed, and that meant the authority would have to complete another, more thorough study if it wanted to build a bridge. That effectively killed the idea of a twin span, because bridge officials said they would not pursue a lengthy and expensive environmental review unless the city guaranteed easements needed for the project. City officials refused.

In 2002, James C. Kopp, the anti-abortion activist who was the center of an international manhunt, was arraigned before Fahey in a criminal case on a murder charge for the 1998 sniper murder of Amherst physician Barnett A. Slepian.

In 2006, Fahey approved a $25 million insurance settlement – believed to be the largest of its kind at the time in Western New York – for a Lancaster man who lost an arm and both legs when a liquid nitrogen tank ruptured in 1998.

Cuomo’s selection of Fahey would put two area residents on the top court.

Fahey would join Associate Judge Eugene F. Pigott Jr. of Grand Island, who was appointed to the court in 2006.

Terms on the Court of Appeals are 14 years, though judges must retire at the end of the year they turn 70.

Unless that changes, Pigott is due to retire at the end of 2016.

Besides Pigott, previous Court of Appeals judges from Western New York or with ties to the appellate court in Rochester include Charles S. Desmond (1941-1966), Matthew J. Jasen (1968-1985) and Richard C. Wesley (1997-2003).

“Desmond, Jasen, Wesley, Pigott and now Gene Fahey, another stellar appointment from our region,” Connors said. “Our entire legal community stands proud.“

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