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Whalen draws wide praise for key state judicial role

Throughout his long legal career, Appellate Justice Gerald J. Whalen has naturally attracted what Rep. Brian Higgins calls “a legion of admirers.”

Perhaps that’s the result of hailing from a long line of Whalens woven for generations into the fabric of South Buffalo Democratic politics.

And perhaps that’s one of the reasons why Gov. Andrew M. Cuomo plans to name the Town of Hamburg resident to the key post of presiding justice of the Appellate Division of State Supreme Court for Western and Central New York.

Whalen, 59, will lead the five-member panel of appellate justices in the Rochester-based Fourth Department that weighs some of the most intricate and important legal questions before New York State courts.

After Whalen administered the oath of office to Cuomo in Buffalo for a second term almost exactly a year ago, it might have been safe to assume that the governor also was recognizing Whalen as someone capable of handling the legal and administrative challenges of an appellate court.

Cuomo’s office confirmed late Tuesday that Whalen’s appointment will be made official in the coming days.

A graduate of Canisius College and the University at Buffalo Law School, Whalen has risen through the area’s legal ranks. He practiced law for 21 years with firms such as Hiscock & Barclay and was an adjunct professor at Canisius College.

Whalen has also lectured on constitutional law at UB on civil matters before state and county bar association events, and served on a host of professional and legal organizations.

He was elected to State Supreme Court in 2005, running on the Democratic, Conservative, Independence and Working Families lines after he was rated “well qualified” by the Erie County Bar Association. In 2012, Cuomo appointed him to the Appellate Division in Rochester.

Whalen and his family have been visible in local Democratic politics for decades. He is the grandson of the late Buffalo Common Council Member Gerald J. Whalen of the South District, who served in City Hall during the 1940s. And he is the son of the longtime South Council Member Gerald J. Whalen Jr.

His sister, Margaret C. Keane, was among the first women to join the Buffalo Fire Department and was eventually appointed deputy fire commissioner by then-Mayor Anthony M. Masiello.

His brother, Timothy, served in the Erie County Legislature. And his brother-in-law, James P. Keane, was a former South Council member, deputy county executive and Democratic candidate for Congress and county executive.

Now, it appears that the new presiding judge assumes his post with approving nods from various sectors of the political and legal communities. Higgins, the Buffalo Democrat who urged Cuomo to name Whalen to the Fourth Department’s top spot, called the appointment “a great thing for Western New York, the Whalen family, and Jerry personally.”

“I talked to the governor weeks ago about this,” Higgins said, “and I told him about an extraordinary individual and consummate professional who is very deserving of this appointment.”

The congressman also noted that Whalen joins other Western New Yorkers in the ranks of top state jurists, including Judges Eugene F. Pigott Jr. and Eugene M. Fahey on the Court of Appeals.

Whalen also is a successor to Buffalonians such as the late Justices Michael F. Dillon and M. Delores Denman (for whom the Appellate Division courthouse in Rochester is named) as recent presiding judges of the Fourth Department.

Other legal professionals are also hailing the Whalen appointment. Buffalo attorney Kevin W. Spitler, president of the Erie County Bar Association, called it a “wonderful selection.”

“He is not only a good jurist and good appellate jurist, he’s a really decent human being,” Spitler said.

“He’s down to earth and a very regular guy.”

Spitler said Whalen respects the legal and professional boundaries necessary inside and outside the courtroom while still maintaining solid relationships.

“Judges have a very difficult social line they can’t cross. Most have practiced on one side of the bar with their peers, and now they’re suddenly on the other side on the bench,” Spitler said.

“Jerry Whalen does a nice job of being personable with members of the bar without having favorites. He’s the kind of guy you’d like to run into.”

Also praising Whalen was Timothy P. Murphy, who has handled numerous cases before the Appellate Division with a Buffalo law firm and now as chief attorney for the Appeals and Post-Conviction Unit of the Legal Aid Bureau of Buffalo.

Murphy, who is also chairman of the Bar Association’s Appellate Practices Committee, labeled a request for comment on the appointment of Whalen “an easy one.”

“Justice Whalen is one of the finest judges one can hope to appear before,” Murphy said. “He has a great temperament, with a tremendous knowledge of the law and the highest respect of his colleagues and the bar. He’s shown tremendous skill in conducting oral arguments in his time on the bench so far.”

Spitler also noted the importance of any appellate court for anyone who feels that a lower court or judge may have ruled erroneously.

“From cases involving admissibility of evidence to the breakup of marriage assets to the proper use of wetlands,” Spitler said, “the appellate court gives litigants the ability to say, ‘Wait a minute. I think they got that wrong.’ ”

Only the Court of Appeals occupies a higher position in New York courts.

Whalen will succeed former Presiding Justice Henry J. Scudder, of Bath, who was appointed by Gov. George E. Pataki in November 2006 and has retired.

The court has jurisdiction over cases stemming from the 22 counties of Western and Central New York.