Shorthanded Court Loses Its 'Heart' to Retirement

, New York Law Journal

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Justice Edward Spain
Justice Edward Spain in his chambers at the Rensselaer County Courthouse in Troy.

Colleagues, attorneys and litigants agree that when Appellate Division, Third Department, Justice Edward Spain hangs up his robes on Dec. 31, the court will lose a gracious, unassuming gentleman who has served as the heart of the court.

Spain (See Profile), 72, whose judicial career has spanned six presidents and six governors and yielded hundreds of opinions and a smattering of dissents is opting for retirement rather than an extended stay on the bench.

"My wife and I see so many couples that we know who are not able to do the things they dreamed of doing, either because they are widows or widowers or because one spouse has to take care of the other," Spain said. "We can travel now, and we will."

Spain's departure leaves an already shorthanded court further depleted with five vacancies on what is supposed to be a 12-judge department.

The court has for several months functioned with four-judge panels instead of five-judge panels, which occasionally results in a tie vote. In those instances, another judge from the court, one who was not present for oral arguments, is vouched in to decide the case (NYLJ, Dec. 13).

At least seven candidates have gone through the screening process for the Third Department vacancies, but Gov. Andrew Cuomo has given no indication of when he will fill any of the positions, one of which has been open for 25 months.

While the Third Department is in the worst shape, with a 40 percent vacancy rate, all four Appellate Division departments are short on judges and, overall, the mid-level court, which is the court of last resort in the vast majority of cases, is down more than 20 percent of its judges.

Spain, a onetime semi-professional hockey player and naval officer who first picked up a gavel when Jimmy Carter was president, gas cost 63 cents a gallon, Cardinal Karol Wojtyla became Pope John Paul II and Kobe Bryant was a newborn, grew up in working class Troy, a keystone to a large and ever growing Irish Catholic family.

Spain has seven siblings—including two who are lawyers in New York City, one who is a missionary priest in El Salvador and another who is an editor at the Albany Times Union—and six children of his own. He and his wife, Kathy, celebrated the birth of their 16th grandchild on Christmas day.

After graduating from Boston College, where he was wing on the hockey team, Spain enrolled in Albany Law School, earning a little cash while playing with the semi-professional Averill Park Lancers.

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