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.JPG)
A TRIBUTE TO JACOB D. FUCHSBERG
Dean Howard A. Glickstein*
Judge Jacob D. Fuchsberg died on August 27, 1995. Judge
Fuchsberg was not only a towering figure in the law but also one
of the fathers of the Law Center. His death was a great loss
both to the Law Center and to the legal profession.
Judge Fuchsberg attended the New York University School of
Law where he was a member of the Law Review. He then embarked
upon a distinguished legal career, both as a trial lawyer and
later as a judge on the New York Court of Appeals. As a partner
in the Manhattan law firm of Fuchsberg & Fuchsberg, Judge
Fuchsberg distinguished himself as one of this country's
preeminent trial attorneys. He was the first litigator in the
nation to achieve a one million dollar verdict from a jury.
Judge Fuchsberg served as President of the New York State
Trial Lawyers Association from 1957 to 1959, and as President of
the Association of Trial Lawyers of America in 1963 and 1964. He
also was an active and prominent member of various other
professional organizations.
Judge Fuchsberg's distinguished legal career was capped by
his election to the New York Court of Appeals as an associate
judge in 1974. His opinions on the court were notable for their
strong defense of civil rights and liberties. The Legal Aid
Society of New York described Judge Fuchsberg as one of the
"most defense oriented" judges. Fn1 Indeed,
during the 1981-82 session, Judge Fuchsberg was the only judge
to vote for the defendant in all ten criminal cases in which the
court split 4-3. Fn2
Judge Fuchsberg's opinions in criminal cases, whether the
majority or the dissent, have been concerned largely with the
rights of the accused. In People v. Belton,
Fn3 Judge Fuchsberg argued against the
proposition that police making a traffic stop may search the
contents of the vehicle, concluding:
[i]t is now clear that even in cases where the seizure is
based on probable cause to believe that the item taken from a
vehicle contains contraband or evidence of a crime, the right
to seize does not include the right to conduct a warrantless
search of its contents, absent exigent circumstances.
Fn4
In a similar case, People v. Shepard, Fn5 also implicating a defendant's right to privacy, Judge
Fuchsberg stated in his dissent that "a conviction for
possessing in one's own home . . . less than one ounce of
marijuana puts the right to privacy to the test in a
contemporary factual setting." Fn6 Judge
Fuchsberg analyzed the case in terms of the State using its
police power to infringe on an individual's right to privacy in
the name of morality. Fn7 He asked whether
the State can enter an individual's home and "dictate his right
to there possess and use marihuana, tobacco, or for that matter,
cholesterol-making apple pie." Fn8 He
concluded his dissent by stating "in a country where, though the
government has its sphere, so does each American, and where to
keep that of the individual entire, the Constitution and the
courts will guard it from unreasonable and arbitrary
restrictions . . . ." Fn9
Judge Fuchsberg often spoke for the court in his defense of
privacy rights. He delivered the court's opinion in People v.
Washington, Fn10 a major New York
wiretap case. Here, the court held that the police must submit
tapes for judicial sealing "[i]mmediately upon the expiration of
the period of an eavesdropping warrant." Fn11
The court further held that manpower shortages or technical
difficulties which result in unreasonable delays do not excuse
the police from submitting the tapes for sealing.
Fn12
In addition to a concern for privacy rights, Judge Fuchsberg
also was concerned with the requirements of due process and a
defendant's right to a fair trial. In Legal Aid Society of
Sullivan County v. Scheinman, Fn13
Judge Fuchsberg asked in his dissent, "[i]s it unconstitutional
for a defendant charged with a crime, conviction of which could
bring imprisonment, to be compelled to have his case tried
before a Judge who is not a lawyer?" Fn14
Judge Fuchsberg argued that this violated the defendant's
constitutional rights, stating "it 'is of fundamental importance
that justice should not only be done, but should manifestly and
undoubtedly be seen to be done.'" Fn15
While Judge Fuchsberg's opinions evidence his sensitivity
for the rights of the accused, his protection of civil rights
was not limited to criminal cases. He confronted some of the
most challenging public policy issues of our time. Affirmative
action was the issue in Fullilove v. Beame,
Fn16 where Judge Fuchsberg wrote:
"affirmative action" is basically a concept representative
of the conviction that full equality of employment opportunity
cannot be achieved simply by decrying discrimination or even
by decreeing that discrimination cease; rather it proceeds on
the assumption that, unless these are accompanied by positive
or 'affirmative' steps to speed the elimination of the
stubborn vestiges of discrimination, this noxious condition
will continue to feed on itself, and the goal of equal
opportunity will remain beyond reach. Fn17
Equal educational opportunity was the issue in Board of
Education, Levittown Union Free School District v. Nyquist.
Fn18 There the question was whether New
York State's system of school financing violated the provisions
of New York's Constitution mandating the "maintenance and
support of a system of free common schools wherein all the
children of this state may be educated." Fn19
Judge Fuchsberg was the lone dissenter from an opinion upholding
the challenged school financing structure. He concluded that the
New York Constitution precluded "the unequal and inadequate
public schooling which children in property poor or fiscally
overburdened areas of the State must endure."
Fn20 "Poor children," he wrote, "no less than rich, and the
Nation of which both are a part, are entitled to an education
that prepares today's students to face the world of today and
tomorrow." Fn21 Judge Fuchsberg expressed
his strong commitment to education. He wrote:
In any meaningful ordering of priorities, it is in the
impact education makes on the minds, characters and
capabilities of our young citizens that we must find the
answer to many seemingly insoluble societal problems. In the
long run, nothing may be more important - and therefore more
fundamental - to the future of our country. Can it be gainsaid
that, without education there is no exit from the ghetto, no
solution to unemployment, no cutting down on crime, no
dissipation of intergroup tension, no mastery of the age of
the computer? Horace Mann put it pragmatically that education
is not only "the great equalizer of men", but, by alleviating
poverty and its societal costs, more than pays for itself.
Fn22
Judge Fuchsberg retired from the court of appeals in 1983.
His faith in the law as an engine for protecting the rights of
the individual was undiminished. "Unlike in the 1960's," he said
at the time of his retirement, "when America fought in the
streets for its rights, today we are waging the fight in the
courthouses. We are making progress, and it has to be done
through the law." Fn23
On one of his visits to the Touro Law Center, Judge
Fuchsberg reminisced about his legal career. He told the
students that he regretted that the demands of his practice had
prevented him from spending as much time as he would have liked
with his children when they were growing up. He said that he had
partly made up for this when, after his retirement from the
court of appeals, he founded the Jacob D. Fuchsberg Law Firm and
included as his partners two of his children, Rosalind and Alan.
Judge Fuchsberg demonstrated his love of education and of
the law through his service as a member of the Board of Trustees
of Touro College at the time of the College's inception in the
early 1970's. Judge Fuchsberg was an early and persistent
advocate for the establishment of the Law Center, and worked
tirelessly in aiding the Law Center to achieve provisional and
later, full accreditation from the American Bar Association.
Throughout his distinguished legal career, Judge Fuchsberg
was a crusader and a guardian of the rights of the people. With
his death, the country has lost one of its greatest lawyers, and
the Law Center one of its greatest friends. Those associated
with this Law Center, however, will never forget the name, or
the vision, of Jacob D. Fuchsberg.
---- Begin EndNotes ----
* Dean and Professor of Law, Touro College, Jacob D.
Fuchsberg Law Center. The author gratefully acknowledges the
assistance of Michael Gajdos, Class of 1997, in the preparation
of this article.
Fn1 . Eric Pace, Jacob D. Fuchsberg,
82, Dies; Lawyer and Appellate Judge, N.Y. TIMES, August 28,
1995, at B9.
Fn2 . Id.
Fn3 . 55 N.Y.2d 51, 432 N.E.2d 745, 447
N.Y.S.2d 873 (1982). Defendant was convicted of attempted
criminal possession of a controlled substance as a result of a
traffic stop by a State Trooper who upon finding an envelope
containing marijuana in the front seat of the vehicle, then
proceeded to search defendant's jacket (located in the back
seat) where the Trooper discovered a small amount of cocaine.
Id. at 51, 432 N.E.2d at 746, 447 N.Y.S.2d at 874. On remand
from the United States Supreme Court, the question was whether
the search and seizure violated the New York State Constitution.
Id. at 51, 432 N.E.2d at 745, 447 N.Y.S.2d at 873.
Fn4 . Id. at 67, 432 N.E.2d at 756,
447 N.Y.S.2d at 884 (Fuchsberg, J., dissenting) (citations
omitted).
Fn5 . 50 N.Y.2d 640, 409 N.E.2d 840, 431
N.Y.S.2d at 363 (1980). Defendant was convicted of criminal
possession of a controlled substance in the seventh degree for
possessing and cultivating nine marijuana plants in his home.
Id. at 643-44, 409 N.E.2d at 841-42, 447 N.Y.S.2d at 364-65.
Fn6 . Id. at 649, 409 N.E.2d at
845, 431 N.Y.S.2d at 368 (Fucshberg, J., dissenting).
Fn7 . Id. at 651, 409 N.E.2d at
846, 431 N.Y.S.2d at 369 (Fuchsberg, J., dissenting).
Fn8 . Id. at 655, 409 N.E.2d at
846, 431 N.Y.S.2d at 372 (Fuchsberg, J., dissenting).
Fn9 . Id. (Fuchsberg, J.,
dissenting).
Fn10 . 46 N.Y.2d 116, 385 N.E.2d 593, 412
N.Y.S.2d 854 (1978).
Fn11 . Id. at 122, 385 N.E.2d at
596, 412 N.Y.S.2d at 857.
Fn12 . Id. at 124, 385 N.E.2d at
597, 412 N.Y.S.2d at 859.
Fn13 . 53 N.Y.2d 12, 422 N.E.2d 542, 439
N.Y.S.2d 882 (1981). In this case defendant was convicted of
disorderly conduct in a trial presided over by the Justice (who
was not a lawyer) of the local criminal court of the Town of
Mamakating. Id. at 15, 422 N.E.2d at 543, 439 N.Y.S.2d at
883.
Fn14 . Id. at 18, 422 N.E.2d at
545, 439 N.Y.S.2d at 885 (Fuchsberg, J., dissenting).
Fn15 . Id. at 23, 422 N.E.2d at
548, 439 N.Y.S.2d at 888 (Fuchsberg, J., dissenting) (citations
omitted).
Fn16 . 48 N.Y.2d 376, 398 N.E.2d 765, 423
N.Y.S.2d 144 (1979).
Fn17 . Id. at 379-80, 398 N.E.2d
at 766, 423 N.Y.S.2d at 145.
Fn18 . 57 N.Y.2d 27, 439 N.E.2d 359, 453
N.Y.S.2d 643 (1982).
Fn19 . N.Y. CONST, art. XI, ยง 1.
Fn20 . Id. at 57, 439 N.E.2d at
374, 453 N.Y.S.2d at 659 (Fuchsberg, J., dissenting).
Fn21 . Id. at 60, 439 N.E.2d at
375, 453 N.Y.S.2d at 660 (Fuchsberg, J., dissenting).
Fn22 . Id. at 51, 439 N.E.2d at
371, 453 N.Y.S.2d at 655 (Fuchsberg, J., dissenting).
Fn23 . Pace, supra note 1, at B9.
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