As a Court of Appeals Judge, I have had many "hard" writings-writings that do not easily flow from the pen. But the most difficult by far are formal farewells to a colleague. And while I would happily write endless tributes to Judge Vito J. Titone, I find it especially painful to do so on the occasion of his leaving the court.
It would be natural to begin a tribute with Judge Titone's very significant contributions to the law, particularly after his three decades on the bench. But having now spent more than a baker's dozen years with Judge Titone on the Court of Appeals bench, what rises to the top of my mind is the strong personal bond forged by this extraordinary place and role. We have shared terrible sadness and celebrated phenomenal joys, like marriages, births, and the proud admission of one child each to the New York bar; we have exchanged a million personal stories and decided thousands of cases together.
Even as I heavy-heartedly write this, I am thinking that if I simply wandered next door here at Court of Appeals Hall, I would find Judge Titone at his desk, piled high with books and papers, always ready with a warm greeting, an inquiry about my grandchildren or a delightful tale about his (all six of them--his three grandchildren and my three--now, remarkably, living in England), an amusing remark that would send me into gales of laughter. Judge Titone is a master at dissolving tensions and erasing frowns.
In our thirteen years of Albany dinners together, I have likely had fifty or more bogus birthdays. It's not that being with Judge Titone ages me. It's that he is fond of secretly informing restauranteurs that one of us is celebrating a birthday, so dinners often end with a surprise (our surprise is genuine) delicious dessert, a rousing chorus, and a sly smile on the face of Judge Titone: he's pulled it off again!
Personality is, of course, an integral part of everything people do, even judging. The personality of a judge is perhaps most evident on the trial bench. And I imagine Judge Titone--skilled both in the law and in humanity--was an extraordinary trial judge, serving on Supreme Court, in his beloved Richmond County (he actually "married into" Staten Island), from 1969 to 1975. To this day we are every now and then treated to a story about Judge Titone's trial court days, plainly a source of great professional satisfaction for him.(1)
For the past twenty-three years, Judge Titone has labored in the loftier reaches of the New York State court system--first as an Appellate Division Justice, and then beginning on May 28, 1985, as a Court of Appeals Judge. His proficiency in people as well as in law has remained with him.
My first direct encounter with Judge Titone was actually when he came before the State Bar Committee on the Judiciary as a Court of Appeals candidate. A fellow Judiciary Committee member was fond of asking how those we saw would write their own epitaph (to my mind a spine-chilling question). All these many years later, I still remember Judge Titone's answer, for its simplicity and sincerity: "Always he did his best to be a good and fair judge." The Committee, naturally, found him "Well Qualified," a judgment abundantly proved during his tenure on the Court.
Personality may be most noticed on trial courts, but it counts on appellate courts too. Who but a consummately "good and fair judge" would openly and "forthrightly surrender [his] contrary views in [a published opinion] to a more cogent position"?(2)
Of many insightful Titone opinions, I might single out his very recent writing in Tropea v. Tropea,(3) as amply demonstrating the human and legal acumen of this "good and fair judge." At the core of Tropea was one of the "knottiest and most disturbing problems that our courts are called upon to resolve":(4) the right of a custodial spouse to relocate when the noncustodial spouse objects. …