Judge Marvin Dye was one of the longest living judges to serve on the New York Court of Appeals. Born in Forestville, Chautauqua County, New York on July 12, 1895, he died at the age of 102 on October 25, 1997. While Judge Dye practiced healthy living habits (he "never smoke or drank"1), longevity appeared genetic. His father, Daniel A. Dye (1870-1972), also died at the age of 102, and his mother, Virginia (Marvin) Dye2 (1873-1971), died at the age of 98. Dye's three siblings, Alan, Paul, and Mary, similarly lived into their 80s and 90s.
Marvin Rood Dye3 was the eldest son of Daniel and Virginia and was born on a Forestville farm and vineyard. His father was both a farmer and a teacher, and his mother was a teacher. During his younger years, Dye worked on the vineyard and rode a horse to attend school at the Forestville Free Academy. Many years later, when Dye's eldest son had asked what inspired him to pursue law, Dye explained, "You know my mother was a poor girl, and in her youth she lived for several years with a lawyer's family. And all I remember is the various comments about what a luxurious, elegant living style the lawyers had. None of this going down the grape rows, trying to pick the grapes. You just simply sat there with torts, and briefs, and appeals and all that sort of stuff. That's for me!"4
During his senior year at Forestville High School,5 Dye had an English teacher named Grace Kelley,6 who recognized him as a "diamond in the rough" because he could read and write. Grace saw that he had the makings, perhaps, of a lawyer, and persuaded him to spend another year at Forestville High to polish up his English and a few other things. Dye took her advice and in due course, "she stamped him approved, and he took his course and went down to Cornell University" where he studied law. Before leaving for Cornell, Grace informed Dye that her sister, Miriam Kelley, from Wyoming, New York was also starting at Cornell. Little did he know that "what Grace Kelley did for him was solve two of his problems: one was to prepare for a profession and the other was to prepare for a meaningful existence with [a] family." Dye ultimately met Miriam at Cornell and fell in love.
In 1917, Dye graduated from Cornell and received a bachelor of legal letters (LLB), but never made it to the graduation ceremony. World War I had broken out, and he qualified for First Officers' Training Camp at Madison Barracks. He received an overseas commission as First Lieutenant in the 49th Infantry Regiment.7 Before he departed, Dye proposed to Miriam and they wed on June 25, 1918. While Dye was overseas in France, Miriam gave birth to their first child, Stanley M. Dye, on April 16, 1919.
After the war, in April 1920, Judge Dye resigned from the service and decided to pull up his roots and move to the Rochester area, near Miriam's hometown. After he was admitted to the New York State Bar in May 1920, he later established a Rochester law firm with Ernest C. Whitbeck, Whitbeck & Dye.8 He was a poor struggling lawyer during the Great Depression, supporting his wife and child on $15 a week. During that time his clients could no longer pay their bills and instead offered him furniture or an automobile as payment.9 "He could have declared bankruptcy, but thought that to shift his losses onto others was unacceptable. So, he continued to work and to pay his debts, principally, the mortgage on [his] unfinished home, until he paid back every penny. It took many years . . . [but], this willingness to do the difficult and honorable thing was very much a part of his character."10
In 1932 and again in 1934, Associate Judge of the Court of Appeals Judge Harlan W. Rippey of Rochester induced Dye to run for special county judge against Judge Henry D. Shedd and later against County Judge William C. Kohlmetz. When the Democrats captured the Monroe County Board of Supervisors in 1933, Judge Dye was appointed county attorney and served for two years in 1934 and 1935. Thereafter, he continued working at his law firm until November 11, 1940, when Governor Herbert H. Lehman appointed him as a Judge on the Court of Claims to fill a vacancy caused by the death of Honorable Milton E. Gibbs. His appointment to the New York Court of Claims was the beginning of a long and distinguished judicial career.
During the 1944 presidential election, a vacancy on the New York Court of Appeals arose with the mandatory retirement of Judge Harlan Rippey due to his age. Although Judge Dye's term on the Court of Claims had not yet expired, the Democratic Party, through the recommendation and support of Monroe County Democratic Party Chairman Roy F. Bush, nominated Judge Dye as their candidate for Associate Judge of the Court of Appeals.11 The American Labor and Liberal Party joined in that nomination. The New York bar associations considered Judge Dye and John Van Voorhis, a Republican State Supreme Court Justice, as the two principal candidates in the race. The Bar Association of the City of New York and the New York County Lawyers Association favored Van Voorhis because "he has 'demonstrated by his record on the Bench and his record at the bar that he possesses all of the qualifications requisite to judicial service on the highest court of the State."12 In comparison, Judge Dye "possesses 'unquestioned integrity' . . . [but] his record has not been 'sufficiently outstanding' to warrant his election to this high office."13 The New York County Lawyers Association agreed, observing that Judge Dye "has 'not had sufficient professional opportunity' to demonstrate qualifications for this Court."14 Despite lukewarm recommendations, Judge Dye won the election. His victory was largely attributable to the Democratic Party's success in the presidential and senatorial races with Franklin Delano Roosevelt and Robert F. Wagner each winning their respective races by a landslide. Years later, Judge Dye often joked with others that he carried the Democratic ticket in 1944 and assured Roosevelt and Wagner of their victories!15 Judge Dye resigned from the Court of Claims in 1945.
In the election of 1958, all major parties nominated Judge Dye for another term on the Court of Appeals. This time around the New York County Lawyers Association and the Bar Association of the City of New York enthusiastically endorsed Judge Dye as "outstandingly qualified" for judicial office.16 In November, Judge Dye was reelected to the bench for another 14 years. During his second term, Judge Dye received an honorary law degree (LLD) from Syracuse University in 1964 and completed a postgraduate degree from New York Law School in 1965. As he neared mandatory retirement age, Judge Dye became aware of a constitutional provision (Article VI, ' 25) that allowed retired Judges of the Court of Appeals to serve as a State Supreme Court Justice so long as it is certified "that he or she is mentally and physically able and competent to perform the full duties of such office." He referred to that constitutional provision as the "rebuttable presumption of senility."17 Judge Dye wished to stay on the bench until he reached 76 and helped successfully persuade the Legislature to draft an amendment to Article VI, ' 25 to change the retirement age to 76. The proposed constitutional amendment was on the state ballot in 1965 but was ultimately defeated.18
On December 31, 1965, Judge Dye retired from the Court of Appeals at the age of 70 and was succeeded by United States Senator Kenneth B. Keating. At his retirement ceremony, Chief Judge Charles S. Desmond presented Judge Dye with a silver tray engraved with the signatures of his associates. Judge Dye remarked:
"The Court of Appeals is not just another judicial tribunal where a few privileged [people] sit en banc to settle disputes under the rule of law, but is more nearly an idea, a loadstone to attract, a lightpost to guide [people] along their long and weary road toward the ultimate attainment of the goal of universal justice. If the day should ever come when the material symbols of our civilization shall have perished, I venture to predict that the standards of justice fashioned at this conference table will survive."19
After his retirement from the Court of Appeals, Judge Dye returned to the trial bench as he was appointed to serve two years as a State Supreme Court Justice in the Seventh Judicial District. Judge Dye spent most of his judicial career sitting as Judge on the Court of Appeals. During his 28 years on this Court, Judge Dye came to be regarded to some as the "stalwart on the Court." One of his former law clerks described him as a "quiet and unassuming man" who embodied the qualities a judge should possess: he was "principled," "sober," and "open minded."20 He was a "judge before whom lawyers like[d] to appear. . . . [He was b]ig boned, lean, nearly 6 feet 2 inches tall, display[ed] kindly humor in courtroom manner and [was] dignified and courteous."21 Although "schoolmarmish" in appearance, Judge Dye was a "political animal," savvy about the interrelationships between people and institutions.22 Chief Judge Desmond once wrote
"No one in the intervening two dozen centuries has as accurately listed the work habits needful for a good judge as Socrates: 'Four things belong to a Judge: to hear courteously; to answer wisely; to consider soberly; and to decide impartially.' None of those who have lived and worked with Marvin Dye in the close communion of an appellate court could possibly fault him for lack of courtesy, wisdom, sobriety or impartiality. But there are other reasons why the bar respects and admires him and why his associates love him. His simply natural dignity is combined with unfailing kindness and consideration. His quiet manner belies a determination to serve his State and his fellow [Americans] well."23
Judge Dye wrote approximately 224 majority opinions and 93 dissents.24 His opinions were largely driven by precedent. On one occasion, one of Judge Dye's former law clerks recounted how he submitted a draft writing recommending to overturn the decision of the courts below based on "justice and fairness." Judge Dye retorted, "justice and fairness play no role in the Court's deliberation. We need precedent."25
His writings in several landmark cases demonstrate that he was a man of modern thinking. In the famous school-prayer case, Matter of Engel v. Vitale (10 NY2d 174 , revd 370 US 421 ), the New York State Board of Regents recommended that all state public schools adopt a resolution calling for the reading of the "Regents prayer."26 The Board of Education of Union Free School District Number Nine in New Hyde Park, New York, adopted a resolution calling for the daily recitation of the Regents prayer. Although no penalty was imposed for non-participation, the petitioners, who were all members of various religious faiths (except one nonbeliever), taxpayers and parents of children attending public schools within the district, challenged the resolution as an unconstitutional form of State-sponsored religious education and establishment of religion. In a 5-2 decision, the Court held that recitation of the Regents prayer in public schools was permissible and did not offend First Amendment principles. In an impassioned dissent, Judge Dye stated:
"Running through the fabric of [past decisions of the United States Supreme Court], like the pattern of a tree of life in an intricate tapestry, is a clearly defined line of demarcation between church and State, which may not be overstepped in the slightest degree in favor of either the church or the State. In such light, a board of education may not require the saying of the Regents prayer as a daily school procedure. It is a form of State-sponsored religious education. The inculcation of religion is a matter for the family and the church. In sponsoring a religious program, the State enters a field which it has been thought best to leave to the church alone. . . . This does not mean that the State is or should be hostile to religion, merely that the State should not invade an area where the constitutionally protected freedom is absolute and not open to the vicissitudes of legislative or judicial balancing."27
On appeal, the United States Supreme Court reversed and determined, like Dye, that the Regents prayer was school-sponsored prayer in public schools which violated the Establishment and Free Exercise Clauses of the First Amendment.
Judge Dye was an advocate of free speech and freedom of the press. He authored and joined in opinions urging that books like Henry Miller's "Tropic of Cancer" or John Cleland's "Fanny Hill," and movies like "Lady Chatterley's Lover" could be produced and disseminated without censorship.28 He frequently received mail from book banners and although he never responded, he thought about doing so to express his appreciation for these watch dog committees but, more importantly, to point out the irony that exposure to these "obscene" materials prompted them to do good.29
In People of New York v. Frich (13 NY2d 119 ) the majority of the Court determined that Henry Miller's controversial book, "Tropic of Cancer," was obscene and not entitled to federal or state constitutional protection. In a 4-3 decision, the Court reversed the order of County Court that overturned the defendants' convictions for selling the book in violation of Penal Law ' 1141, and ordered a new trial. The majority determined that the book was "nothing more than a compilation of a series of sordid narrations dealing with sex"; "[i]t is devoid of theme or ideas [and t]hroughout its pages can be found a constant repetition of patently offensive words used solely to convey debasing portrayals of natural and unnatural sexual experiences."30 In his dissent, Judge Dye likened the book to James Joyce's "Ulysses" and stated that the book should not be appraised "by the tone of a few passages wrested from context."31 He observed that respected and eminent book reviewers, and high appellate courts of New York's sister states have determined that the book was "not obscene."
". . . [W]hen material is so characterized to charge commission of a crime, the courts should be ever-mindful before rendering a judgment of conviction that the evidence of guilt is free from reasonable doubt, else what is done in the name of the law will so fritter away the free speech and free press guarantees of the First Amendment and due process under the Fourteenth Amendment as to make the remedy more dangerous than the ill, for the effect will be to substitute the fleeting ad hoc opinion of men, whether we realize it or not, for the rule of law envisioned by the framers of the Constitution."32
Similarly, in a 4-3 decision, the majority of the Court in Matter of Kingsley Intl. Pictures Corp. v. Regents of the Univ. of the State of New York (4 NY2d 349  revd 360 US 684 ), determined that the Board of Regents can constitutionally deny a license to the film, "Lady Chatterley's Lover." The film was denied a license based on sections of the Education Law that required a denial if the motion picture is "immoral." In their view, the dominant theme of the film was the "exaltation of illicit sexual love in derogation of the restraints of marriage."33 In dissent, Judge Dye stated that the language of the relevant Education Law sections impinged the constitutional guarantee afforded free speech and communication by the First and Fourteenth Amendments. "When the censor[s] rel[y] on the term 'immoral' as a basis for prior restraint, [they] necessarily must resort to [their] own notion of its meaning since the statute itself provides no test or standards to guide [them] in the exercise of [their] discretion."34 The film, he urged, "should not be singled out as a subject for prior restraint under the beneficent guise of regulating community mores, any more than the prior censorship of press [or] books. . . . Censorship under such guise is a type of paternalism that lends itself to the whim and caprice of the administrator."35 On appeal, the United States Supreme Court reversed the judgment of this Court and held, similar with Judge Dye's views, that the relevant sections of the Education Law were invalid under the First and Fourteenth Amendments.
With respect to Judge Dye's life off the bench, Chief Judge Desmond once wrote:
"Maybe a word [can be said] about his nonjudicial interests, about his admirable family life, his abiding loyalty to Cornell, his deep and firm religious commitment. Wide travel and a lifelong interest in things like architecture and decor plus a continuous study of and involvement in history and government have rounded out a full and interesting life. Basic to his official as well as his private life is one and same dedication to quiet, unostentatious, efficient and intelligent service to his fellows."36
Judge Dye led an active life outside the Court, but kept the two worlds separate.37 He was a devout Presbyterian and a Freemason at the Zetland Lodge F.&A.M. He belonged to Delta Theta Phi, and served in the American Legion as Post Commander of Doty-Magill Post No. 771. Judge Dye was also active in what is now known as the Monroe County Bar Association, having served for six years as Secretary as well as being its first Vice President.38 Also, throughout their lives, Judge Dye and Miriam remained deeply devoted and loyal to their alma mater, Cornell University. He was a life member of the Cornell Club of Rochester and served as its President in 1938. Judge Dye also served as a member of the University's Advisory Council. Miriam, similarly, served as President of the Cornell Women's Club of Rochester in 1940.39 Not surprisingly, the faculty of Cornell Law School unanimously recommended that Judge Dye receive the school's Distinguished Alumnus Award for 1978-1979.40
In his retirement, Judge Dye enjoyed reading about American history, going to his rustic cabin south of Honeoye Falls, traveling, and hiking. A fellow Cornell alumnus, Elizabeth Fessenden Washburn, recited a hiking memory with Judge Dye, recalled that "[he] 'was a wonderful old man when I met him more than 20 years ago on a trip to Hawaii with the Genesee Valley Hiking Club of Rochester.' He proved to be a game hiker, in spite of injury and of having been '82 then, so must have been well over 100 when he died. Marvin Dye-a truly remarkable person, self-effacing, matter-of-fact, a delightful companion. It is said if you want to really know a person, go camping with him. With Marvin, he rose in your estimation day by day.'"41
Judge Dye was by all accounts a family man. His granddaughter, Martha Cristy, remembered her grandfather as "very much the patriarch of our family. But he also had a dry sense of humor, enjoyed being the host at family parties, gave a good toast or after dinner speech, and clearly enjoyed his family." She continued to write that "[m]y grandfather was not free with advice. He did not criticize the way others lived their lives or impose his beliefs, but he did take the opportunity, once in awhile, to offer guidance."42 She recounted how Miriam suffered with what would now be diagnosed as Alzheimer's or dementia. Judge Dye took care of her at home until she was admitted into a nursing home. At the nursing home, he visited her almost every day and sat reading to her. She passed away in 1977. "Many years after her death, he [said] he had wished he had understood her illness earlier and had been able to do more for her in the early stages."43 He died 20 years later, at the Valley Manor Nursing Home in Rochester. He is buried in Riverside Cemetery in Rochester.
Even at the age of 90, Judge Dye's mind was keen and alert. He concluded his 90th birthday celebration speech with these words:
"So we can't visualize what the future has for us, but, I think we can rely on this: that whatever has been the success in the past, will probably be a pattern for what should befall us in the future. So when I saw all these kids running around here tonight and I took into my hands little Aaron (Cassebeer), who is my first great-grandchild, and his little hand grabbed a hold of mine and his eyes turned up and looked at me and gave me a smile. Well, if I had any doubt about what the future was for us, it was dispelled at that time. The eighty or ninety years difference in our ages was bridged by that little smile. So, I have every confidence, that this little group that we have seen skedaddling around here tonight, having a good time, will always furnish the strength, imagination and intelligence to keep this world on the safe side and that the family Dye, too, will continue on and on, forever more. Thank you very much and God Bless You."
Judge Dye outlived his wife, his brothers and sister. He was survived by his son - Stanley Dye of Rochester - his two daughters - Julianne Cristy of Irondequoit and Emily Cassebeer of Brighton - and 13 grandchildren and great grandchildren.
The eldest of Judge Dye's children and only son, Stanley Dye, joined the army44 in February 1941 with Rochester's 209th CA (AA) Regiment.45 In December 1941, he married his college sweetheart, Eleanor M. Wood from Pennsylvania, the daughter of General Eric F. Wood. The day after their marriage, World War II began with the bombing of Pearl Harbor and Stanley served in the war until November 1945. He was part of the first American force to liberate a concentration camp, which he called an "extermination factory," and wrote an official report on the conditions during the war.46
After the war, Stanley returned to Rochester where he became a prominent certified public accountant. Stanley retired in the mid-1970s and began a second career in teaching with the Business Department at the Rochester Institute of Technology. Stanley survived Eleanor, who died on July 9, 2004, until he died on December 24, 2004, at the age of 85. They are both buried in Riverside Cemetery in Rochester and were survived by their two children, Christopher and Alison. Christopher Dye, a lawyer47, lives in West Lebanon, New Hampshire with his wife Kesaya Noda. Alison Cushing Dye has lived in Ireland since 1987 and works as a social worker/psychotherapist and university lecturer and writer. She is divorced and has one daughter, age 22, who is living in New York.
Judge Dye's daughter, Julianne Dye Cristy, married Lieutenant Albert Bowman Cristy of Stockbridge, Massachusetts in September 1952. They had two children: Martha and Albert. Martha Cristy graduated from Boalt Law School and clerked for Justice John Diamond of the Alaska Supreme Court. She works for a literacy program in the Berkeley Area School District and lives in San Francisco with her husband, Michael Rossman, and their son, Andrew. Albert Cristy, a Utah Transit Authority employee, lives in Salt Lake City, Utah with his wife, Mary.
Emily Dye Cassebeer, is Judge Dye's only living child, and is currently living in Rochester, New York. She married George Sabey Cassebeer in December 1950. Emily worked as the Registrar for the Rochester Memorial Art Gallery Creative Workshop. George, now deceased, and Emily had four sons: Peter, Jon, Mark (now deceased) and Philip, in birth order. Peter (who goes by the name "Pete") married Barbara Somogyi and they live in East Hampton, Massachusetts with their son, Aaron. Peter worked for many years in the ceramic dinnerware and tile industries both in the United States and Mexico and is currently working in small business. Jon, a chemical engineer, and his wife, Lori Lowry, live in Placentia, California with their two daughters, Karen and Debra. Philip and his wife, Elizabeth Grove, were formerly archaeologists, but Philip now works for an engineering company. Philip and Elizabeth live in Richmond, Virginia with their daughter, Kathryn Grace.
"Class Notes." Cornell Magazine Online, at http://cornell-magazine.cornell.edu/Archive/1999janfeb/JanNotes30-39.html.
Collection of various newspaper articles from the New York Times (1890-1902), the Times Union (1944-1965), and Rochester's Democrat & Chronicle (1944-1997) (on file with the Court of Appeals, the Rochester Public Library, and in the possession of Peter Cassebeer).
Curtiss, Cornell Law School Memorandum (May 22, 1979).
Desmond, "An Appreciate of Judge Marvin R. Dye." 51 Cornell L. Q. 151 (1965-1966)
Hudson, Jr. "Plaintiff in 1962 landmark school-prayer case reflects on his role." First Amendment Center, at www.firstamendmentcenter.org/analysis.aspx?id=15701.
In Memoriam. 90 NY2d xix. November 18, 1997.
Marquis, Who Was Who in America, Vol. X, at page 98. New Providence, New Jersey (1989-1993).
Mayron, "Marvin R. Dye, 102, appeals justice obituary." Rochester Democrat & Chronicle, October 27, 1997, at page 2b.
Red Book, page 118 (1965).
Remarks at ceremony marking the retirement of Judge Marvin R. Dye on December 30, 1965. 17 NY2d vii. (on file with the Court of Appeals).
Taylor, Jr. Eminent Members of the Bench and Bar of New York, at page 95. San Francisco, CA (1943).
Video and transcript of Judge Dye's 90th birthday celebration (in possession of Peter Cassebeer).
Special thanks to Justice Raymond E. Cornelius of Rochester, Jack Doyle, Richard Fischer and Stuart Pearis as well as Peter Cassebeer, Martha Cristy, Mary Ellen Coulter and Bob Kelley (Miriam Kelley's nephew), for their research and help in this project.
PUBLISHED WRITINGS INCLUDE:
Introduction to Milton Lewis Grossman's The New York Law of Domestic Relations with Forms. Buffalo, NY (1947).