Hancocks are known for leaving their mark on a page. Stewart F. Hancock, Jr.-who can trace back in his family tree to find the famous signatory1-has certainly left his mark in the official report pages of the State of New York.
A FAMILY OF DISTINCTION
Stewart Freeborn Hancock, Jr. was born on February 2, 1923 in Syracuse, New York, one of seven children born to Stewart F. and Marion McLennan Hancock.2 Stewart F. Hancock, Sr., a highly-regarded Syracuse lawyer3 and business leader, was a part-time corporation counsel for the City of Syracuse (1916-1919) and President of the City Bank & Trust Company (1921-1923). Hancock Sr. served as local counsel to President Theodore Roosevelt in his successful defense of a libel action tried before a jury in 1915 before then Onondaga Supreme Court Justice William S. Andrews.4 Hancock Sr.'s father, Theodore E. Hancock, was Attorney General of the State of New York from 1894 to 1889 and thereafter District Attorney of Onondaga County.
Judge Hancock's mother's family had lawyers as well. The Judge's grandfather Peter B. McLennan was the Presiding Justice of the Appellate Division, Fourth Department from 1903 to 1918. Interestingly, in 1892, McLennan had defeated Judge Hancock's other grandfather, Theodore Hancock, in the Republican primary election for his seat on the Onondaga County Supreme Court. Theodore's son, Stewart F. Hancock, Sr. thereafter wed Marion McLennan, Peter's daughter.
Clarence E. Hancock, the judge's uncle, was the part-time Corporation Counsel for the City of Syracuse. Clarence thereafter served as the area's United States Representative in Congress for the district which includes Syracuse, from 1927 to 1946. Syracuse International Airport bears his name.5
Stewart F. Hancock, Jr. earned his B.S. degree in 1945 at the United States Naval Academy in Annapolis,6 graduating in the upper 20 percent of his class, along with his good friend Wally Shirah, one of the NASA's seven Apollo astronauts. Also in their company, one year junior, was President Jimmy Carter. The midshipmen's yearbook described Hancock as having a "quick mind" and "uphold[ing] the good qualities of Yankee territory."7 Judge Hancock served three-and-a-half years of active duty, including on the USS Massachusetts and the USS Helena. Hancock graduated sixth in his class at Cornell Law School, where he received his LL.B. degree in 1950. He served as Vice President of the Students Law Association, won the award for second highest marks in the comprehensive examinations and was a member of the Board of Editors of the Cornell Law Quarterly. When the Korean War started in 1950-just after his law school graduation-Hancock requested to return to active duty as a Reserve officer. He was assigned as a line officer to the USS St. Paul which was operating with a carrier task force in the Sea of Japan off Korea.8
In 1949, Hancock married Ruth Pass. Hancock had known Ruthie since nursery school. The Passes, like the Hancocks, were well known in the Syracuse area. The families were friends. Judge and Ruth Hancock have five sons, one daughter, and thirteen grandchildren. They have continually resided in the Syracuse area, including living in the historic "Cobblestone House" in Cazenovia which had been in the Hancock family for many years. While Hancock is known in his hometown as the Judge, he has never taken his status as a former Judge too seriously and prefers his first name. His friends, especially his wife Ruthie, call him "Tooie," his childhood nickname.
Hancock was admitted to the bar in 1950, and began his law practice in 1952 in Syracuse with the Hancock & Estabrook firm (to which he ultimately returned upon his retirement from the state judiciary). As a young lawyer, he quickly became a recognized trial and appellate advocate, and commercial litigator. He became a firm partner in 1956.
A CALL TO PUBLIC SERVICE
Hancock was elected to the Syracuse Board of Education in November 1961. He resigned from that position in January 1962, however, upon his appointment by Mayor William Walsh to serve as the first full-time Corporation Counsel for the City of Syracuse, a position he held until the end of 1963. Hancock left the Corporation Counsel's Office to become the Onondaga County Republican Party Chairman. In 1964, he served as a delegate to the Republican National Convention. As Judge Hancock later retold, his "timing could not have been worse" for assuming Republican leadership. 1964 was the Johnson-Goldwater election year. For the first time since the founding of the Republican party in 1856, a Democratic presidential candidate carried Onondaga County, resulting in a virtual wipe-out of local Republican candidates.9 Undeterred, in 1966, he ran unsuccessfully for Congress against incumbent Democrat James Hanley.
On his forty-eighth birthday, in 1971, Governor Nelson A. Rockefeller appointed Hancock to fill a vacancy as Justice of the Supreme Court in Onondaga County. That fall, Justice Hancock was elected to a 14-year term, and thereafter reelected in 1985. In 1977, Hancock was appointed Administrative Judge of the Fifth Judicial District. The mahogany and marble courtroom on the Fourth Floor of the Onondaga County Courthouse, originally built in an effort to establish Syracuse as the Fourth Department's home, was dedicated in October 2002 as the "Honorable Stewart F. Hancock, Jr. Ceremonial Courtroom."
Although Syracuse's effort to attract the Fourth Department proved unsuccessful, Democratic Governor Hugh L. Carey designated Syracuse's Hancock as an Associate Justice of that Department in 1977. Hancock served for almost nine years as a Justice of an extraordinary Appellate Division, Fourth Department.10 Remarkably, during his limited tenure at the Appellate Division, the Court of Appeals expressly adopted Hancock's Appellate Division majority opinion or reasoning as the decision of the Court of Appeals fourteen times.11 In what the Judge himself refers to as a "four bagger," the Court once unanimously reversed in a case for the reasons stated in Hancock's solo dissent at the Appellate Division.12 In its own writings, the Court of Appeals also agreed with Justice Hancock's ground-breaking holdings, among others, that obesity could be considered a physical and medical impairment within the definition of disability under the State Human Rights Law13 and that hypnotically produced recall is not accepted in the scientific community and, thus, is not acceptable witness testimony.14 Only rarely did the Court reverse Justice Hancock's opinions, and the Court thereafter retreated from its writings in three out of four of those reversals.15
A SCHOLAR AND A GENTLEMAN
On January 8, 1986, Democratic Governor Mario Cuomo appointed Hancock to serve as a Judge of the Court of Appeals, replacing Judge Matthew Jasen of Buffalo.16 Judge Hancock took his oath of office on January 9, as the Court's 98th Judge. To the Court of Appeals, Judge Hancock took a framed copy of sage advice given to him by his then-five-year-old granddaughter Kolbe, "Be fair, grandpa." He hung the frame behind his desk in his chambers.
Judge Hancock was famous in the Courthouse for his warm wit, his graciousness to all, and his athletic feats. In addition to being an avid runner, sailor, golfer, skier and tennis player, the Judge made a habit of quite-literally standing on his head during his noon lunch hour. With his warm wry smile, he remarked that such inversion helped him to look at things a little differently.
Judge Hancock relished the parties' oral presentations of their cases at arguments before the Court. During his tenure, the Court was a "hot" bench; that is, all of the Judges were well prepared in advance of the arguments on the briefs and it was not until after the oral arguments that the Court determined which Judge would report the case in the next morning's confidential conference. Judge Hancock vigorously, but respectfully, questioned and intellectually challenged the advocates. He often prefaced with a gentle inquiry, "Might I ask you just a question or two?"17 His questions reflected his thoughts about the ramifications of the rule of law suggested, often envisioning and submitting creative hypotheticals to advocates to test the limits-and possible future applications-of the rule.
He was also always fair and respectful of the views of his colleagues, and they were similarly respectful of him. He was a gentleman. Consider this rather unique scenario: In CPC Intl. v. McKesson Oil Corp.,18 Judge Hancock authored the sole opinion of the Court. What is remarkable about that case is that Judge Hancock articulated the holding of the majority of the Court and, in his opinion, also explained the minority view he shared with another colleague. In short, the Judge dissented in part from his own opinion! Even when authoring his own dissenting writings, he remained respectful of the Court. In one dissent, he began by "concur[ring] without reservation in much of the articulate and persuasive opinion" of the majority,19 and concluded, almost apologetically that, "with full respect for the contrary views of my colleagues, [he was] compelled to dissent."20
But Judge Hancock's self-deprecating manner21 and his "Jimmy Stuart" small town charm could not mask the incisive intellect and powerful thinking that he brought to each legal discussion. As Chief Judge Kaye has publicly observed, Hancock is both mentally and physically agile.22 Agile and creative, as he demonstrated early on his legal career. When faced with the complaints of local business owners who were seemingly prohibited from selling Christmas trees on Christmas Eve Sunday in Syracuse, then-Corporation Counsel Hancock found a creative solution, which Judge Hancock's cousin, John S. Hancock, later creatively recounted:
So worthy counsel scratched his head
And studied the citation
And presently he came upon
A reason for elation
And said to the tree:
Six days a week you are a tree
But it's within my power
To find, sir, and now I do decree:
On Sundays, you are a flower.
He didn't disregard the law,
He merely did construe it
And offered up a loophole and
The pine tree walked right through it.
The Lesson: If you find a law
That needs to be construed
Just bring it to the City Hall
And ask to have it Stewed.23
Judge Hancock consistently amused his friends and colleagues with his sharp wit, and his rhyme and rhythm. At reunions with his Fourth Department colleagues, and with his own law clerks at his home, the Judge would grab his guitar, playfully parodying his peers or characteristically mocking himself.24 In fact, at Judge Hancock's farewell dinner with his colleagues at the Fort Orange Club in Albany, New York, Judge Hancock roasted himself and his Court with one last verse:25
"Now that I've reached statutory senility, I'll still be watching to my best ability, Which is pretty d--- good, with all due humility; 'Hats Off to the Court of Appeals'"
But Hancock's love of the lyrical coexisted with his love of legal scholarship. As a Judge, his opinions were often dense with citation to legal commentaries. One summer vacation from the Court, he spent studying legal philosophy at the Aspen Institute. Many of his decisions reflected his intellectual and philosophical curiosity, including his analytical dissent in a classic "mistake of law" criminal case,26 which itself generated much legal commentary.27
Although not oblivious to the legal commentary, he believed his duty as a judge was to decide cases based upon his considered judgment as to the merits of each claim. Judge Hancock agreed with Chief Judge Kaye that "the danger is not that judges will bring the full measure of their experience, their moral core, their every human capacity to bear in the difficult process of resolving the cases before them. It seems to me that a far greater danger exists if they do not."28 He understood the Court's work as "balancing reasoned analysis and the interests of society with the sometimes compelling human wants and needs of the individual."29 He believed the "concept of legitimacy is fundamental to the exercise of judicial power, for the courts have little to compel adherence to their decisions except the respect accorded to them by the public borne of the integrity of the decision-making process."30
Accordingly, his decisions often candidly acknowledged the balancing of interests necessary to establishing a rule of law to be applied in future cases.31 For example, in Matter of Fosmire v. Nicoleau,32 the Court held that Supreme Court improperly authorized a hospital to administer blood transfusions to a Jehovah's witness patient, without giving the patient or her husband notice and an opportunity to be heard. Judge Hancock disagreed with the majority's conclusion that the "right to refuse medical treatment is absolute in the absence of a legislative enactment 'manifesting', with particularity, a countervailing societal interest in the preservation of life or the protection of affected third parties."33 Balancer Hancock opined:
"Like a person's desire to be let alone and to be free from unwanted intrusions, the intuitive sense of the importance of life and its preservation is instinct in mankind's very nature. Just as the common law recognizes the right to determine what shall be done with one's own body, so also does it recognize that there are qualifications or limitations which reflect fundamental counterbalancing interests. Among these society's interests in preserving life and in protecting the well-being of the patient's minor children, as well as that of other potentially affected third parties."
Accordingly, for future cases, Judge Hancock set forth a list of factors to be considered by a court where a future hearing is feasible to "weigh the competing individual and societal interests in light of all of the relevant circumstances,"34 a flexible rule, which he deemed "preferable to a rigid, absolutist rule which recognizes no countervailing state interest, including the fundamental societal one of preserving life."35
Judge Hancock often sided with those on the Court who were more protective of individual rights and liberties. He believed citizens sometimes needed protection from an intrusive government. Judge Hancock authored a state constitutional law decision limiting the "open fields" doctrine which permitted certain warrantless searches, departing from federal decisions in the area.36 He also authored numerous decisions protecting the free speech rights of citizens, in criminal37 and civil38 cases. His jurisprudence reflected and recognized practical realities. For example, writing for three dissenters, he found standing for a plaintiff in a proceeding challenging municipal actions on environmental grounds, urging that the fact that a plaintiff may also have a financial reason for its objection, in addition to legitimate environmental reasons, should not deprive it of standing to challenge the action.39 He believed the Court's "special harm" standing test was an undue barrier to judicial review of municipal action.40
Although vigilant in protecting citizens from perceived abuse, he was not innately distrustful of government or the political system of which he was very much a product. For example, in dissenting from the Court's decision to uphold a City charter provision requiring certain city officials to forego certain political offices, Judge Hancock stated:
"While some will say, perhaps, that it is unrealistic, even naive to think it, I firmly believe that most public and party officials remain true to their public trust and their oaths of office. . . . [A] potential for conflict is inherent in the very system of electing governmental officials through the partisan political process, for elected officials have an allegiance both to their party and to their constituents. But recognition of the fact that some conflict inheres in the partisan political system does not mean that the system cannot serve the public honestly and effectively. . . . [Corruption] cannot be tolerated and, to be sure, all lawful steps to stop it are required. But it is far better, and unquestionably less harmful, to rely on an alert citizenry, diligent prosecutors and resourceful reporters to combat corruption, in ways which are consistent with our democratic process, than to resort to legislation that strikes at the very heart of the associational freedoms on which that process is based."41
Judge Hancock often found it hard to put down his writings.42He was always trying to refine them or to explain his reasoning more fully, which at times led to his use of many footnotes!43 example, his exhaustive 19-page dissent in Mercury Bay Boating Club v. San Diego Yacht Club44 includes 22 footnotes. Judge Hancock, the sailor, rejected the majority's assertion that the America's Cup donors would have permitted a catamaran as a vessel that might be entered in the America's Cup competition. Agreeing with then-Justice Carmen J. Ciparick's decision at Supreme Court, the same Judge to later fill his seat upon retirement, Judge Hancock rejected the American team's conduct as trustees of the Cup. Central to his holding was the important footnote 11, wherein he knowingly explained the "accepted rule-of-thumb" that "the square root of twice the load water-line length of a monohull keel yacht in feet is approximately equal to the yacht's hull speed in knots."45 Thus, the trust documents' only description of dimension, length on the load waterline, demonstrated his point because that dimension description had no relevance to a catamaran!
AN ACTIVE "RETIREMENT"
During Judge Hancock's tenure at the Court of Appeals, the United States Supreme Court upheld the constitutionality of a mandatory retirement provision contained in the Missouri Constitution against federal challenges by a state court judge.46Judge Hancock had been following that case and, quite literally, followed its holding. In 1993, at age 70, only eight years into his term, Judge Hancock was forced into constitutional retirement from the Court of Appeals. Anyone who knew Judge Hancock then would tell you that, at 70, he was just reaching his stride.47
After he left the Court of Appeals, Judge Hancock continued to author legal scholarship, and taught as a Distinguished Visiting Professor and Jurist in Residence at the Syracuse University College of Law. He also joined his former colleague, Judge Richard D. Simons in serving as a Judge of the Oneida Indian Nation Court. Judge Hancock authored a decision establishing the validity of the Oneida Nation's government and upholding its housing ordinance.48
Additionally, Judge Hancock maintains an active law practice at the Hancock firm.49 He argues cases before the Court of Appeals, including as an amicus curiae advocate against the death penalty50 and for the unsuccessful Legislature in a closely divided appeal concerning the Governor's constitutional budget-making powers.51He remains involved in other issues of the day, including drug law reform.52 He serves as a board member of the Frank H. Hiscock Legal Aid Society of Central New York and sings in the choir at the Cazenovia Presbyterian Church. The Hancocks, in their eighties, actively participate in community affairs and lead a busy social life. Judge Hancock continues to play tennis and golf. He frequently skis at local ski areas and in Massachusetts with one son and grandson and in Vail, Colorado with a group of Naval Academy classmates. Acting on his belief in remaining active, he has climbed Mt. Rainier with two sons, taken a parachute jump with another son, bungee-jumped in New Zealand and participated in Marblehead to Halifax ocean races on Naiad, the sloop he owned together with his lifelong friend and Naval Academy classmate, Bud Edwards.
An apt conclusion, perhaps, is to be taken from the remarks of the "retired" Judge upon welcoming a new group of lawyers to the profession:53
"Law has been my life, a life of constant challenge, one of continuous growth and learning. I have loved it, all of it. . . . I even enjoy cases involving EPTL ' 8-1.1(b) [,] the rule against remote vesting. . . . I have never felt disillusioned with the law or suffered from burn-out or boredom."
But how could his life in the law be otherwise, when he brought to it the richness of family background, his boundless energy, his own experiences, and a small, framed reminder of five-year-old Kolbe's admonition, "Be fair, grandpa."
Judge Hancock and his wife have six children: Stuart F. Hancock, III, R. James Hancock, Marion Hancock Fish, Christopher Hancock, Nathaniel Hancock, and Jonathan Hancock.
Stuart F. Hancock, III married Kimberly Cramer. They have five children: Kolbe, Anne, Torrey, Stewart, and Mary Hancock.
R. James Hancock married Ellen Dodd. They have two children: Elizabeth and James Dodd Hancock.
Marion Hancock married Michael Fish. They have three children: Michael, Jeffrey and Ruth Fish. Marion Hancock Fish, the only lawyer among Judge Hancock's children, is a partner at the Hancock & Estabrook law firm, where her father practices.
Christopher Hancock married Imelda Barrera Reyes. They have two children: Christopher and Benjamin Hancock. The Judge's son Christopher Hancock was a crew member of the Pine River, a vessel involved in uncovering the 1857 shipwreck of the SS Central America. The Central America went down while ferrying passengers, and 21 tons of their newfound fortune, from the gold rush of California to New York (see Kinder, Ship of Gold in the Deep Blue Sea, Atlantic Monthly Press ). The shipwreck lay buried for 132 years until uncovered in 1989. Its discovery generated much litigation (see Columbus-American Discovery Group v. Atlantic Mut. Ins. Co., 56 F3d 556 , cert denied 507 US 1000).
Nathaniel Hancock married Lisa Thorpe. They have one child: Richard Hancock.
Judge Hancock's youngest son is Jonathan Hancock
Hancock, AIDS and the Law, NYS Bar J, February 1993, at 8.
The Appellate Division of the Supreme Court Fourth Judicial Department - 1896-1996 (1996)(official court publication).
Hancock, Barnes v. Roosevelt, A Hide Goes on the Fence, 1 NYS Historical Socy J 4 (2003).
Hancock & Kaye, Ceremony Marking the Retirement of Associate Judge Stewart F. Hancock, Jr., 82 NY2d vii (1983).
Hancock, Constancy Through Turbulent Times, 47 Syracuse L Rev 291 (1997).
Hancock, Days of Conviviality Preceded Specialization and Globalization, 73 New York State Bar J 35 (2001).
Hancock, Pierce and Connors, Dedication to the Honorable Richard D. Simons, 47 Syracuse L Rev 287 (1997).
Hancock, Quinn, and Klein, Does New York's Death Penalty Statute Violate the New York Constitution? 14 Touro L Rev 715 (1998).
Hancock, Meeting the Needs: Fairness, Morality, Creativity and Common Sense, 68 Albany L Rev 81 (2004).
Hancock, Municipal Liability through a Judge's Eyes, 44 Syracuse L Rev 925 (1993).
Hancock, A Noble Profession, NYLJ, June 3, 1993, at 2.
Hancock, Preparing Law Students and New Lawyers for the Year 2000 and Beyond, 69 New York State Bar J 12 (1997).
Hancock, McCullough and Farley, Race, Unbridled Discretion, and the State Constitution, 59 Alb L Rev 1545 (1996).
Hancock, The Role of the Judge in Medical Treatment Decisions, 57 Alb L Rev (1994).
Hancock, The State Constitution, a Criminal Lawyer's First Line of Defense, 57 Albany L Rev (1993).
Hancock, A Uniform Commercial Code for International Sales? We Have it Now, 67 NYS Bar J 20 (1995).
Kaye, Introduction to the 2004 Hugh R. Jones Memorial Lecture at Albany Law School, 68 Albany L Rev 77 (2004).
Kaye, My Salute to an Incomparable Colleague, 57 Alb L Rev 267 (1993).
Leary Matthews, Unlocking the Courthouse Doors: Removal of the "Special Harm" Standing Requirement under SEQRA, 65 Alb L Rev 421 (2001).
Eminent Members of the Bench and Bar (1943) (C.W. Taylor, Publisher).
Kinder, Ship of Gold in the Deep Blue Sea, Atlantic Monthly Press (1998).
O'Hara, High-Tech County Courtroom Relies on Low-Tech Know-How, Syracuse Post Standard (October 25, 2002).
Pines, Beyond the Curtilage: Judge Stewart F. Hancock, Jr., Upstate Legal Record, March 1993, at 2.
Tsimbinos, Is It Time to Change the Rockefeller Drug Laws, 13 St. John's L Commentary 629, n 90 (1999).
Essay by Richard Hancock (dated November 6, 2004), and supporting family archival documents.
Interviews by author Hope B. Engel with other former law clerks (May 2005): Vincent Bonventre, David Boyle, Douglas Hallowell, Robert Kirchner, Harris Lindenfeld, and John Mulligan.
Interview by Hope B. Engel with Nathaniel Hancock (July 9, 2005).
PUBLISHED WRITINGS INCLUDE:
Meeting the Needs: Fairness, Morality, Creativity and Common Sense, 68 Albany L Rev 81 (2004).
Barnes v. Roosevelt, A Hide Goes on the Fence, 1 NYS Historical Socy J 4 (2003).
Days of Conviviality Preceded Specialization and Globalization, 73 New York State Bar J 35 (2001).
Hancock, Quinn, and Klein, Does New York's Death Penalty Statute Violate the New York Constitution? 14 Touro L Rev 715 (1998).
Reflections, 48 Syracuse L Rev 1455 (1998).
Constancy Through Turbulent Times, 47 Syracuse L Rev 291 (1997).
Preparing Law Students and New Lawyers for the Year 2000 and Beyond, 69 New York State Bar J 12 (1997).
A Uniform Commercial Code for International Sales? We Have it Now, 67 NYS Bar J 20 (1995).
The Role of the Judge in Medical Treatment Decisions, 57 Alb L Rev (1994).
AIDS and the Law, NYS Bar J, February 1993, at 8.
Municipal Liability through a Judge's Eyes, 44 Syracuse L Rev 925 (1993).
The State Constitution, a Criminal Lawyer's First Line of Defense, 57 Albany L Rev (1993).
Ceremony Marking the Retirement of Associate Judge Stewart F. Hancock, Jr., 82 NY2d ix (1983).