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.

He began his legal career in 1966, practicing with his father, John Spain, who had been a federal magistrate. He spent three years in the U.S. Navy in the Judge Advocate General Corps before coming home and resuming practice in Troy.

Spain worked his way up through the local legal establishment, serving as deputy clerk of the Rensselaer County Surrogate’s Court, taking the occasional assigned criminal defense case and working part-time as an assistant district attorney in Rensselaer County and as deputy corporation counsel for the City of Troy before he was elected on the Democratic ticket to Troy Police Court in 1977, where he earned a reputation as a thoughtful judge.

One of the individuals who appeared before Spain in his early years was a confused young man from the wrong side of the tracks.

Paul Vandenburgh had been on a downward spiral, with a drinking problem he was struggling to overcome. Six months sober and climbing his way out of a prior life, Vandenburgh was distracted by a pending impaired driving matter and a handful of traffic tickets. He needed some slack.

“Listen, I had grown up in the projects,” Vandenburgh said. “And the truth is, when you grow up in the projects you don’t expect to get many breaks in court. [Spain] gave me a chance.”

Today, Vandenburgh is a successful businessman, family man and doting grandfather. As president of Capital Broadcasting in Albany, Vandenburgh runs a popular talk radio station and hosts his own drive-time program every morning. He said the kindness and respect Spain showed him had an enormous impact on his life.

“He was there for me,” Vandenburgh said. “He is a very decent man.”

In mid-1985, a vacancy arose in Rensselaer County Family Court and then Gov. Mario Cuomo appointed Spain, who was elected later that year. In 1991, Spain was elected to a Supreme Court position. He served briefly as administrative judge for the Third Judicial District before he was assigned to the Third Department by Cuomo in 1994.

Spain’s six years in Family Court were among the most formative of his career. He said he found the need for creative discretion, which he used to resolve the myriad and often gut-wrenching domestic and child-related issues he saw day after day. He would go on to serve on numerous court system and bar association family law committees, and become a leading advocate for improving the quality of representation provided to children.

“The evolution of family law is probably more pronounced than any other area of law,” Spain said. “The mid-level appellate courts in New York are flooded with family issues, mostly custody cases. These cases can be very challenging, and I think someone with experience as a Family Court judge is bound to see issues that other judges might not see.”

Third Department Presiding Justice Karen Peters (See Profile) said that while Spain has dealt with every area of law in his 19 years on the appellate bench, he stands out for a deep-rooted passion for family law.

“We are losing the heart of the court and the individual who was always speaking for children and families,” said Peters. “While Judge Spain has a great deal of experience in all areas of law, his passion is for the families of New York. I am sure it comes from his own family and his religious beliefs.”

Third Department Justice Robert Rose (See Profile) agreed that Spain brought a special dedication to family law cases.

“Everyone on our court is hard working, but he is hard working almost to a fault,” Rose said. “He burrows into problems and issues, especially if they have anything to do with domestic relations or family law. He has really been an influential voice in the state on family law.”

Rose said Spain has an almost “priestly” presence.

“He is sensitive, sweet, gentle, optimistic, spiritual,” Rose said. “He is just a down to earth, family oriented, friendly, regular kind of person…with a keen, acute understanding of human nature. He is empathic and sympathetic, but he also understands the vagaries of the human condition.”

‘Voice of Reason’

Peters said that around the conference table, Spain was a voice of reason.

“Ed would quietly speak his mind, and because it was Ed everyone would listen,” Peters said.

Spain, however, is haunted by one case where he fears he didn’t speak loudly enough and his colleagues didn’t listen.

It involved a severely disturbed college student who took a class hostage in Albany and, during a struggle, grievously wounded another student. Ralph Tortorici was convicted, despite undisputed evidence of mental illness.

Spain would have reversed the conviction, but he was in the minority and the verdict stood. After the Court of Appeals affirmed, Tortorici killed himself in prison.

“Sometimes, I think maybe I could have done a better job of raising the issues that needed to be raised in trying to convince my colleagues,” Spain said.

That type of soul-searching and caring is typical of Spain, according to E. Stewart Jones Jr. of Troy.

Jones, perhaps the most prominent attorney in the Capital Region, was Spain’s classmate at Albany Law School and has practiced before him in several courts over several decades. He described Spain as an “outstanding lawyer and jurist,” but “more importantly, a first-class human being.”

“He worked his way up from Police Court and Family Court and Supreme Court to the Appellate Division and every step along the way he enhanced the court he was part of and left them far better courts than they were when he arrived,” Jones said.

Spain is “a very scholarly, deliberative and careful judge who enjoys doing what he does and being who he is,” Jones said. “I can’t think of a judge who has gotten more out of it, and given more back to it. And there is no ego. He is just a special guy.”

Jonathan Fairbanks of Zwiebel & Fairbanks in Kingston recalls the first time he encountered Spain, in 1992 when Spain was a trial judge and Fairbanks mistook him for a clerk.

“I had a case and needed to look at a court file and figure out what kind of order to submit. So I went to chambers late in the afternoon and there was nobody there except a very nice man,” Fairbanks recalled. “He must have spent five or 10 minutes with me going through the file and suggested a way to proceed. I said, ‘That sounds like a good idea, do you think the judge will approve?’ He said, ‘I suspect he will. I’m the judge.’”

Fairbanks said that sort of down-to-earth modesty defined Spain throughout his career.

“He is very bright, completely unpretentious, quite helpful and, intellectually, one of the smartest judges I have run across. He is just exceedingly fair,” Fairbanks said.

Michael Hutter, a professor at Albany Law School and appellate attorney with Powers & Santola in Albany said that with the retirement of Spain the Third Department “loses a guy who has incredible breadth of experience, a judge who can put cases in perspective, whether it is a Family Court case, a criminal case, a civil case or an administrative law case. He just has a sense of the law and how it all fits together.”

Hutter said that as an advocate, he appreciates a Spain opinion.

“You can always tell a Spain decision because of its length, and I mean that in a positive way,” Hutter said. “He explains everything. He answers everything. You may not like it, but everything will be very well reasoned.”

Spain said he would prefer to leave it to others to evaluate his impact as a judge.

“I would like to be remembered as a decent man who worked hard, who did his best to be fair to everyone who came before me,” Spain said. “I’d like to be remembered for my patience and my respect for everyone, and as someone who did no harm to the law.”