JAMES GIBSON

(1902-1992)
Court of Appeals: 1969-1972
by Robert Barker
James Gibson

The lineage of James Gibson (no middle name - he did not need one) was prophetic. His father was a judge on the New York State Court of Claims, his grandfather was a lawyer, and his great-grandfather was County Judge of Washington County. It is not surprising that James became a lawyer and jurist, one who did not suffer fools, gladly or any other way, and who, on more than one occasion during his Appellate Division years is said to have "Gibsonized" counsel during their appellate argument (i.e., he had a way of pointedly exposing the weakness in counsel's persuasive efforts and forcing counsel to grapple with the point at issue).

Lest one conclude that Judge Gibson was a stern and humorless individual, it should be quickly pointed out that this demeanor was confined to the bench. His fierce intelligence simply could not abide professional laxity. In his personal and family dealings he was a charming and courteous man who loved dogs, children, and choral music, and who, when his name became prominent at election time, quipped that he was fast becoming as famous as "that other Gibson - the one with the little onion in it." He appreciated good cuisine and fine wine, and during more than one prolonged winter court recess set his cap for a few days at The Breakers in Palm Beach.

Judge Gibson served on the Supreme Court for four years and then was named to the Appellate Division, Third Department, where he served for thirteen, the last five as Presiding Justice. In September 1969, he was appointed to fill the Court of Appeals vacancy that occurred upon the resignation of Associate Judge Kenneth B. Keating, who had been appointed Ambassador to India. Judge Gibson was elected to the Court of Appeals less than two months later at the November general election, having been nominated by the Republican, Democratic, and Conservative Parties. He thus succeeded on the Court one previous Third Department Presiding Justice, Sydney Foster, and joined another, Francis Bergan. His tenure on the Court was not long, for he turned 70 in 1972. Although nominally a Republican, his appointment from the trial bench to the Appellate Division was made by Governor Averell Harriman, Democrat, his appointment to the Court of Appeals by Nelson Rockefeller, Republican, and he received multi-party endorsement for election to the Court of Appeals. An artifact of his time on the Court of Appeals is a cartoon depicting a group of crusty old judges arrayed behind the appellate bench, one saying, "My dissenting opinion will be brief: you're all full of crap." In the judge's handwriting is this note: "The Chief1 just left this off for me. Why, I can't imagine."

In his address to the Albany County Bar at its annual Court of Appeals' dinner, Gibson remarked: "From the Appellate Division, 3d Department, to the Court of Appeals is a really short distance - perhaps 50 feet along Eagle Street2 - but I must confess that it took me some years to traverse that half block and I found along the way many obstacles indeed."

Among his Court of Appeals opinions of note is People v. Calvano (30 NY2d 199 [1972]) in which he pointed out that when a defendant raises the defense of entrapment he opens the door for the prosecutor's introduction of uncharged crimes under the intent exception to the Molineux rule (People v. Molineux, 168 NY 264 [1901]). Defendant complained that the prosecutor's use of events occurring after the charged crime would not demonstrate "predisposition" to commit the crime in issue. Judge Gibson wrote:

"Ordinarily, of course, the statutory test of whether a defendant was 'disposed to commit' a drug offense would look to prior acts; but that is not to say that acts subsequently occurring or physical conditions existing as of a later time may not in some cases reflect a disposition or condition antedating the criminal act charged; and certainly they may have that effect when shown as part of a continuing transaction or a chain of events initiated before and continuing after the offense in issue (30 NY2d at 206)."

James Gibson was born at Salem, New York, on January 21, 1902, to James and Caroline (MacCartee) Gibson. Salem is in Washington County, not far from Hudson Falls and Glens Falls. He was schooled at the Washington Academy in Salem, where he participated in football and track. He went on to Princeton, his father's school, and received his A.B. in 1923. He received his legal education through law office study and at the Albany Law School of Union University. He was admitted to the New York Bar in 1926 and practiced law in Hudson Falls until 1953. By all accounts, he was regarded as among the busiest attorneys, if not the busiest, in Washington County. In 1935 he was elected Washington County District Attorney, a job he left to serve in the Army in World War II. Captain Gibson was sent to the European Theater and returned at war's end to Hudson Falls.

In 1929 he married Judith Angell. The couple had two daughters, Judith Conklin, now living in Tully, N.Y., and Caroline Nugent, of Xenia, Ohio, who produced five grandchildren for the Gibson seniors. The Judge's wife, Judith, died in 1956, leaving him to experience the rest of his judicial career as a widower.

Gibson was elected to the Supreme Court bench in the general election of 1952, was elevated to the Appellate Division in 1956, and was redesignated in 1962. Of the hundreds of opinions that issued from his chambers during those years, the one that endures as his signal determination is the 1960 case, Matter of Lewis v. Allen (11 AD2d 447), which involved a constitutional challenge to the Commissioner of Education's regulation recommending the use of the phrase "under God" in the Pledge of Allegiance in New York schools. Previously, the courts had held that children could not be forced to recite the pledge if their religion so dictated. Judges were in the throes of determining whether daily school prayer constituted a religious activity in violation of the Establishment Clause. (In Engel v. Vitale, the New York courts held that it did not [10 NY2d 174], but the U.S. Supreme Court in 1962 held that it did [370 US 421].) In the midst of this constitutional ferment, Judge Gibson in Lewis upheld the Commissioner's recommendation, reasoning that it could not be assumed that recitation of the phrase "under God" would be compelled by the local schools (which was the case in Engel), concluding that

"If and when that unlikely action shall occur, it may be dealt with, directly and specifically. In this situation, therefore, we find no sound basis for any claim of coercion or pressure directed toward 'an establishment of religion' or interfering with 'the free exercise thereof.'" (11 A.D.2d at 450.)

This decision was affirmed by the Court of Appeals without opinion (14 N.Y.2d 867 [1964]) and the U.S. Supreme Court denied certiorari in 1964 (379 U.S. 923), after its decision in Engel.

According to John O'Brien, then Clerk of the Appellate Division, when Judge Gibson was designated Presiding Justice in 1964, he took notice of communications coming to the court from citizens complaining about their treatment at the hands of certain judges and justices. As administrator of all courts in the 28-county Third Department, Judge Gibson decided that this situation should be addressed and instituted a system whereby the allegedly offending jurist was notified of the complaint so that the situation could at least be aired. Although no direct link can be found, there is the suggestion that this program gave some impetus to the creation of the Commission on Judicial Conduct, which began on a temporary basis in 1976 and became a permanent fixture through Constitutional Amendments in 1978. Also in 1964, Judge Gibson was a leader in the successful effort to thwart a proposal in the Legislature to do away with jury trials in civil cases.

Judge Gibson's retirement from the Court of Appeals in 1972 did not end, by any means, his judicial career. By the mid-seventies, the City of New York was entering a deep financial crisis. The City defaulted on short-term notes amounting to $1 billion. This created extensive litigation, and in 1977 Judge Gibson was assigned by the Court of Appeals and the Appellate Division, First Department, to hold a term in New York County to adjudicate all the claims. Court proceedings consumed 18 months, during which 15,000 judgments were entered and a plan, devised by the Judge, was implemented whereby the City's indebtedness was paid off and its credit restored. This Herculean effort was a fitting capstone to James Gibson's life in the law and a validation of his reputation as a meticulous jurist. As recounted in The Princeton Alumni Weekly of February 12, 1974, in noting a New York Times article on the Judge's designation to handle the City's fiscal crisis:

"Several sources over the years have told of the judicial accomplishments of this talented classmate, but nowhere have we seen a more laudatory or complete account of his unique career on the bench. The report quotes a former presiding judge of the Appellate Division, now with the NYC law firm of Sullivan and Cromwell, 'He has made a reputation out of handling complicated cases. ... He has been an outstandingly good judge - one of the most splendid I've known.'"

As he wended his way through this long and varied judicial journey, Judge Gibson accumulated honors, accolades, and the additional duties that accompany such a career. He served on the New York State Court on the Judiciary, a precursor of the Commission on Judicial Conduct; was a member of the Executive Committee of the New York State Bar Association, a member of that Association's special committee to work with the American Bar Association's committee concerned with standards of judicial ethics, and in 1970, when on the Court of Appeals, was elected Chairman of the Judicial Section of the New York State Bar Association. In 1973, he was given that Association's award for distinguished service as an Associate Court of Appeals Judge. As the Appellate Division's Presiding Justice, of course, he was a member of the Administrative Board of the Judicial Conference. In 1970 he received the Honorary Degree of Doctor of Laws from the Albany Law School of Union University where he had served on the Board of Trustees. He had served as a Director of the First National Bank of Glens Falls and was a member of various clubs and organizations including the Princeton Club of New York, a reflection of his abiding loyalty to and interest in his undergraduate school.

James Gibson ultimately retired from his superannuated Supreme Court service in 1978. He remained active as a lawyer until his death on May 29, 1992, at age 90. At that time there were no current Court of Appeals' Judges who had served with him, but then-Chief Judge Wachtler, in his remarks in memoriam, noted that he had met Judge Gibson, and stated, "When he met you as a stranger - he left you as a friend. You had the sense, after knowing him for only a short period of time, that you had known him all your life." Judge Gibson is buried at Union Cemetery in Hudson Falls, New York.

On the occasion of the Judge's death in 1992, Mark Behan, who had been Editor of the Glens Falls Post-Star, wrote "An Appreciation" of the Judge in the June 7, 1992 edition of that paper. After noting that Washington County native Samuel Nelson had served on the U.S. Supreme Court (1845-1872), as had Glens Falls' Charles Evans Hughes (1910-1916), Behan proceeded to review the life of the region's next most prominent jurist. Behan, who had been entrusted by the Judge with his obituary to be published "at the appropriate time," had grown up across the street from the Gibson home and recounted highlights of the Judge's career along with anecdotes illustrating the depth of his character. One concerned a message to his grandchildren:

"His love for dogs was almost legendary. Once, on the Appellate Division bench, enduring a lawyer's lame but lengthy argument, Judge Gibson scratched out an intricate drawing on his legal pad. He sent it to his grandchildren, explaining it was his vision of 'Dogdomia' - a nation full of friendly pups (and no boring barristers or contentious litigants). On the Dogdomia flag, he had carefully drawn the face of a beaming pooch."

A very personal yet objective observation was penned by Judge Gibson's daughter Judith:

"Probably his greatest love was for the law. He once told one of my sons, who was in law school at the time, that to truly serve the law, he would find that the law would be first in his life and his family second, no matter what he thought at that point in his life. My father came home to dinner every night but returned almost every evening to his office. He worked hard all his life serving the law and seemingly never, in his life long devotion, stopped trying to promote improvement, integrity, and respect for the law as society's major protector of democracy and its defense against decline and stagnation. Like thousands of other Americans, he enlisted in the U.S. Army when he was in his early 40's, grateful to be able to serve as a lawyer in a cause that he so espoused. In a commencement address to the 1970 Albany Law School graduates, he commended them on having the intellectual and moral qualities that would allow them to have a career lived 'greatly in the law,' as he loved to quote Justice Holmes."

PROGENY

Judge Gibson is survived by two daughters:

Judith Conklin of Tully, N.Y. Caroline Nugent of Xenia, Ohio

five grandchildren: Paul F. Nugent III, of Pleasant Plains, Ohio Caroline B. Nugent of Evanston, Ill. James A. Kendall of Homer, N.Y. Christopher J. Kendall of Canastota, N.Y. Andrew G. Kendall of Preble, N.Y., and one great grandson: Ryan Kendall of Preble, N.Y.

 

SOURCES CONSULTED

Behan, Judge James Gibson: An Appreciation, Glens Falls Post Star, June 7, 1992.

Commission on Judicial Conduct website http://www.scjc.state.ny.us/.

Judith Conklin (Judge Gibson's daughter) - Memorandum reciting her recollections of the Judge's relationships with - Salem, "Dawgs," Princeton, Family, and the Law.

The Court of Appeals' biography (adopted by the Princeton Alumni Association).

Judge Gibson's handwritten notes for his address to the Albany County Bar Association at its 1970 annual Court of Appeals' dinner.

In Memoriam, 79 NY2d vii (1992).

New York Times, Feb. 10, 1974 (Times account of Judge Gibson's designation to handle the New York City fiscal crisis).

Obituaries B New York Times, June 1, 1992; Glens Falls Post Star, June 1, 1992.

Princeton University B Record of Service World War II; Princeton University Alumni Weekly, Feb. 12, 1974; Princeton University Memorial, Oct. 14, 1992.

Remarks at Ceremony Marking Retirement of Judge John F. Scileppi, Judge Francis Bergan and Judge James Gibson, 31 NY2d VII (1972).

Siegel, Reflections on the Court of Appeals: Some Reminiscences: Recalling My Court of Appeals Clerkship 1970-1972, 48 Syracuse L Rev 1481 (1998).

 

PUBLISHED MATERIAL

Judge Gibson poured all his efforts into his work as a jurist and was not a writer of articles, law review style or otherwise. There is no "published" material beyond his speech notes, several of which are listed above.

 

ENDNOTES

  1. At that time the Chief Judge was Stanley Fuld.
  2. At that time the Appellate Division was lodged in the top floor of the Albany County Courthouse.