Francis Bergan

For anyone who wants to know the history of the Court of Appeals, and the forms that its decisions often take, two books should be required reading. Both were written by Judge Francis Bergan. In 1985, he published The History of the Court of Appeals, 1847 – 1932. In 1970, he published Opinions and Briefs, Lessons from Loughran, a little gem of a book on the hows and whys of decision and brief writing. Judge Bergan was a modest man and chose Judge John T. Cochran as his model, but Judge Bergan was himself a first-rate writer and scholar.

Francis Bergan was born in Albany, New York on April 20, 1902, to Michael and Mary Henchey Bergan. All four of his grandparents had immigrated from Ireland and his grandfather, Dennis Henchey, fought in the Civil War. He was baptized “Michael Francis” after his father, but never used his first name. Even though he never used his first name, there are members of two subsequent generations who carry the name Michael Francis Bergan. The Bergan family lived in an exclusively Irish section of Albany known as “limerick,” where they operated a grocery store on the first floor of the building where they lived. The business was successful, and in 1908 the family moved their store and their home to an uptown neighborhood. When Francis Bergan was only seven, his father died, leaving his mother to carry on the grocery business until he and his younger sister Marie were grown.

His early education was in parochial schools, but his family provided the major stimulus for his intellectual growth. Stories by his grandfather, Dennis Henchey, told of first-hand observations of a foot soldier who had participated in the Civil War. From there he began pursuing the history of the Civil War. His grandfather also exhibited great respect and concern for the human condition with his descriptions of the desperate conditions in Ireland prior to his immigration, a perilous voyage across the Atlantic, and starting a new life in a foreign land. A second person of influence in the future judge’s life was his Aunt Margaret Murphy, who presented him with a different work of Charles Dickens every Christmas. The tradition began with Pickwick Papers when he was in the fifth grade and continued until he had finished the complete work of Dickens. But it was his mother who ultimately had a defining influence on him. It was she who had the strength to hold the family and the business together after losing her husband, and it was his mother who instilled an intellectual and an indomitable spirit to pursue his interests.

His interest in social issues and politics began to be manifest in the seventh grade when he joined with several other boys in his class to start a debating club known as the Senecas. By the time he was in eighth grade, he began to write letters to the editors of local newspapers on the issues of the day. Initially he was surprised that a newspaper would publish a letter by a 14-year-old. But when a responding letter appeared, it gave him a sense of importance to have a public opponent criticize his position before the reading public. His letter writing began a short time before the United States entered World War I, and many of his subjects reflected concerns about the war. He urged exempting farmers from the draft in order to ensure an adequate food supply, that soldiers should have a right to return to their jobs after the war was over, and that Congress should control the rapid rise in food prices.

The eighth-grade midterm examinations at St. Patrick’s School earned him high marks and an opportunity for immediate transfer to the freshman class at Cathedral Academy. He accepted the transfer and completed high school in three and one-half years. While there, his interest in social issues and politics continued to mature. He frequently attended political meetings, including a speech by President Taft and the inauguration of Gov. Al Smith on New Years Day 1919. He also participated in several formal debates which took place before the entire student body and faculty. During his sophomore year, he and his debating partner argued the very unpopular negative side of the question – should Ireland have home rule? He won the prize for oral English as well as the debate. After the war, he wrote a well-reasoned letter to the editor in favor of the United States joining the League of Nations. He argued that it was not a violation of the Constitution for the United States to cooperate with other nations to prevent another world war, nor was it a violation of the Monroe Doctrine.

He continued to write letters to the editors of several newspapers until his senior year, when he began to write articles for publication. In November of his senior year, he was hired as a full-time staff reporter for the Knickerbocker Press, which was one of four daily newspapers published in Albany with a daily circulation of 44,000. The Knickerbocker Press was a morning paper, which enabled him to cover news events and write stories after school and in the early evening without interfering with school. By this time, he had a strong ambition to pursue a career in journalism. However, he also had a curiosity about becoming an attorney and was encouraged in that direction by a friend of the family who was an attorney.

After graduating from high school, he had not definitely fixed his course on the law, but entered Albany Law School because he would be able to earn a degree in three years rather than four. He also took courses in government, history and economics at State College for Teachers in Albany during summer sessions. While in law school, he continued to work full-time for the newspaper. The events he was assigned to cover carried increasing responsibility from the criminal beat and the Common Council to eventually covering the State Legislature and the Governor, which gained him an increasing number of front page stories. During his second year of law school, he began to give serious consideration to making the law his profession “if the writing spell of journalism be not too strong.” At the beginning of the third year, he requested that the newspaper change his hours in order to accommodate going to school. The Knickerbocker Press immediately fired him. Eighteen days later, he was hired by the Times Union as a feature writer, allowing him to set his own hours. After graduation from law school in June 1923, he began a clerkship with an attorney-mentor, attended a fourth summer session at State College for Teachers, and continued to write for the Times Union.

Early Judicial Career

One of the people that he interviewed for a story was the Albany County Democratic Chairman, Daniel O’Connell. During the interview, they discovered that they shared a common interest in the history of the Civil War and that each had read the complete works of Charles Dickens. A friendship developed, which earned Bergan the political leader’s support and opened the door to a future of elected public service. In the fall of 1929, there was a vacancy for a judge in the Albany City Court. Bergan had just completed five years as an attorney after being admitted to the bar, which was the threshold to qualify for a judicial position. O’Connell supported him, and he was elected to the position. If he hadn’t completed high school in three years, he would not have arrived at the right place at the right time. Three years later, there was a judicial vacancy in the Albany Police Court. Again, he had O’Connell’s support and won the election.

In 1934, while serving as Police Court Judge, he authored legislation amending the vehicle and traffic law to decriminalize traffic violations. Before that, persons who were guilty of a traffic violation were convicted of a misdemeanor. The amendment was passed unanimously by the Legislature and signed into law by Gov. Herbert H. Lehman. Offenders would no longer be considered convicted criminals and would not have their credibility as witnesses affected. The law was retroactive, which relieved the stigma from thousands of motorists.

In the fall of 1935, he ran for election as a justice of the Supreme Court for the Third Judicial District. His opponent was an incumbent completing a 14-year term and seeking reelection. Even though he was only 33-years-old, Bergan was able to upset a veteran jurist.

He was a delegate to the Constitutional Convention of 1938, and as a member of the Committee on Cities, drafted an amendment to the home rule provision which transferred power from the State Legislature to local municipalities to act on purely local matters. During the convention, he also drafted an amendment giving the State Comptroller power to pre-audit all State expenditures before payment. The provision also eliminated all exemptions which many departments and funds had from being audited by the comptroller. Both amendments became part of the Constitution. Twenty-nine years later, during the Constitutional Convention of 1967, he returned as a delegate and chaired the Committee on Education.

In June of 1946, he completed a long journey as a part-time student toward a bachelor’s degree. His major was Spanish, and the degree was awarded by Siena College. Two years later, Siena College conferred on him an honorary doctor of laws degree, as did Albany Law School in 1964.

He was reelected to a second 14-year term as a justice of the Supreme Court in 1949. During the same year, he was appointed associate justice of the Appellate Division Third Department by Gov. Thomas E. Dewey. In 1952, he received an appointment to serve as an additional associate justice in the Appellate Division First Department. Thereafter, he served simultaneously in two appellate divisions with a full case load in each court. In 1960, he became presiding justice of the Appellate Division Third Department by appointment of Gov. Nelson A. Rockefeller. In 1960, he also served as a member of the Court on the Judiciary. In 1963, he was nominated to run for judge of the Court of Appeals by the Democrat, Republican, and Liberal parties. He began his service in the Court of Appeals on January 1, 1964, and continued there until December 31, 1972, when he reached the mandatory retirement age.

Court of Appeals

He shared Judge Benjamin Cardozo‘s view that the Court of Appeals was a great common law court that provided stability in the law through the principle of stare decisis and at the same time adapted the legal system to meet the necessities of a changing world.

Two of Judge Bergan’s early opinions confirm that he would continue in the great common law tradition. In Matter of the Board of Higher Education of the City of New York v. Elmer Carter (4 NY2 138 [1964]), the issue was whether the Commission on Human Rights had jurisdiction to investigate a claim of discrimination against a local college governed by the Board of Higher Education. The statute that created the Commission on Human Rights charged it with the responsibility to investigate and enforce the elimination of discriminatory employment practices. Excluded from its jurisdiction was oversight of any educational corporation which operated as a not-for-profit. The Board of Higher Education argued that it fell under the exclusion and that the Commission was precluded from taking any action in the matter. The Court was aware that there was a growing insistence by people of the State of New York that discrimination be ended. Therefore, the Commission’s powers needed to be interpreted liberally. The Court held that the exclusion for not-for-profits applied to the private sector but not to public employers because they did not derive their authority from the Not-for-Profit Law. Since the Board of Higher Education governed public sector colleges, the Commission did have jurisdiction to investigate the claim of discrimination.

A second early opinion in the great common law tradition was Leo Larkin v. G.P. Putnam’s Sons, (14 NY2 399 [1964]). The case involved an injunction that had been issued restraining the sale and distribution of a book entitled Memoirs of a Woman of Pleasure, also known as “Fanny Hill,” on the ground that the book was obscene. By 1964, when this case came to the court, moral standards had changed substantially from when the book was written in the 18th century. The opinion stated that “it is unlikely (that the book) can have any adverse effect on the sophisticated values of our century.” Therefore, the constitutional freedom to print had not been lost.

Judge Bergan is best known for two later opinions which influenced the direction of the New York law. Boomer v. Atlantic Cement Co., (26 NY2 219 [1970]) involved an action brought by the owners of land near the defendant’s cement plant. The property owners sought an injunction and damages for injury to their property from particulate contamination emanating from the plant. The latest pollution abatement measures had been used but particulate dust continued to contaminate properties downwind of the plant. The court below found that the defendant maintained a nuisance which caused substantial damage to the plaintiffs. The diminution in value of plaintiffs’ properties was determined to be $185,000 whereas the defendant had invested $45,000,000 in the plant and provided employment for over 300 people. The well-established doctrine was that an injunction would be granted when a nuisance was found which causes substantial damage even where there was great disparity in the economic impact on the parties. To apply that rule would be to close the plant at once. By reexamining the rule, an alternative remedy to an injunction was fashioned which would give full and complete relief to the plaintiffs without closing the plant. The court found that it could do justice between the contending parties by granting an injunction against the nuisance which would be stayed upon the condition that the defendant pay permanent damages to the plaintiffs. Upon payment by the defendant and acceptance by the plaintiffs of permanent damages, a servitude would be imposed upon the land.

A review of the decision by Professor E. F. Roberts observed that rules which were formerly thought to be hard and fast are now read with the facts of both the case and the socioeconomic environment. Chief Judge Judith S. Kaye reflected that Boomer was “among the most significant common law cases decided by any court over the last several decades, the only case routinely taught to first-year law students in three separate courses – Property, Torts and Civil Procedures.”

Judge Bergan will also be remembered for the opinion that he wrote in Dole v. Dow Chemical Company (30 NY2 143 [1972]). That case involved a highly toxic insecticide manufactured by the Dow Chemical Company. The product carried a label warning users that it was poisonous and dangerous. Urban Milling Co. used the insecticide in a storage bin and then ordered its employee, Dole, to enter the bin in order to clean it. In doing so, Dole was exposed to the poison which resulted in his death. Dole’s widow could not bring an action against Urban Milling Co. because of the prohibition imposed by the Workman’s Compensation Law, but she could bring an action against Dow Chemical Co. for failure to properly label and warn users about the dangers of the product. The issue was whether Dow Chemical Co. could claim over against Urban Milling Co. for indemnity or contribution.

Historically courts had considered it bad public policy to apportion culpability among wrongdoers (Merryweather v. Nixan, 8 Durn & E. 186; 101 Eng. Rep. 1337 [K. B. 1799]). Exceptions to the rule had been carved out where the plaintiff sued multiple defendants and where a defendant was charged with mere passive negligence as would be the case when liability is imputed to a party as a matter of law. In those cases, recovery over against a joint tortfeasor was permitted.

The opinion noted that a policy which precluded contribution among joint tortfeasors was contrary to tort policy goals of deterrence, effective loss distribution over a large segment of society, and rapid compensation to the plaintiff. It also noted that there had been widespread dissatisfaction with the active-passive doctrine. In this case, the charge against Dow Chemical was active negligence which under the former rules would preclude a claim over against Urban Milling Co. The time for change had finally come. A defendant charged with active negligence would now be able to seek recovery from a third party who contributed to the plaintiff’s injuries. The active-passive doctrine had finally been put to rest.

Historical View of the Court

After he retired from the court, Judge Bergan began to examine the history of the court. He looked at the proceedings of the Constitutional Conventions of 1846, 1867-68, and 1894, and at representative decisions in order to trace the creation and progress of the Court of Appeals from 1847, when it first began to function, to 1932, when Chief Judge Cardozo stepped down to take a seat on the Supreme Court of the United States. He records that journey in his book The History of the Court of Appeals, 1847-1932, published by Columbia University Press (1985.) The book follows in the footsteps of the court as it took shape and evolved over time. The decisions selected for review reflected the influence of contemporary life on the work of the court as well as the court’s influence on contemporary life. By examining a long span of the court’s history, the book successfully describes the growth of the law in New York as stated and interpreted in the decisions of the Court of Appeals.

The Foundation of the New York State Bar Association published a second book by Judge Bergan in 1970. Opinions and Briefs is an analysis of the judicial opinion writing standards and techniques of Chief Judge John T. Loughran. The lessons of Loughran are put forward for consideration by judges who would write better opinions and by lawyers who would write better briefs. The task for the judge is to clearly and succinctly articulate the fact or general principle that formed the basis for the decision from which the bar can predict the direction of decisional law in the future.

In addition to the two books, 46 other articles and speeches by Judge Bergan were published. They cover a wide range of subjects, however, the view that the law must continuously be responsive to the changing needs of society is a common theme in his writing.

Service to the Bar and Community

His dedication to the legal profession is reflected in 30 years of service on the Board of Editors of the New York State Bar Association Journal and chair of the judicial section. He also served on the New York State Commission on Uniform State Laws, the executive committee of the Association of Supreme Court Justices, the administrative board of the Judicial Conference, chair of the Governor’s Committee on Judicial Nominations – Third Department, member of the American Law Institute, and a lecturer at Albany Law School. In 1974, the New York State Bar Association awarded him its gold medal for Distinguished Service in the Law.

He had a deep and abiding belief in the value of public libraries. He first became a trustee of the Albany Public Library in 1938 and became president of the board in 1947. That service would extend over a span of more than 50 years. In 1960, he was an organizer and first board president of the Upper Hudson Library Federation, which enabled member libraries to share their resources thereby expanding the number of books and research materials available at every local library in the federation. He also chaired the State Commissioner of Education’s Committee on Public Library Service, and was a member of the Commissioner’s Committee on Reference and Research Library Resources. Judge Bergan’s devotion to the law and to libraries was recognized simultaneously when the law library in the Albany County Courthouse was dedicated in his name.

Additional community involvement included service as a trustee of Albany Medical Center Hospital, Albany Medical College, Union University, Albany Junior College, Dudley Observatory and the Fort Orange – Uncle Sam Council of Boy Scouts of America.

Reflections

Judge Bergan died on March 23, 1998, and is buried at St. Agnes Cemetery in Menands, New York. Associate Judge Joseph W. Bellacosa of the Court of Appeals spoke at a memorial service shortly after Judge Bergan’s death. Judge Bellacosa remembered arriving in Albany in 1975 and that Judge Bergan was one of the first to extend a warm greeting to him. Judge Bergan also provided help and advice over the years and became a true friend. Judge Bellacosa described Judge Bergan as a modest man of plain and succinct expression, who shared his many talents but never showed them off. He lauded Judge Bergan as a man of the world and of his community, who blended “a preeminent and constant purity of purpose and a perception of what the law and judges and public servants were supposed to be about – doing the right thing and serving people and the community, a simple and straightforward message and philosophy that he lived, practiced and taught.” Judge Bellacosa also recognized a sense of humanity in Judge Bergan that would enable a judge after listening to the facts to know instinctively which party was right.

Judge Bergan’s family reports that they knew him to be a scholar who lived his life with the utmost dignity and that he had great respect for the dignity and worth of others. He instinctively knew when a family member needed help or encouragement and how best to meet that need. This examination of his life as it is revealed in the written record describes the same caring person that he was in his private life. He saw the law as an instrument of public service that provided stability through the principle of stare decisis and yet was flexible enough to respond to the changing needs of the community. When the need was apparent, he instinctively knew how best to meet that need.

Progeny

Judge Bergan married Marion Wheldon on April 23, 1935. They had two children, Michael (born September 29, 1936) and William (born April 16, 1938). His son Michael is an attorney who practices law in Albany, New York. Michael married Elizabeth Mokhiber and they have three children: Marion, Michael, and John. His son William became a commercial photographer in Syracuse, New York. William married Sally Broom, and they have two children: William and Christopher. William Jr. married Dianne Gundersen, and they have two children, Samantha and Dennis.

 

This biography appears in The Judges of the New York Court of Appeals: A Biographical History, ed. Hon. Albert M. Rosenblatt (New York: Fordham University Press, 2007). It has not been updated since publication.

 

Sources Consulted

A personal journal kept by Judge Bergan from age 14 to 23 is the source of much of the information about the early years.

Various newspaper articles kept by Judge Bergan about the Constitutional Conventions of 1938 and 1967.

 

Published Writings

Books

The History of the New York Court of Appeals 1847-1932. Columbia University Press, (1985).

Opinions and Briefs: Lessons from Loughran. Foundation of the New York State Bar Association, Inc. (1970).

Articles

New York State Constitution 1938-1988; 61 New York State Bar Journal 5, 24-25 (July 1989).

The Appellate Division at Age 90: Its Conception and Birth, 1894; 57 New York State Bar Journal 1, 7-13 (January 1985).

Lawyer, Judge, Camera; 51 New York State Bar Journal 6, 458-461 (October 1979).

The Long Perspective: The New York Court of Appeals, 1847-1977; 49 New York State Bar Journal 4, 278-282, (June 1977).

History of the New York State Bar Association, A Century of Achievement; 48 New York State Bar Journal 7, 514-530 (November 1976).

Watergate and the Lawyers; 46 New York State Bar Journal 5, 384-385 (August 1974).

The Old Court and the New Law; 27 The Record of the Association of the Bar of the City of New York 1, 13-22 (January 1972).

Opinions and Briefs: Lessons from Loughran; 42 New York State Bar Journal 7, 659-661 (November 1970).

A Tribute to Charles S. Desmond, Chief Judge of the New York Court of Appeals; 42 St. John’s Law Review 1, 14-16 (July 1967).

“There Ought to be a Law” on Strikes; 39 New York State Bar Journal 1, 41-50 (February 1967).

Charles S. Desmond: An Interim Biography; 38 New York State Bar Journal 6, 476-478 (December 1966).

Perspective of a Judicial Era: Judge Desmond in the New York Court of Appeals; 15 Buffalo Law Review 2, 264-275 (Winter 1965).

Remarks to the New York State Bar Association at the Eighty-Eighth Annual Meeting on January 29, 1965; Proceedings of the Eighty-Eighth Annual Meeting and Committee Reports for 1964, 42-46.

Logic, Liberalism and the Convention of 1938: Philip Halpern’s Role; 13 Buffalo Law Review 2, 306-314 (Winter 1964).

A Thesis on Motor Vehicle Liability Without Fault; 28 Albany Law Review 2, 199-203 (June 1964).

Court Review of Administrative Decisions; 1 Unemployment Insurance Review 6, 16-17 and 32 (June 1964).

The Role of Law in Labor Relations; 49 American Bar Association Journal 7, 652-654 (July 1963), see also Labor Law Journal (CCH), 892-895 (November 1962) and Proceedings of the Sixth Annual Convention, National Association of State Labor Relations Agencies (September 12-14, 1962).

Improvement of Court Procedures for Children, Youth and Families; New York Parent-Teacher, Legislation Section, 19-20 (September 1962).

Breaking the Barriers; LI National Civic Review 2, 75-77 and 85 (February 1962).

A New Formula for Local Government; 13 International Union of Local Authorities (IULA) Quarterly 2, 113-116, (Spring/Summer 1961).

Address to the New York State Sheriffs, Association at the 27th Annual Conference on August 7-10, 1961; 112-130.

Mr. Justice Brewer: Perspective of a Century; 25 Albany Law Review 2, 191-202 (June 1961).

Public Administration and Policy Formation B A judicial View; Capital District Chapter of the American Society for Public Administration, 1960-1961 Yearbook, 25-26.

A New Constitutional Vista; County Government, 39-40 (Summer 1960).

Recommendations for Change in Courts Dealing with Children, Youth and Families; 38 New York Parent-Teacher 7, 43-44 (September 1959).

National Library Week B Wake Up and Read; 18 The Bookmark 7, 167-168 (April 1959).

On Judicial Insight: The Law Review As Beacon; 35 Brooklyn Law Review 2, 175-183 (April 1959).

Toward Realism in Treatment of Criminal Offenders; 37 New York Parent-Teacher 7, 37-40 (September 1958).

New York’s Emasculated Home Rule; Proceedings of Nassau-Suffolk Home Rule Conference, 36-42 (June 9, 1958).

The Library Trustee, A Force in Confident and Informed Democracy; 22 American Library Association (ALA) Bulletin, 323-326 (May 1958).

Findings and Report of the Commissioner of Education’s Committee on Public Library Service; 5 New York Library Association (NYLA) Bulletin 6, 73-79 (December 1957) continued 6 Ibid 1, 1-6 (February 1958).

The Lawyer’s Role in the Profession and the Community; 7 Buffalo Law Review 1, 1-6 (Fall 1957).

Report of the Commissioner of Education’s Committee on Public Library Service, Francis Bergan Chairman (1957).

Marshall, the Constitution and the Law; 20 Albany Law Review 1, 6-15 (January 1956).

The Place of the Court in a Rehabilitative Program; 1 Bulletin of the Westchester County Magistrates Association 29 (May 1954) continued 1 ibid 30 (June 1954).

The Trustee and the Public Library; 17 Iowa Library Quarterly 4, 52-53 (April 1954).

The Trustee and the Public Library; 13 the Bookmark 2, 27-28 (November 1953).

Gross Waste and Deadly Poundage: The Record on Appeal; 25 New York State Bar Bulletin 4, 251-254 (July 1953).

The Trustee Symbolizes Local Responsibility; 1 New York Library Association (NYLA) Bulletin 3, 40-41 (June 1953).

The Place of the Court in a Rehabilitative Program; Proceedings of the Frederick A. Moran Memorial Institute on Delinquency and Crime (conducted at St. Lawrence University) 87-99 (1953).

International Problems and the Responsibility of the Legal Profession; 16 Albany Law Review 1, 14-21 (January 1952).

The Place of the Court in a Rehabilitative Program; 16 Correction 10, 3-7 and 12-13 (October 1951).

Judicial Reform and the Justice Court; 9 New York State Association of Magistrates Bulletin 9, 7-8 (October B November 1950).

The Sentencing Power in Criminal Courts; 13 Albany Law Review 1, 1-9 (January 1949).

International Disorder Needs a Lawyer; 20 New York State Bar Association Bulletin 6, 307-310 (December 1948).

Evidence, Encyclopedia of Criminology; 139-146 (date not available).

 

Endnotes

1. The History of the Court of Appeals 1847-1932, Columbia University Press, 1985.
2. Opinions and Briefs, Lessons from Loughran, Foundation of the New York State Bar Association, Inc. 1970.
3. The History of the Court of Appeals at viii.
4. Leo Larkin v. G.P. Putnam’s Sons, 14 NY2 399, 403-404 (1964).
5. 55 Cornell Law Review 5, 702.
6. 91 NY2 vii-viii (1998).
7. Opinions and Briefs, Lessons from Loughran, Foundation of the New York State Bar Association, Inc. 1970.
8. Annual Memorial Service of the Albany County Bar Association, December 7, 1998, Transcript p. 24-29. See also, Judge Bergan’s Remarks on Retirement, 31NY2 vii, x (December 29, 1972).