Preserving the Past, Informing the Future
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Justice Leo Parskey came to the bench in 1965, twenty years ago, after having served his country in the army air force during the second World War and after having thereafter undertaken a variety of positions of responsibility and leadership in state and local government. He sat on the Superior Court and on its Appellate Session from 1965 to 1980, and for the last five years he has been an Associate Justice of this court. Upon reaching the mandatory age of retirement on the twenty-second of this month, he will become a constitutional state trial referee.
During his twenty years on the bench, Justice Parskey has written more than two hundred judicial opinions of which more than two thirds represent the opinion of the Supreme Court of this state. This is an impressive record of a long career devoted to public service. But the statistics alone, although they constitute an admirable, objective measure of achievement, do not record the more important subjective standard by which performance as a judge can be measured. Let me take this opportunity to state what everyone knows who has ever had the good fortune to meet Justice Parskey.
Justice Parskey is the very model of a judge. He exemplifies the qualities of learning and wisdom and commitment to which every good judge aspires. As a trial court judge, as a member of the Appellate Session, as a member of this court, he has left his mark on the development of the law and that mark is the mark of excellence.
I have time to allude only briefly to the myriad of subjects that Justice Parskey's opinions have addressed with scholarly care. Before he joined this court, he wrote eloquently about the relationship between plea bargains and the right to insist on a jury trial, and about the limitations that a pluralistic, democratic society can constitutionally impose on inflammatory speech. In this court, he has written for the majority on important civil cases concerning legal ethics, housing for the poor, the budgetary authority of local government officials and the constitutionality of state benefit plans for state employees. On the criminal side, he has written landmark opinions on the constitutional requirements for a jury array, on the role of statutes of limitations in criminal proceedings, on investigative grand juries, on the admissibility of confessions and the law of criminal contempt. In significant criminal cases of recent months, he has reminded us of the distinction between inadvertent prosecutorial oversight which is often remediable and deliberate prosecutorial misconduct that may fundamentally undermine a defendant's constitutional right to a fair trial.
Justice Parskey's opinions, like those of any judge of independent mind, have occasionally been controversial, as in the last two instances to which I have just referred, but Justice Parskey has played an enormously important collegial role on our Supreme Court. This court shares a commitment to having its opinions represent, whenever possible, the views of the court as a whole rather than those of individual justices. Time and again, Justice Parskey has found a way to bridge disagreements, to reshape draft opinions, his own and those of others, in order to narrow rather than to exacerbate the conflicts that naturally arise out of the conscientious pursuit of legitimate but conflicting goals. We have all been enriched by his unparalleled knowledge of our case law and by his indefatigable curiosity about new ideas and developments elsewhere. At the same time, Justice Parskey's decisions reflect not only his intellectual rigor but also his sensitivity to the concerns of all litigants and his commitment to forging flexible solutions to difficult problems.
I cannot conclude these brief remarks concerning Justice Parskey's prodigious contributions to the development of the law without adverting, at least briefly, to one other notable aspect of his judicial career, his felicity of expression.
Justice Parskey's opinions have enriched the pages of the law reports by innumerable, highly quotable observations about the law. For example, Justice Parskey has written memorably about the limits of appellate review. Thus, when the appellate issue is review of a trial court's exercise of discretion, he has taught us "to eschew working the vineyard and instead to prune the occasional excrescence." When litigants seek to broaden appellate review by constitutional allusions, he has reminded us that "putting a constitutional tag on a nonconstitutional claim will no more change its character than calling a bull a cow will change its gender." Even genuinely constitutional claims, he has taught us, have their limitations. "Due process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record." Finally, as a bulwark against the temptation to proffer judicial advice on inappropriate record, he has urged us to acknowledge that "appellate review is not designed either to answer academic inquiries or to float trial balloons." His words will surely delight and educate future generations of lawyers and judges.
It is fortunate for all of us that Justice Parskey's mandatory retirement, when in a few weeks he reaches the age of seventy, will by no means deprive us of the benefit of his wisdom, his good humor, his good sense and his profound dedication to the pursuit of justice. As a trial referee Justice Parskey will still hear cases, write opinions and assist in the disposition of appeals, but on his own schedule with more time to spend with his family. I hope that this arrangement is one that he will find entirely congenial. For myself and the entire judicial department, let me add that we are immensely reassured that Justice Parskey will continue for many years to come to serve the cause of justice in this state and to do so splendidly.