Commentary: Rochester’s most famous attorney – the one you never heard of

It’s “award season.” Rochester’s best lawyer – ever?The nominees are: the early lions – the Seldin brothers, Addison Gardiner? The century turners – Rodenbeck, Lewis? The “Mid-Century Names” – Harter, Secrest, Emery, Nixon, Hargrave, Harris, Beach, Keating, Woods, Oviatt? The judges – Telesca, Wesley, Larimer, Witmer, Ark, Dye, VanVoorhis, Goldman, Van Graafeiland, Geraci? The “later lions” – Vigdor, Moore, Palermo, Schraver, Faraci, Susan Robfogel? The Justice League and prosecutors – Parinello, Speranza, Cocuzzi, Siragusa, Green? 

It may be only a partial list but, nonetheless, worthy nominees all.

But, are any of their writings cited by the United States Supreme Court, more than a hundred years after they last argued a case in that court?

Were any of their treatises cited by the Second Circuit Court of Appeals as recently as two days before Christmas 2014? Or, referred to as “American legal classics?”

Did they defend Rochester’s most notorious criminal, in a trial sprinkled with stories of incest, an intervention by Frederick Douglass and Susan B. Anthony, and an eventual hanging?

Any of them serve as a prominent faculty member at not one – but two – law schools?

Any of them launch a case reporting system that changed the nature of the common law in half the country?

Any of them become prominent advocates in the debates over civil codes of procedure for New York and California or have intimate pen pals who served on the Supreme Court?

Only one Rochester lawyer can claim these credits and he’s the lawyer you never heard of: John Norton Pomeroy.

Pomeroy (pronounced Pumroy) practiced law for with the Seldin brothers in the mid-19th century, schmoozed with Martin B. Anderson, the first president of the University of Rochester; help found the “Pundit Club” of Rochester’s early intellectuals, wrote some of the nation’s leading legal treatises and helped found Hastings School of Law in California.

Pomeroy’s story is the epitome of a self-made lawyer in the rising age of lawyers during America’s transformation into a global power.

Pomeroy came from a legal family. His father, Enos Pomeroy, was a lawyer and one of the surrogate judges in Monroe County. Born in 1828, the young Pomeroy was educated at the Rochester Free Academy, the well-known “Academy Building,” a stone’s throw from the current Hall of Justice. At 15, he entered Hamilton College and after graduation returned to Rochester to teach at his alma mater.

Eventually, he trained under Rochester’s Henry R. Seldin, the future Court of Appeals judge. During that time, he argued a series of cases in the various courts, including two in the newly-christened Court of Appeals. He argued that lawyers from other states could be admitted to the New York bar – and lost. He argued that a panel of judges could decide a case, even though one member was not present for the oral argument – and won.

But, his most celebrated legal work in his early career came in his defense of Marion Ira Stout, convicted in the bludgeoning death of his brother-in-law above the upper falls in Rochester in 1857. Stout’s arrest riled Rochester. He was accused of incest with his co-defendant sister during the trial, titillating reserved Rochesterians. But, in his bungled crime, Stout left his eyeglasses at the scene of the murder and took the murder weapon back to his home.

Caught red-handed, Stout was tried, convicted and hanged within eight months, despite pleas from Douglass and Anthony to spare his life because his sister was an abused wife. Pomeroy served as his court-appointed attorney. Stout, in a famous death-bed narrative, praised Pomeroy’s defense, noting the attorney’s “versatility of talent, energy and perseverance, honorable to himself and satisfactory to me. … His entire labors were conducted in the hugest spirit of learning and liberality.”

After marriage and the commencement of the Civil War, Pomeroy headed to New York City. He could not make an income solely as an attorney, so he taught at the Kingston Academy, one of New York’s oldest schools. While there, he embarked on landmark career was a writer, penning “Introduction to Municipal Law” in 1864.

The book was warmly received, with one commentator claiming “it is the marvel of the book that such a multitude of things can, without confusion or obscurity, be stowed in so limited a space.” The book analyzed legislation related to many topics including the rights of married women, and contained a prescient discussion of the war powers of a president and the dangers of impeachment under the Constitution.

The publication triggered an appointment to then-growing faculty of what became New York University Law School, where one of his price pupils was Elihu Root, the future senator, cabinet member and Nobel Peace Prize winner.  While at the law school, he wrote a longer treatise on constitutional law, which then-Chief Justice of the Supreme Court Salmon Chase credited in the court’s decision in Texas v. White, 74 US 700 (1869), which ruled that secession by the states had been null and void. The chief justice told Pomeroy in a letter that “you have no doubt seen some traces of your thinking (on constitutional law)” in the court’s decision. In 1864, he became NYU’s Dean.

For health reasons, Pomeroy resigned from the law school and returned to Rochester in 1871 and began a long career as an author and essayist. During this time, legal education was changing. “Reading” the law – the method by which almost every trained attorney – including Pomeroy – had gained admission to the bar – was slowly disappearing. Law schools – of which less than a dozen existed before the Civil War – began to assume a greater role in the training of lawyers.

New publications based on American law commentaries eroded the monopoly created by century-old Blackstone’s Commentaries on the Laws of England and similar English texts. As legal education changed both in method and substance and acquired an American hue, Pomeroy became one of its change agents.

Technological innovations, driven in no small measure by the demands of the Civil War and continental expansion, hurried change along. The reduction of printing costs and new innovations in paper production and printing presses made publication of court decisions, American treatises and legal essays more easily available. The slow advent of typewriters during the 1870s allowed judges and authors to more easily transform their decisions into publications.

Delivery of mail by rail with the new network of nationwide tracks and home delivery of mail, inaugurated during the Civil War, sped delivery of manuscripts, books, court decisions, essays and legal publications to lawyers in every community in the country.

Pomeroy championed this transformation. After returning to Rochester, he wrote books on remedial rights in civil actions, authored more than 200 signed law review articles and commentaries – all of them written by hand, one draft, free from erasures and corrections. Oliver Wendell Holmes Jr., the editor of the American Law Review, referred to him during this time “as my most valuable contributor” and “a serious and original thinker.”

Propelled by his elevated national stature, Pomeroy left Rochester in 1878 to become a professor of municipal law at the newly-created Hastings Law School in San Francisco. While there he produced his most famous volumes: “Specific Performance” (1879) and his seminal work, “Equity Jurisprudence” (1883). No less an authority than the Harvard Law Review praised Pomeroy’s masterpiece:

The hopes of the author have undoubtedly been realized, and his clear and accurate statements of the principles of equity have been of the greatest service in preventing the degeneration of equity and the confusion of legal and equitable ideas in this country. The work has been cited and relied on by the courts in innumerable cases, and is certainly the greatest work on the subject ever produced.

While teaching, the professor maintained his practice, served as lead counsel in one of California’s earliest riparian “pollution-as-nuisance” cases and represented railroads in a case that established that corporations were “persons” under the 14th Amendment and were entitled to an opportunity to be heard before a tax was levied. He argued a federal jurisdiction case before the United States Supreme Court in 1884 – and lost.

At heart, Pomeroy was an impassioned teacher of law. In his inaugural address at Hastings, he set out a Socratic challenge:

We shall have miserably failed in our vocation as instructors, if we do not succeed in turning some minds away from the heedless race for mere gain to a love for truth, justice and equity, as they are illustrated and embodied in the living jurisprudence of the State and Nation; if we do not lead them to recognize that jurisprudence as the best exponent and stimulus of civilization; if we do not prompt them to labor for its improvement and perfection.

His prize pupil, Elihu Root, who worked with presidents, senators and cabinet members in two presidencies, confirmed Pomeroy’s abundant teaching skills:

He preached the law, he preached it as truth, a truth which he felt, thought and lived. I have never anywhere seen anyone who approached the entire and absolute devotion [to law] which ruled Professor Pomeroy’s life.

A staunch conservative, Pomeroy also played a prominent – albeit backhanded – role in the entry of women into law. Clara Foltz, California’s first woman attorney and already admitted to the bar, paid her $10 tuition fee to enroll at Hastings but on her second day at the school, was barred from entering by a janitor and later by the all-male class. Her appeal was heard by Pomeroy.

She argued the law to him, claiming the best legal minds in California assured her she had a right to attend the public law school. Pomeroy, in his Rochester nasal-accent, coldly replied: “You have no rights in the matter at all. If we have a mind to let you come, you can, but you have no right to do so.”

Foltz got the better of the aging professor: Representing herself, she sued the university and the California Supreme Court overruled Pomeroy and ordered her admission as the first female law student in the state.

Pomeroy also established long friendships with Chief Justice Salmon Chase, Justice Holmes and Supreme Court Justice Stephen J. Field and his brother, David D. Field, New York’s author of the civil procedure code known as the “Field Code.” Amid the backdrop of the codification movement in the post-Civil War period and the emergence of legislative efforts to restrict judicial discretion, Pomeroy fought the implementation of a similar “civil code” in California. Pomeroy wrote that the California Code was riddled with “uncertainty” and would require extensive judicial interpretation, which, he argued, was more in line with common law power of judges.

California’s Legislature adopted its Civil Code but less than 10 years later, the California Supreme Court agreed with Pomeroy and left its interpretation to judges, commenting that “the only method by which any certain, consistent and just results can be attained through an interpretation of the provisions of the code is by adopting and following the principle that they are, “in general, declaratory of common-law and equity rules.”

As a legal thinker, Pomeroy extolled an abiding confidence in American judges applying American common law equitable principles. His views are encapsulated in “Equity Jurisprudence:”

In those states which have carried out ‘the true spirit of the reformed procedure,’ all branches of the law are of equal dignity — the common law, statutory law, and principles of equity. The court does not so much inquire into the question as to the adequacy of a legal remedy as compared with an equitable remedy, as it inquires into the appropriateness of the relief sought. (John Norton Pomeroy, 1 Pomeroy’s Equity Jurisprudence § 358 [5th ed 1941]).

Pomeroy also contributed to the expansion of America’s common law, introducing the “primary right” theory into California law. Under California’s doctrine of res judicata, a second action is not barred even if it arises out of the same transaction or occurrence so long as there is a separate “primary right” involved. The California Supreme Court reaffirmed Pomeroy’s primary right doctrine – as a foundation for California tort law – as recently as 2010.

As a final contribution, Pomeroy started the West Coast Reporter, a forerunner of the Pacific Reporter and the earliest version of the complex multi-state reporting system that now drives legal research. He compiled cases from the Western states, organized them in a single volume, added commentaries and book reviews and published the sources. His reporter system brought changes in the legal thinking of judges into the everyday realm of legal decision-making: American precedents by western judges replaced the Blackstone-based English precedents that previously dominated American legal thinking.

Pomeroy died in 1885, but, his influence lingers. In a 2008 decision, both the majority and dissenting opinions in the U.S. Supreme Court in Sprint Communs. Co., L.P. v. APCC Servs, 554 US 269 (2008), quoted Pomeroy’s work on remedies.

A month ago, two days before Christmas 2014, the Second Circuit Court of Appeals cited Pomeroy’s “Equity Jurisprudence and Equitable Remedies” and the Ninth Circuit Court of Appeals cited the same work the week before. Courts in Alabama, Delaware, Nebraska, Ohio and Oregon cited Pomeroy’s treatise on equity during 2014.

The New York Court of Appeals cited the same work as recently as 2012 and has cited it more than 100 times since its publication. NYU Law School honored him by creating a professorship in his name that persists to this day.

Author, trial lawyer, law school dean, friend of Supreme Court justices, influential thinker, a champion for judicial discretion in applying the common law, still cited as authority more than a century after his death, a dedicated professorship at NYU Law School in his name: Not bad for a graduate of the Rochester Free Academy, Class of 1843.

The Hon. Richard A. Dollinger is a member of the New York Court of Claims and an acting Supreme Court Justice in the Seventh Judicial District.