Special Commission on the Future of the New York State Courts
Special Commission on the Future of the New York State Courts Special Commission on the Future of the New York State Courts
Division, thereby creating a broader and more diverse pool of candidates available for this court. 148 While we acknowledge and appreciate that our sitting Appellate Division judges are eminently qualified and have served our state with distinction, we believe that the expansion of the pool of candidates can only have a positive effect on the caliber of judges selected to serve in the Appellate courts in the future. While there has long been a consensus that the Appellate Division should be expanded, there has been little agreement on how to draw the boundaries for the new department. This issue is one of great political sensitivity. If the boundaries for the Fifth Department are drawn (or the boundaries from the other departments are redrawn) around a population center that has a majority concentration of voters from one or the other political party, it is possible that the judges for that department will mainly consist of judges affiliated with that political party. This obstacle has stood in the way of meaningful change to our Appellate Division structure for many decades. We do not believe that the boundaries of our Appellate Divisions should to any extent be structured around political lines. That said, we take no position on how the lines of a new Fifth Department should be drawn, other than to point out that such boundaries must achieve balance and judicial efficiency. We strongly urge the Legislature to move past the political issues and finally reach agreement on the boundaries of the Fifth Department. 149 148 We note the potential concern that this would make eligible for promotion a large number of judges who were never considered eligible for the Appellate Division when they were first elected or appointed. However, we have no reason to believe the selection system for the Appellate Division will be any less rigorous than it is now and we believe there are significant benefits to expanding the pool of candidates to a more diverse group of judges. 149 We note that past proposals have set a deadline for the Legislature to draw the boundaries for the Fifth Department. Under these proposals, if the Legislature fails to reach agreement by the deadline, OCA would be given a period of time to draw the boundaries, after which the Legislature would be given a final opportunity to offer an alternative plan of its own. We recognize, and do not oppose, the inclusion of a mechanism of this kind if there is concern that the Legislature will fail to reach agreement on this longstanding issue. A Court System for the Future, February 2007 73
The diagram below outlines the structure we have proposed for a new Supreme Court, District Court and Fifth Department of the Appellate Division. PROPOSED STRUCTURE Court of Appeals Appellate Divisions of of the Supreme Court (Five Departments) civil criminal Appellate Terms of of the Supreme Court (First and Second Departments) Supreme Court District Court Note: Town and Village Courts and direct appeals excluded. The Concept of “Merger in Place” Perhaps no issue has proven more divisive in our state than the method by which judges are selected. The debate between whether judges should be popularly elected or whether they should be appointed (often referred to as “merit selection” by supporters) has raged for many decades and has operated in the background, and sometimes the foreground, of many of the prior proposals to restructure our courts. This issue has attracted particular attention in recent years in the wake of recommendations issued by a commission chaired by John Feerick, former Dean of Fordham University School of Law, and the affirmance by the U.S. Court of Appeals for the Second Circuit of Judge John Gleeson’s January 2006 decision holding unconstitutional the current system of judicial elections, 74 A Court System for the Future, February 2007
- Page 21 and 22: igation, family-related matters or
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- Page 33 and 34: In short, when it comes to the stru
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Divisi<strong>on</strong>, <strong>the</strong>reby creating a broader and more diverse pool <strong>of</strong><br />
candidates available for this court. 148 While we acknowledge and<br />
appreciate that our sitting Appellate Divisi<strong>on</strong> judges are<br />
eminently qualified and have served our state with distincti<strong>on</strong>,<br />
we believe that <strong>the</strong> expansi<strong>on</strong> <strong>of</strong> <strong>the</strong> pool <strong>of</strong> candidates can <strong>on</strong>ly<br />
have a positive effect <strong>on</strong> <strong>the</strong> caliber <strong>of</strong> judges selected to serve in<br />
<strong>the</strong> Appellate courts in <strong>the</strong> future.<br />
While <strong>the</strong>re has l<strong>on</strong>g been a c<strong>on</strong>sensus that <strong>the</strong> Appellate<br />
Divisi<strong>on</strong> should be expanded, <strong>the</strong>re has been little agreement <strong>on</strong><br />
how to draw <strong>the</strong> boundaries for <strong>the</strong> new department. This issue<br />
is <strong>on</strong>e <strong>of</strong> great political sensitivity. If <strong>the</strong> boundaries for <strong>the</strong> Fifth<br />
Department are drawn (or <strong>the</strong> boundaries from <strong>the</strong> o<strong>the</strong>r<br />
departments are redrawn) around a populati<strong>on</strong> center that has a<br />
majority c<strong>on</strong>centrati<strong>on</strong> <strong>of</strong> voters from <strong>on</strong>e or <strong>the</strong> o<strong>the</strong>r political<br />
party, it is possible that <strong>the</strong> judges for that department will mainly<br />
c<strong>on</strong>sist <strong>of</strong> judges affiliated with that political party. This obstacle<br />
has stood in <strong>the</strong> way <strong>of</strong> meaningful change to our Appellate<br />
Divisi<strong>on</strong> structure for many decades.<br />
We do not believe that <strong>the</strong> boundaries <strong>of</strong> our Appellate<br />
Divisi<strong>on</strong>s should to any extent be structured around political lines.<br />
That said, we take no positi<strong>on</strong> <strong>on</strong> how <strong>the</strong> lines <strong>of</strong> a new Fifth<br />
Department should be drawn, o<strong>the</strong>r than to point out that such<br />
boundaries must achieve balance and judicial efficiency. We<br />
str<strong>on</strong>gly urge <strong>the</strong> Legislature to move past <strong>the</strong> political issues and<br />
finally reach agreement <strong>on</strong> <strong>the</strong> boundaries <strong>of</strong> <strong>the</strong> Fifth Department. 149<br />
148<br />
We note <strong>the</strong> potential c<strong>on</strong>cern that this would make eligible for promoti<strong>on</strong><br />
a large number <strong>of</strong> judges who were never c<strong>on</strong>sidered eligible for <strong>the</strong> Appellate<br />
Divisi<strong>on</strong> when <strong>the</strong>y were first elected or appointed. However, we have no<br />
reas<strong>on</strong> to believe <strong>the</strong> selecti<strong>on</strong> system for <strong>the</strong> Appellate Divisi<strong>on</strong> will be any less<br />
rigorous than it is now and we believe <strong>the</strong>re are significant benefits to expanding<br />
<strong>the</strong> pool <strong>of</strong> candidates to a more diverse group <strong>of</strong> judges.<br />
149<br />
We note that past proposals have set a deadline for <strong>the</strong> Legislature to<br />
draw <strong>the</strong> boundaries for <strong>the</strong> Fifth Department. Under <strong>the</strong>se proposals, if <strong>the</strong> Legislature<br />
fails to reach agreement by <strong>the</strong> deadline, OCA would be given a period <strong>of</strong><br />
time to draw <strong>the</strong> boundaries, after which <strong>the</strong> Legislature would be given a final opportunity<br />
to <strong>of</strong>fer an alternative plan <strong>of</strong> its own. We recognize, and do not oppose,<br />
<strong>the</strong> inclusi<strong>on</strong> <strong>of</strong> a mechanism <strong>of</strong> this kind if <strong>the</strong>re is c<strong>on</strong>cern that <strong>the</strong><br />
Legislature will fail to reach agreement <strong>on</strong> this l<strong>on</strong>gstanding issue.<br />
A Court System for <strong>the</strong> <strong>Future</strong>, February 2007 73
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