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The Restructuring of the New York Courts: An Idea Whose Time Has Come

Mar 1998

At a time when efficiency—or rather the lack of it, in government has drawn increased public attention, consider the present realities of the New York court system:

* If, after a lengthy divorce trial in Supreme Court, a dispute arises over the custody of the children of the dissolved marriage, a second trial must be held—this time in Family Court.

* A negligence action involving as defendants the state and a private company requires two trials, one in the Court of Claims for the state defendant, and one in the Supreme Court for the private defendant.

* If a Surrogate in the Bronx becomes ill, he or she must be replaced by a Supreme or Family Court judge in the Bronx, even if a Surrogate in Westchester has time to hear the Bronx Surrogate matter.

* Although the appellate divisions hear appeals from the Court of Claims, County Court, Surrogate's Court and Family Court, judges of those courts are ineligible for promotion to the Appellate Division.

* Almost half of the intermediate appeals in New York are heard in one of the four appellate departments.

Clearly a mess! Yet, all this can change by the year 2000 if a court restructuring constitutional amendment, proposed by Chief Judge Judith S. Kaye, is enacted. The Association’s Council on Judicial Administration (Robert L. Haig, Chair), through its Task Force on Court Restructuring (Jay G. Safer, Chair), has issued a lengthy, thoughtful and well documented analysis of the Chief Judge’s plan, as well as similar ones issued by the State Senate and Assembly Judiciary Committees, and, with certain proposed important modifications, endorsed it. (The report can be obtained from the Association’s web site,

The Chief Judge’s Proposal

The essence of the Chief Judge’s plan is a two-tier court system. The Family Court, the Surrogate’s Court, the County Court and the Court of Claims would all be consolidated into the Supreme Court, where separate divisions would be established—family, probate, criminal, commercial, public claims, etc. There would also be a statewide District Court composed of the New York City Civil and Criminal Courts, the upstate City Courts, and the Long Island District Courts. In addition, the New York City Housing Court, in which 300,000 petitions were filed last year, would become a constitutional court by becoming part of the District Court.

The result would be that judicial and non-judicial personnel could be shifted based on need, not on 200-year-old jurisdictional definitions. For example, if more clerks or judges were needed in the family division they could be taken from a division that was operating at less than full capacity. In addition, disputes over where a case should be heard would come to an end.

The Chief Judge’s plan would also improve the efficiency and diversity of the intermediate appellate courts. By adding four additional courts to the Supreme Court, the pool of judges eligible for promotion to the appellate division would expand to include the judges (and their successors) of the Family, Surrogate's and County Courts, and the Court of Claims. In addition, the four-department appellate division structure, created over 100 years ago when 25% of the population (rather than 50%) lived in the Second Department, would expand to include a Fifth Department, so that work could be more evenly and efficiently divided.

Judicial Selection

Because, unfortunately, there is no consensus in the Legislature to reform judicial selection, the Chief Judge’s proposal wisely does not change how judges in the two-tier system will be selected—judges formerly elected (and their successors) will continue to be elected, judges formerly appointed (and their successors) will continue to be appointed.

However, certain aspects of judicial selection must be dealt with in the restructuring context, and it is here that the Association’s report offers most of its recommendations. Since the New York City Housing Court, by its absorption into the District Court, will become a constitutional court, it is no longer appropriate for the Chief Administrative Judge to appoint judges of that court. Instead, Judge Kaye has proposed that those judges be appointed by the Mayor, following nomination by a broad-based commission, and we suggest that a limited number of names be recommended for appointment.

In addition, to ensure that the percentage of elected judges will not increase, we have also recommended that approximately 60% of all newly-created Supreme Court judgeships be appointive, just as 60% of Acting Supreme Court Justices today reach the bench by appointment. We have also suggested that, to avoid the simultaneous departure from the Supreme Court of all the present Acting Supreme Court Justices, those judges should remain as Acting Justices during their tenure on the bench.

The Opposition

Given the present labyrinth of the New York courts, why do some people object to the proposal? Some of those opposed to restructuring are concerned that the change will adversely affect them. Perhaps lawyers who try civil cases may be concerned that the Supreme Court will become “bogged down?by its need to hear domestic and child custody disputes. Some practitioners worry that the resources of the particular court in which they practice will be stretched if court administrators can move judicial and non-judicial personnel to other venues.

It is time to put these individual concerns behind us and enact legislation that will improve the efficiency of all the courts and benefit all New Yorkers, not just those who practice in a particular court. As the Association’s report documents, study after study, many by this Association, have concluded that greater efficiency comes from fewer courts, configured in a more logical manner. Almost four million cases will be filed in the New York courts in the coming year. Those courts, many created in the 18th century, with specialized courts added in the ensuing two hundred years, represent one of the most complex, inefficient and fragmented judicial systems in the United States. Not a single change has taken place in the structure of the courts in the last 35 years; and change is clearly overdue. The Chief Judge’s court restructuring proposal, particularly with the modifications proposed by this Association, is an idea whose time has long since come. Hopefully, enactment is coming soon as well.

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