February 16, 2017: Simplifying State's Court System Is 'Ripe' Topic For Possible Constitutional Convention, Says State Bar

Whether New Yorkers are seeking a divorce and child support, challenging a speeding ticket, resolving a business dispute or serving on a jury, they must negotiate a complex and often baffling state court system.

It is so complicated that Article VI of state Constitution requires more than 16,000 words to describe it. In contrast, the Judiciary Article of the U.S. Constitution is only 375 words.

"Whether you are for a state Constitutional Convention or against it, all can agree that New Yorkers would benefit from a thorough reconsideration of Article VI and potential reforms that would improve and simplify it," said Henry M. Greenberg of Albany (Greenberg Traurig), chair of the New York State Bar Association's Committee on the New York State Constitution.

The State Bar Association today issued the committee's report, "The Judiciary Article of the New York State Constitution: Opportunities to Restructure and Modernize the New York Courts." It suggests that restructuring the Judiciary might be a matter for a constitutional convention to consider.

"The potential to simplify the state's court system, promote access to justice and reduce unnecessary costs and inefficiencies make the issue of court consolidation one that is ripe for consideration at a constitutional convention, should voters choose to hold one," the report says. New York voters will decide on November 7, 2017 whether to approve a convention.

The House of Delegates of the State Bar Association approved the report on January 27, 2017.

New York State Bar Association President Claire P. Gutekunst noted that voters will decide in nine months whether to hold a convention. "Our thoughtful Judiciary report spotlights issues that a possible constitutional convention might consider."

The report was drafted by Subcommittee on the Judiciary Article, which is chaired by former Association President Stephen P. Younger of New York City (Patterson Belknap).

"New York has 11 different trial-level courts, far more than any other state in the nation. This outmoded court structure is frozen in place by our state's current Constitution," said Younger. "A constitutional convention would offer a unique opportunity to re-design and simplify the court structure."

The report takes no position on holding a convention. Instead, it is intended to educate the public and policymakers about potential issues a convention might address. For research purposes, it cites court restructuring reports by the Association and other groups, issued during the past 50 years.

In addition to court reorganization, the report on Article VI, known as the Judiciary Article, identifies a dozen other possible topics that a convention might examine, including: creation of a Fifth Department of the Appellate Division, appointment or election of judges, judicial retirement age, Family Court jurisdiction and trimming verbose and archaic provisions.

New York's Court Structure

New York established its Unified Court System in the 1960s.

"Despite its name, the Unified Court System is anything but-with its patchwork quilt of 11 different trial-level courts and multiple levels of appellate courts," says the report, adding that New York has the most complex court system in the United States, with resulting costs and inefficiency.

An 1894 amendment to the state Constitution created four Appellate Divisions of the state Supreme Court. It barred the Legislature from adding more departments. Despite population growth in New York City and its suburbs over 113 years, the number of departments remains capped at four.

In 2015, there were 11,600 civil and criminal appeals filed in the Appellate Division, Second Department (which comprises Dutchess, Kings, Nassau, Orange, Putnam, Queens, Richmond, Rockland, Suffolk and Westchester counties) while only 3,072 filed in the First Department (Bronx and New York counties). "The Second Department's 11,600 combined appeals stands out when compared to the 6,340 total appeals in all of the three other Departments combined," the report states.

Over the years, there have been proposals to relieve the Second Department caseload by establishing a Fifth Department. Another proposal would redistribute the caseloads among the existing four departments by realigning the Judicial Districts among the departments. Both solutions would require amending the Constitution.

"While political complications have left this issue unresolved for many years," observes the report, "it is one that could be addressed at a constitutional convention as part an overall court restructuring effort. History has shown that judicial restructurings have been tackled successfully at previous constitutional conventions and that a convention could provide an opportunity to address what has long been an intractable issue."

Amending the state Constitution through a constitutional convention does not involve the Legislature or governor. Instead, it requires a series of decisions by New York voters. (1) They first must decide whether to hold a convention; (2) if they authorize a convention, they later must elect delegates; and (3) if the convention proposes amendments, statewide voters must say "yes" to enshrine any changes any in the state Constitution. They have the last word.

Roster of "ripe" issues

While not meant as a definitive list, the 70-page report on the Judiciary Article identifies more than a dozen issues that the committee considers to be ripe for consideration at a constitutional convention. They include:

1. Court reorganization.

2. Creation of a Fifth Department.

3. Selection of judges (appointive and elective systems).

4. Judicial retirement age.

5. Limited number of Supreme Court justices.

6. Status of New York City Housing Court judges.

7. Terms of trial-level courts.

8. Family Court jurisdiction.

9. Town and Village Justice Courts.

10. Court budgets.

11. Commission on Judicial Conduct.

12. Participation of judges at a Constitutional Convention.

13. Length, style and outdated portions of the Judiciary Article.

A copy of the report, "The Judiciary Article of the New York State Constitution: Opportunities to Restructure and Modernize the New York Courts," is available at: www.nysba.org/judiciaryreport2017.

Additional information about NYS Constitution

The committee's previous reports examine the need for a nonpartisan commission to prepare for the 2017 referendum (www.nysba.org/nysconstitutionreport); the "Home Rule" provision, which deals with relative powers of the state and local governments (www.nysba.org/homerulereport); and the Conservation Article, which includes the "forever wild" provision and what has been called a conservation bill of rights (www.nysba.org/ArticleXIVreport).

The New York State Bar Association recently published a 400-page book called Making a Modern Constitution: The Prospects for Constitutional Reform in New York. To download a free digital copy or purchase a paper copy, go to: www.nysba.org/ConConBook/.

The 72,000-member New York State Bar Association is the largest voluntary state bar association in the nation. It was founded in 1876.

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Contact: Lise Bang-Jensen
Director of Media Services & Public Affairs
lbang-jensen@nysba.org
518/487-5530