Court officials and practitioners expressed relief over Gov. Andrew Cuomo’s appointment of 10 judges to the state’s Appellate Division, with some noting that years-long appellate vacancies have triggered case backlogs and caused tremendous strain on other judges.
Attorneys reached by the New York Law Journal applauded the diversity of the appointments, which include seven women, four of whom are black. Supreme Court Justice Sharon A.M. Aarons will be the first black female justice on the Third Department bench, while Supreme Court Justice Shirley Troutman will be the second black female justice to have served on the Fourth Department bench.
However, six vacancies remain throughout the state’s Appellate Division, and the First Department still lacks a permanent presiding justice. There are three vacancies left in the First Department and one each in the Second, Third and Fourth Departments.
Some court staff reported vacancies lasting two to three years, causing backlogs of cases. Frequently, four-judge panels have been hearing cases, sometimes requiring the vouching in of a fifth judge to break a tie.
“We are pleased the governor has made these appointments because about 25 percent of the appellate seats were empty. For 98 percent of appeals filed in this state, the Appellate Division is the court of last resort,” said Dennis Hawkins, executive director of the Fund for Modern Courts.
When asked about a delay in appointing appellate judges, Frank Sobrino, a spokesman for the governor, said in an email that “the Constitution requires a certain number of judges for each of the four appellate divisions, which has always been met.”
Sobrino said additional judges are dictated by the needs of the judicial system. “Specifically, additional vacancies in the Appellate Division are filled when the screening committee successfully designates candidates as highly qualified and when there is an administrative and judicial need to fill those slots,” he said.
In the Fourth Department, one-third of the 12 seats were empty before Thursday’s appointments, including at least one vacancy stretching back to 2013.
Frances Cafarell, clerk of the court for the Appellate Division in the Fourth Department, said the appointments will help the court avoid more backlogs.
“We had to reduce the number of cases on the calendar, so that obviously pushes cases to a later term,” she said. “The longer you go with fewer numbers of judges, it makes it much more difficult to handle.”
Cafarell added that the Fourth Department justices have worked nonstop and that the newly appointed justices will start hearing cases as soon as Monday. “It will definitely be a big relief.”
Karen Peters, the presiding justice for the Appellate Division, Third Department, noted one of the court’s vacancies extended as far back as April 2012. “We really have desperately needed some assistance.”
Peters said the court has had to triage its caseload, where urgent cases, such as some criminal and family matters, have been heard first, while some commercial division cases have been put on hold.
“We are now able to hear all the cases in a timely fashion and we’re very excited,” she said.
“I think we were all looking for more diversity in the Third Department,” Peters added. “People have faith in the rule of the law, when the individuals that provide decisions reflect the community they serve.”
Since October 2015, the First Department has vouched in a fifth justice in six cases as a result of a 2-2 split, according to the clerk of the court.
“Four-judge panels have become the norm,” Justice David Saxe has said. By tradition, the First Department justices have used panels of five to avoid the possibility of tie votes, which require an additional justice to break the deadlock.
Acting First Department Presiding Judge Peter Tom said he was “delighted the governor appointed such a qualified group.”
Lawyers who regularly practice before the First Department were generally pleased with the appointments but said the bench needs more judges with experience in complex commercial cases. They also expressed concern about the other three vacancies in the First Department.
Simpson Thacher & Bartlett partner Roy Reardon, who writes a column for the Law Journal, said the appointees were “very impressive” but pointed out the First Department receives 80 new appeals a week.
A prominent appellate practitioner who declined to be identified suggested the court would be better able to handle commercial appeals if more members of the bench had Commercial Division backgrounds. “We hear that companies may be preferring the Delaware Chancery court or the Southern District to bring their cases,” the practitioner said.
Carol Sigmond, president of the New York County Lawyers Association and a partner at Cohen Seglias Pallas Greenhall & Furman, said NYCLA was pleased with the governor’s selection of “well-qualified judges” and, “we are optimistic he will fill the remaining vacancies with equally well-qualified candidates, including one or more with commercial experience.”
In the Appellate Division, Second Department, Presiding Justice Randall Eng said that one of the seats filled by the governor has been vacant for more than two years, and the second has been vacant for about a year and a half.
For decades, the court has used four-justice panels. Eng said the addition of two new justices will give the court more flexibility and allow justices more time to catch up on writing and research. He said it also will give it a chance to reduce its backlog, which has accumulated to a point that some cases are being calendared more than one year after perfection.
“When we have a full complement of judges we can address these things more systematically instead of having to address the crisis of the moment,” Eng said.
Debra Raskin, president of the New York City Bar Association and a partner at Vladeck, Raskin & Clark, said she was thrilled about the appointments. “We’re hoping he fills the rest of the seats,” including picking a presiding justice in the First Department.
David Miranda, president of the New York State Bar Association and a partner at Heslin Rothenberg Farley & Mesiti, said, “This is great movement in the right direction, and naturally it’s important that all the positions be filled, but this is great progress.”
Newly-appointed appellate judges said in interviews they were grateful to be selected and pointed to the long and wide-ranging experiences in the trials courts to help them in their new positions.
Justice Ellen Gesmer said she expects the work on the First Department to be “more intellectually challenging. I will have to persuade and be persuaded by colleagues in reaching decisions, whereas in the trial court, you run your own ship.”
Justice Marcy Kahn said she was “tremendously honored to have been designated to serve on this bench, which I have always viewed as the preeminent intermediate appeals court in the nation.”
Justice Troy Webber said, “I just finished my last calendar call as a trial court judge,” calling it bittersweet. “I will miss the courtroom interactions but look forward to serving with such outstanding judges.”
Kahn and Webber also were appointed in the First Department.
Aarons, who serves in the Bronx and lives in Westchester County, said she plans to commute to Albany, just as several other appellate judges do. She said she was “deeply humbled and grateful” to serve on the Third Department bench.
“I may be the first black to be selected,” Aarons said, but “I’m sure I’m not the first qualified.”
Robert Mulvey, the other appointment in the Third Department, said he was proud to be the first judge from Tompkins County to have the assignment. He said knows the Third Department is “very busy and I’m sure they could use help.”
Justice John Curran, who was named in the Fourth Department, said he has been on the trial bench for about 12 years, “so this is a perfect complement.”
Patrick NeMoyer, a former U.S. attorney in the Western District of New York, said he has served 19 years on the trial level and “it will be exciting to do something new” as a Fourth Department justice. NeMoyer said he was told on Friday to pick up briefs and arguments to read over the weekend.
Troutman, also appointed to the Fourth Department, said the appellate court position “is an important responsibility that I don’t take lightly.”