On Election Day, New Yorkers have the opportunity to modernize our outdated state Constitution by voting “yes” for a constitutional convention.
A commission appointed by the former state Chief Judge Judith Kaye once called the state judiciary one of “the most archaic and bizarrely convoluted court structures in the country.”
Let me explain why.
Certain domestic violence cases have to be heard in three courts simultaneously, with each court authorized to decide a piece of the entire case. It is difficult enough to take time away from work, childcare and other responsibilities just to appear in one court. It is outrageously burdensome to appear in multiple courts during an emotionally stressful time.
If you or a loved one is injured in an automobile accident involving a state vehicle or a defect on a state highway or in a state-run hospital as the result of medical malpractice, separate cases must be filed in state Supreme Court and the Court of Claims. There is also no consistency to the damage awards in these courts for the same negligence.
The state’s 11 trial courts should be reorganized and consolidated into just two—Supreme Court and District Court. This would promote efficiency and cost savings, plus afford better access to the courts for the people of New York, thereby enhancing public trust and confidence in our justice system.
Additionally, a Fifth Judicial Department could be created. Since 1894, the state Constitution has provided for four departments, which make up the Unified Court System, and the geographic region covered by each. As a consequence, there is no way to address the major population changes that have occurred.
For example, the Second Department, in Brooklyn, geographically covers only a small percentage of New York’s land mass, but more than half of the state’s population. The volume of cases it handles is enormous. In 2015, it handled 11,600 appeals, compared with the 6,340 in the other three departments combined.
As an alternative to creating a Fifth Department to better balance the caseloads allocated to the four Departments, a Constitutional Convention could decide instead to realign the Judicial Districts that are assigned to the four Departments.
Also, the method by which judges in this state are selected sends conflicting messages to the public and needs to be reformed. Some judges are elected, others appointed.
For instance, judges of the Court of Appeals, Appellate Divisions of the Supreme Court, the Court of Claims and New York City Criminal and Family Court judges are all appointed. Meanwhile, judges of the Supreme Court, County Courts, Surrogate’s Court, Family Court outside New York City, District Courts, New York City Civil Court, and many of the justices in towns and villages outside New York City are all elected.
The Association supports a plan to provide a commission-based selection of nominees that would be confirmed by the appropriate legislative body. This process—similar to the method of selection judges for the Court of Appeals—would enable appointing authorities to focus on the competence, temperament and integrity of those seeking to become judges.
Our state Legislature has had many opportunities over the past 50 years to fix these obvious flaws in the court system but has failed to do so. A constitutional convention provides that opportunity.
A constitutional convention also gives New Yorkers a chance to fix our outdated voting system. New York lags far behind other states that have already implemented reforms like early voting, online voter registration, absentee voting without limits and Election Day registration. This would make it easier for state residents to vote and increase New York’s notoriously low voter turnouts. Just 57 percent of eligible New York voters cast their ballot last November.
Other areas of government also could be reformed during a constitutional convention such as issues that can arise between our state and local governments, often referred to as the “home rule.” The current Constitution allows the state to place unfunded mandates on municipalities and prevents a city from enacting certain regulations or taxes.
You will hear opponents worry that a convention could cost taxpayers hundreds of millions of dollars. Though untrue, taxpayers could more than recover the cost just by implementing the aforementioned court reforms.
Opponents will further try to scare voters into believing their hard-earned rights could be taken away during a constitutional convention. This is also false.
Rights have never been removed at a Constitutional Convention. Most of the rights in our Constitution that we hold so dear stem from prior conventions, including the Forever Wild Clause in 1894 and the Aid to the Needy clause and Labor Bill of Rights from 1938.
Keep in mind that in the end, the will of the electorate would prevail. Whatever is proposed at a convention cannot go into effect without the approval of voters in 2019.
New Yorkers have a once-in-a-generation chance to move the state into the 21st Century by modernizing our Constitution, which in turn could fix our broken court and voting systems. I urge you to vote “yes” at the polls on Election Day, Nov. 7.
Sharon Stern Gerstman is president of the New York State Bar Association. She is counsel to the Buffalo law firm of Magavern Magavern Grimm LLP.